Martin, Ruth Ann v. State

COURT OF APPEALS

COURT

OF APPEALS

EIGHTH

DISTRICT OF TEXAS

EL

PASO, TEXAS

)

RUTH ANN

MARTIN, ) No. 08-02-00144-CR

)

Appellant, ) Appeal from

)

v. ) Criminal District Court No. 5

)

THE STATE

OF TEXAS, ) of Dallas County, Texas

)

Appellee . ) (TC# F-0175501-PL)

O

P I N I O N

Ruth

Ann Martin appeals her conviction and twenty-year sentence for the offense of

injury to a child. By three issues, she

contends the trial court abused its discretion by not rejecting her plea of guilty,

that the indictment is fundamentally defective, and

ineffective assistance of counsel. We

reverse and remand.

I

Martin

awoke to find her pre-teen daughter Heather had died in bed during the

night. Appellant was charged with injury

to a child, a second-degree felony.

After appropriate admonishments by the trial court, appellant pled guilty

to the indictment with an open plea agreement.

The indictment alleged appellant recklessly caused serious bodily injury

to Heather Podloger , a child 14 years or younger, by

leaving the child (her daughter), unsupervised by an adult and leaving morphine

within access to the child. The

indictment also alleged appellant caused serious bodily injury to the child in

that she failed to provide adequate medical care, knowing the child was

vomiting and crying, at a time appellant had the legal duty to act, to-wit: A the defendant was the parent of the

complainant, and the defendant had assumed care, custody and control of the

complaint . . . . @ Appellant made a judicial confession tracking

the indictment, verbatim .

Appellant

testified she was thirty-three years old at the trial. She had been on probation for nine years

after 1993 convictions for four drug offenses.

She also had two 1991 obscenity charges resulting from the sale of a video

at an adult bookstore where she worked.

She was never charged with a probation violation. She considered herself a recovering drug

addict. She also admitted to once trying

the morphine in question, and that it made her sick. Her husband acquired the morphine from his

sister after his mother died of cancer.

The sister-in-law wanted appellant = s

husband to sell the drug to raise money to help pay for the cremation of the

mother-in-law. The morphine was left in

the original container, on the high shelf of the medicine cabinet in

the bathroom. The container was brown

and looked like an aspirin bottle. The

container had a screw top, thought to be childproof by appellant. Appellant told her husband to get rid of

illegal drugs after Heather = s

death, when CPS was coming. However, it

was only later that the couple learned that Heather had ingested morphine.

Appellant

and her husband left her daughter with her twelve, nearly thirteen, year-old

son, Michael. The youngest child,

Raymond, age five, was taken to a sitter.

When appellant and her husband left to go to a sports bar/restaurant to

watch a Mavericks basketball game, Heather had a headache. The couple had a cell phone and spoke with

the children once. When they returned,

Heather was asleep in the couple = s

bed. When awakened, Heather whimpered

that she had a headache, perhaps a migraine, commonly suffered in her

family. Heather was put in her own bed

and she covered her head with a pillow to block the light. The couple discussed keeping Heather home the

next day because she might have the flu.

They went to sleep believing the child was alright. The next morning Heather was cold. Vomit came from her mouth. It was later determined that five undigested

morphine pills were in Heather = s

stomach.

Jennifer

Hood testified appellant was a perfect mother who always cared for her

children. Appellant = s husband, who was no-billed by the

grand jury, said he brought the morphine into the house. He indicated they were gone about four hours

and he was the one who brought the morphine into the home. Appellant = s

mother also testified appellant was a good mother and that she was depressed

and remorseful over her daughter = s

death. She described appellant as

protective of her children A like

a mother bear. @

II

In

her first issue, appellant argues that the evidence did not show reckless

conduct but instead showed innocent or, at worst, negligent conduct. She also argues the penal code provides a

defense to prosecution if there is no evidence on the date prior to the offense

that the defendant was aware of injury to the child. See Tex.Pen.Code Ann. '

22.04(k )( 2)(A)(Vernon 2003). [1]

Appellant

argues the standard for withdrawal of a plea is one of discretion. She cites Aldrich v. State , 53 S.W.3d

460, 467 ( Tex.App .--Dallas 2001), aff = d , Aldrich v. State , 104

S.W.3d 890 ( Tex.Crim.App . 2003). Appellant argues that after a case is taken

under advisement, the decision to permit withdrawal of the plea rests in the

trial court = s sound

discretion. Abuse of discretion is shown

only when the trial court = s

ruling lies outside the zone of reasonable disagreement. See id . The State responds that the trial court did

not abuse its discretion and

counters with Moon v. State , 572 S.W.2d 681 ( Tex.Crim.App . 1978).

Aldrich actually relies on Moon . Aldrich , 53 S.W.3d

at 467 . The State also argues the

trial court had no jurisdiction to withdraw a guilty plea on its own motion

after approving a plea bargain agreement.

See Perkins v. Court of Appeals , 738 S.W.2d

276, 281 ( Tex.Crim.App . 1987). We will address the latter argument below.

