In the Matter of S.F.

[390] OPINION Opinion by. PHIL HARDBERGER, Chief Justice. This case illustrates the need for legislative action to establish a procedure for appealing a suppression point in a juvenile case in the same manner in which it is allowed in an adult criminal case. A criminal defendant may enter into a plea bargain and stipulate to the introduction of evidence without waiving his right to appeal a trial court’s pre-trial ruling on a written motion to suppress. See Tex.Code CRiM. Proc. Ann. art. 44.02 (Vernon 1979); Tex.R.App. P. 25.2(b)(3). This promotes judicial economy by eliminating the need for the State to prove facts that the defendant is willing to stipulate to provided that no appellate rights are lost with regard to the suppression point. Unfortunately, no corresponding statute exists for juvenile cases. The absence of such a statute for juveniles leaves appellate courts with the unenviable and inefficient task of deciding on a case-by-ease basis whether a juvenile has waived his suppression point by stipulating to evidence and pleading true based on that evidence. As the El Paso court said in In re R.S.C., 940 S.W.2d 750, 753 (Tex.App.—El Paso 1997, no writ): “There may well be cases in which a juvenile’s stipulation of evidence at the adjudication hearing would not constitute a waiver of a particular pretrial motion. Therefore, whether waiver has occurred must be decided on a case-by-case basis.” The instant case is not difficult. It is clear by the record, and both parties agree, that there was no intentional waiver of the suppression point. At the time of the plea hearing, the juvenile, the State, and the trial court all erroneously believed that the suppression point was preserved for appellate review even with the stipulation of evidence and plea of true. It is this erroneous belief that made S.F.’s plea involuntary. For this reason, both S.F. and the State agree that this case must be reversed and remanded. We concur with this agreement for the reasons expressed in this opinion. Procedural History In the State’s original petition, the State alleged that S.F. engaged in delinquent conduct by knowingly and intentionally possessing cocaine. S.F. filed a motion to suppress alleging he was illegally detained; however, the trial court denied the motion after a hearing. No written order was entered by the trial court. At the adjudication hearing, the State offered S.F.’s written waiver and consent to stipulation of testimony. The police report and lab analysis reports were attached to the waiver. The trial court asked defense counsel if he had any objections to the introduction of the evidence, and defense counsel responded that he did not. S.F. then pled guilty or true to the charges in accordance with a plea bargain agreement. The provision for the waiver of appeal on the written plea bargain form was initially checked, but was later crossed out. At the conclusion of the disposition hearing, the following exchange occurred: MR. COSGROVE: [S.F.] has indicated to me and I concur in his decision that he does wish to appeal the Court’s decision on the motion to suppress and I will be filing a notice of appeal. However, I am not an appellate lawyer and he will be needing an appointment of the appellate lawyer. THE COURT: All right. I am instructing you to continue his representation until a lawyer is appointed to represent him on the appeal. MR. COSGROVE: Yes, sir. THE COURT: Obviously you have the right to appeal the motion to suppress. And if you cannot afford a lawyer one will be appointed to represent you. Discussion S.F. now contends his plea of true was involuntary based on the three-way mis [391] taken belief at the trial court level that his suppression point would be appealable. The State confesses error. We agree. This case is factually similar to In re R.S.C., 940 S.W.2d at 750. In that case, R.S.C. was charged with carrying an illegal knife. Id. at 751. After the trial court denied his motion to suppress, R.S.C. stipulated that he committed the offense. Id. The trial court held that R.S.C.’s stipulation waived any complaint that he might raise with regard to the trial court’s ruling on the motion to suppress; however, since R.S.C. entered into the stipulation with the mistaken belief that he could appeal the denial of his motion to suppress, the El Paso court held that the stipulation was involuntary. Id. at 752. The same reasoning applies in the instant case. S.F. stipulated and agreed to the introduction of the very same evidence he sought to have suppressed, and that stipulated evidence was utilized by the trial court to support its delinquency finding. See id. at 753. As a result, S.F. waived his prior objection to the admissibility of the evidence. See id. at 752; see also Reasoner v. State, 463 S.W.2d 55, 58-59 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ ref'd n.r.e.). However, since S.F. agreed to the stipulation and plea with the understanding that he could appeal the trial court’s ruling on the motion to suppress, his plea was involuntary. See id. Conclusion It is obvious in reviewing this case that S.F. did not intend to waive his suppression point on appeal. No one argues otherwise. It is tempting to hold, as the dissent urges, that S.F. did not waive his suppression point and that he also has presented the merits of the suppression point for our review. The practical advantages of doing this, however, are overcome by two limitations on this court’s own authority. One, no statute exists similar to article 44.02 and rule 25.2(b)(3) that permits a juvenile to appeal a pre-trial suppression ruling under these circumstances; and, two, even if we had statutory or common law authority to treat a juvenile case like an adult criminal case, the substance of the suppression point was not raised in S.F.’s brief. If we followed the dissent’s recommendation, we would not only trespass into addressing an issue we have no specific authority to address, but we would further enmesh ourselves by groping into the murky netherworld of unassigned error. This we refuse to do. Sometimes, even in the interests of judicial economy, it is best just to start over. This is one of those times. We reverse the trial court’s judgment, and remand the cause for further proceedings consistent with this opinion.