Salazar v. State

773 S.W.2d 34, 1989 Tex. App. LEXIS 1418, 1989 WL 54668

• Court: Court of Appeals of Texas
• Decided: May 25, 1989
• Docket: A14-87-979-CR
• Status: Published

Opinions

OPINION

MURPHY, Justice.

This case arises out of appellant Arturo Salazar’s misdemeanor conviction for the offense of driving while intoxicated [“DWI”]. The trial court denied appellant’s motion to suppress and found him guilty on his plea of nolo contendere and sentenced him to 40 days’ confinement in the Harris County Jail and a $500 fine. Appellant appeals the denial of his pre-trial motion to suppress. We affirm.

We first address the State’s contention that we lack jurisdiction. Former Tex. Code CRIM.PROC.Ann. art. 44.02 (Vernon 1979) limited the right of the accused to appeal a plea bargained case. E.g., Christal v. State, 692 S.W.2d 656, 658-59 (Tex.Crim.App.1985) (opinion on State’s motion for rehearing, en banc). Relying on former Article 44.02, the State argues appellant lost the right to appeal denial of his motion to suppress because “the record does not reflect that a plea bargain was made.” In view of the repeal of the language of Article 44.02 on which the State relies and the court of criminal appeals’ adoption of Tex. R.App.P. 40(b)(1), we cannot agree.

In order to enable the court of criminal appeals to adopt rules governing appellate procedure, the legislature repealed Article 44.02 in its entirety pursuant to the Act effective August 26, 1985, ch. 685, § 4(b), 1985 Tex.Gen.Laws 2472, 2472-73, subject to the promulgation of such rules. Id. § 4(a). Pursuant to the enabling legislation and by its order adopting the Texas Rules of Appellate Procedure, effective September 1, 1986, the court of criminal appeals limited the repealed portion of Article 44.02 to its proviso. With the removal of the proviso, Article 44.02 now reads: “A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed.”

Tex.R.App.P. 40(b)(1), which now governs perfection of appeals in criminal cases, provides in part:

Appeal is perfected in a criminal case by giving timely notice of appeal; _ Notice of appeal shall be given in writing filed with the clerk of the trial court. Such notice shall be sufficient if it shows the desire of ,the defendant to appeal from the judgment or other appealable order; but if the judgment was rendered upon his plea of guilty or nolo contendere pursuant to Article 1.15, Code of Criminal Procedure, and the punishment assessed does not exceed the punishment recommended by the prosecutor, and agreed to by the defendant and his attorney, in order to prosecute an appeal for a nonjurisdictional error that occurred prior to entry of the plea the notice shall state that the trial court granted permission to appeal or shall specify that those matters were raised by written motion and ruled on before trial (emphasis added).

The emphasized language of the Rule, like the proviso of former Article 44.02 on which the State relies here, limits the right of appeal in a plea bargained case. While the limiting language is quite similar to the proviso of former Article 44.02, the face of Rule 40(b)(1) shows that it applies only to pleas of guilty or nolo contendere “pursuant to Article 1.15, Code of Criminal Procedure,” which, in turn, applies only to a felony case. Accordingly, the limitation of Rule 40(b)(1) does not affect appellant’s right to appeal his misdemeanor conviction.

Under the circumstances, appellant s notice of appeal, filed pursuant to Rule 40(b)(1), together with the remaining language of Tex.Code CRIM.PROC.Ann. art. 44.02 (Vernon 1979 & Supp.1989), vest this court with jurisdiction to review his appeal from denial of his motion to suppress. Our sister court reached a similar conclusion in Yates v. State, 759 S.W.2d 949 (Tex.App. — Dallas 1988, no pet. reported).¹

Janie Uriste was standing outside her mother’s club on Telephone Road in Houston on the evening of June 23, 1987, when she saw the appellant driving by slowly. His car window was down, he was waving at her and gesturing for her to cross the street to approach his car and he appeared intoxicated. Appellant was still looking at Uriste when he made a U-turn in the road. As appellant completed the U-turn, Uriste saw his car hit the rear tire of a motorcycle an older man was driving, causing it to tip over. The motorcycle slid along the road and carried its driver a considerable distance.

