McKenna v. State

OPINION

NYE, Chief Justice.

Appellant pled guilty to the offense of sexual assault. The trial court, pursuant to a plea bargain, assessed punishment at ten years of confinement and a fine of $1500. By five points of error appellant complains of the trial court’s denial of his motion to suppress.

Appellant was charged with the offense of aggravated sexual assault. Shortly after he was arrested, appellant signed a written confession. He filed a motion to suppress the confession alleging he was denied the right to counsel, was coerced to confess, and was denied the right to be taken before a magistrate without unreasonable delay. After a hearing, the trial court overruled the motion, finding the confession was voluntarily given. Subsequently, appellant entered a plea of guilty to the lesser offense of sexual assault, conditioned on his right to appellate review of the trial court’s ruling on his motion to suppress.

Appellant stipulated to the evidence and consented to waive the appearance, confrontation, and cross-examination of witnesses. See Tex.Code Crim.Proc.Ann. art. 1.15. Included on the stipulation form was a judicial confession admitting that he committed the crime of sexual assault. The documentary evidence appellant consented to being introduced included offense reports, affidavits or statements by the victim and the victim’s mother, and the extrajudicial confession appellant sought to have suppressed.

Although appellant pled guilty, he has the statutory right to appeal the ruling on the written pre-trial motion because the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the appellant. Tex.R. App.P. 40(b)(1). Furthermore, the Court of Criminal Appeals has determined that a judicial confession does not waive the appellant’s right to complain of the pre-trial ruling. Morgan v. State, 688 S.W.2d 504, 507 (Tex.Crim.App.1985). Similarly, even though appellant stipulated to the evidence which he sought to suppress, he has not waived his right to appeal the trial court’s pretrial ruling on his motion to suppress. Johnson v. State, 722 S.W.2d 417 (Tex.Crim.App.1986); Statman v. State, 740 S.W.2d 464 (Tex.Crim.App.1987).

After reviewing the evidence, however, we conclude that we need not address appellant’s points of error. As appellant’s guilty plea is supported by evidence which is independent of his judicial confession and the challenged extra-judicial confession, any erroneous ruling on the pretrial motion is immaterial to the validity of the guilty plea. We reach this conclusion by relying on Johnson v. State, 722 S.W.2d 417 (Tex.Crim.App.1986).

In Johnson, the defendant stipulated to evidence which contained fruits of an illegal search and seizure and to evidence which was obtained independently of the illegal search and seizure. The Court held:

[I]f the guilty plea or plea of nolo conten-dere is supported by evidence as required by Article 1.15, which is independent of the judicial confession and the tainted evidence, than the erroneous ruling on an appealable pretrial motion does not vitiate the conviction. Johnson, 722 S.W.2d at 424.

In this case, the stipulated evidence, excluding the extra-judicial and judicial confessions, was sufficient to embrace every essential element of the offense charged and manifest the guilt of the appellant.

Appellant was arrested for sexually assaulting W.C. The stipulated testimony of the victim, W.C., was that on February 27, 1987, appellant was visiting at the home of W.C. and W.C.’s mother. W.C. was six years old. Appellant was a next door neighbor of W.C. W.C. and his mother were preparing to leave their home that evening when W.C.’s mother told W.C. to take his shower and to save some hot water for her shower. Appellant repeatedly suggested that W.C. take a shower at his home. After the mother assented to this arrangement, appellant undressed W.C., put a towel around him and carried W.C. to his house.

After W.C. took a shower, he put on a robe and sat with appellant on the couch. According to W.C., while they were alone at appellant’s home, appellant opened W.C.’s robe and performed the act appellant was charged with. This lasted approximately three minutes until W.C.’s mother arrived at appellant’s house. W.C.'s mother stated that she questioned W.C. about what had happened at appellant’s house and W.C. told her appellant performed the act.

The unchallenged, stipulated evidence provides a sufficient basis for the trial court’s judgment. Hence, error, if any, in the trial court’s ruling on the motion to suppress is not reversible.

The judgment of the trial court is AFFIRMED.