HAL DOUGLAS WALLACE, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed October 31, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-00777-CR
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HAL DOUGLAS WALLACE, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F87-70896-TM
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O P I N I O N
Before Justices Stewart, Lagarde and Burnett
Opinion By Justice Burnett
        Hal Douglas Wallace appeals his conviction for unlawful possession with intent to deliver a controlled substance, to-wit: cocaine, in an amount less than 28 grams. After a hearing, Wallace's motion to suppress evidence was denied. Wallace then waived trial by jury and entered an open plea of guilty. The trial court assessed Wallace's punishment at five years' confinement. In three points of error, Wallace asserts that: (1) his guilty plea was involuntarily entered; (2) the search warrant affidavit lacked probable cause; and (3) the trial court erred in not granting his motion to dismiss based on prosecutorial misconduct. We disagree, and accordingly, affirm the trial court's judgment.
        The record reflects that on September 28, 1987, an undercover officer, Fred Curry, purchased cocaine from Tracy Stevenson. Stevenson informed Officer Curry that she would be able to obtain more cocaine from her step-father, Wallace. On September 30, 1987, Officer Curry and Stevenson set up a second cocaine purchase. Stevenson met with Officer Curry and delivered to him one quarter ounce of cocaine. Officers obtained a search warrant for Wallace's residence. Upon execution of the warrant, officers found cocaine in Wallace's pocket and in his bedroom closet. Narcotics paraphernalia was also found. The record further reflects that Wallace is an attorney who has been engaged in the practice of criminal law for over ten years.
        In his first point of error, Wallace argues that his plea of guilty was involuntarily entered because he was laboring under the false impression that the denial of his pre-trial motions could be appealed. When a plea of guilty is voluntarily and understandingly made, all non-jurisdictional defects including claims of deprivation of federal due process are waived. King v. State, 687 S.W.2d 762, 766 (Tex. Crim. App. 1985); Helms v. State, 484 S.W.2d 925, 927 (1972). Wallace recognizes King and Helms, but asserts that the plea of guilty cannot stand because, when entering the plea, Wallace was acting under the mistaken impression that the pre-trial matters were, in fact, subject to review. Wallace bases his assertion on two exchanges that occurred between the trial judge and the defense attorney. The first exchange occurred after the trial judge denied Wallace's motion to dismiss, when the defense attorney stated that he would submit an order regarding the court's disposition of that issue. The second exchange occurred at the conclusion of the punishment hearing, when the defense attorney stated that a notice of appeal would be filed, and the court set the appeal bond. According to Wallace, the record therefore reflects that the parties were acting under the assumption that the pre-trial matters were subject to appellate review.
        Where there is no agreement, no stipulation, and the plea of guilty is not entered "subject to" or "in reliance upon" a pre-trial motion, or with an express understanding that the defendant is not waiving the right to appeal, the conviction will be affirmed. Allen v. State, 474 S.W.2d 480, 482 (Tex. Crim. App. 1972); Nycum v. State, 650 S.W.2d 91, 93 (Tex. App.--Houston [14th Dist.] 1982, no pet.). A defendant's statement to a trial judge that the defendant was not withdrawing his pre-trial motions did not make the guilty plea a conditional one, where there was no affirmative assurance from the trial court that any of the defendant's pre-trial motions would be preserved for appeal. The trial court has no duty to warn against or to correct all of a defendant's misbegotten expectations of the scope of his appellate rights. Nycum, 650 S.W.2d at 93.
        The record does not support Wallace's assertion that the parties were acting under the assumption that the pre-trial matters were subject to review and that Wallace's plea of guilty was therefore entered into involuntarily or unknowingly. The defense attorney's statements to the trial judge do not affirmatively show that his plea of guilty is a conditional one. The record does not indicate any agreement or stipulation regarding the entry of Wallace's plea of guilty, nor does it show that he entered into the plea "subject to" or "in reliance upon" review of his pre-trial motions, or with an express understanding that he was preserving his right to appeal. Allen, 474 S.W.2d at 482; Nycum, 650 S.W.2d at 93. Further, the record shows that Wallace is an attorney and that, at the time he entered into his plea of guilty, he had been engaged in the practice of criminal law for more than ten years. These facts indicate that Wallace's guilty plea was entered knowingly and voluntarily. We overrule Wallace's first point of error.
        Because Wallace's plea was entered voluntarily and with understanding of the consequences, he waived all non-jurisdictional defects, including claims of deprivation of federal due process. Consequently, we do not reach the second and third points of error.
        The judgment of the trial court is affirmed.
 
 
 
                                                          
                                                          JOE BURNETT
                                                          JUSTICE
 
 
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
880777.U05
 
 
File Date[10-30-89]
File Name[880777]