In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00580-CR ____________________
NOEL SOLIS-CASERES, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 12-10-10613 CR ________________________________________________________ _____________
MEMORANDUM OPINION
Oscar Pavon died during the early morning hours of October 7, 2012, as a
result of multiple gunshot wounds. Appellant Noel Solis-Caseres (Noel) was
indicted for the murder of Pavon.
Noel initially pleaded “not guilty,” but on the third day of his jury trial he
changed his plea to “guilty.” The trial court found Noel guilty of murder and
ordered a pre-sentencing investigation prior to the punishment hearing. At the
1 conclusion of the punishment hearing, the trial court sentenced Noel to life in
prison. The trial court then stated on the record that the trial court certification
would be reformed to reflect: “It is not a plea bargain case and the defendant has
the right of appeal as to punishment only.” Noel filed a notice of appeal.
On appeal Noel raises two appellate issues. First, Noel argues “[t]he trial
court erred in limiting [his] right of appeal only to errors in the punishment
proceedings.” Second, he argues that “[t]he trial court erred in refusing to hear
Appellant’s Motion to Suppress filed on November 4, 2014 as being untimely filed
in violation of Article 28.01[.]” We affirm.
UNDERLYING FACTS
Motions to Suppress
Noel filed two motions to suppress. In his first motion to suppress, filed on
July 17, 2013 (first motion to suppress), he requested that the trial court suppress
statements “made by Noel Solis-Caseres [that] were involuntary and were coerced
and enticed” from him, statements “tainted by the illegal and unlawful detention
and arrest,” and statements made by him that “were taken without the safeguards
required by and in violation of Article 38.22 of the Code of Criminal Procedure[,]”
arguing that any use of such statements violated his rights pursuant to the “Fourth,
Fifth, Sixth, and Fourteenth Amendments . . . and Article[s] 1.05 and 38.23 of the
2 Texas Code of Criminal Procedure.” The reporter’s record reflects that the trial
court granted in part and denied in part the first motion to suppress. See infra p. 4.
On November 4, 2013, which was the first day of trial, Noel filed a second
motion to suppress styled as, “Motion to Suppress Physical Evidence and
Statements” (second motion to suppress), wherein he argued that the actions of
officers from the Houston Police Department and the Conroe Police Department
violated his rights, and he sought suppression of “[a]ny statements obtained from
Noel Solis-Caseres in violation of Article 38.22 . . . and in violation of the rights of
Noel Solis-Caseres[,]” under the United States Constitution and Texas Constitution
as well as “[a]ny tangible evidence seized in connection with this case, including
but not limited to the handgun, ammunition clips, bullets, a T-shirt and a
[S]tyrofoam cup, all found in a bag in a dumpster in the City of Houston . . .
[because] such tangible evidence was found and seized as a result of the unlawful
custodial interrogation of Defendant . . . and is therefore inadmissible as ‘fruit of
the poisonous tree[,]’ flowing from said unlawful interrogation.”
The jury was impaneled, selected, sworn, and then released for the day with
instructions to return the following day. After the jury was released for the day,
Noel notified the trial court that he wanted to proceed to have the trial court hear
both of his motions to suppress. The trial court ruled that the second motion to
3 suppress was untimely, but it allowed Noel to proceed with a hearing on the first
motion to suppress, stating as follows:
THE COURT: I’m going to rule that your motion to suppress physical evidence is not timely. But your motion to suppress the statements that was filed back in July is timely. So you can proceed on that one. And, of course, if you want to make a record with regard to the November 4th motion to suppress, I’ll certainly let you do that as well.
[DEFENSE ATTORNEY]: All right. Very good. Yes, we would like to do that, Judge.
THE COURT: Okay. But understand I’m not going to consider your making a record for appellate purposes in the body of evidence in this case.
[DEFENSE ATTORNEY]: I understand.
