Cerna v. State , 1985 Tex. App. LEXIS 6780 ( 1985 )

ESQUIVEL, Justice,

concurring.

I agree with the majority in their disposition of the motion to suppress. My dilemma is in their decision to reverse and remand this case.

In Morgan v. State, 688 S.W.2d 504 (Tex.Crim.App.1985), our scope of review in a criminal case has been extended to include the consideration of issues raised and contested before trial when an accused enters a plea of guilty and his guilty plea is supported by a written judicial confession or admissions made in open court. We have done that in the case before us today. But, have we, in reversing and remanding this case followed the legislative intent of TEX. CODE CRIM.PROC.ANN. art. 44.02 (Vernon 1977), as stated by the court in Morgan? In Morgan, the court stated: “[h]av-ing thus encouraged pleas of guilty and nolo contendere in exchange for the right to appeal contested pre-trial issues, the Legislature surely contemplated a meaningful appeal —one that addresses and decides each issue on its merits.” (Emphasis added). Because of the questions raised in the dissenting opinion in Morgan, concerning the judicial confession upon remand, are we really affording this appellant a meaningful appeal? If the Morgan court had gone further and stated that the “judicial confession” in that case could not be used against the defendant in a subsequent trial, then our remand of this case would make sense.

From the record before us, to remand this case in the face of the judicial confession is to engage in judicial gymnastics with no useful purpose. I therefore join my colleague, Justice Cantu, in his reluctance, and concur in the result.