Snyder v. State , 1982 Tex. Crim. App. LEXIS 1009 ( 1982 )

OPINION ON APPELLANT’S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for possession of methamphetamine. Appellant was convicted in a trial before the court following his plea of nolo contendere. Punishment was assessed at three years, probated.

On original submission, a panel of this Court, in a per curiam opinion, 618 S.W.2d 773, affirmed appellant’s conviction. It was found that nothing was presented for review with regard to appellant’s two grounds of error in which he maintained the court erred in overruling his motion to suppress based upon an alleged illegal search and seizure. The panel found:

“No evidence seized pursuant to the challenged search was introduced, and no such evidence was used to support appellant’s conviction. Where no evidence obtained as a result of a search is introduced in evidence, no error with respect to such search is presented for review. ... The appellant’s judicial confession is alone sufficient to sustain his conviction on a plea of nolo contendere.”

In his motion for rehearing, appellant maintains his judicial confession consisting of a stipulation does not constitute sufficient evidence to support his conviction. He urges that evidence from the challenged search was introduced and used to support his conviction. Appellant therefore contends that the question regarding the overruling of the motion to suppress has been preserved for review.

The indictment in the instant cause alleges in pertinent part that on September 7, 1979, appellant did:

“... intentionally and knowingly possess a controlled substance namely, METHAMPHETAMINE.” (Emphasis added).

The stipulation which appellant signed was admitted into evidence. That stipulation states in part:

“I, the Defendant .. . confess the following facts: The substance obtained from my billfold on September 7, 1979 in Harris County, Texas was a controlled substance, to wit, Methamphetamine.”

A comparison of the indictment with the stipulation reveals that the stipulation fails to recite that appellant intentionally and knowingly possessed the contraband. The Controlled Substances Act, Art. 4476-15, Sec. 4.04(a), provides that a person commits an offense if he knowingly or intentionally possesses a controlled substance. Methamphetamine is included within Penalty Group 1 of the Act. See Art. 4476-15, Sec. 4.02(b)(6). The stipulation signed by appellant therefore fails to contain an element of the offense by virtue of its failure to recite that appellant intentionally and knowingly possessed the contraband.

In Potts v. State, Tex.Cr.App., 571 S.W.2d 180, it was found that a judicial confession entered in a guilty plea proceeding was insufficient evidence to support the defendant’s conviction. There, the confession omitted an element of the offense, as alleged in the indictment. However, it was further noted that within the judicial confession, the defendant stated that she committed the offense “as charged in the indictment.” This Court concluded that the “catch-all” confession was sufficient evidence to support the defendant’s conviction. Id. at 182. Likewise, in Dinnery v. State, Tex.Cr.App., 592 S.W.2d 343, it was found that the defendant’s testimony that he had read the indictment and that it was “true and correct” constituted a judicial confession which was sufficient evidence to support his guilty plea conviction.

The instant cause does not contain a “catch-all” stipulation or a judicial confession consisting of an oral affirmation that allegations of the indictment are “true and correct.” In the absence of such, appellant’s stipulation as quoted above, is not sufficient evidence, standing alone, to support his conviction.

The record in the instant cause reveals that the court initially held a hearing on appellant’s written motion to suppress. After that motion was overruled, appellant entered his plea of nolo contendere. Such a plea has the same legal effect as a plea of guilty. See Art. 27.02(5), V.A.C.C.P.

With regard to evidence in support of that plea, the record reflects as follows:

“THE COURT: We have just heard a motion to quash any evidence because of an unlawful search and seizure, and you were present all during that hearing?

“DEFENDANT: Yes sir.

“THE COURT: And you want to submit your case in lieu of a stipulation of evidence, on that evidence?

“DEFENDANT: Yes sir.

“THE COURT: And this occurred in Houston, Harris County, Texas?

“DEFENDANT: Yes sir.

“THE COURT: And I understand that it is your stipulation that the controlled substance involved here was methamphetamine?

“DEFENDANT: Yes sir.

“THE COURT: He needs to sign a written stipulation on that. All right, then, on the evidence I have heard together with the stipulation that the controlled substance was methamphetamine I find you guilty-”

The record therefore reveals that the court based its finding of guilt on appellant’s stipulation and the evidence from the suppression hearing. As noted above, appellant’s stipulation alone, is not sufficient to support his conviction.

The record in the instant case reveals that a plea bargain agreement existed between the State and appellant. The terms of that agreement were that “if [the] motion [to suppress is] denied, D.A. will recommend and Defendant will accept 3 yrs. T.D.C. probated ... with Defendant reserving right to appeal search question .... ” This appeal is therefore governed by Art. 44.02, V.A.C.C.P., which provides:

“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....”

In Galitz v. State, 617 S.W.2d 949, the Court noted that the following procedural requirements must be met under Art. 44.02, supra, in order for a defendant who pleads guilty to obtain a review on an adverse ruling on a pretrial suppression motion:

“... (1) existence of a plea bargaining agreement with the State; (2) punishment assessed by the trial court at or within that recommended by the prosecutor and agreed to personally by the defendant; (3) the basis of the appellate ground of error has been presented in writing, pretrial, to the trial court for consideration OR the trial court has given permission to pursue an appeal in general or upon specific contentions. Absent the showing of all three of these jurisdictional requisites there is no power extant in this Court to take cognizance of issues ‘appealed’ by appellants so situated... . ” (Footnotes omitted) (Emphasis in original) Id. at 951 and 952.