Motion to Suppress Hearing
The first witness to testify at the suppression hearing was Officer John Bond,
an officer with the Houston Police Department. He explained that on October 8,
2012, he was working at the desk behind the glassed-in area of the Gulfton
Storefront police substation in Houston. According to Officer Bond, Noel walked
in and wanted to speak with someone who spoke Spanish. Officer Bond spoke a
little Spanish, and he asked Noel “what he wanted -- ‘Que pasa’ -- in Spanish” and
Noel held his finger out in a gesture like a gun (with his index finger extended and
thumb pointing upward) and stated, “Conroe.” Officer Bond called his partner,
4 Officer Daniel Mendoza, for assistance. At the hearing, Officer Bond explained
that at this point Noel was free to leave the substation and Noel was not in
handcuffs. Officer Bond then obtained identification from Noel and confirmed that
a warrant had been issued for Noel’s arrest in Conroe. Officer Bond testified that
once he learned there was an arrest warrant out for Noel, and upon the arrival of
Officer Mendoza, Noel was then handcuffed and searched. Officer Bond called the
homicide division. While waiting for the Conroe Police Department to respond,
Officer Bond did not attempt to read Noel his rights or interrogate Noel, and Noel
did not ask for an attorney or try to invoke his right to remain silent.
Officer Mendoza with the Houston Police Department also testified at the
hearing. Officer Mendoza stated that he responded to Officer Bond’s call for
assistance, and upon Officer Mendoza’s arrival to the substation, Noel was in the
waiting area and he was not handcuffed. After Officer Bond informed Officer
Mendoza that there was a murder warrant for Noel, Officer Mendoza handcuffed
Noel. Officer Mendoza testified that “because [Noel] mentioned the gun, that he
had shot somebody[,]” because of the murder warrant, and also due to Officer
Mendoza’s concern that there may be a weapon involved in the case, Officer
Mendoza searched Noel. After finding no weapon on Noel, and before anyone read
a Miranda warning to Noel, Officer Mendoza asked Noel where the gun was
5 located. Noel told Officer Mendoza that he had thrown it in a dumpster at an
apartment complex. Officer Mendoza testified that he asked Noel questions
regarding the gun’s location because he “want[ed] to secure the weapon, secure
evidence,” and because “kids could get it, someone could be hurt.” Officer
Mendoza explained that the apartment complex where Noel said he disposed of the
gun housed many children and there was a school and another apartment complex
in close proximity. According to Officer Mendoza, he did not ask Noel any
questions about the murder.
When the officers from the Conroe Police Department arrived, Officer
Mendoza told them that Noel had a warrant and that Noel told Mendoza that he
knew where the gun was located. The Conroe officers asked Mendoza to talk to
Noel and find out if Noel would take them to the gun. Officer Mendoza then asked
Noel to take them to the gun and Noel agreed to do so. Noel directed Officers
Mendoza and Bond to the gun’s location. Officer Mendoza testified that other than
the statements about the location of the gun, the only other statements Noel made
at that point were not in response to any questioning, and Noel told Officer
Mendoza that he did what he did because someone was trying to kill him. Once the
gun was located, the Conroe Police Department took control over the matter.
6 Detective Jason Waller with the Conroe Police Department, the officer who
had originally issued the murder warrant for Noel, also testified at the suppression
hearing. Detective Waller explained that prior to Noel turning himself in, Detective
Waller had gone to an apartment complex to help process a burned vehicle which
was reportedly used by the shooter during Pavon’s murder. Detective Waller drove
to the Houston substation once he was notified that Noel had turned himself in.
Detective Waller testified that he learned that Noel told Officers Mendoza and
Bond where Noel had discarded the weapon. Detective Waller asked if Noel could
take them to the gun “[f]or the safety of the general public so that someone doesn’t
come across it, . . . have it in their possession illegally or commit a crime with it.”
Waller explained at the hearing that he did not read any rights to Noel or ask him
anything else regarding the murder, and that Waller spoke to Noel with the aid of
Officer Mendoza who acted as an interpreter. After Noel directed the officers to
the apartment complex and dumpster, Detective Waller climbed into the dumpster,
located the gun, secured it, and transported it back to the police department.