A passing motorist obtained appellant’s license plate number and gave it and a description of appellant’s car to police officers who arrived at the scene and found the victim barely conscious. Uriste described appellant to the officers and told them he appeared intoxicated. After checking appellant’s license by computer, H.P.D. Officer Bates went to appellant’s address to investigate the accident and a possible failure to stop and render aid, in violation of Tex.Rev.Civ.Stat.Ann. art. 6701d § 40 (Vernon Supp.1989).

Officer Bates found the car described to him parked in the driveway to the appellant’s house. Appellant came to the door in answer to the officer’s knock, offered to accompany the officer to the scene of the accident and entered the back seat of the patrol car voluntarily. At the scene of the accident, Jamie Salazar identified appellant as the same man involved in the accident. At that point, an officer took appellant to the DWI room at police headquarters for an intoxilyzer test.

Appellant brings three points of error challenging the trial court’s denial of his motion to suppress. Appellant argues the trial court should have suppressed the results of his intoxilyzer test pursuant to Tex.Code CRIM.PROC.Ann. art. 38.23 (Vernon Supp.1989) because the test was the result of a warrantless arrest and therefore violated Article I, Section 19 of the Texas Constitution and the fourth and fourteenth amendments of the United States Constitution. We disagree with these contentions because the record does not reflect that appellant was ever under arrest. Rather, the record shows, by appellant’s own admissions, that he voluntarily consented to return to the scene of the accident when Officer Bates came to his house to investigate the accident.

An arrest does not occur until an individual has been placed under restraint or taken into custody. Tex.Code Crim. Proc.Ann. art. 15.22 (Vernon 1977). Further, a “seizure” of the person under the fourth amendment does not occur unless, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave. Livingston v. State, 739 S.W.2d 311, 327 (Tex.Crim.App.1987) (en banc) cert. denied, — U.S.-, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988), citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). Although the rear doors of the police vehicle did not open from the inside, this fact, without more, does not constitute restraint. Livingston, 739 S.W.2d at 328 n. 10; compare Pickens v. State, 712 S.W.2d 560, 561 (Tex.App.-Houston [1st Dist.] 1986, pet. ref’d) (defendant was under arrest when officer handcuffed him and placed in the rear seat of a patrol car).

Officer Bates testified the appellant was not under arrest but agreed voluntarily to return to the scene of the accident. Appellant did not contradict that testimony and indeed confirmed it by stating “I offered to go, because I didn’t feel guilty of [sic] what had occurred.” He verified that statement under cross-examination by the prosecutor. Since the record shows only that appellant knew Officer Bates was investigating the accident and voluntarily accompanied him to the scene, we find no violation of Tex.Code Crim.Proc.Ann. art. 38.23, the Texas Constitution or the United States Constitution.

We overrule appellant’s points of error and affirm the judgment of the trial court.

1 . But see Studer v. State, 757 S.W.2d 107 (Tex.App.—Dallas 1988, pet. filed). Following Helms v. State, 484 S.W.2d 925 (Tex.Crim.App.1972), a different panel of the Dallas court held that by pleading nolo contendere, the accused had waived his right to appeal non-jurisdictional issues in his misdemeanor case. 757 S.W.2d at 109. In Studer, which preceded Yates by less than two months, the court also questioned whether repeal of the proviso of Article 44.02 was a proper function of the court of criminal appeals in view of Tex.Gov't Code Ann. § 22.108 (Vernon 1988), which forbids the court from promulgating appellate rules which "abridge, enlarge, or modify (emphasis added)” a litigant’s substantive rights. 757 S.W.2d at 109 n. 1.