The

rule had long been that in any case where evidence is introduced that

reasonably and fairly raises an issue as to the innocence of the accused and

such evidence is not withdrawn, the defendant = s

guilty plea must be withdrawn and a plea of not guilty must be sua sponte entered by the trial

court. Griffin v. State , 703

S.W.2d 193, 195 ( Tex.Crim.App . 1986); see also

Harris v. State , 172 S.W. 975 ( Tex.Crim.App .

1915); Edwards v. State 114 S.W.2d 572 ( Tex.Crim.App .

1938); Navarro v. State, 147

S.W.2d 1081 ( Tex.Crim.App . 1941); Rayson

v. State, 267 S.W.2d 153 ( Tex.Crim.App . 1954); Fite v. State, 290 S.W.2d 897 ( Tex.Crim.App . 1956); Richardson v. State, 300 S.W.2d

83 ( Tex.Crim.App . 1957); Edworthy

v. State , 371 S.W.2d 563 ( Tex.Crim.App . 1963) ; Reyna v. State, 434 S.W.2d 362 ( Tex.Crim.App . 1968); Swanson v. State , 447 S.W.2d

942 ( Tex.Crim.App . 1969); Hayes v. State , 484

S.W.2d 922 ( Tex.Crim.App . 1972); Lee v. State, 503

S.W.2d 244 ( Tex.Crim.App . 1974); Lewis v. State ,

529 S.W.2d 550 ( Tex.Crim.App . 1975); Gates v.

State , 543 S.W.2d 360 ( Tex.Crim.App . 1976); Woodberry

v. State, 547 S.W.2d 629 ( Tex.Crim.App . 1977); Malone

v. State , 548 S.W.2d 908 ( Tex.Crim.App . 1977).

This

rule has been recognized and applied even when a jury has been waived and the

plea is before the court without a jury.

Burks v. State , 165 S.W.2d 460 ( Tex.Crim.App .

1942); Gonzales v. State , 480 S.W.2d 663 ( Tex.Crim.App .

1972); Faz v. State , 510 S.W.2d 922 ( Tex.Crim.App . 1974); Trevino v. State , 519 S.W.2d

864 ( Tex.Crim.App . 1975); Cooper v. State , 537

S.W.2d 940 ( Tex.Crim.App . 1976); Sanchez v. State,

543 S.W.2d 132 ( Tex.Crim.App . 1976).

The

rule required the trial court to sua sponte withdraw a plea of guilty when evidence of

innocence is fairly raised applies even though a defendant makes no effort

during the trial to withdraw his plea of guilty, makes no objection to the

court = s charge

instructing the jury to render a verdict of guilty, and even though the

defendant = s

testimony shows him to be guilty of the offense. Montalvo v. State , 572 S.W.2d 714 , 715‑16

( Tex.Crim.App . 1978); Steele v. State , 22 S.W.3d 550, 553 ( Tex.App .‑-Fort

Worth 2000, pet. ref = d).

The Griffin court observed:

This

rule is a vital safeguard which operates to protect the accused from any

outside pressure which could result in an innocent party being convicted, upon

his own plea of guilty, of a crime he did not commit. Since a person cannot at any time involuntarily

plead guilty to a crime for which he is accused, the totality of the

circumstances of each case is assessed to assure the voluntary nature of the

plea. Gates v.

State , 543 S.W.2d 360 (Tex.Crim.App.1976). However, the rule is clear in our case law

that when the exculpatory evidence is produced by the defendant himself, that

it may be withdrawn by him and a plea of guilty may still be taken upon his own

volition. See e.g.,

Lincoln v. State , supra ; Montalvo

v. State , 572 S.W.2d 714, 715 ( Tex.Crim.App .

1978); Varela v. State , 553 S.W.2d 111 ( Tex.Crim.App .

1977).

Griffin , 703 S.W.2d at 195 .

The

cardinal principle of criminal jurisprudence seeks to convict only the guilty

and not the innocent. Thus due process

requires proof of every contested fact beyond a reasonable doubt. In re Winship , 397 U.S. 358, 364 (1970). Notwithstanding, when the Court of Criminal

Appeals was expanded from five to seven members, many of the precedents and

principles cited above were abolished sua sponte by the new court in Moon . See Moon , 572 S.W.2d

at 690 (Onion, PJ, dissenting).

As correctly argued by the State, Moon held that a trial court is

not required to withdraw a guilty plea sua sponte and enter a plea of not guilty for a defendant

when the defendant enters a plea of guilty before the court after waiving a

jury, even if evidence is adduced that either makes the defendant = s innocence evident or reasonably and

fairly raises an issue as to guilt. Id . at 682. The new high court, in the plurality opinion,

reasoned it was the trial court = s

duty to consider the evidence submitted, and, as the trier

of fact, the court may find appellant guilty of a lesser offense or it may find

the defendant not guilty. Id . Therefore, it would serve no valid purpose

for the court to withdraw the guilty plea and enter a not guilty plea when the

defendant enters a plea of guilty before the court after waiving a jury. Id.

