McLish v. State

916 S.W.2d 27, 1995 WL 737330

• Court: Court of Appeals of Texas
• Decided: January 18, 1996
• Docket: 01-95-00226-CR
• Status: Published

Opinions

OPINION

COHEN, Justice.

After the trial court denied appellant’s motion to suppress evidence, appellant entered a plea of no contest with an agreed recommendation on punishment of five years in prison, probated, and a $750 fine. The trial court rendered a judgment on the plea and the agreed recommendation on punishment.

In points of error one and two, appellant contends the trial court erred by denying his pretrial motion to suppress evidence. The State argues that this Court does not have jurisdiction to address these points because appellant filed a general notice of appeal that did not comply with the requirements of Tex.R.AppP. 40(b)(1).

If a defendant pleads guilty or nolo conten-dere and the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, the defendant must state in the notice of appeal that he has either obtained the trial court’s permission to appeal the nonjurisdictional defects or that those nonjurisdictional defects have been raised by written motion and ruled on by the trial court. Tex.R.App.P. 40(b)(1); Lyon v. State, 872 S.W.2d 732, 736 (Tex.Crim.App.), cert. denied, — U.S. -, 114 S.Ct. 2684, 129 L.Ed.2d 816 (1994).¹

The trial court rendered judgment on appellant’s plea of no contest and assessed the recommended punishment. Appellant’s notice of appeal did not specify that he was appealing matters raised by a written motion that was ruled on before trial. The general notice is insufficient to confer jurisdiction on us to review the trial court’s ruling on the motion to suppress. Davis, 870 S.W.2d at 46; Forcha v. State, 894 S.W.2d 506, 508 (Tex.App.—Houston [1st Dist.] 1995, no pet.).²

We overrule points of error one and two.

In point of error three, appellant contends his plea of no contest was jurisdiction-ally defective. He argues that his plea was not voluntarily and knowingly made because he entered his plea with the expectation that he could appeal the denial of his motion to suppress.

When appellant entered his plea of no contest, he had the right to appeal. It was only after he voluntarily entered his plea that he lost his right to appeal his pretrial motion by filing a defective notice of appeal. Forcha, 894 S.W.2d at 509-10. As we stated in Foreha, “This subsequent defect could not retroactively render his previously voluntary plea involuntary.” Id. at 510. Appellant’s plea was voluntary because it was not made under a misunderstanding of his right to appeal. Id.

Appellant relies on several cases to support his position. Shallhorn v. State, 732 S.W.2d 636, 637 (Tex.Crim.App.1987); Broddus v. State, 693 S.W.2d 459, 461 (Tex.Crim.App.1985); Christal v. State, 692 S.W.2d 656, 658 (Tex.Crim.App.1981); Mooney v. State, 615 S.W.2d 776, 778 (Tex.Crim.App.1981); Wooten v. State, 612 S.W.2d 561, 563 (Tex.Crim.App.1981). However, these cases are all distinguishable. In each, the defendants pled guilty or no contest without a plea agreement after they were erroneously told they could appeal pretrial motions. At the time the defendants entered their pleas, they did not have the right to appeal; therefore, the pleas were involuntary. Foreha, 894 S.W.2d at 510.

Here, appellant was advised when he entered his plea that he had the right to appeal and in fact, he then had the right to appeal. Therefore, his plea was voluntarily made. Id.

We overrule point of error three.

We affirm the trial court’s judgment.

1 . The author and others on this Court have severely criticized the rule in Lyon and Davis v. State, 870 S.W.2d 43, 46 (Tex.Crim.App.1994). See e.g. Moreno v. State, 866 S.W.2d 660, 663-64 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd) (en banc) (Cohen, J., dissenting). Nevertheless, we are bound to follow it.

2 . We note the docket sheet shows appellant gave notice of appeal as to his motion to suppress. However, a general notice of appeal coupled with such a docket sheet entry is insufficient. Greatsinger v. State, 881 S.W.2d 18, 20 (Tex.App.—Houston [1st Dist.] 1994, pet. ref’d). If the docket sheet had been signed by the judge and met the requirements of rule 40(b)(1), the general notice would be sufficient. See Flores v. State, 888 S.W.2d 193, 196 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd).