Moon v. State

¶1concurring in part and dissenting in part.

¶2I agree that the judgment should be affirmed. On March 31, 1976, appellant pleaded guilty and received careful admonishments from the trial court. See Art. 26.13, Vernon’s Ann.C.C.P. The court then found him guilty but abated the case for a pre-sentence investigation and also to allow appellant to prepare and present evidence on the issue of punishment.

¶3On June 3, 1976, the court reconvened the case to hear evidence on punishment. During this hearing, testimony was presented which, quite clearly, raised the issue of self-defense. I would hold that because the trial judge had already found the appellant guilty, the issue was raised too late to require the judge to withdraw appellant’s plea.

¶4II.

¶5However, I do not agree with the majority holding which eliminates the requirement that the trial court withdraw the plea of guilty of an accused wherever the evidence fairly and reasonably brings his guilt into question in a hearing before the court. This holding is dicta in the form of an advisory opinion and unnecessary to the decision of the case. Faced with such a sweeping change in our established law, I would reject the majority’s broad holding and hold instead that whenever the evidence raises a question of the defendant’s innocence the trial court must — at the very least — stop the hearing and determine whether the plea is voluntary and whether the accused is aware of conflict between his plea of guilty and the evidence presented.

¶6III.

¶7The majority opinion rests on three basic assumptions. The first of these, stated in *689the opinion, is that the trial judge will fairly consider the evidence presented, even though some of that evidence is in plain conflict with the defendant’s plea of guilty. I have no general quarrel with the even-handedness and fair-mindedness of our State’s trial judges; however, I believe that the rule which the majority abolishes is not concerned with mere evidentiary questions, but is instead a reflection of this Court’s concern for the principles of due process as guaranteed by our State1 and Federal2 Constitutions. When a question arises as to the voluntariness of a plea of guilty, the sufficiency of the evidence to support that plea takes a position of distinctly secondary importance; simply put, due process — and the rights which it embodies in this context — comes first.3

¶8By its broad-sweeping new rule, the majority allows trial judges to ignore their constitutional duty to inquire carefully into the voluntariness of each guilty plea. Although one recent Supreme Court decision held that a trial judge may accept a plea of guilty despite the defendant’s protestation of innocence, the Court also made it clear that in any guilty plea the trial judge may accept the plea only after making a careful determination that the plea is knowing and voluntary. North Carolina v. Alford, 400 U.S. 25, 32, 38, n. 11, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), relying, inter alia, on Brady v. U. S. 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

¶9The holding in Alford, which upheld the validity of that State court guilty plea, was dependent upon a finding by the Supreme Court that the plea was knowing and voluntary and supported by ample evidence of guilt.

¶10IY.

¶11The Court’s decision in Alfordalso serves to refute what I believe to be the second, albeit unstated, assumption contained in the majority opinion: that the trial judge is merely an umpire, nothing more than a caller of balls and strikes. I cannot agree with this conclusion. The trial judge is the presiding officer of the trial, and it is his duty above all to see that justice under law is not thwarted. Certainly he must remain impartial, but he is nonetheless the principal public official whose obligation it is in a criminal ease to see that “all individuals are tried and sentenced in accordance with law.” Ex Parte Curtis, 568 S.W.2d 363, 367 (Tex.Cr.App.1978). As such, he must intrude himself into the guilty plea hearing when the voluntariness of the plea comes into question. See Boyd v. Dutton, 405 U.S. 1, 92 S.Ct. 759, 30 L.Ed.2d 755 (1972); Henderson v. Morgan, supra (note 3); Boykin v. Alabama, supra (note 3).

¶12V.

¶13The majority’s final assumption, not stated but certainly woven into the fabric of the opinion, is that because the accused is represented by counsel his rights will be adequately represented and defended. See Brady v. U. S., supra at 748-749, n. 6, 90 S.Ct. 1463.