Moon

has progeny: Beasley v. State ,

634 S.W.2d 320 , 321 n.1 ( Tex.Crim.App . 1982); Solis

v. State , 945 S.W.2d 300 , 302‑03 ( Tex.App .‑‑Houston

[1st Dist.] 1997, pet. ref = d);

Hinkle v. State , 934 S.W.2d 146 , 148‑49 ( Tex.App .‑‑San

Antonio 1996, pet. ref = d);

Graves v. State , 803 S.W.2d 342, 346 ( Tex.App .‑‑Houston

[14th Dist.] 1990, pet. ref = d);

Coronado v. State , 25 S.W.3d 806, 809 ( Tex.App .‑-Waco

2000, pet. ref = d); Brown

v. State , 11 S.W.3d 360, 363 ( Tex.App .‑-Houston

[1st Dist.] 2000, pet ref = d). Aldrich , 104 S.W.3d

at 893 . Such a subsequent

genealogy makes it difficult to question the legitimacy of the Moon

exception to sound precedent requiring only the truly guilty be convicted. We do not challenge the rationale of Moon ;

we analyze its applicability or rather its inapplicability to the case

presented.

Moon = s negation of the rule requiring sua sponte withdrawal

of a guilty plea occurred in the punishment phase of the trial, after the plea

was accepted, and the trial court awaited some

two-and-a-half months for a pre-sentence investigation. Moon, 572 S.W.2d at 688 (Roberts, J.,

concurring and dissenting )( asserting it was too late

to withdraw plea and that holding of Moon is dicta and advisory

opinion). Notably, in Moon there

is no mention of a plea agreement and the cause was tried to the court. See Moon , 572 S.W.2d

at 682 . The case sub judice is inapposite because this is not a trial to the

bench. Rather, we are presented with a

plea bargain agreement. And in the

specific situation before us, the State argues the trial court to be without

jurisdiction to withdraw appellant = s

plea. See Perkins , 736 S.W.2d at 281 . We

address this latter argument below.

In any case, in order to trigger the trial

court = s duty to

sua sponte withdraw

a guilty plea, the evidence must do more than merely tend to raise a defensive

issue. Griffin , 703 S.W.2d at 196 .

Thus, we begin our inquiry at this threshold. The evidence must A reasonably

and fairly raise the issue. @ Id.

The purpose of the rule is to ensure that guilty pleas are knowingly and

voluntarily entered. Id. The trial court has the sound discretion to

make that determination. Id. at 197 .

Whether the issue of appellant = s

innocence was reasonably and fairly raised at his trial requires us to consider

whether the trial court abused its discretion.

Id. Each case must be

evaluated in light of its unique circumstances and the offense charged. Id. at 196 .

The Penal Code

provides:

(c)

A person acts recklessly, or is reckless, with respect to circumstances

surrounding his conduct or the result of his conduct when he is aware of but

consciously disregards a substantial and unjustifiable risk that the

circumstances exist or the result will occur.

The risk must be of such a nature and degree that its disregard

constitutes a gross deviation from the standard of care that an ordinary person

would exercise under all the circumstances as viewed from the actor = s standpoint.

(d)

A person acts with criminal negligence, or is criminally negligent, with

respect to circumstances surrounding his conduct or the result of his conduct

when he ought to be aware of a substantial and unjustifiable risk that the circumstances

exist or the result will occur. The risk

must be of such a nature and degree that the failure to perceive it constitutes

a gross deviation from the standard of care that an ordinary person would

exercise under all the circumstances as viewed from the actor = s standpoint.

Tex.Pen.Code Ann. '

6.03(c )( d)(Vernon 2003).

Count

one of the indictment required proof that appellant recklessly caused serious

bodily injury to her daughter, Heather, by leaving her unsupervised by an adult

and leaving morphine within Heather = s

access. Heather was left with her older

brother, Michael, who was nearly thirteen.

Appellant checked with CPS, who responded that the two older children

(Michael and Heather) were old enough that appellant could be gone for a

certain amount of hours, leaving Heather without adult supervision. The youngest son, Raymond, who was five, was

taken to a sitter.

Appellant

spoke with Heather by cell phone while the couple was at dinner. In the phone call, Heather asked permission

to lie in her mother = s

bed, which appellant allowed. Heather = s older brother, Michael, who was

babysitting, asked for the location of a code to a video game. The morphine, which appellant = s husband acquired from his sister, was

left in its original brown prescription bottle on the top shelf of the medicine

cabinet. Appellant testified in partial

answer to the prosecutor = s

questions that she thought the prescription bottle to be A child-proof. @ She told the prosecutor that the bottle was

the push-and-turn type. The trial court

cross-examined appellant as follows:

The Court: You said when you left this evening, your

child was sick?

Appellant: She had a headache.

The Court: And you left her with your ten year old?

Appellant: He was twelve. He was fixing to be thirteen.

The Court: Your daughter suffers from migraines?

Appellant: We all do, every now and then.

The Court: So you know what a migraine is. You know how it feels.

Appellant: A headache.

The Court: You left your daughter home --

Appellant: At the time, I didn = t think it was a migraine. She just said she had a headache.

Appellant = s husband, who introduced the morphine

to the home, stated he didn = t know what perils it could cause and

he didn = t

think A they knew

either. @ A I

think we were just ignorant. @ However, appellant had already testified she

tried one of the tablets and it made her sick.

The husband also testified that the morphine was on the top shelf of the

medicine cabinet and the aspirin was on the lower shelf.

At

the end of the hearing, the trial court observed that appellant had not lived a

crime-free life: A Bad

judgment on your part, and your child dies. @

The court told appellant she had a responsibility to stay away from

drugs and she didn = t. He further observed appellant was a danger to

society who allowed drugs in her house A and

the damage is to your children. @ I don = t

understand how you leave a child who is complaining of headaches -- how you

leave that child in the care of another child to go to a sports bar. You lost that child, because you violated the

conditions of probation and you violated the trust of this Court. @

A I don = t think you intended that the child

take the morphine, but it happened. @

At

that point, the court accepted appellant = s

plea, found it freely and voluntarily made, that she was competent to enter her

plea, and assessed the maximum confinement of twenty years.

In

view of the record as a whole, we believe that the evidence reasonably and

fairly raised the issue whether appellant consciously disregarded a substantial

and unjustifiable risk. See Griffin,

703 S.W.2d at 196 .

The fact that a brown prescription drug container,

was placed on the highest shelf of a medicine cabinet, in a lock-top container,

reasonably and fairly raises the issue whether appellant = s

conduct amounted to such disregard that it constitutes a gross deviation from

the standard of care that an ordinary person would exercise under all the

circumstances. See Tex.Pen.Code Ann. '

6.03(c). Similarly, going to dinner to

watch the Mavericks and leaving a child with a headache in the charge of her

older brother, nearly thirteen, raises serious

concerns whether such conduct is a gross deviation from the standard of care

that an ordinary person would exercise. See

id.

The

second count of the indictment charged that appellant recklessly caused serious

bodily injury to Heather by failing to provide adequate medical care for the

complainant, knowing that she was vomiting and crying. When appellant returned from dinner, Heather

was sleeping in appellant = s

bed. When appellant awakened Heather,

Heather said she had a headache and that she could not walk right. So appellant told Heather to hold on to her,

and walked her to bed. Michael giggled

when Heather ran into the doorjamb.

Appellant said, A I

thought she was okay. @ Heather was put to bed. Heather covered her head to block out the

light because she then had a migraine.

Appellant discussed with her husband the possibility of keeping Heather

home from school the next day because she might have the flu. A That = s all we thought. We didn = t think anything else. @

The observation of vomit did not occur until after Heather was dead the

next morning. This is directly contrary

to the indictment.

Once

again, the evidence reasonably and fairly raised the issue whether appellant

consciously disregarded a substantial and unjustifiable risk. See Griffin, 703

S.W.2d at 196 . A mother, who presumably best knows her own daughter,

thought Heather had a migraine, common to her family, or perhaps the flu. Putting a child back to bed, under the

circumstances, raises serious questions whether such conduct is a gross

deviation from the standard of care that an ordinary person would

exercise. See id.

If we believed Moon were applicable, our inquiry would end. See Moon , 572 S.W.2d

at 682 (negating the rule requiring sua sponte withdrawal of a guilty plea after evidence of

innocence in a non-jury trial).

In Moon , however, there is no mention of a plea agreement. Id.

And as we noted, the State argues the trial court was without

jurisdiction to withdraw appellant = s

plea. See Perkins , 736 S.W.2d at 281 .

Citing

Perkins , the State maintains A the

trial court lacked jurisdiction to withdraw the Appellant = s guilty plea on its own motion. @

The State argues that after approving a plea bargain agreement, the

lower court cannot withdraw the guilty plea.

Indeed Perkins held that the trial judge A had

no lawful authority to sua sponte withdraw [the defendant] Le = s plea of guilty. @

Id. at 280 . Perkins reasoned that

a cap was placed on the punishment by the agreement and A in

refusing to go forward with the plea bargain agreement and withdrawing Le = s plea of guilty, actually amounted to

the granting on his own motion a new trial for Le. @ Id. at 280-81 .

Perkins approved Morris v.

State , 658 S.W.2d 310 ( Tex.App .--Houston [1st

Dist.] 1983, no writ), holding that the court of appeals did not grant the

defendant a new trial because it concluded that specific performance, which it

could order to be accomplished, and which was all that the defendant in that

case apparently wanted, was the proper remedy.

Id. at 281. [T]he defendant is entitled to specific

enforcement if the agreement can be enforced, or, if not enforceable, is

entitled to withdraw his plea. @ Id. at 283. A The

court of appeals implicitly found that there is no known impediment to

specifically enforcing the agreement. @ Id.

It

is apparent from the record, and based on the holdings in Moon and Perkins ,

that the trial court felt compelled to accept appellant = s

plea of guilty and find her guilty on the basis of her plea. [2] This was not a trial to the bench, as was the

case in Moon , where the trial court was unencumbered to find appellant

not guilty. The State itself argues

there was an enforceable contract between the State and appellant See Perkins , 736 S.W.2d

at 281. And the State admits the trial

court was without power to withdraw the plea.

Thus, the rationale of Moon is inapplicable. According to the State = s

own argument, the court could not withdraw the guilty plea and enter a

not-guilty plea when the defendant enters a plea of guilty before the court

after waiving a jury. Cf. Moon , 572 S.W.2d at 682 ; Perkins , 736 S.W.2d at 281. In other words, the rationale of Perkins

prohibits the trial court from sua sponte withdrawing appellant = s

plea, which in turn makes Moon inapplicable because Moon

presupposes the trial court = s

ability to find the defendant not guilty.

