Mendez, John Bustamante

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 0817-01

JOHN BUSTAMANTE MENDEZ, Appellant

v.

THE STATE OF TEXAS

ON DISCRETIONARY REVIEW

FROM THE ELEVENTH COURT OF APPEALS

TAYLOR COUNTY

Womack, J., delivered the opinion for a unanimous Court.

In this case we resolve conflicts in our cases that have existed for over 75 years on

the question of a defendant's changing a plea of guilty to a plea of not guilty when evidence

that is inconsistent with guilt is introduced in a jury trial. We hold that a defendant has a

right on timely request to change the plea, but that a court has no duty to do it on the court's

own motion.

I. The Trial

It is undisputed that the appellant shot and killed the victim. He was indicted for the

offense of murder. The court impaneled a jury. The prosecutor read to the jury only one

paragraph of the indictment, which required the State to prove that the appellant intentionally or knowingly caused the victim's death. The defendant pleaded guilty. The State and the

appellant introduced evidence for several days.

The fifty-four-year-old appellant was the last witness to be called in his defense. He

testified about his sexual relationship with the sixteen-year-old victim, which ended when

she "left" him. The appellant said that for three or four days he "stayed drunk most of the

time" and used methamphetamine. He said that after the victim made taunting telephone

calls to him, he put a handgun in his pants and went to the victim's place of work. When the

victim locked the doors, he shot the lock to get in and "just went crazy." He shot the victim

in the head.

He testified on direct examination:

Q. Now you've told the jury, you've pled guilty to knowingly and intentionally --

A. I shot her. I sure did.

Q. So whatever --

A. I did not mean to shoot her. I was going to scare her, as drunk as I was,

and I hit her.

Q. Do you remember what you told the policeman when he came up?

A. Yeah. I told him that I thought I'd shot her, "I swear to God I think I

shot her in the head."

Q. You swear to God you think you shot her.

A. I didn't even know where I'd hit her. I knew there was blood everywhere.

Q. Could you believe that you'd done that?

A. No, I didn't think I was going to hit her. I loved her more than life

itself.

On cross-examination, the appellant testified:

A. I just -- was in a rage; I don't remember. … I remember pointing a

gun, but I didn't point it at her, I was just going to scare her, and then I

shot --

Q. And in the intoxicated state that you were in, from this distance, you

managed to hit her right in the head.

A. I didn't never intended to hit her.

Q. Okay. You pled on Monday … of intentionally and knowingly killing

[the victim]. You did not plead to recklessly, accidentally shooting

[the victim]. Which one is it, sir?

A. I didn't intend to kill her. I mean, I killed her, and I know I did, it's my

fault, but --

Q. So you did not intend to kill her.

A. No, I did not.

Q. You did not knowingly kill her.

A. No. Well, I mean, I know that I killed her; she's dead.

Q. Okay. So the plea that you entered on Monday was really a fictitious

plea; is that right?

A. I just didn't -- didn't understand how the -- why I was -- the plea

worked, but, I mean, I didn't -- I didn't intentionally walk in there to

go shoot her right in the head and kill her.

Q. Okay. Well, we went over the definitions of intentionally and knowingly in great detail with this jury panel; gave them examples. You

were in the courtroom during that time. And then you entered a plea to

intentionally and knowingly killing [the victim]. You still hold by that

plea?

A. I did not go in there directly to shoot her, I just -- I did not.

After closing the evidence, the court instructed the jury to find the defendant guilty

as charged in the indictment and assess his punishment. The charge of the court required the

jury to decide whether the murder was of the second degree, that is, a murder committed

under the immediate influence of sudden passion arising from an adequate cause. (1) The

charge also required the jury, if it assessed punishment of not more than ten years in prison,

to decide whether the defendant should have a suspended sentence and community supervision. (2) The charge instructed the jury that evidence of temporary insanity caused by intoxication could be considered in mitigation of punishment. (3)

The jury found the defendant guilty of murder; it did not find that the murder was of

the second degree; it assessed punishment of 99 years in prison and no fine. The court

entered judgment in accordance with the verdict.

