Dorsey v. State

713 S.W.2d 431, 1986 Tex. App. LEXIS 8144
CourtCourt of Appeals of Texas
DecidedJuly 31, 1986
DocketNo. 2-85-168-CR
StatusPublished

This text of 713 S.W.2d 431 (Dorsey v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dorsey v. State, 713 S.W.2d 431, 1986 Tex. App. LEXIS 8144 (Tex. Ct. App. 1986).

Opinion

OPINION

BURDOCK, Justice.

Appellant, Curtis Keith Dorsey, was convicted upon a plea of guilty of aggravated manufacture of amphetamine and sentenced to twelve years confinement. See TEX. REV. CIV. STAT. ANN. art. 4476-15, sec. 4.032(c) and (d)(2) (Vernon Supp.1986).

[432]*432We affirm.

By two grounds of error, appellant contends the trial court erred in overruling, his motion to suppress evidence due to the reason that the affidavit in support of the search warrant was insufficient to support a finding of probable cause under (1) U.S. CONST, amends. IV and XIV, and (2) TEX. CONST, art. I, sec. 9.

Initially, we will consider the State’s contention that appellant has failed to perfect his right to appeal. TEX. CODE CRIM. PROC. ANN. art. 44.02 (Vernon 1979) provides that when a defendant has been convicted upon a plea of guilty, he may nevertheless appeal such conviction when the court assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney.

The statute places a burden on one who would appeal from a negotiated proceeding before the court to make manifest upon the record the following requisites in order to invoke the jurisdiction of the appellate court under the proviso: (1) existence of a plea bargaining agreement with the State; (2) punishment assessed by the trial court at or within that recommended by the prosecutor and agreed to personally by the defendant; (3) the basis of the appellate ground of error has been presented in writing, pretrial, to the trial court for consideration, or the trial court has given permission to pursue an appeal in general or upon specific contentions. Galitz v. State, 617 S.W.2d 949, 951-52 (Tex.Crim.App.1981) (en banc).

The State contends that appellant failed to meet his burden to show that he personally agreed to the punishment recommended by the prosecutor. The record pertinent to a determination of whether appellant met this burden is set out as follows:

THE COURT: Mr. Dorsey, to the indictment you may plead guilty or not guilty, how do you plead?
MR. DORSEY: Guilty.
THE COURT: Now, do you both understand upon your plea of guilty I am going to have to find you guilty and I’m going to have to assess your punishment in this case somewhere within a range of not less than ten nor more than ninety-nine years or life in the penitentiary, and in addition to that, I could assess a fine not to exceed a Hundred Thousand Dollars. ... Do you understand the range of punishment in your case Mr. Dorsey?
[MR. DORSEY:] Yes, sir.
THE COURT: Do you both understand that any agreement that’s been reached between you, your lawyers and lawyer for the State is not binding on me and I could reject any recommendation that the State might make in either of your two cases and assess your punishment anywhere within the full range I have just outlined to you. Do you both understand that?
MR. HOOPER [Co-defendant]: Yes, sir.
MR. DORSEY: Yes, sir.
THE COURT: Do you understand if the State makes a recommendation in this case and I reject it that is I assess your punishment at more than the State’s recommendation you could have your lawyers file a Motion for New Trial, I would grant it, and we would start all over again. Do you each one understand that?
MR. HOOPER: Yes, sir.
MR. DORSEY: Yes, sir.

After admonishing appellant and his co-defendant concerning their guilty pleas, the trial judge continued:

THE COURT:. I’m going to accept your plea of guilty, Mr. Hooper, and I’ll accept your plea of guilty, Mr. Dorsey.
THE COURT: Let’s hear from the State.
MR. BLANKENSHIP: The State in return for the plea of guilty by both defendants would recommend a sentence of twelve years in the Texas Department of Corrections.

Whereupon, the stipulated evidence was read into the record and the court pronounced judgment:

[433]*433Do either of you have any good and lawful reason why I should not pronounce sentence at this time? I’ll ask you first Mr. Hooper?
MR. HOOPER: No, sir.
THE COURT: I’ll ask you next, Mr. Dorsey?
MR. DORSEY: No, sir.
THE COURT: ... Mr. Dorsey, having pronounced your sentence at twelve years confinement in the Texas Department of Corrections and you having had no good and lawful reason why I should not assess sentence at this time it is the order, judgment and decree of this Court that you be remanded to the custody of the Sheriff of Tarrant County to be transported to the Texas Department of Corrections at Huntsville, Texas there to serve twelve years in the State Penitentiary.

The record in the instant case reveals that the prosecutor recommended a certain punishment, that the recommendation was followed by the court, and that the basis of appellant’s ground of error was presented, pretrial and in writing, to the court. There is some question, however, whether the record is sufficient to show that the recommended punishment had been agreed upon by appellant.

Inasmuch as the trial judge referred to “any agreement that’s been reached between you [appellant], your lawyers and lawyer for the State,” there is some indication that the punishment recommended and assessed by the court was personally agreed to by appellant. Further, appellant was given an opportunity after the State’s recommendation and before punishment was assessed, to give any “good and lawful” reason why the judge should not at that time pronounce sentence. In the absence of any objection by appellant and by inference from the record as a whole, we hold the record is sufficient to show appellant agreed to the sentence recommended and assessed.

Accordingly, we have reviewed the record in order to determine whether the affidavit was sufficient to support a finding of probable cause under the federal and state constitutions. The thrust of appellant’s argument in this regard is that the informant’s tip did not meet the requirements of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) for establishing probable cause. The State counters that the informant's tip was not the sole basis relied upon to establish probable cause to issue the search warrant; it was used to set up surveillance at appellant’s residence, for which probable cause was not required.

The affidavit used to support the issuance of the search warrant is set out as follows:

My name is M.E. Shaw and I am a peace officer with the City of Grand Prairie, assigned to the Greater Dallas Area Organized Crime Task Force, with the res-ponsib[i]lities of investigations involving narcotic trafficking and clandestine laboratory operations.

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Related

Illinois v. Gates
462 U.S. 213 (Supreme Court, 1983)
Galitz v. State
617 S.W.2d 949 (Court of Criminal Appeals of Texas, 1981)
Correll v. State
696 S.W.2d 297 (Court of Appeals of Texas, 1985)
Layton v. State
625 S.W.2d 837 (Court of Appeals of Texas, 1981)

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Bluebook (online)
713 S.W.2d 431, 1986 Tex. App. LEXIS 8144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dorsey-v-state-texapp-1986.