Moon , 572 S.W.2d at 682 .

Perkins

in turn presupposes a valid, enforceable contract. Perkins , 736 S.W.2d

at 281-83 . But where a contract

with the State purportedly binds an accused to plead guilty when the evidence

reasonably and fairly raises issues of innocence, is

such a contract enforceable? Or is such

a contract illegal and against the public policy of the State of Texas?

A [A]n action founded upon an illegal

contract the courts of this State have uniformly held that they will leave the

parties where they found them. @ After Hours, Inc. v. Sherrard ,

456 S.W.2d 227, 229 ( Tex.Civ.App .--Austin 1970), rev = d on other grounds , 464 S.W.2d 87

(Tex. 1971). The courts have held

otherwise freely entered contracts void because they were contrary to public

policy. Juliette

Fowler Homes, Inc. v. Welch Assoc., Inc ., 793 S.W.2d 660, 663 (Tex. 1990 )( unreasonable covenant not to compete). When the courts do hold contracts void, they

rely upon the state = s

expression of public policy in its statutes.

Sabine Pilot Serv ., Inc. v. Hauck , 687

S.W.2d 733, 735 (Tex. 1985)(holding employment termination for refusal to

perform illegal act contrary to public policy expressed in state and federal

criminal laws). Thus, to determine

whether a contract violates public policy, we must consider the policies

underlying the applicable statutes.

Whether

a contract violates public policy is a question of law, which we review de

novo. Barber v.

Colorado I.S.D. , 901 S.W.2d 447, 450 (Tex. 1995); Insurance Co. of North

America v. Easton, 73 Tex. 167 , 11 S.W. 180, 181 (1889). Generally, if a contract violates public

policy, it is void, not merely voidable . Continental Fire & Cas . Ins. Corp. v. American Mfg.

Co. , 221 S.W.2d 1006, 1009 (Tex. Civ . App.‑‑Fort Worth 1949, writ ref = d n.r.e .) ( explaining that it is A the

law that contracts prohibited by statute, either expressly or impliedly, are

void @ ). Estoppel and

ratification doctrines will not make a contract that violates public policy

enforceable. Continental Fire & Cas . Ins. Corp ., 221 S.W.2d at

1009 ( A An

illegal contract cannot be ratified by either party. @ ). [3] However, we are also cautioned:

Courts must exercise judicial restraint

in deciding whether to hold arm = s‑length

contracts void on public policy grounds:

Public policy, some courts have said, is a term of vague and uncertain

meaning, which it pertains to the law‑making power to define, and courts

are apt to encroach upon the domain of that branch of the government if they

characterize a transaction as invalid because it is contrary to public policy,

unless the transaction contravenes some positive statute or some well‑established

rule of law.

Lawrence v. CDB Services, Inc .,

44 S.W.3d 544, 553 , (Tex. 2001 )( citations omitted).

Article

1, section 19 of our state constitution provides: A No

citizen of this State shall be deprived of life, liberty, property, privileges

or immunities, or in any manner disfranchised, except by the due course of the

law of the land. Tex.Const . art. 1, '

19. Article 1, section 29

provides: A To

guard against transgressions of the high powers herein delegated, we declare

that everything

in this > Bill of Rights = is excepted out of the general powers

of government, and shall forever remain inviolate, and all laws contrary

thereto, or to the following provisions, shall be void. @ Tex.Const . art. 1, '

29. Our law only authorizes a

conviction where guilt is shown beyond a reasonable doubt. If there be no legal guilt, a conviction

cannot be sustained, although the defendant entered a plea of guilty. Harris v. State , 172

S.W. 975, 977 ( Tex.Crim.App . 1915). We can only conclude that appellant = s contract with the State to plead

guilty, when the record evidence reasonably and fairly raised issues of

innocence, was void as against public policy.

See Griffin , 703 S.W.2d at 195 ( A In

any case where evidence is introduced which reasonably and fairly raises an

issue as to the innocence of the accused . . . the defendant = s guilty plea must be withdrawn and a

plea of not guilty must be sua sponte entered by the court. @ )( emphasis in original).

We

set aside appellant = s plea of

guilty, and remand this cause for a new trial.

See Burke v. State , 80 S.W.3d 82, 96 ( Tex.App .--Fort Worth 2002, no pet.). [4]

January 15, 2004

DON WITTIG,

Senior Justice

Before Panel No. 5

Larsen, McClure, and Wittig, JJ.