II. The Appeal

The defendant appealed, complaining that the trial court should have sua sponte

withdrawn his guilty plea after the testimony raised an issue as to his guilt. The Eleventh

Court of Appeals said:

The law has been that a trial court is required to sua sponte withdraw a

defendant's guilty plea if the evidence reasonably and fairly raises an issue as

to the innocence of the accused. See, e.g., Griffin v. State , 703 S.W.2d 193

(Tex.Cr. App. 1986); Gates v. State , 543 S.W.2d 360 (Tex. Cr. App. 1976). If

a trial court fails to act in accordance with that rule, reversible error occurs.

See Montalvo v. State , 572 S.W.2d 714 (Tex. Cr. App. 1978); Woodberry v.

State , 547 S.W.2d 629 (Tex. Cr. App. 1977); Gates v. State, supra ; Cooper

v. State , 537 S.W.2d 940 (Tex. Cr. App. 1976); Burks v. State , 145

Tex.Crim. 15 , 165 S.W.2d 460 (1942). In each of these cases, the Court of

Criminal Appeals held that the trial court should have sua sponte withdrawn

the defendant's guilty plea and that, in failing to do so, the trial court reversibly erred. We find it to be significant that in none of those cases was there a

discussion of harmless error nor was there a finding of waiver in accordance

with the law as it then existed.

Recently, the Court of Criminal Appeals, in a unanimous opinion,

cited TEX. R. APP. P. 33.1 and held:

Except for complaints involving fundamental constitutional systemic

requirements which are not applicable here, all other complaints based

on a violation of both constitutional and statutory rights are waived by

failure to comply with Rule 33.1.

Ibarra v. State , 11 S.W.3d 189, 197 (Tex. Cr. App. 1999). Structural errors

(those which involve fundamental constitutional systemic requirements) are

those which defy analysis by harmless error standards. Manley v. State , 23

S.W.3d 172, 175 (Tex. App. -- Waco 2000, pet'n ref'd), citing Arizona v.

Fulminante , 499 U.S. 279, 309 (1991); Salinas v. State , 980 S.W.2d 219

(Tex. Cr. App. 1998); Foster v. State , 8 S.W.3d 445 (Tex. App. -- Waco

1999, no pet'n). The Court of Criminal Appeals has held that questions

regarding the voluntariness of a plea do not defy harm analysis and, therefore,

do not involve fundamental constitutional systemic requirements. Cain v.

State , 947 S.W.2d 262, 264 (Tex. Cr. App. 1997). In Cain , the court stated:

Except for certain federal constitutional errors labeled by the United

States Supreme Court as "structural," no error, whether it relates to

jurisdiction, voluntariness of a plea , or any other mandatory requirement, is categorically immune to a harmless error analysis. (Emphasis

added)

Even if we assume that, under the record in this case, the trial court

should have withdrawn appellant's guilty plea on its own motion, the inquiry

does not end. Without deciding the effect, if any, that Ibarra and Cain have

on a trial court's duty to sua sponte withdraw a guilty plea under these

circumstances, we hold that, under the current state of the law, appellant has

waived any error by failing to call it to the trial court's attention.

Rule 33.1 provides in relevant part:

(a) In General. As a prerequisite to presenting a complaint for

appellate review, the record must show that:

(1) the complaint was made to the trial court by a timely

request, objection, or motion that:

(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to

make the trial court aware of the complaint, unless the specific

grounds were apparent from the context; and

(B) complied with the requirements of the Texas Rules

of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate

Procedure; and

(2) the trial court:

(A) ruled on the request, objection, or motion, either

expressly or implicitly; or

(B) refused to rule on the request, objection, or motion,

and the complaining party objected to the refusal.

Appellant did not preserve his complaint in accordance with Rule 33.1

regarding the trial court's failure to sua sponte withdraw his guilty plea. As a

result of that failure, any error is waived. We note that this very issue has

been decided recently by the Waco Court of Appeals in Williams v. State , 10

S.W.3d 788 (Tex. App. -- Waco 2000, pet'n ref'd). See also Foster v. State,

supra. The first point of error is overruled. (4)

III. Our Review

In this case and in the Williams case that the Eleventh Court cited, the courts of

appeals were right to overrule appellants' complaints about trial courts' failing to withdraw

pleas of guilty when evidence inconsistent with guilt was introduced before juries. We

granted review, not to reverse the judgments of the courts below, but to clarify this area of

the law.

