Shallhorn v. State

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

Appellant entered a plea of guilty to the charge of aggravated robbery. Appellant elected to go to a jury for punishment and she was assessed a term of thirty-five years’ confinement and a fine of $10,-000.00.

The Fort Worth Court of Appeals reversed appellant’s conviction after finding that she entered an involuntary plea conditioned on the premise that she would be allowed to appeal the denial of her pretrial motion to suppress her confession. Shallhorn v. State, 671 S.W.2d 730 (Tex.App.—Fort Worth 1984). We granted the State’s petition for discretionary review to examine this opinion.

The record reflects that prior to the commencement of the voir dire examination of the jury, the following occurred:

“MR. MORRIS: I would like for the record to also reflect that the defendant enters her plea of guilty based upon the adverse ruling of the Court on our motion to supress (sic), and that in entering our plea of guilty we are not admitting that the evidence is all true and correct, that we are not waiving our right to appeal the Court’s ruling on the motion to supress (sic).

“THE COURT: I understand that. I think you need to do that again when we admonish her.

“MR. MORRIS: All right.”

Immediately following the admonishments by the judge, appellant’s counsel again stated the basis for appellant’s plea:

“MR. MORRIS: At this time again I’d (sic) for the record to reflect that my client has decided to plead guilty based on the adverse ruling of the Court on our motion to suppress, and that in pleading guilty she is not waiving her right to appeal that adverse ruling, and we retain that right. Also that we would not enter a plea of guilty had we not received the adverse ruling on the motion to suppress.”

Immediately after appellant was sentenced, defense counsel informed the court that he was giving oral notice of appeal and that a written notice of appeal would be filed at a later time. Shortly thereafter, appellant filed a motion asking that counsel be appointed to represent her on a motion for new trial and appeal. The judge, apparently agreeing that appellant was eligible to appeal her conviction, appointed trial counsel to represent her on her motion for new trial and appeal.

The law provides that where there is no plea bargain and a plea of guilty is voluntarily and understanding^ made all nonjurisdictional defects including claimed deprivations of federal due process are waived. Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.1972). Applying this to the instant case, since there was no evidence of a plea bargain, under the Helms rule, appellant could not appeal the denial of her motion to suppress. However, as can be seen from the portion of the record set out above, it is evident that appellant, her attorney and the trial judge were laboring under the false impression that such an appeal was in order. Because of this erroneous assumption, we are compelled to agree with appellant and the Court of Appeals and find that her plea of guilty was not entered voluntarily or knowingly. Christal v. State, 692 S.W.2d 656 (Tex.Cr.App.1985); Harrelson v. State, 692 S.W.2d 659 (Tex.Cr.App.1985); Broddus v. State, 693 S.W.2d 459 (Tex.Cr.App.1985).

The judgment of the Court of Appeals is affirmed and the case is remanded to the trial court for a new trial.