(Wittig, J., sitting by

assignment)

(Do Not Publish)

DISSENTING

OPINION

Ruth

Ann Martin appeals her conviction for injury to a child. Appellant waived her right to a jury trial

and entered an open plea of guilty to a two paragraph indictment which charged

Appellant with recklessly causing serious bodily injury to her daughter. The trial court found Appellant guilty and

assessed her punishment at a fine of $1,000 and imprisonment for a term of

twenty years. Appellant raises three

issues on appeal: (1) the trial court

erred by failing to reject her guilty plea because the evidence adduced at the

guilty plea hearing negates the culpable mental state; (2) the indictment is

fundamentally defective; and (3) ineffective assistance of counsel. Finding that the trial court abused its

discretion in accepting the guilty plea when evidence inconsistent with guilt

had been introduced, the majority opinion sustains the first issue. The majority opinion refuses to follow Moon

v. State , 572 S.W.2d 681 ( Tex.Crim.App . 1978 )( op. on reh = g), claiming that the instant case

involves a plea bargain. The appellate

record plainly shows that Appellant entered an open plea of guilty, not a

negotiated plea of guilty. I

respectfully dissent.

Underlying Facts

Appellant,

who characterized herself as a recovering drug addict, had been on felony

community supervision since 1993 for three delivery of

a controlled substance offenses and possession of a controlled substance. Despite it being a violation of the terms and

conditions of her community supervision, Appellant knowingly possessed a bottle

of morphine which she stored in A a

regular aspirin bottle @

in the medicine cabinet of her home.

Appellant did not recall whether the bottle had a childproof cap; she

believed it was a A push and

turn @

type. Appellant = s

mother-in-law had taken morphine prior to her death from cancer. A relative gave the morphine to Appellant = s husband, Raymond Martin, and asked

him to sell it to raise money to pay for the funeral expenses. Mr. Martin had been unable to sell any of the

morphine pills but they had not disposed of the drug or returned it to the

relative. Appellant knew the drug was

dangerous because she and a friend had become ill after ingesting one of the

morphine tablets from the same bottle.

On

May 3, 2001, Appellant and her husband, Raymond Martin, decided to go out to a

sports bar and watch a Dallas Mavericks basketball game. Appellant left her pre-teen daughter,

Heather, and twelve-year-old son, Michael, alone at home. When Appellant left, she knew that Heather

had a headache. According to Appellant,

migraine headaches were common in her family.

Appellant and Mr. Martin returned home after four hours and found

Heather asleep in their bed. Heather

whimpered when Appellant told her that she needed to get in her own bed. Heather walked into a door jamb and told

Appellant that she could not A walk

right, @ so

Appellant held on to her daughter and walked her to her room. When Heather got into her bed, she shielded

her eyes from the light and covered her head because it hurt. In a written statement, Appellant said that

Heather had cried and vomited all night. 1 The following morning, Appellant went into

Heather = s

room. Heather did not A look right @

and she was cold to the touch. Appellant

picked her up and vomit came out of Heather = s

mouth. She ran outside and screamed for

someone to call 911. A neighbor came

over and performed CPR while they waited for an ambulance. Appellant later learned that Heather had died

sometime during the night. After five

undigested morphine tablets were found in Heather = s

stomach, a Child Protective Services case worker and a detective went to

Appellant = s

house. When Appellant learned that the

caseworker and detective were on their way to her house, she instructed her

husband to dispose of the morphine and marihuana in the house.

A

grand jury indicted Appellant for injury to a child. The first paragraph of the indictment alleged

that Appellant recklessly caused serious bodily injury to her daughter by:

[L] eaving said complainant unsupervised by adult supervision,

in the defendant = s home,

and leaving Morphine, a dangerous and lethal drug, within access of the

complainant, which the complainant ingested.

The second

paragraph of the indictment alleged that Appellant recklessly caused serious

bodily injury to Heather by:

[F]ail[ ing ] to provide adequate medical care for the complainant,

knowing the complainant was vomiting and crying, and at the time of the offense

the defendant had a legal duty to act, to-wit:

the defendant was the parent of the complainant, and the defendant had

assumed care, custody and control of the complainant.

Although

the majority opinion refers to the existence of a plea bargain, the appellate

record demonstrates that Appellant waived her right to a jury trial and entered

a non-negotiated or open plea of guilty. 1 Appellant executed a written judicial

confession by which she specifically admitted that the allegations contained in

both paragraphs of the indictment were true and that she was guilty of the

injury to a child offense alleged in the indictment. After introducing Appellant = s judicial confession, the State

rested. Appellant testified and offered

other evidence in support of her request that she be placed on community

supervision. After Appellant rested and

both sides closed, the trial court accepted Appellant = s

guilty plea and assessed her punishment at imprisonment for a term of twenty

years.

Sua Sponte Withdrawal of Guilty Plea

In

Issue One, Appellant complains that the trial court abused its discretion by

failing, on its own motion, to withdraw her plea of guilty since the evidence

presented by Appellant at the guilty plea is A consistent

with innocence @ and

negated a reckless culpable mental state.

She argues that the evidence showed nothing more than negligence. The State responds with two separate

arguments. First, citing Perkins v.

Court of Appeals for the Third Supreme Judicial District , 738 S.W.2d 276,

281 ( Tex.Crim.App . 1987), the State responds that the

trial court lacked jurisdiction to withdraw Appellant = s

guilty plea after approving a plea bargain agreement. Second, citing Moon v. State , 572

S.W.2d 681 ( Tex.Crim.App . 1978), the State argues

that the trial court is not required to withdraw the guilty plea but rather

could consider all of the evidence and either find Appellant not guilty or find

her guilty of the lesser offense. I will

consider the State = s

arguments in the order presented.