Past decisions of this court made the tasks of the courts of appeals in these cases

difficult in more than one way. The rules for deciding whether a complaint may be presented on appeal were made indistinct by a sentence in our Ibarra opinion which the courts

of appeals quoted.

A. "Structural Errors" and "Systemic Requirements"

In the opinion below and in the Williams case that it cited, (5) the courts of appeals

have mixed the concept of "systemic requirement," which has to do with preservation of

error, with the concept of "structural error," which has to do with harmfulness of error.

1. Distinguishing the terms.

A "structural error" is not subject to a harmless-error test.

Except for certain federal constitutional errors labeled by the United States

Supreme Court as "structural," no error, whether it relates to jurisdiction,

voluntariness of a plea, or any other mandatory requirement, is categorically

immune to a harmless error analysis. Of course, where the error involved

defies analysis by harmless error standards or the data is insufficient to

conduct a meaningful harmless error analysis, then the error will not be

proven harmless [under the applicable harmless-error test]. Hence, it may be

true that some kinds of errors (particularly jurisdictional ones) will never be

harmless under the [applicable] test and that some other kinds of errors will

rarely be harmless. But, appellate courts should not automatically foreclose

the application of the harmless error test to certain categories of error.

Where an error is shown to be harmless, it is not a ground for reversal,

regardless of the category or label attached to that particular error. (6)

The Supreme Court has described structural error in the trial of a criminal case, and it has

identified certain constitutional errors as structural.

A "structural" error, we explained in Arizona v. Fulminante , is a "defect

affecting the framework within which the trial proceeds, rather than simply an

error in the trial process itself," 499 U.S.[ 279], 310[ (1991). We have found

structural errors only in a very limited class of cases: a total deprivation of

the right to counsel, lack of an impartial trial judge, unlawful exclusion of

grand jurors of defendant's race, the right to self-representation at trial, the

right to a public trial, [and an] erroneous reasonable-doubt instruction to the

jury. (7)

Most constitutional errors are not "structural"; that is, they can be harmless. (8)

A "systemic requirement" (also known as an "absolute requirement or prohibition")

is a law that a trial court has a duty to follow even if the parties wish otherwise. Any party

that is entitled to appeal may complain on appeal that such a requirement was violated, even

if the party failed to complain about the failure or waived the application of the law. (9) (A

party may be estopped from complaining about an error that it invited, however.) (10)

2. Systemic requirements, waivable rights, and forfeitable rights.

A systemic (or absolute) requirement is one of the "three distinct kinds"of rules that

our judicial system may be thought to contain, according to our opinion in Marin v. State . (11)

A second kind is the "waivable right," (12) that is, "rights of litigants which must be implemented by the system unless expressly waived." (13) The third kind is the "forfeitable right"; (14)

in this class are "rights of litigants which are to be implemented upon request." (15) "A cursory

examination of the myriad evidentiary and procedural rules compris[ed by] our system

reveals that most of them are of this [forfeitable] type. … In short, the rights of litigants in

our system are usually forfeited by a failure to exercise them." (16) The requirements for

presenting a complaint for appellate review are not the same for the all these kinds of rules.

The general requirement for preservation of complaints for appeal is Rule of

Appellate Procedure 33.1(a). It is set out verbatim, above, in a quotation of the court of

appeals' opinion in this case. It could be summarized as requiring a timely, specific

objection and a ruling by the trial court.

Rule 33.1(a) "was meant to reaffirm the basic principles of adversary litigation, not

to amend or repeal them. … [It] applies only to actions of the trial court concerning which a

party forfeits the benefit of a right belonging to him if he does not complain about it at

trial. The rule does not apply to rights which are waivable only or to absolute systemic

requirements, the violation of which may still be raised for the first time on appeal." (17) That

is, there are two types of complaints to which Rule 33.1(a) does not apply.

