¶1dissenting.
¶2I dissent from the majority’s disposition of this case.
¶3Appellant entered a plea of guilty to possession of methamphetamine after the trial court had overruled a motion to suppress the seized methamamphetamine. The trial court assessed a punishment less than that recommended by the prosecution and *175agreed to by the appellant and his attorney. At the plea of guilty, appellant’s counsel indicated he wished to preserve for appeal the court’s ruling on the motion to suppress. Since the issue of the legality of the search was raised by a written motion filed prior to trial, this issue is properly before us. Tex.Code Crim.Proc.Ann. art. 44.02 (Vernon 1977);
¶4At the plea before the trial court, appellant stipulated to the commission of the offense. He further stipulated to the testimony of other witnesses which related to the seized evidence. These stipulations were admitted before the trial court. The record reflects that appellant’s plea and the stipulations were knowingly and voluntarily given.
¶5Fergusoninvolved a plea of guilty entered after a motion to suppress evidence seized pursuant to a search warrant was overruled. The defendant judicially confessed, but none of the evidence obtained as a result of the search warrant was introduced. The Court of Criminal Appeals held that the judicial confession was alone sufficient to sustain the conviction. In Haney, the issue was: where appellant has entered a valid judicial confession to the offense, can the introduction of illegally seized evidence in the guilty plea hearing be reversible error? The court concluded that the judicial confession was sufficient to support the guilty plea without reference to the contraband alleged to be improperly admitted. The judgment of conviction was also affirmed. In both Fergusonand Haneythe court did not reach the issue of the validity of the search and seizure though preserved under article 44.02.
¶6If we follow Haney, which is factually identical to our present case, we should reach the same result and affirm the conviction without passing on the search and seizure question though apparently preserved for review under article 44.02. If we do not pass on the search and seizure question, the purpose of article 44.02 would be frustrated. See Isam v. State, 582 S.W.2d 441, 442 (Tex.Cr.App.1979). What the Legislature intended by article 44.02 and what the appellant is contending here is that if the officers did not violate the rights of the defendant, then he should be assessed the punishment for which he bargained in the plea of guilty. But if the officers did violate his rights, then he should not receive the punishment.
¶7If we review the search and seizure issue, we would still reach the same result. In the instant case, the officer testified that he received a phone call from an informant that he knew personally and who had provided him with reliable information in the past. The information received from the informant was that a person by the name of Guy Morgan was seen to have on his person a small amount of methamphetamine, and he was going to be at a place known as the Doll House for a short period of time, intending to try to sell some methamphetamine there. He would be operating a green four door sedan that was an older model Chrysler that would be parked backed in a particular area of the parking lot. The officers testified that they did not have time to secure a search warrant. Though the officers did not receive a description of the appellant, they learned from their identification section that an individual by the name of Guy Morgan had been previously “handled” on a narcotics case. They obtained a picture of that particular subject and took it with them to the scene. They observed an older model green four door sedan Chrysler parked in the manner de*176scribed outside the Doll House. Shortly thereafter a person matching the picture they had obtained came towards the car and stopped by it. The officers approached the individual and asked him who he was. Upon learning that he was Guy Morgan, the officers placed him under arrest and searched him. The officers had verified all of the critical facts which had been supplied by the informant prior to making the arrest. Considering the totality of the circumstances, the officers had probable cause at the moment they acted. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
¶8I would review the search and seizure question as contemplated by article 44.02 and affirm the judgment of conviction on that basis.
¶9. Tex.Code Crim.Proc.Ann. art. 44.02 provides: A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion ñled prior to trial. This article in no way effects appeals pursuant to article 44.17 of this chapter. [Emphasis supplied.]
¶10. Justice Cantu’s opinion is based on the “conditional plea theory”. Wooten v. State, 612 S.W.2d 561 (Tex.Cr.App.1981). The Court of Criminal Appeals has cut the underpinnings from Wootenand its progeny as it applies to a plea of guilty following overruling of a pretrial speedy trial motion. Martin v. State, 652 S.W.2d 777 (Tex.Cr.App.1983). The conditional plea theory should not be followed here for other reasons. It created the anomaly of a defendant voluntarily entering a plea of guilty while wanting an article 44.02 review of a pretrial motion. If the defendant admitted his guilt with sufficient formality, the result was a reversal of the conviction everyone agreed to. If the defendant entered a plea of guilty but avoided a judicial confession, then his conviction was affirmed though less evidence supported it. Haneyand Fergusonmake more sense.