In

Perkins , the trial court approved a plea bargain agreement where the

State and defense agreed to a twenty-five year sentence. Perkins , 738 S.W.2d

at 278 . The trial court indicated

that it would consider sentencing the defendant to less than twenty-five years

but would not exceed the twenty-five year term agreed to by the parties. Id. at 279 . The parties also agreed to the completion of

a pre-sentence investigation (PSI). Id. at 278 .

When the parties returned to court, the State asked the trial court to

not follow the plea bargain agreement because one of the victims had provided

new information regarding the defendant = s

participation in the offense. Id. at 279-80 .

The defendant objected but the trial court permitted the State to

withdraw its plea agreement; consequently, the defendant withdrew his plea of

guilty under protest. Id.

at 280 . The defendant sought

mandamus relief from the Third Court of Appeals. That court granted mandamus relief requiring

that the trial judge enforce the plea bargain agreement. Id. at 277-78 . The trial judge then sought mandamus relief

from the Court of Criminal Appeals. When

a defendant enters into a plea bargain agreement with the prosecutor, and the

trial judge approves the agreement, and the agreement is not kept, the proper

relief is either specific performance of the agreement, if it can be enforced, or withdrawal of the plea if it cannot. Id. at 283-84 . Finding the agreement enforceable, the Court

of Criminal Appeals held that the trial judge had a ministerial duty to go

forward with the plea bargain agreement which the court had approved. Id.

Further, the trial court had no discretion to set aside the guilty plea

and plea bargain agreement. Id. at 284 . Perkins

is factually distinguishable because it involved a plea bargain which had been

approved by the trial court. Thus, the

crux of the dispute in Perkins is whether the defendant could insist on

specific performance of the plea bargain.

The instant case does not involve a plea bargain or a question of

specific performance. Consequently, the

State = s first

argument is without merit.

By

its second argument, the State relies on a long line of cases holding that when

the defendant waives his right to a jury trial and enters a guilty plea, the

trial judge is not required to withdraw the defendant = s

guilty plea if evidence inconsistent with guilt is introduced. See Aldrich , 104

S.W.3d at 892 -93 ; Moon , 572 S.W.2d at 682 . Prior to the decision in Moon , the

trial court would have been required to withdraw the defendant = s guilty plea and enter a plea of not

guilty if evidence inconsistent with guilt had been introduced. The majority opinion paints Moon as

creating a new rule but as the Court of Criminal Appeals stated in Aldrich ,

A Moon did not impose a new

requirement on the trial court; it removed an old requirement. @

Aldrich , 104 S.W.3d at 893 . The court did so because A it is apparent that the doctrine

requiring a trial court to sua sponte withdraw a guilty plea when evidence was adduced

that either made evident the defendant = s

innocence or reasonably and fairly raised an issue as to his guilt was rooted

upon the proposition that the court was vested only with the authority to

resolve legal questions. @ Aldrich , 104 S.W.3d at 893 , quoting

Moon , 572 S.W.2d at 687 (Phillips, J., concurring).

The

majority opinion does not acknowledge the major statutory changes which led to

the decision in Moon . Prior to

January 1, 1966, the Code of Criminal Procedure did not permit a defendant to

waive a jury and enter a plea of not guilty before the trial court. Moon , 572 S.W.2d at

682 . Thus, a trial court = s authority in felony cases was

restricted to resolving legal questions and only a jury could decide factual

issues. Consequently, if the defendant

waived a jury trial and entered a plea of guilty before the court and the court

was presented with evidence inconsistent with guilt thereby raising a fact

issue, the court was not authorized to find the defendant guilty of a lesser

included offense or not guilty because it did not have fact-finding

authority. In those circumstances, the

trial court was required to withdraw the defendant = s

guilty plea, enter a plea of not guilty, and impanel a jury to hear the not

guilty plea. Aldrich , 104 S.W.3d at 893 ; Moon , 572 S.W.2d at 682 . The1965 amendments to the Code of Criminal

Procedure made a significant change by providing that the defendant could waive

a jury trial and enter a plea of not guilty before the court in all cases

except capital cases. Id .

at 682 (citing Articles 1.13 and 1.14 of the Code of Criminal Procedure). These statutory changes authorized the trial

court to resolve factual questions in felony cases. As the trier of

fact, the trial court may now find that the evidence did not create a

reasonable doubt as to guilt, find the defendant guilty of a lesser offense and

assess the appropriate punishment, or find the defendant not guilty just as a

jury would have done under the pre-1966 procedure. See Aldrich , 104

S.W.3d at 893 ; Moon , 572 S.W.2d at 682 . It would serve no purpose to withdraw the

guilty plea and enter a not guilty plea.

Id.

The

majority claims that it is not challenging the rationale of Moon , yet it

makes a caustic reference to Moon as an exception to the constitutional

requirement that only the truly guilty be convicted. The not-so-thinly-veiled criticism is simply

inaccurate. Because the trial court has

the duty to consider all of the evidence and is authorized to find the

defendant guilty of a lesser-included offense or even find the defendant not

guilty based upon the evidence, Moon does not promote the conviction of

innocent people. To the contrary, Moon

made it clear that trial courts are obligated to consider the evidence in

determining whether the defendant is guilty.