In our Ibarra opinion, we said, "Except for complaints involving fundamental

constitutional systemic requirements which are not applicable here, all other complaints

based on a violation of both constitutional and statutory rights are waived by failure to

comply with Rule 33.1." (18) This description of the exceptions to Rule 33.1(a) was incorrect

in several ways. First, it omitted one of the types of complaints to which the rule does not

apply: complaints about rights that are waivable only.

Second, it incorrectly described complaints about systemic requirements as

"complaints involving fundamental constitutional systemic requirements." Systemic

requirements are not necessarily constitutional. The "clearest cases of … systemic

requirements," which we identified in Marin , are "laws affecting the jurisdiction of the

courts," (19) specifically, jurisdiction of the subject and jurisdiction of the person. These laws

are not constitutional.

We used the word "fundamental" in Ibarra to describe the systemic requirements,

which could be misleading. "Fundamental" is the word that has been used by this court to

identify complaints that may be raised for the first time on appeal. (20)

Before 1993 this Court had recognized more than a dozen other kinds of

fundamental error. This jurisprudence "reflects piecemeal developments that

each have somewhat different rationales. The overall situation, then, simply

cannot be explained by reference to any unifying principle or principles.

Marin v. State suggest(ed) both the need to reconsider this case law and a

framework for that reconsideration." (21)

" Marin has been a watershed decision in the law of error-preservation." (22) Questions of

"fundamental error" now are considered in its framework.

Another mistake in our Ibarra opinion was saying that noncompliance with Rule

33.1(a) results in complaints being "waived." In Marin we carefully distinguished waiver,

which requires the intentional relinquishment or abandonment of a known right or privilege,

from the forfeiture that is the consequence of not complying with Rule 33.1(a).

A statement that is correct, and perhaps less susceptible of being misread, would be,

"Except for complaints involving systemic (or absolute) requirements, or rights that are

waivable only, which are not involved here, all other complaints, whether constitutional,

statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)." This statement would have been applicable to Ibarra's complaint, which was that the judgment against

him "should be reversed because he was not informed of his rights, upon arrest, as guaranteed by the Vienna Convention on Consular Relations." (23) As we held, Ibarra's claim did not

meet the "timely" requirement of Rule 33.1. (24)

B. Preservation of Mendez's complaint.

The appellant's complaint is, "The trial court erred in failing to sua sponte withdraw

Appellant's plea of guilty before the jury and enter for Appellant a plea of not guilty to the

jury when Appellant presented evidence of his innocence to the allegations [of intentional

or knowing murder] in Paragraph One of the indictment that was not withdrawn in the jury's

presence." (25) His complaint was raised for the first time on appeal. As we have said above,

this is permitted if the complaint is that the trial court disregarded an absolute or systemic

requirement, or that the appellant was denied a waivable-only right that he did not waive. If

it is a complaint about another kind of law, the appellant forfeited his right to present the

claim on appeal by failing to present a timely, specific objection, request, or motion to the

trial court for a ruling as Rule of Appellate Procedure 33.1(a) requires.

1. The courts of appeals' analyses.

In this case, the Court of Appeals said, "Even if we assume that, under the record in

this case, the trial court should have withdrawn appellant's guilty plea on its own motion,

the inquiry does not end." (26) In accordance with the decision of another court of appeals, (27) it

held "that, under the current state of the law, appellant has waived any error by failing to call

it to the trial court's attention" as Rule of Appellate Procedure 33.1(a) requires. (28) The

holding is inconsistent with Marin .

If the trial court had the duty that the court of appeals assumed, Rule 33.1(a) would

not have applied. A law that puts a duty on the trial court to act sua sponte , creates a right

that is waivable only. It cannot be a law that is forfeitable by a party's inaction. This was the

precise holding of Marin .