Detective Waller took custody of Noel and transported him back to Conroe but did
not question Noel during the drive. Noel did not make any statement, did not ask
for an attorney, and did not state that he did not want to talk further. Once at the
7 Conroe Police Department, Detective Waller released Noel to Detective Perez for
an interview.
Detective Elias Perez with the Conroe Police Department testified that Noel
was in custody at the time of the interview. Perez informed Noel they were going
into a special room to do an interview, and Noel voluntarily entered the interview
room. Detective Perez explained that once they were in the interview room, Perez
removed Noel’s handcuffs and read Noel his statutory rights. Detective Perez read
from a card that contained the statutory rights, but instead of reading the side of the
card with the Spanish version of the rights, Detective Perez translated the English
portion of the card into Spanish when he read the rights to Noel. Detective Perez
testified that he considers himself a fluent Spanish speaker. A written translation of
the rights as read by Detective Perez in the interview room was transcribed and
admitted into evidence at the hearing. Detective Perez testified that Noel stated
either with a “yes” or a nod that he understood each right, Noel never requested a
lawyer, and Noel did not tell Detective Perez that he wanted to remain silent or that
he wanted to end the interview. Detective Perez testified that he felt like Noel
understood Perez during the interview and Perez understood what Noel said during
the interview. Detective Perez concluded the interview after approximately two
hours.
8 Detective Perez admitted that in translating the statutory rights from English
into Spanish, with respect to the right to have a lawyer appointed if unable to
afford one, his translation was “a little odd” because he used the word “apuntar”
which means “to point[,]” but that in the past he has used it to mean “to appoint”
and others had understood it. He also admitted that the Spanish word he used for
“revoke” was “resumir”, and that it was “not the word that I thought I was going to
say[]” and that it did not make any sense in the context in which Perez used the
word. Detective Perez also acknowledged that the translation of the rights Perez
gave to Noel was different than the wording of the Spanish version printed on the
other side of the card.
Dr. Gabriela Baeza Ventura, a professor of Spanish at the University of
Houston and editor of Spanish literature, testified that she reviewed the video
recording of Noel’s interview and the transcript of Officer Perez’s translation. Dr.
Baeza Ventura testified that based on the recording of the interview she did not
consider Detective Perez a fluent Spanish speaker. According to Dr. Baeza
Ventura, what was translated to Noel regarding his right to have an attorney
appointed did not make sense because Detective Perez used the word “apuntar[,]”
which means “[t]o point out, to signal out” or “to aim[,]” and not to appoint
someone. She agreed that even if someone could understand “apuntar” to mean
9 appoint, that when considered within the context of the sentence Detective Perez
translated, it would not make sense and it would not convey the meaning that the
warning should convey because “it does not clearly indicate that the person has a
right to have . . . a lawyer appointed for him.” Instead, as explained by Dr. Baeza
Ventura, it erroneously says “that a lawyer can be pointed to you, can be - - can
write it down for you, and then so that you can give your side[.]” Based on Noel’s
response to his rights as read by Detective Perez, Dr. Baeza Ventura believed that
Noel did not understand what was being communicated to him, that the correct
meaning of all five statutory warnings was not effectively communicated to Noel,
and that Noel did not understand the importance of the statutory warnings.
Noel testified that he watched the video interview and that Detective Perez
did not inform him of his right to have a lawyer appointed to him if he was not able
to afford one. Noel explained that had he been informed and understood that right,
it would have been a factor in his decision whether to continue the interview. Noel
testified that at the time Detective Perez translated the statutory rights, Noel did not
understand those rights.
At the conclusion of the suppression hearing, the trial court heard arguments
from the attorneys on behalf of both parties. The State argued that the statements
made by Noel at the Houston substation should not be suppressed. In particular, the
10 State argued that the statements Noel made when he first entered the substation and
when he made a hand gesture and statement about “Conroe” were noncustodial in
nature. Additionally, the State argued that the statements and questions about the
location of the gun would fit within the public safety exception as outlined in New
York v. Quarles. 1 As to the statements and confession made by Noel after the
Conroe Police attempted to give him a “Miranda warning[,]” the State argued the
warning read to Noel “substantially complie[d]” with the required Miranda
warning. Noel argued at the suppression hearing that the Miranda warning was so
deficient that, as a consequence, Noel did not understand his rights.
Both Noel and the State indicate in their briefs on appeal that the trial court
ruled that the statements made at the Houston substation relating to the location of
the gun were admissible under the public safety exception. The trial court also
ruled that the statements made by Noel “where the accused allegedly held out his
hand making the sign of holding a pistol, and shooting a pistol, and saying the
word ‘Conroe’ [were] not subject to custodial interrogation. I find that that is not
suppressible.” The trial court then stated it would suppress “the confession made at
the Conroe Police Department, I’m finding that the Miranda warnings given at the
Conroe Police Department by Detective Perez were fatally defective. Those
Miranda warnings did not . . . substantially comply with 38.22 [of] the Texas 1 467 U.S. 649, 657 (1984). 11 Criminal Code of Procedure.” The trial court signed an order indicating the first
motion to suppress was “granted[.]” However, the reporter’s record indicates that
the first motion to suppress was granted in part and denied in part.
Evidence and Testimony at Trial
After the trial court made its rulings on the motions to suppress, the trial
continued and the State called its witnesses. The first witness, Officer Atherton,
with the Conroe Police Department, was dispatched on October 7, 2012, to a home
where there had been a reported shooting, and when he arrived he found a body on
the floor in the house. Atherton requested dispatch to call EMS and EMS
determined that the victim, later identified as Oscar Pavon (Pavon), was deceased.
Four people were on the porch of the house when Atherton arrived at the scene of
the shooting, and each person was interviewed by other officers.
Investigator Horne testified that he was called to the scene of the shooting
and that he saw Pavon lying face up inside a house. Pavon had suffered multiple
gunshot wounds. Horne processed the scene of the shooting and then left to go to
another location to process a vehicle with extensive fire damage that was
reportedly used by the murder suspect to flee the scene.
Two witnesses testified that they saw Noel arguing and fighting with Pavon
on the night of the shooting. Another eyewitness testified that he saw Noel with a
12 gun, that he saw Noel put a clip in the gun and shoot Pavon, and that he ran away
after he saw Noel reload.
The State also called Detective Waller, a detective with the Conroe Police
Department, who testified that he was the lead investigator who investigated the
shooting and death of Pavon. Detective Waller testified that he found shell casings
in a bathtub where Noel was living and that the casings matched the same caliber
shell casings found at the scene of the shooting. Waller was also called out to a
vehicle that matched the description of the vehicle the shooter reportedly drove on
the night of the shooting. By the time Waller arrived to examine the vehicle, the
vehicle was damaged and it had been burned. However, Waller determined that the
vehicle was registered to Maria Gomez, who was later identified as Noel’s
girlfriend. Before he could locate Noel, Waller received a call from Houston Police
informing Waller that Noel had turned himself in at a substation. Waller testified
that when he went to the substation, he did not question Noel about the murder.
However, according to Detective Waller, he asked Noel about the location of the
gun because Waller had public safety concerns of the gun “fall[ing] into the wrong
hands.” Noel agreed to take Waller to the weapon. Waller testified that Noel led
them to a dumpster where the gun was recovered. Waller also recovered a
13 Styrofoam cup with live rounds of ammunition and a white T-shirt with blood
stains on it from the dumpster.
Thereafter, the State called Dr. Sparks Veasey, a forensic pathologist, who
testified among other things that he completed the autopsy report on Pavon.
According to Veasey, Pavon died of multiple gunshot wounds and the manner of
death was homicide. Thereafter, the State rested its case.
The defense called Noel to testify. Noel began his testimony on the
afternoon of November 6, 2014. According to Noel, he had an argument with
Pavon and during the argument Pavon threatened to kill Noel. Noel explained to
the jury that when Noel pulled out the gun he did so to show Pavon that he could
defend himself. At some point during his testimony, when Noel was asked at trial
whether the victim was deceased, Noel responded, “I’m very sorry.” The court
then adjourned for the day without Noel completing his testimony. When the trial
continued the next day, Noel announced to the trial court that he wanted to change
his plea to “guilty.”
Noel then changed his plea from “not guilty” to a plea of “guilty.” The
record reflects he did so in open court with the assistance of counsel and with the
use of an interpreter. Noel stated that he decided to change his plea to guilty
because he was guilty, and that he was doing so freely and voluntarily. He also
14 acknowledged on the record that he understood that probation was not an available
sentence option and that he could be sentenced to life in prison. Based on his plea
and the paperwork admitted, 2 the trial court found Noel guilty of murder and
ordered a pre-sentencing investigation prior to the punishment hearing. The trial
court sentenced Noel to life in prison. The trial court stated on the record that the
trial court’s certification would be reformed to reflect: “It is not a plea bargain case
and the defendant has the right of appeal as to punishment only.” Defense counsel
stated on the record that Noel understood. Noel did not file a motion for new trial,
but he timely filed a notice of appeal.
ISSUES PRESENTED
In his first issue on appeal, Noel contends the trial court erred in limiting his
right of appeal only to errors in the punishment proceeding, and that by limiting his
right to appeal only to matters relating to punishment, the trial court is incorrectly
2 Noel signed a sworn judicial confession in which he acknowledged that he understood the admonitions from the trial court and that he was aware of the consequences of his plea. One portion of his plea document is styled “Waivers, Consent, Judicial Confession & Plea Agreement,” and therein it states that the defendant “waives and abandons all motions, pleadings and objections made before the entry of the plea” and that he “agrees to plead guilty to the above specified offense(s) [i.e. murder], true to enhancement allegations, if any, judicially confess, waive any right to appeal this case[.]” The trial judge signed the document, affirming that the trial court “consent[ed] to and approve[d] the waivers.” It appears Noel also signed a portion of the document and then Noel refused to sign beside the separate paragraph of the plea document that expressly dealt with his waiver of his right to appeal. 15 foreclosing his ability to challenge that portion of the first motion to suppress that
the trial court denied. In his second issue, Noel contends that the trial court
violated Article 28.01 of the Texas Code of Criminal Procedure in refusing to hear
Noel’s second motion to suppress which was filed on November 4, 2013, and in
determining it was untimely. According to Noel, a motion to suppress evidence is
an issue of “constitutional dimensions” and he should be “afforded a hearing”
despite his failure to comply with the trial court’s pretrial docket control order.
DISCUSSION
In his first issue, Noel argues that the trial court’s action in limiting his
appeal to punishment errors violated Article 44.02 of the Texas Code of Criminal
Procedure3 and Rule 25.2 of the Texas Rules of Appellate Procedure. Noel
contends that by limiting his right to appeal only to matters relating to punishment, 3 Article 44.02 provides the following:
A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial. This article in no way affects appeals pursuant to Article 44.17 of this chapter.
Tex. Code Crim. Proc. Ann. art. 44.02 (West 2006). 16 the trial court is incorrectly foreclosing his ability to challenge that portion of the
first motion to suppress that the trial court denied.
According to Noel, because he pleaded guilty without a plea bargain
agreement, the trial court’s certification stating he has the right to appeal but then
limiting him to an appeal regarding punishment denies him the right to appeal the
ruling of the trial court on the first motion to suppress. Furthermore, Noel argues
that because Rule 25.2(a)(2) only “applies to charge-bargain cases, Appellant has
the right to appeal the Court’s ruling denying part of his suppression motion.” The
State contends that Noel knowingly and intentionally waived any right to appeal
(except as to punishment) and he waived any right to challenge the ruling of the
trial court relating to either motion to suppress.
An appellate court is obligated to review the record to ascertain whether the
trial court’s certification is defective. Dears v. State, 154 S.W.3d 610, 615 (Tex.
Crim. App. 2005).
Pursuant to Rule 25.2(a)(2):
A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant’s right of appeal each time it enters a judgment of guilt or other appealable order. In a plea bargain case—that is, a case in which a defendant’s plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant—a defendant may appeal only:
17 (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court’s permission to appeal.
Tex. R. App. P. 25.2(a)(2) (emphasis added). The limitation of a defendant’s right
to an appeal as stated in Rule 25.2(a)(2) expressly applies to “a plea bargain
case[.]” Dears, 154 S.W.3d at 613. After reviewing the record, we conclude that
Noel’s guilty plea was not the product of a plea bargain, and nothing in Rule
25.2(a)(2) limits Noel’s right to appeal.
It has long been recognized that neither the United States Constitution nor
the Texas Constitution require a state to provide appellate review of criminal
convictions, and that right is only as provided by the legislature. Griffin v. State,
145 S.W.3d 645, 646 (Tex. Crim. App. 2004) (citing McKane v. Durston, 153 U.S.
684, 687 (1894); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992)). A
defendant’s right to an appeal is granted by statute. Id.; see Tex. Code Crim. Proc.
Ann. art. 44.02 (West 2006); Tex. R. App. P. 25.2. Nevertheless, even though a
right to appeal may exist by statute, a defendant may waive any rights secured to
him by law, even his right to an appeal. Tex. Code Crim. Proc. Ann. art. 1.14
(West 2005); Ex parte Broadway, 301 S.W.3d 694, 697 (Tex. Crim. App. 2009). A
voluntary, knowing, and intelligent waiver will preclude a defendant from
appealing without the consent of the trial court. Id. (citing Monreal v. State, 99
18 S.W.3d 615, 617 (Tex. Crim. App. 2003)). The Court of Criminal Appeals has
explained the reviewing court should examine the circumstances surrounding the
waiver. For example, in Ex parte Delaney, 207 S.W.3d 794, 799 (Tex. Crim. App.
2006), the Court of Criminal Appeals held that a pretrial or presentencing waiver
of the right to appeal in a non-plea-bargain case was invalid and could not be
voluntarily, knowingly, and intelligently made when the consequences of the
waiver were unknown to the defendant. The emphasis in Delaney was the absence
of a bargained-for waiver in exchange for an agreed-upon sentence. Broadway, 301
S.W.3d at 697 n.7.
In Broadway, Broadway filed an application for writs of habeas corpus
alleging ineffective assistance of counsel on the grounds that his trial counsel
failed to inform him of his right to appeal his sentence and that they allowed him to
sign a waiver of appeal before sentencing. Id. at 696. At trial Broadway entered an
open plea after declining the State’s plea-bargain offer, which offered a minimum
25-year sentence. Id. Broadway declined the State’s offer and entered the open
plea, hoping that the judge would consider deferred adjudication community
supervision with drug treatment. Id. In order to be able to seek deferred
adjudication, Broadway waived his right to have the jury assess punishment, and
19 Broadway convinced the State to consent to the waiver of the jury trial 4 in
exchange for Broadway’s waiver of his right to appeal. Accordingly, the Court
concluded that Broadway voluntarily, knowingly, and intelligently waived his right
to appeal even though it was an open plea and there was no agreement on
punishment, because there was consideration given by the State for the waiver. Id.
at 699.
Subsequently, in Washington v. State, the Court of Criminal Appeals applied
the Delaney rationale to invalidate a waiver where the defendant waived his right
to appeal before sentencing and without an agreement as to punishment, and where
the record did not confirm that the State gave any consideration for the waiver. 363
S.W.3d 589, 589-90 (Tex. Crim. App. 2012) (citing Delaney, 207 S.W.3d at 799);
cf. Blanco v. State, 18 S.W.3d 218, 219-20 (Tex. Crim. App. 2000) (waiver of
appeal enforceable when executed after conviction, but before sentencing, in
exchange for a recommended sentence). In summary, presentence waivers of the
right to appeal will be enforceable only if they are part of a plea bargain or when
the State has given some consideration for the waiver. See Broadway, 301 S.W.3d
at 697-99.