Further, in Ferguson v. State, Tex.Cr.App., 571 S.W.2d 908, it was held that if the guilty plea is supported by evidence independent of the matter contested in the pretrial motion, then any erroneous ruling on that motion does not vitiate the conviction. Likewise, when evidence from a contested search is not introduced by the State, the trial court’s erroneous ruling on the admissibility of such evidence will not serve as the basis for a reversal on appeal. Brewster v. State, Tex.Cr.App., 606 S.W.2d 325.

However, when the contested suppression evidence is admitted at trial and supplies the proof necessary to support the guilty plea conviction, the appellate court will review an adverse ruling on the pretrial suppression motion under Art. 44.02, supra. For example, in Galitz v. State, supra, the defendant was convicted upon his plea of guilty of unlawfully carrying a weapon on premises licensed to sell alcoholic beverages. In support of the plea, the State introduced the examining trial testimony of the officers who found the weapon. The handgun was not admitted into evidence. The defendant urged that in spite of his plea of guilty, he had nevertheless preserved his right to appeal the trial court’s action in overruling his motion to suppress. This Court found that the alleged error had been preserved for review under Art. 44.02, supra, and stated:

“In the instant case, however, nothing was admitted into evidence other than the transcribed examining trial testimony of the officers who escorted, arrested and ultimately searched appellant. Because this evidence was both a fruit of the contested search, and the only evidence which supplied proof of every element of the offense, appellant has preserved his right to have this Court determine the merits of his pretrial motion to suppress evidence in the felony case and we so hold.... ” (Emphasis in original) Id. at 956.

In the instant cause, appellant filed a pretrial written motion to suppress which was overruled by the court. There was a plea bargain agreement between the State and appellant. The punishment assessed by the court did not exceed the terms of that agreement. Finally, the contested evidence was admitted and supplied the proof necessary to support appellant’s conviction.

We find that appellant has preserved his right to have this Court determine the merits of his pretrial motion to suppress. Appellant maintains the search of his wallet which produced the contraband was unlawful because the officer did not have probable cause or a search warrant. Although the contraband was not admitted into evidence, the testimony of the officer who discovered the methamphetamine was a fruit of the contested search. See Brewster v. State, supra; Galitz v. State, supra.

Officer L. D. Garrison, of the Houston Police Department, testified that on September 7, 1979, he stopped a car driven by appellant because the car did not have brake lights. After stopping the car, Garrison found that appellant did not have a valid driver’s license and that the inspection sticker on the car had expired. Appellant was then placed under arrest and the search of his person which followed included appellant’s wallet. Prior to the search, the wallet had been in appellant’s pocket. Inside the wallet, Garrison found a white substance wrapped in clear plastic which he “suspected was some type of narcotic.” As noted above, appellant stipulated that the substance in his wallet was methamphetamine.

Due to the absence of brake lights and a valid inspection sticker, Garrison was authorized to arrest appellant without a warrant. See Art. 6701d, Secs. 118, 140 and 153, V.A.C.S. Likewise, the officer had probable cause to arrest appellant due to his failure to produce a valid driver’s license. See Art. 6687b, Sec. 13, V.A.C.S. A search incident to a lawful arrest requires no warrant if it is restricted to a search of the person or of objects immediately associated with the person of the arrestee. Stewart v. State, Tex.Cr.App., 611 S.W.2d 434. See United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). In Stewart, this Court upheld the warrantless search of the defendant’s purse as a search incident to a lawful arrest. See also Brown v. State, Tex.Cr.App., 594 S.W.2d 86.

Appellant’s reliance on United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), is misplaced. As this Court noted in Stewart v. State, supra:

“A ‘full search of the person,’ however has recently been held, under the Chadwick progeny ... has been held to include wallets. See United States v. Passaro, 624 F.2d 938 (9th Cir. 1980); United States v. Ziller, 623 F.2d 562 (9th Cir. 1980); United States v. Matthews, 615 F.2d 1279 (10th Cir. 1980); United States v. Phillips, 607 F.2d 808 (8th Cir. 1979); United States v. Castro, 596 F.2d 674 (5th Cir. 1979). In United States v. Passaro, supra, the Court of Appeals, in concluding that Chadwick did not apply to the warrantless search of a wallet, said:

“ ‘Just as the police in Robinson could, incident to a lawful arrest, search the defendant’s person, including the contents of a cigarette package found in the defendant’s pocket, so too could the search incident to Passaro’s arrest include an inspection of the contents of his wallet to discover evidence of crime The search here was valid and reasonable and the evidence seized therefrom was admissible even though it was unrelated to the crime for which Passaro was arrested.’ [Cases omitted].

“And in United States v. Ziller, supra, the Court of Appeals said:

“ ‘In our view, a search of the person which produced the wallet being permissible under Chadwick, a search of the contents of the wallet is likewise permissible as being an incident to and a part of the personal search.’ ” Id. at 437.

We find that Garrison’s warrant-less search of appellant’s wallet following the arrest was permissible as a search incident to arrest. No error is shown in the court overruling appellant’s motion to suppress.

Appellant’s motion for rehearing is denied.

McCORMICK, J., concurs in result.