¶14In this regard, I am aware that my dispute with the majority puts me in the position of advocating an intrusion by the trial judge into the relationship between the accused and his attorney. In most cases, that relationship — and the privileges and responsibilities it carries with it — should not be infringed upon. However, a guilty plea is a special case, an exception to the general rule, because in a guilty plea the defendant, upon the advice and counsel of his lawyer, abandons his normal role as an active litigant in the adversary process and joins with the prosecution to help pull the State’s case to shore. Here it should be remembered that the accused is helping the prosecutor shoulder the heaviest of evidentiary bur*690dens — that of proof beyond a reasonable doubt.4

¶15Thus, in a plea of guilty or nolo conten-dere, an accused formally and officially abandons his traditional position as opponent of the prosecution. Admittedly, he does so actively, as a supposedly knowing and voluntary participant in the proceedings. Nonetheless, his position is analogous to that of a defendant who passively and unknowingly abandons his position as a litigant on appeal when his retained attorney fails to prosecute the defendant’s appeal after promising to do so.5 In these latter cases, we, as an appellate court, intervene in the attorney-client relationship because we realize that the defendant has become an unwitting accomplice in the State’s efforts to affirm his conviction. We recognize in those cases that due process requires that the defendant himself be afforded the opportunity to resume his position as an active litigant on appeal.

¶16Similarly, when an accused agrees, after consultation with counsel, to plead guilty and present evidence which is ostensibly in support of his plea, he abandons his status as an active litigant. Should he then present evidence which reasonably and fairly brings his guilt into question the trial court should intervene in order to determine with care and discernment whether he wishes to reassert his role as a contestant in the adversary process. I would hold that federal due process requires this much at the very least.

¶22dissenting.

¶23On original submission when this was still a five judge court appellant’s conviction was reversed and remanded because the trial court failed to sua sponte withdraw the appellant’s plea when the evidence reasonably and fairly raised an issue of fact as to the innocence of the appellant. It was undisputed that the evidence clearly raised the issue of self-defense. Now on rehearing before a nine judge court the majority grants the State’s motion for rehearing and affirms the conviction. In doing so, the majority relies upon the dissenting opinion on original submission and takes a well established rule applicable to both jury and bench trials and splits the rule in two, leaving the same applicable to jury trials, but inapplicable to bench trials. This is indeed regrettable. I adhere to the opinion on original submission. For the reasons stated there, I dissent.1

¶24OPINION

¶25ONION, Presiding Judge.

¶26This appeal is taken from a conviction for murder wherein the punishment was assessed at twenty (20) years’ imprisonment. The appellant waived the right to trial by jury and entered a plea of guilty before the court.

¶27Appellant asserts that in view of the evidence offered his guilty plea should have been withdrawn by the court and a not guilty plea entered for him. Without detailing the evidence suffice it to say the evidence clearly raised the issue of self-defense.

¶28This court has for years held that when evidence introduced before a jury (when a defendant had entered a guilty plea) makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn, the trial court is required sua sponte to withdraw the defendant’s guilty or nolo contendere plea and enter a not guilty plea for the defendant. E. g., Harris v. State, 76 Tex.Cr.R. 126, 172 S.W. 975*691(1915); Taylor v. State, 88 Tex.Cr.R. 470, 227 S.W. 679 (1921); Yantis v. State, 95 Tex.Cr.R. 541, 255 S.W. 180 (1923); Aills v. State, 114 Tex.Cr.R. 345, 24 S.W.2d 1097 (1930); Villa v. State, 122 Tex.Cr.R. 142, 53 S.W.2d 1023 (1932); Thompson v. State, 127 Tex.Cr.R. 494, 77 S.W.2d 538 (1935); Edwards v. State, 134 Tex.Cr.R. 153, 114 S.W.2d 572 (1938); Navarro v. State, 141 Tex.Cr.R. 196, 147 S.W.2d 1081 (1941); Rayson v. State, 160 Tex.Cr.R. 103, 267 S.W.2d 153 (1954); Fite v. State, 163 Tex.Cr.R. 279, 290 S.W.2d 897 (1956); Richardson v. State, 164 Tex.Cr.R. 500, 300 S.W.2d 83 (1957); Edworthy v. State, 371 S.W.2d 563 (Tex.Cr.App.1963); Reyna v. State, 434 S.W.2d 362 (Tex.Cr.App.1968); Swanson v. State, 447 S.W.2d 942 (Tex.Cr.App.1969); Hayes v. State, 484 S.W.2d 922 (Tex.Cr.App.1972); Lee v. State, 503 S.W.2d 244 (Tex.Cr.App.1973); Lewis v. State, 529 S.W.2d 550 (Tex.Cr.App.1975); Gates v. State, 543 S.W.2d 360 (Tex.Cr.App.1976); Woodberry v. State, 547 S.W.2d 629 (Tex.Cr.App.1977); Malone v. State, 548 S.W.2d 908 (Tex.Cr.App.1977).