Marin's complaint on appeal was that his appointed counsel was not given the ten

days to prepare for trial to which she was entitled by a statute. (29) This complaint had not been

presented to the trial court. The court of appeals held that Marin had not waived his right to

the ten days, but he did waive his right to complain on appeal by failing to present his

complaint to the trial court as the rule of appellate procedure required. (30) This court held:

In the instant cause, the Court of Appeals rightly determined that [the statute]

is waivable only, inasmuch as the Legislature said so expressly by providing

that appointed counsel "may waive the (10 days of) preparation time with the

consent of the defendant in writing or on the record in open court." We agree

with the lower court that this language clearly does not contemplate a forfeiture of the statutory right from a mere failure to object at trial. But the Court

of Appeals erred to hold that an objection is nevertheless required to preserve for appellate review the denial of this right. (31)

This was because "we think it far more consistent with the overall structure of our adversary

system that litigants not be required by Rule 52(a) to do more for the preservation of their

complaints on appeal than they must do at trial to secure benefits of the law to which they

are entitled." (32) (Rule of Appellate Procedure 52(a) (33) was rewritten and renumbered as

33.1(a) in 1997, (34) but its requirements did not change in any way that is material to this

case.)

We turn to the question of, what kind of rule governs a defendant's maintaining a

plea of guilty in a jury trial?

2. Defendant's right to plead not guilty .

The Code of Criminal Procedure requires only one pleading of the defendant in a

criminal case: the defendant's pleading as to guilt, which may be guilty, not guilty, or nolo

contendere. An article of the Code provides, "If the defendant refuses to plead, the plea of

not guilty shall be entered for him by the court." (35) That article gives the trial court a duty in

the absence of action by the defendant. Another article of the Code authorizes the defendant to choose other pleadings, including guilty or nolo contendere. (36) Together the articles

create a defendant's right to a plea of not guilty that is a "waivable right" in Marin 's

taxonomy -- one that "must be implemented by the system unless expressly waived." (37)

The waiver of the right to a plea of not guilty is surrounded by procedural protections both constitutional and statutory. The waiver of that right may entail the waiver or

abridgement of other rights. Even when the plea is entered without waiver of trial by jury,

the constitutional rights that are affected may include the right to have the State prove guilt

beyond a reasonable doubt, and the right to confront and cross examine witnesses against

the defendant. (38) Due process of law requires that "[w]aivers of constitutional rights not only

must be voluntary but must be knowing, intelligent acts done with sufficient awareness of

the relevant circumstances and likely consequences." (39) In particular, the Supreme Court has

held that a defendant who entered a plea of guilty to a charge of second-degree murder

without being informed that intent to cause the death of his victim was an element of the

offense did not enter a voluntary plea. (40)

Due process of law is not denied by a conviction based on a plea of guilty that is

accompanied by "a strong factual basis for the plea demonstrated by the State and [a

defendant]'s clearly expressed desire to enter it despite his professed belief in his innocence." (41)

Other laws, of course, may offer greater protections than the constitutions require. (42)

In a felony case in Texas, the Code of Criminal Procedure requires the defendant to appear

in open court in person. (43) The court must admonish the defendant of the possible punishment and certain other consequences of conviction. (44) The court may not accept a plea other

than not guilty unless it appears that the defendant is mentally competent and the plea is

free and voluntary. (45) In the case of felony, if the punishment is not absolutely fixed by law, a

jury must be impaneled to assess the punishment of the defendant who has waived the right

to plead not guilty, unless the defendant has waived the right to trial by jury. (46)

Texas is one of a handful of states in which the jury may assess punishment in a non-capital case. (47) Texas' experience with jury sentencing is long. The first legislature of the

state enacted a statute requiring juries to assess punishment in every case in which a

defendant pleaded guilty. (48) In 1879 the requirement of a jury on a plea of guilty was limited

to felony cases. (49) It seems that fifty years later that burden had become too great. After the

Supreme Court held in 1930 that a trial by jury on the issue of guilt could be waived, (50) the

next legislature amended the Code of Criminal Procedure to permit the waiver of jury

trial. (51) The emergency clause of the act said it was justified "in order to reduce the expense

of law enforcement and to hasten the disposition of felony cases wherein pleas of guilty are

entered." (52) (In 1965 the Code was amended to permit, in cases of felony other than a capital

felony in which the State seeks the death penalty, the waiver of trial by jury on pleas of not

guilty as well as guilty.) (53)

