Soto v. State

51 S.W.3d 672, 2001 Tex. App. LEXIS 1352, 2001 WL 204653

• Court: Court of Appeals of Texas
• Decided: March 1, 2001
• Docket: No. 01-00-00831-CR
• Status: Published

Opinions

OPINION

SCHNEIDER, Chief Justice.

Appellant was charged with possession with intent to deliver a controlled substance and entered a no contest plea. The trial court assessed punishment at 50 years in prison and imposed a $5,000 fine. We affirm.

Procedural Background

Appellant was charged with possession with intent to deliver cocaine weighing at least 400 grams. Defense counsel filed a pre-trial motion to suppress. The motion was denied, and appellant pled nolo con-tendere without an agreed recommendation. The judgement and sentence was signed on November 2,1998.

Appellant filed a notice of appeal on November 20, 1998. In an unpublished opinion delivered on July 15, 1999, 'the First Court of Appeals, upon the appellant’s own motion, dismissed the appeal.¹ Soto v. State, No. 01-98-01414-CR, 1999 WL 498563 (Tex.App.—Houston [1st Dist.] July 15,1999) (unpublished).

In a post-conviction writ of habeas corpus, appellant complained to the Court of Criminal Appeals that his trial counsel did not tell him a no contest plea without an agreed recommendation would preclude his right to appeal the ruling on the pretrial motion to suppress. The Court of Criminal Appeals granted relief based upon appellant’s post-conviction writ of ha-beas corpus.² The court issued its mandate granting the appellant an out-of-time appeal on May 1, 2000 for appellate review of the pre-trial motion to suppress. The court’s per curiam opinion explains:

In the instant petition Applicant contends, inter alia, that he was denied his right to an efficacious appeal because his trial attorney did not tell him that he was waiving the right to have the ruling on a pre-trial motion reviewed by entering into a non-negotiated plea. The trial court entered findings of fact and conclusions of law in which it was recommended that Applicant be granted an out-of-time appeal due to the failure of the trial attorney to advise his client of this waiver. We agree with this recommendation. Habeas corpus relief is granted and Applicant is granted an out-of time appeal of the pre-trial motion to suppress in his conviction in cause number 784180 from the 228th District Court of Harris County.

Soto v. State, No. 73758 (Tex.Crim.App. April 5, 2000) (unpublished) (citations omitted) (emphasis added).

Analysis

Appellant’s brief fails to address the pre-trial motion to suppress. Instead, appellant argues his plea was involuntary because of his trial counsel’s ineffective assistance. Appellant has already had an opportunity to raise these issues in his first appeal, and such argument is considered untimely. Unlike the pre-trial motion to suppress, the Helms rule did not preclude appellant from raising involuntariness because of ineffective assistance. See Helms v. State, 484 S.W.2d 925, 927 (Tex. Crim.App.1972). Appellant’s arguments on appeal go beyond the scope of habeas relief granted by the Court of Criminal Appeals.

The Court of Criminal Appeals granted habeas relief specifically so appellant could appeal the pre-trial motion to suppress. He has not done so. We do not consider any other issues raised in this appeal because appellant has already had an opportunity to request review of all relevant issues with the exception of the motion to suppress. Accordingly, we overrule the point of error.

Conclusion

We affirm the judgment of the trial court.

1 . At that time, the Helms rule was still in effect. See Helms v. State, 484 S.W.2d 925, 927 (Tex. Crim.App.1972) (holding that a plea of nolo contendere or guilty without an agreed recommendation as to punishment waives an appellant’s right to complain about the trial court’s ruling on a pre-trial motions to suppress).

2 . The Court of Criminal Appeals had just abrogated the Helms rule. See Young v. State, 8 S.W.3d 656 (Tex.Crim.App.2000) (permitting a defendant to plead guilty or nolo contendere but then appeal his pre-trial motion to suppress).