4 Article 1.13 of the Texas Code of Criminal Procedure provides that a defendant may not unilaterally waive his right to a jury trial and both the court and the State must consent. See Tex. Code Crim. Proc. Ann. art. 1.13 (West Supp. 2014). 20 The State contends that the documents Noel signed “stated that the plea
agreement included a waiver of appeal, the trial court certified that the appellant
waived his right to appeal, and the appellant acquiesced in the revision of the
certification of the right to appeal.” The State also argues that, regardless of
whether Noel effectively waived his right to appeal, he independently waived and
abandoned all pretrial motions made before the entry of the plea. Noel signed and
acknowledged in a separate wavier that he “waives and abandons all motions . . .
made before the entry of the plea.” See supra note 2. But we note that on the
signature line for the “Waiver of Right to Appeal” portion of the document titled
“Waivers, Consent, Judicial Confession & Plea Agreement[,]” only Noel’s first
name appears on the signature line and it is scratched out. Furthermore, on the
record before us, there is no indication that the State expressly gave any
consideration for Noel’s waivers. Applying the Delaney rationale to the record
before us, we cannot conclude that Noel voluntarily, knowingly, or intelligently
waived his right to an appeal or that he waived his right to challenge the ruling of
the trial court pertaining to the motions to suppress. His guilty plea was an open
plea, the record does not demonstrate there was any consideration given by the
State in exchange for Noel’s waivers, and the record indicated Noel refused to sign
the paragraph pertaining to his waiver of the right to appeal.
21 Furthermore, the trial court certified the appeal as “not a plea-bargain case,
and the defendant has a right of appeal.” Because Noel pleaded guilty under an
open plea with no agreement as to punishment, and there was no consideration
given by the State for Noel’s waiver, the trial judge’s certification that Noel has a
right of appeal is supported by the record. See Washington, 363 S.W.3d at 589-90.
We conclude that the trial judge’s additional handwritten notation of “as to
punishment only” at the end of the typed statement that the case “is not a plea-
bargain case, and the defendant has a right of appeal,” does not restrict Noel’s right
to appeal. Therefore, the trial court’s certification is not defective. Cf. Dears, 154
S.W.3d at 613-15 (The certification was defective where it indicated defendant
entered into a plea bargain and had no right of appeal but the record reflected
defendant actually did not plead guilty under a plea agreement and therefore the
defendant had a right to appeal.). Any error resulting from the handwritten notation
is harmless because it did not affect Noel’s substantial rights. Therefore, we
consider the merits of Noel’s second issue.
On appeal, Noel has specified and briefed an alleged trial court error that
pertains solely to the second motion to suppress. To the extent Noel intended to
raise a complaint on appeal about the trial court’s rulings on the first motion to
suppress, which was granted in part and denied in part, Noel provides no citations
22 to the record and no specific argument to explain what part, if any, of the ruling on
the first motion to suppress was erroneous, and he provides no factual or legal
analysis pertaining thereto. Therefore, we hold he has inadequately identified and
inadequately briefed a complaint about the trial court’s ruling on the first motion to
suppress. See Tex. R. App. P. 38.1(i); Cardenas v. State, 30 S.W.3d 384, 393 (Tex.
Crim. App. 2000).