¶29Ever since Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460 (1942), the rule has been recognized and applied when the guilty or nolo contendere plea was before the court without a jury and has been consistently applied since the advent of the 1965 Code of Criminal Procedure. See, e. g., Gonzales v. State, 480 S.W.2d 663 (Tex.Cr.App.1972); Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974); Trevino v. State, 519 S.W.2d 864 (Tex.Cr.App.1975); Cooper v. State, 537 S.W 2d 940 (Tex.Cr.App.1976); Sanchez v. State, 543 S.W.2d 132 (Tex.Cr.App.1976).

¶30And it has even been held applicable to a revocation of probation proceeding where like the guilty plea before the court the trial judge is the trier of the facts, the judge of the credibility of the witnesses and the weight to be given their testimony. Roberson v. State, 549 S.W.2d 749 (Tex.Cr.App.1977).

¶31In the instant case we hold that the trial court under the circumstances presented should have withdrawn the guilty plea on its own motion because the evidence reasonably and fairly raised an issue of fact as to the innocence of the appellant.

¶32The dissent would reach out and would have this court, sua sponte, adopt a new rule.1 The dissent would hold that since the advent of the 1965 Code of Criminal Procedure there would seem to be no valid reason for the trial court to withdraw the guilty plea and enter a plea of not guilty when the defendant enters a guilty plea before the court after waiving a jury.

¶33In light of such statement, it is well that we examine the background of the rule involved. Prior to the 1931 amendment, Article 12, Vernon’s Ann.C.C.P., 1925, read:

“No person can be convicted of a felony except upon the verdict of a Jury duly rendered and recorded. . . . ”

¶34Thus, a jury was required in every felony case regardless of the plea.

¶35It was then and now well established that a plea of guilty to a felony charge before a jury admits the existence of all facts necessary to establish guilt and, in such cases, the introduction of testimony by the State is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed. Darden v. State, 430 S.W.2d 494 (Tex.Cr.App.1968), and cases there cited; Ex parte Taylor, 480 S.W.2d 692, 693 (Tex.Cr.App.1972); Gates v. State, supra; Brown v. State, 487 S.W.2d 86 (Tex.Cr.App.1972); Durham v. State, 466 S.W.2d 758 (Tex.Cr.App.1971); Ochoa v. State, 481 S.W.2d 847 (Tex.Cr.App.1972); West v. State, 480 S.W.2d 640 (Tex.Cr.App.1972); Renesto v. State, 452 S.W.2d 498 (Tex.Cr.App.1970).

¶36Where the guilty plea is before the jury, the presumption of innocence does not obtain under the plea and there is no issue of justification under it. Reyna v. State, 434 S.W.2d 362 (Tex.Cr.App.1968); Darden v. State, supra, and cases there cited.

¶37In such cases there are no defenses or defensive issues for the jury to pass upon. Reyna v. State, supra; Jackson v. State, 155 Tex.Cr.R. 466, 236 S.W.2d 623 (1951); 16 Tex.Jur.2d, Criminal Law, § 362, p. 558.

¶38*692If at such trial before the jury on a guilty plea the defendant deems the evidence insufficient, he may change his plea to not guilty at any time before the retirement of the jury to deliberate upon the case and put upon the State the burden of proving his guilt beyond a reasonable doubt. Reyna v. State, supra; Alexander v. State, 69 Tex.Cr.R. 23, 152 S.W. 436 (1912); Garcia v. State, 91 Tex.Cr.R. 9, 237 S.W. 279 (1922). See also Lewis v. State, 438 S.W.2d 816 (Tex.Cr.App.1969).

¶39Despite the procedures above described, the rule in question in the instant case has long had application. If the evidence introduced before the jury on a guilty plea makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact2 and such fact is not withdrawn, then it becomes the obligation of the court to withdraw the guilty plea and enter a plea of not guilty for the defendant if he fails to do so himself. Reyna v. State, supra, and cases there cited; Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460 (1942), and cases there cited; Gates v. State, supra; Woodberry v. State, supra.

