Charles Edward Murray v. The State of Texas--Appeal from 194th District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-97-021-CR

CHARLES EDWARD MURRAY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 194th District Court

Dallas County, Texas

Trial Court # F95-43807-IM

O P I N I O N

Appellant Murray appeals from his conviction for possession with intent to deliver heroin (one gram or more, but less than four grams), enhanced by two prior felony convictions, for which he was sentenced to 50 years in the Texas Department of Criminal Justice, Institutional Division.

Prior to trial Appellant made a motion to suppress the evidence, i.e. the heroin seized, on the ground that the search warrant was inadequate, which motion was denied by the court after a hearing.

Appellant, at the beginning of his trial, pled not guilty but, after the State had proved up its case and a potential witness for Appellant "took the fifth" on advice of counsel and refused to testify, Appellant changed his plea of not guilty to guilty. The court asked him if his election to change his plea to "guilty" was freely and voluntarily made, to which Appellant answered, "yes, sir." The court then asked Appellant if he understood that he was going to instruct the jury to find him guilty, to which Appellant answered, "yes, sir." The court then instructed Appellant on the range of punishment and asked him if anyone had threatened him to get him to change his plea to guilty, to which Appellant answered, "no, sir." The trial court then asked Appellant's counsel and Appellant if they were satisfied Appellant was competent and of sound mind, to which both answered, "yes, sir." Appellant's counsel then asked Appellant if it was his idea to change his plea to "guilty" after a potential witness that would tend to exonerate him was no longer available, to which Appellant answered, "yes." The court then told Appellant that there was no plea bargain and that he would consider the entire range of punishment, to which Appellant answered that he understood.

Appellant then signed a stipulation of evidence. The court instructed the jury to find Appellant guilty, which the jury did so find.

On the punishment phase, Appellant pled "true" to the two prior felony convictions alleged in the indictment, and the State proved up a total of five prior felony convictions. The court then sentenced Appellant to 50 years in prison.

Appellant appeals on one point of error: "The affidavit in support of the search warrant which resulted in the search and seizure resulting in [Appellant's] indictment is inadequate as a matter of law to support the issuance of the search warrant."

When a plea of guilty is voluntarily and understandingly entered into without the benefit of a plea bargain, all non-jurisdictional defects occurring before the entry of a guilty plea are waived. Jack v. State, 871 S.W.2d 741, 744 (Tex. Crim. App. 1994); Helms v. State, 484 S.W.2d 925, 927 (Tex. Crim. App. 1972). A trial court's ruling on a pretrial motion to suppress evidence involves a non-jurisdictional defect occurring prior to the plea. Shallhorn v. Horn, 732 S.W.2d 236, 637 (Tex. Crim. App. 1987); Courtney v. State, 904 S.W.2d 907, 912 (Tex. App. Houston [1st Dist.] 1995, pet. ref'd); Rodriquez v. State, 844 S.W.2d 905, 907 (Tex. App. San Antonio 1992, pet ref'd); Lewis v. State, 911 S.W.2d 1, 4-5 (Tex. Crim. App. 1995) (finding that Lewis waived his right to complain that the trial court erred in denying his pretrial motion to suppress when he pled guilty in front of a jury without the benefit of a negotiated plea bargain).

Appellant pled guilty in front of a jury during the guilt/innocence phase of the trial. The plea was not negotiated. Consequently he has waived error, if any, in the trial court's denial of his pretrial motion to suppress evidence.

Appellant's point is overruled and the judgment is affirmed.

FRANK G. McDONALD

Chief Justice

Before Chief Justice Davis,

Justice Cummings, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed June 4, 1997

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