Noel states in his second issue on appeal that the trial court erred in not
hearing the second motion to suppress. 5 With respect to the trial court’s ruling on
the second motion to suppress, we conclude the trial court’s refusal to hear the
second motion to suppress was proper because the second motion was untimely
filed. See Writt v. State, 541 S.W.2d 424, 425-26 (Tex. Crim. App. 1976) (A
motion to suppress filed on the day trial begins is not timely and the trial court
does not err in denying the motion.). We reject Noel’s argument that he should be
afforded a hearing even though he failed to comply with the court’s pretrial order
under Article 28.01 of the Texas Code of Criminal Procedure because the motion
to suppress evidence is an issue of “constitutional dimensions[.]” See Ackenback v. 5 Noel also makes no argument about the merits of his second motion to suppress, nor does he indicate how the ruling of the trial court in denying a hearing on the untimely-filed second motion to suppress resulted in the adjudication of his guilt. And his guilty plea does not appear to be temporally connected to the trial court’s rulings on the motions to suppress, nor is it necessarily dependent upon the admission of evidence that Noel described in the motions to suppress.
23 State, 794 S.W.2d 567, 573 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d)
(“Even if a pretrial motion to suppress is called to the attention of the trial court, no
error is presented if the trial court, in its discretion, declines to hear the same.
While the court is not required to hear any pretrial motion to suppress evidence the
accused retains his right to raise any appropriate objection at trial.”). 6 Finding no
reversible error, we overrule Noel’s second issue.
We affirm the trial court’s judgment.
AFFIRMED.
_________________________ LEANNE JOHNSON Justice
Submitted on November 21, 2014 Opinion Delivered March 4, 2015 Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
6 During the guilt-innocence phase of the trial, Noel made no objection to testimony regarding the statements Noel made as to the location of the gun, nor did he object to the admission of the gun or other physical evidence offered into evidence by the State. 24 Concurring Opinion
I join the judgment of the Court. However, I do not agree that the
appellant’s brief raises any issue on appeal regarding the trial court’s ruling on the
appellant’s first motion to suppress. Consequently, in my opinion, we need not
address what in my view is at most unassigned error.
The majority suggests that the appellant raised a complaint regarding a
ruling on the first motion to suppress when in my opinion he did not. The majority
then resolves the issue that it asserts the appellant raised by indicating the appellant
did not properly brief the issue. It does so, however, without first giving the
appellant an opportunity to cure the purported deficiencies in his brief. I cannot
join that part of the Court’s opinion. Nevertheless, with respect to the two issues
that the appellant did raise in his brief, I agree that the Court should overrule the
appellant’s two issues for the reasons explained in the opinion.
The majority reads the appellant’s brief as assigning error to the trial court’s
ruling on the appellant’s first motion to suppress. It then resolves the purported
error by concluding that the appellant inadequately briefed the issue. It reaches that
conclusion without having first notified the appellant’s attorney that his brief was
deficient due to his purported failure to comply with the provisions of Rule 38 of
the Texas Rules of Appellate Procedure, a rule which requires that the appellant’s
25 brief “contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(i).
In my opinion, Rule 44.3 of the Texas Rules of Appellate Procedure applies
to situations where the brief a party filed violates the requirements of Rule 38.
Under Rule 44.3, we “must not affirm or reverse a judgment or dismiss an appeal
for formal defects or irregularities in appellate procedure without allowing a
reasonable time to correct or amend the defects or irregularities.” Tex. R. App. P.
44.3. The Court gave the appellant no such time in this case, which in my opinion
constitutes error. Compare Inpetco, Inc. v. Tex. Am. Bank/Houston, N.A., 729
S.W.2d 300, 300 (Tex. 1987) (per curiam) (disapproving of the intermediate
appeals court’s holding that the appellant waived its point of error on the basis of a
briefing inadequacy “without first ordering [the appellant] to rebrief”), with
Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 285 (Tex. 1994)
(holding that intermediate courts have some discretion in ordering rebriefing to
balance the twin objectives of a liberal and just construction of procedural rules
and the prompt and efficient resolution of appeals). In my view, the majority can
promptly resolve this appeal even if it orders the appellant’s attorney to amend the
appellant’s brief. In my opinion, the Court errs by failing to give the appellant an
opportunity to amend his brief before it disposes of the issue that it asserts he has
26 raised.
___________________________________ HOLLIS HORTON Justice
Concurrence Delivered March 4, 2015