¶40Turning to pleas of guilty before the court; it is observed that by Acts 1931, 42nd Leg., p. 65, ch. 43, § 3, Article 12, supra, was amended to read:

“No person can be convicted of a felony except upon the verdict of a Jury duly rendered and recorded, unless in felony cases less than capital, the defendant upon entering a plea of guilty has in open Court in person and with the approval and consent of the Court and the State’s Attorney, as provided in Section 1 of this Act, (Article 10a of Code of Criminal procedure of the State of Texas), waived his right of a trial by Jury. Provided, however, that it shall be necessary for the State to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the Court as the basis for its verdict, and in no event shall a person charged be convicted upon his plea of guilty without sufficient evidence to support the same.”

¶41By the same enactment, Article 11, Vernon’s Ann.C.C.P., 1925, was amended to read:

“The defendant in a Criminal prosecution for any offense, may waive any right secured him by Law except the right of a trial by a Jury in a felony ease when he enters a plea of not guilty.” (Emphasis added.)

¶42The Amendatory Act of 1931 added the italicized words above. See also Article 10a, Vernon’s Ann.C.C.P., 1925, which is also a part of the same enactment.

¶43Prom the above it is clear that a defendant could waive trial by jury in a non-capital case if he entered a plea of guilty, but a jury was still required in such cases if his plea was not guilty.

¶44Under the procedure established in every case where the defendant entered a guilty plea before the trial court, the State was required to introduce evidence showing the guilt of the defendant, and if the State failed in this respect the defendant was entitled to a new trial if there had been a conviction. Spivey v. State, 140 Tex.Cr.R. 107, 143 S.W.2d 386 (1940); Franklin v. State, 140 Tex.Cr.R. 251, 144 S.W.2d 581 (1940); Howell v. State, 140 Tex.Cr.R. 627, 146 S.W.2d 747 (1941); Wilson v. State, 154 Tex.Cr.R. 39, 224 S.W.2d 234 (1949). Thus, while a plea of guilty constitutes an admission of guilt, it would not alone authorize conviction when trial by jury was waived and such plea was entered before the trial court. The burden remained _ upon the State to introduce sufficient evidence to show the guilt of the accused and all necessary elements of the offense. Burks v. State, supra; Spivey v. State, supra. See also Utsman v. State, 485 S.W.2d 573 (Tex.Cr.App.1972); Edwards v. State, 463 S.W.2d 733 (Tex.Cr.App.1971).

¶45*693If during the proceedings on a plea of guilty the defendant considers the evidence insufficient, the plea should be withdrawn and a plea of not guilty entered. Garcia v. State, supra; Alexander v. State, supra; Ralls v. State, 151 Tex.Cr.R. 146, 205 S.W.2d 594 (1947).

¶46The trial court, of course, is required to exercise great care in preventing the improvident entry of a plea of guilty and a liberal practice prevails touching its withdrawal. Garcia v. State, supra; Stanton v. State, 159 Tex.Cr.R. 275, 262 S.W.2d 497 (1953).

¶47In cases where the plea of guilty is before the court, and all formalities have been complied with, evidence heard, etc., and the judge announces judgment or has taken the case under advisement, it is too late to withdraw a guilty plea. Ralls v. State, supra. See also Stanton v. State, supra; Milligan v. State, 168 Tex.Cr.R. 202, 324 S.W.2d 864 (1959).

¶48In Burks v. State, supra, the question arose as to whether the rule requiring withdrawal of a guilty plea under certain conditions where the plea was before a jury was also applicable to such a plea before the court. The court in Burksnoted that the amendment to Article 12, supra (Acts 1931, 42nd Leg., p. 65, ch. 43), contained no provision evidencing the legislative intent that the rule applied theretofore in pleas of guilty before the jury was not to be applied in pleas of guilty before the trial court. The court then wrote:

“. . . The amendment and rule are, therefore, to be construed together; and, when so construed, it now appears to be the settled law of this state that one accused of a felony less than capital may, under his plea of guilty, waive a trial by jury and his punishment may be fixed by the trial judge, provided: (a) the State introduces evidence sufficient to show the accused guilty of the offense charged; and (b) no facts are received in evidence making evident the innocence of the accused, or which reasonably and fairly present such as an issue of fact. Unless the facts bring the case within the rule stated, the trial judge is without authority to render a judgment finding-the accused guilty, because, if the State fails to show the guilt of the accused, no conviction can follow; and, if evidence be received showing the accused to be innocent of the offense charged, then the plea of guilty is supplanted by the entry of a plea of not guilty, in which event the trial judge is without authority to determine the guilt of the accused.”

