Anthony Bolieu v. The State of Texas--Appeal from 147th District Court of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-431-CR
ANTHONY BOLIEU,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 921624, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

PER CURIAM

After appellant pleaded guilty and judicially confessed, the district court found him guilty of possessing less than twenty-eight grams of heroin, a controlled substance, and assessed punishment at imprisonment for twelve years. Tex. Health & Safety Code Ann. 481.115 (West 1992). In his first point of error, appellant contends his guilty plea was not knowingly and voluntarily entered. The State confesses error.

The record reflects that appellant pleaded guilty on the understanding that he could appeal the overruling of his pretrial motion to suppress evidence. At the sentencing hearing, defense counsel stated to the court, "His plea was conditioned on the ability to appeal." The court replied, "Yes, we understand all of that." In addition, the judgment recites that the court "gives its permission to the defendant that he may prosecute an appeal on any matter in the case including those matters raised by written motions filed prior to trial." Appellant's guilty plea was not a negotiated plea, however, and thus any error attending the overruling of the motion to suppress was waived. Broddus v. State, 693 S.W.2d 459 (Tex. Crim. App. 1985); Helms v. State, 484 S.W.2d 925 (Tex. Crim. App. 1972). Because it appears that appellant entered his plea of guilty with the assurance of the trial court that the overruling of the motion to suppress could be reviewed on appeal, we are constrained to hold that the plea was not voluntarily and knowingly entered. Broddus, 693 S.W.2d at 461; see Lemmons v. State, 818 S.W.2d 58, 63-64 n.7 (Tex. Crim. App. 1991).

The first point of error is sustained. Because of our disposition of this point, we need not address the remaining points of error.

The judgment of conviction is reversed and the cause is remanded for a new trial.

 

Before Justices Powers, Jones and Kidd

Reversed and Remanded

Filed: October 27, 1993

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