This court has found a right for a defendant to change his plea from guilty to not

guilty if the request is timely. In a trial before a jury, the defendant may change the plea

from guilty to not guilty at any time before the jury retires to deliberate its verdict; (54) when

trial by jury has been waived, the defendant may change the plea from guilty to not guilty

until the court pronounces judgment or takes the case under advisement. (55)

We have held that some defendants, although not explicitly requesting to change

their pleas from guilty to not guilty, have conveyed sufficiently to the trial court a desire to

have the issue of guilt decided by the jury. The leading decision is Harris v. State . (56)

Harris pleaded guilty to an indictment alleging that he murdered his wife by shooting

her. "There [wa]s some indication that the defendant first entered a plea of not guilty … and

the judge certifies that he had a commission of doctors to examine into the sanity of

appellant, and that two of these physicians made a report." (57) The doctors reported that the

defendant knew right from wrong, although he was mentally weak and had an uncontrollable

temper. (58) The defendant then pleaded guilty. "There [still wa]s quite a lot of testimony

introduced on the issue of insanity." (59) At the close of testimony, the defendant requested to

see the court's charge, and the court refused to let him read the charge. "This was error." (60)

The court's charge instructed the jury that the defendant was sane. (61) The defendant later

filed an exception to the charge and special requested instructions on the question of sanity

"which should have been given by the court," but they were refused. (62) "The charge, although

given in a case where the plea was guilty, was erroneous in instructing the jury under the

facts of this case that defendant was sane." (63) The judgment of guilt and sentence of death

were reversed. This court said that sanity "was the main contested issue," and the trial court

should not have taken it away from the jury. (64) Judge Davidson wrote for the court:

Wherever there is a contested issue before a jury in a criminal prosecution, it is the province of the jury to pass upon the weight of the testimony

and the credibility of the witnesses, and this is not different under a plea of

guilty from the case where the plea is not guilty. The statute requires that,

when the defendant insists upon pleading guilty, certain things must be

ascertained by the court before the plea of guilty will be entertained. The

statute further provides that when the plea is entered testimony shall be

introduced to enable the jury to fix the punishment. The court may determine

perhaps in the first instance to his satisfaction that the statute has been

complied with before receiving the plea, but when the facts get before the

jury the jury passes upon the weight of the testimony and the credibility of

the witnesses. It has been held by the decisions that this statute is mandatory,

and, instead of being for the benefit of the defendant, it is more especially

designed to protect the interest of the state by preventing aggravated cases of

crime from being compromised by the assessment of minimum punishment.

It also has been held that the provisions of the statute should be fully observed and administered. It has been further held that the trial is precisely the

same under a plea of guilty as under a plea of not guilty, under the statute

which requires evidence to be submitted. Crow v. State , 6 Tex. 334 ; Martin

v. State , 36 Tex. Cr. R. 632 , 36 S.W. 587 , 38 S.W. 194 . The fact that the

court thought the defendant was sufficiently sane to admit the plea of guilty

did not take away from the jury the right to pass upon his sanity under the

facts submitted to them. In the Crow Case, supra , as we understand it, the law

is as therein stated. Judge Lipscomb in that opinion uses this language:

"It is believed to amount to nothing more than an acknowledgment of

the facts charged, and whether such facts constitute an offense at law

is left open to be decided by the court."

If the defendant pleads guilty, and the facts should develop that he is

not guilty, but acted purely in self-defense, it would be the duty of the court

to see that no conviction was had, although a plea of guilty was entered. Our

law only authorizes a conviction where guilt is shown. If there be no legal

guilt, a conviction could not be sustained, although the defendant entered a

plea of guilty. (65)

This important passage is remarkable for several reasons. First, it has engendered a

line of confusing decisions that contradict other decisions of this court.

Second, it begins with a condition that applies throughout the discussion: "Wherever

there is a contested issue before a jury in a criminal prosecution …." When is an issue

"contested"?