¶49It appears that the rule established in Burkshas been followed before and since the adoption of the 1965 Code of Criminal Procedure. See, e. g., Gonzales v. State, supra; Faz v. State, supra; Trevino v. State, supra; Cooper v. State, supra; Sanchez v. State, supra.

¶50The dissent now takes the position that since Articles 1.13 and 1.14 and 1.15, Vernon’s Ann.C.C.P., 1965, permit a defendant to waive a jury and enter a plea of not guilty before the court in all felony cases except capital ones there is no valid reason for continuing the rule announced in the Burkscase decided under the former Code of Criminal Procedure, and those decisions since the effective date of the 1965 Code of Criminal Procedure which followed Burksare overruled. We do not agree.

¶51It is true that the 1965 Code of Criminal Procedure permits the defendant to enter a plea of not guilty before the court after waiving trial by jury, and that a defendant’s inability to waive trial by jury where the plea was not guilty was indeed a factor in the Burksdecision, but it was not the sole factor. Further, we find nothing in the 1965 Code of Criminal Procedure evidencing a legislative intent that there should be an abandonment of the rule under discussion because of any revision in the applicable statute.

¶52There should be no difference in the application of the rule regardless of whether the guilty plea is before the jury or the judge. There are perhaps stronger reasons for its application in guilty pleas before the court than before the jury. As noted, a guilty plea before the jury admits the existence of all facts necessary to establish guilt, *694and the only purpose of the State offering evidence is to enable the. jury to intelligently assess punishment. On the other hand, while a plea of guilty before the court constitutes an admission of guilt, it alone does not authorize a conviction. The State has the burden of producing sufficient evidence to show the guilt of the accused and all necessary elements of the offense. When under these circumstances evidence is introduced which makes evident the innocence of the defendant or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn, it is as important, if not more so, that the plea be withdrawn and a not guilty plea entered than in the jury type situation. When the plea is withdrawn and a not guilty plea entered, the trial court, trier of the facts, will be more apt to hold the balance nice, clear and true between the State and the accused. The State will be alerted that the case is now proceeding upon a not guilty plea, that the admission of guilt is no longer viable, that its burden of proof is now beyond a reasonable doubt rather than the lesser burden of “sufficient evidence.”3 See Article 1.15, supra. Further, the defendant will be in a better position to elicit and fully develop any defenses he may have.

¶53The dissent contends that under a guilty plea before the court the court may find the defendant not guilty and no purpose is served in withdrawing the guilty plea and entering a not guilty plea as required by the rule. Such action may be technically correct, but is not too likely to occur. Most trial judges will not permit the State to assume its burden is only “sufficient evidence” to support the guilty plea when in light of the evidence adduced the court intends to acquit the defendant from which action the State has no right of appeal, Article V, § 26, Texas Constitution; Article 44.01, Vernon’s Ann.C.C.P., and where the case will not be tried again in light of the federal and state constitutional provisions regarding double jeopardy. See also Article 1.10, Vernon’s Ann.C.C.P. Allowing the rule to remain viable will serve to benefit the State as well as the defendant and will promote the ends of justice.

¶54What the dissent seeks to do is to create a harmless error rule for all cases appealed from guilty pleas before the court where the evidence makes evident the innocence of the accused or which reasonably and fairly raises such issue and where such evidence is not withdrawn. There exists, however, no necessity to change the rule.

¶55The evidence in the instant case having reasonably and fairly raised an issue as to the defense of self-defense, we conclude the court erred in not withdrawing the guilty plea and entering a plea of not guilty.

¶56The judgment is reversed and the cause remanded.