If

there were any doubt about the validity of Moon , the Court of Criminal

Appeals dispelled it in Aldrich . Aldrich ,

104 S.W.3d at 893 .

There, the defendant entered an open plea of guilty to two counts of impersonating

a public servant. Id.

at 891 . The State introduced the

defendant = s

judicial confessions and the defendant testified that she had claimed to be a

police office in order to gain entrance to a motel room. Id.

The court found the evidence sufficient to prove her guilty but did not

find her guilty, and set the case for A sentencing @ at a later date. Id.

When the parties returned to court, a different judge was

presiding. Id. During a statement to the court, the

defendant admitted claiming to be a police officer. Id. at 891-92 . She told the arresting officers that she had

done so because some men were trying to rape her. Id. at 892 . The visiting judge, operating under the

mistaken belief that the defendant had already been found guilty by the other

judge, incorrectly informed Aldrich that he could not find

her not guilty . Id. Aldrich replied that she was guilty of

claiming to be a police officer. Id. On appeal, the defendant argued that the

evidence raised the defense of necessity and that the court should have

rejected her guilty plea. Id. The Dallas Court of Appeals affirmed. Aldrich v. State , 53

S.W.3d 460 ( Tex.App .--Dallas 2001). In her petition for discretionary review,

Aldrich argued that the trial court was obligated to conduct what she termed a A Moon review @ and consider whether her defenses were

valid. Aldrich , 104 S.W.3d at 892 .

The Court of Criminal Appeals held that Moon did not impose such

an obligation on the trial court and simply acknowledged the statutory changes

granting the trial court the authority to resolve factual issues. See id. at

893-94. Additionally, the court held

that Aldrich had an obligation to object when it became apparent that the

visiting judge mistakenly believed she had already been found guilty and he had

no authority to consider whether or not she was in fact guilty. Id.

at 895.

Because Aldrich did not bring this error to the trial court = s attention, and she never sought

acquittal or withdrawal of her guilty plea, the Court of Criminal Appeals held

that she could not present her claim for the first time on appeal. Id.

at 896.

In my opinion, Aldrich = s

waiver rule pertains to the specific error which occurred in that case, namely,

the visiting judge = s failure

to consider defensive evidence due to a mistaken belief about the procedural

posture of the case, and does not apply to the more general issue presented

here.

Turning

to the issue at hand, the evidence supports the finding of guilt. Appellant judicially confessed to both

paragraphs in the indictment.

Additionally, there is evidence showing that she left her young daughter

in the care of her twelve-year-old son, knowing that her daughter had a headache

and knowing that she had left a dangerous drug, morphine, stored in a A regular aspirin bottle @ in the family = s

medicine cabinet. Appellant knew of the

morphine = s danger

through personal experience as she had become quite ill from ingesting a single

tablet. While Appellant attempted to

explain or mitigate certain aspects of her conduct, the trial court apparently

resolved the conflicting evidence and credibility issues against Appellant and

found her guilty of recklessly causing serious bodily injury to a child. Applying Moon to the instant case, I

would overrule Appellant = s

first issue. See Brown v. State ,

11 S.W.3d 360 , 362‑63 ( Tex.App .‑-Houston

[1st Dist.] 2000, pet. ref = d )( robbery defendant = s

testimony at sentencing that she had not intended to do anything like this and

was forced to commit the crime did not obligate trial court to sua sponte withdraw

the guilty plea). For these reasons, I

respectfully dissent.

January 15, 2004

ANN CRAWFORD McCLURE , Justice

[1] We do not believe this defense is

available. See Tex.Pen.Code Ann.

' 22.04(k )( 2)(B)( i ) (Vernon 2003).

[2] See also Article 1.15, which provides, in relevant part:

[T]hat 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 judgment and in no event shall a person charged be convicted upon his

plea without sufficient evidence to support the same.

Tex.Code Crim.Proc.Ann .

art 1.15 (Vernon Supp. 2004).

[3] We read the law to mean that an unlawful

agreement is not only unenforceable as against public policy, but also the

illegality of the bargain cannot be waived by estoppel

or ratification.

[4] Because of our disposition of the first

issue, we do not address appellants other two issues. While we could also simply remand to

factually determine whether or not the plea bargain agreement was lawful, this

would, for all practical purposes, amount to the same remedy as a new trial.

1 At the guilty

plea, Appellant contradicted her written statement. She testified that she was only referring to

her daughter A whimpering @ when

she initially put her to bed, and based upon what she observed the following

morning, she had assumed Heather had vomited during the night.

1 The plea papers do not state that there is a

plea bargain in the case and the judgment refers to the guilty plea as an A open plea. @ Further, at the beginning of the guilty plea,

the following exchange occurred between the trial court and Appellant = s counsel:

[The trial court]:

You = re coming before me on what = s called an open plea agreement. It = s my --

is it an open plea?

[Appellant = s trial

counsel]: Yes, sir.

[The trial

court]: Open plea agreement. It = s my

understanding, when you = re arraigned, you = re going

to enter a plea of guilty and you = re

asking me to assess punishment somewhere within the punishment range I

described to you earlier.