David Lee Lowery v. State Texas

David Lee Lowery pleaded nolo contendere to possession of amphetamine. Pursuant to a plea-bargain agreement, the trial court assessed punishment at four years confinement and a $750 fine. This Court affirmed Lowerys conviction, holding that we could not review non-jurisdictional defects occurring prior to entry of the plea because Lowerys notice of appeal did not comply with rule 40(b)(1) of the Texas Rules of Appellate Procedure. Lowery v. State, 843 S.W.2d 136 (Tex. App.--Dallas October 15, 1991) (not published pursuant to TEX. R. APP. P. 90). On Lowerys petition for discretionary review, the Texas Court of Criminal Appeals held that Lowerys substantial compliance with rule 40(b)(1) gave this Court jurisdiction to review properly preserved non-jurisdictional issues. Lowery v. State, 843 S.W.2d 136 (Tex. Crim. App. April 1, 1992) (per curiam) (not published pursuant to TEX. R. APP. P. 90). Consequently, the court remanded the cause to this Court to consider Lowerys sole point of error complaining that the trial court erred in denying his motion to suppress. Both parties have rebriefed this issue. See Robinson v. State, 790 S.W.2d 334, 335 (Tex. Crim. App. 1990) (per curiam). We reverse and remand.