Opinion
No. 025-85.
July 10, 1985.
Appeal from 184th Judicial District Court, Harris County; George Taylor, Special Judge.
Charles W. Medlin, Robert J. Fickman, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty. and Lori B. Millberg and Terry Cornelius, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before the Court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of the offense of possession of marihuana. Punishment was assessed by the court at imprisonment in the Texas Department of Corrections for eight years, probated, and a $1,000 fine.
The Houston First Court of Appeals reversed in a published opinion, delivered November 21, 1984. Renzi v. State, 682 S.W.2d 387 (Tex.App. Houston (1st) 1984). The Court of Appeals concluded that appellant's plea of nolo contendere was involuntary and conditional and ordered a reversal.
The record reflects that a plea of nolo contendere was entered pursuant to a plea bargain agreement in which the trial court did not exceed the punishment recommended by the prosecutor. See Article 44.02, V.A.C.C.P. The record further reflects that appellant had been informed that he would be permitted to appeal the trial court's ruling on his motion to suppress. At trial appellant executed a judicial confession and the evidence seized from appellant was not used to support his conviction.
In determining this case the Court of Appeals did not have the benefit of this Court's recent decision in Morgan v. State, 688 S.W.2d 504 (Tex.Cr.App. 1985). In Morgan this Court noted that it was no longer necessary to apply the rationale of Mooney v. State, 615 S.W.2d 776 (Tex.Cr.App. 1981) in the context of convictions obtained under Article 44.02, V.A.C.C.P. See also Ex parte Grant, 687 S.W.2d 6 (Tex.Cr.App. 1985). Therefore, pursuant to the authority conferred on this Court by Article 44.37 and 44.45, V.A.C.C.P. and Rule 304(A), Texas Rules of Post Trial and Appellate Procedure the State's Petition for Discretionary Review is summarily granted. This case is remanded to the Court of Appeals for the First Supreme Judicial District for consideration of the merit, if any, of appellant's motion to suppress in accordance with this Court's opinion in Morgan v. State, supra. This Court expresses no opinion with respect to the ultimate disposition of this issue but only finds that the Court of Appeals should consider the merits of the ruling on the motion to suppress.
The judgment of the Court of Appeals is reversed and the cause is remanded for further proceedings in accordance with this opinion.