holding that “no other matter [is] appealable” under notice of appeal limited to issues raised by pre-trial motions and dismissing appeal asserting only legal sufficiency complaint
How later courts described this case
- holding that “no other matter [is] appealable” under notice of appeal limited to issues raised by pre-trial motions and dismissing appeal asserting only legal sufficiency complaint
- “[W]e have held the evidence sufficient when the accused has confirmed, by sworn testimony or written stipulation, that he had read and understood the indictment and that it was ‘true and correct’ or that he committed the particular offense alleged therein.”
- "examination of the record shows that the parties made clear to the trial court that appellant desired to appeal on matters raised by motion prior to trial," thus plea-bargaining defendant could not raise sufficiency of the evidence claims
- in appeal from plea bargain, jurisdiction extends only to issues raised in pre-trial motion, or within permission to appeal granted by trial court
Written by the judges who cited it.
The opinion
CLINTON, Judge,
dissenting.
At the threshold it should be noted that since September 1, 1981, the rules of this Court have not in terms required a “motion for leave to file motion for rehearing.” See former rule 309, Tex.Cr.App.R., and now Tex.R.App.Pro. Rule 230. Indeed, in this cause there is no motion for leave to file.
Nevertheless, rules promulgated November 30, 1977, provided for a motion for leave to file a motion for rehearing after initial disposition by the Court En Banc, but none was required for a motion for rehearing after initial disposition by a Court Panel. See former rule 11; cf. former rule 12(c). Without support in and contrary to current rules, the old ways still obtain. See former transitional rule 401, Tex.Cr.App.R. Thus the caption of this opinion.
On original submission a new majority of the Court continued to demonstrate its will and determination to retreat from the holding of State constitutional dimension in Thornton v. State, 601 S.W.2d 340 (Tex.Cr.App.1980). 1 It began with Ex parte Williams, 703 S.W.2d 674 (Tex.Cr.App.1986) (guilty pleading accused may not collaterally attack sufficiency of evidence to support conviction, but may challenge on direct appeal, id., at 678 ). Recently it turned into full rout.
“The failure to comply with such state statute [Article 1.15, V.A.C.C.P.] does not a federal constitutional violation make, nor does it render Burks [v. United States, 437 U.S. 1 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978) ] and Greene [v. Massey, 437 U.S. 19 , 98 S.Ct. 2151 , 57 L.Ed.2d 15 (1978) ] applicable to such proceedings so that the defendant who knowingly, intelligently and voluntarily enters a guilty plea goes free and stands acquitted for evermore of the crime to which he had pleaded guilty. To the extent that Laflore v. State, 595 S.W.2d 862 (Tex.Cr.App.1980), and Thornton v. State, 601 S.W.2d 340 (Tex.Cr.App.1980) (opinion on rehearing), and their progeny are in conflict with today’s holding, they are overruled to the extent of the conflict.”
Ex parte Martin, 747 S.W.2d 789 at 793 (Tex.Cr.App.1988). Never mind that the statute mandates “in no event shall a person charged be convicted upon his *781 plea WITHOUT SUFFICIENT EVIDENCE TO SUPPORT THE SAME”
In his motion for rehearing appellant argues:
“If this decision stands, in plea bargain situations, a trial court can abrogate the mandate of Article 1.15, V.A.C.C.P. with impunity by simply refusing appellant the right to appeal. Therefore, defendants who plea bargain in Texas may be convicted upon a plea of guilty or nolo contendere, even though no evidence is introduced upon which the Court may base his decision.”
When he wrote the first sentence appellant correctly perceived the situation then extant. Now with Martin and its overruling Thornton , his conclusion in the second sentence proves he is prescient.
For the reasons given ante and in my dissenting opinion on original submission in this cause, and for reasons stated in my opinion dissenting to refusal of appellant’s PDR in Schwerdtfeger v. State, 749 S.W.2d 781 (Tex.Cr.App.1988), to this judicial nullification of Article 1.15, Y.A.C.C.P., I dissent.
TEAGUE and DUNCAN, JJ., join.
. Initially a Court Panel sustained the contention that "there was no evidence produced at appellant’s plea of guilty to support the allegations in the indictment.” In a straight forward opinion Judge W.C. Davis pointed out that the “judicial confession” admitted forgery “by making a writing,” whereas the indictment alleged forgery ‘by passing,” and following germane authorities concluded:
"There is no other evidence contained [in the record] to support appellant’s guilt of forgery by passing, [note omitted]. Since there is no evidence in the record to support appellant’s conviction for forgery by passing, as alleged in the indictment, the judgment is reversed and the trial court is ordered to enter a judgment of acquittal.”
Id., at 343 (my emphasis here and throughout).
On rehearing in response to the State’s insistence that there was no applicable authority for ordering an acquittal in the premises, a majority of the Court ultimately found there was such authority in the Constitution of Texas, viz.-
“[W]e hold that the jeopardy provisions of Article I, § 14 of the Constitution of Texas and its implementing statutory provisions are fully applicable to a trial of a guilty plea where the evidence introduced by the State to show the guilt of an accused fails as a matter of law to constitute sufficient evidence to support the judgment of conviction.”
Id., at 348. The dissenters opted for consequences of a plea of guilty "in the [Federal] constitutional sense." Id., at 348-349.