In Martin , a precedent on which Judge Davidson relied and in which he wrote the

opinion, the defendant pleaded guilty to an indictment alleging the offense of murder. The

penal code of that time made it impossible for a defendant to plead guilty to an indictment

for murder in such a way as to resolve all issues of fact. The code required a jury to decide

issues of fact about the degree of the murder as well as punishment. (66)

The question in Martin was whether it was error to overrule the defendant's

exception to the court's charge for failing to submit to the jury the rule pertaining to

corroboration of the testimony of accomplices. The court, per Davidson, J., held that it was

error because the statute that required the jury to decide the degree of murder created an

issue of fact for the jury. "Now, whenever a fact is to be found by a jury, upon the truth of

which the life and liberty of the citizen depends, and the testimony of an accomplice is

relied upon to establish the truth of such fact, the rule contained in [the accomplice-witness

statute] should be submitted to the jury." (67)

Third, the citation of, and quotation from, Crow introduced some confusion into

Harris . It was incorrect as a matter of fact to say that Crow "held that the trial is precisely

the same under a plea of guilty as under a plea of not guilty." Crow had nothing to do with

the jury's resolution of issues of fact or the court's duty to withdraw a plea of guilty. Crow

pleaded guilty to a charge of "betting money on a game of tenpins, which said game of

tenpins was then and there a gambling device." He brought a writ of error.

The error relied on and assigned, [wa]s, that no offence against the law, is

charged in the indictment. A preliminary question is presented, growing out

of the plea of the defendant in the indictment. He pleaded guilty. If this plea

is equivalent to a confession of judgment in civil proceedings, it might be

contended, on authority, that it amounts to a waiver and release of all errors.

We cannot, however, regard the plea, as drawing after it the same consequences as a confession of judgment in a civil suit. It is believed to amount to

nothing more than an acknowledgement of the facts charged; and whether

such facts constitute an offence at law, is left open to be decided by the

Court. Again, it is not the policy of the State, to enforce a judgment, when no

offence against law has been committed. (68)

This cannot be described as being a holding "that the trial is precisely the same under a plea

of guilty as under a plea of not guilty," as the Harris opinion said. It was a holding that a

plea of guilty in a criminal case is not like a confession of judgment in a civil case that

waives and releases all errors. The Supreme Court went on to hold, as a matter of law, that

the term "betting at a gambling device" in the statute could not be construed to include

betting on a tenpin alley. (69)

Fourth, Harris did not make it clear how the trial court should have left the issue of

sanity for the jury when the plea was guilty and the jury's only choices went to the degree

of the offense and the punishment to be assessed. This issue was resolved with the decision

on rehearing in Taylor v. State , (70) but some language in that decision led to confusion in

later years.

Taylor pleaded guilty to a felony of assault with intent to kill. The record in his

appeal included a written plea, evidently filed during the trial, which said that he pleaded

guilty and insane. This plea was not called to the attention of the trial court or the prosecutor. (71) There was no evidence of insanity. Taylor's theory on appeal turned out to be that the

secret plea of insanity triggered the State's duty to prove him sane and created an otherwise

invisible issue of fact. The trial court overruled Taylor's requested special charges on

insanity. This court affirmed. We said that the suggestion in Harris that the issue of sanity

be submitted to the jury together with the defendant's plea of guilty "is fundamentally

unsound and would necessarily cause much confusion in practice … in that … a plea of

insanity is as surely a plea of not guilty as can be …" (72)

The Taylor opinion also said:

We are also of opinion that, if the evidence so introduced to enable the jury

to fix the punishment pertinently suggested insanity at the time of the commission of the offense, this court would reverse if opportunity was refused

appellant to withdraw his plea of guilty and have all the issues passed upon by

the jury. It was correctly held in the Alexander Case, 69 Tex. Cr. R. 23 , 152

S. W. 436 , that at any time before the retirement of the jury a plea of guilty

might be withdrawn and the case tried on a plea of not guilty, and such course

should be followed when the evidence offered to enable the jury to fix the

punishment shows a state of case under which, if true, the accused would not

be guilty of any crime. (73)

It will be noticed that this statement spoke of error to refuse a defendant's motion to

withdraw a plea of guilty, that plea presumably being replaced by a plea of not guilty, so that

the jury could resolve the contested issue of sanity.

If that were all the Taylor opinion said, there would be no difficulty in the case that

is before us today. Unfortunately, between the passages that are quoted above, the Taylor

opinion included this sentence:

We are of opinion that in [the Harris ] case the correct procedure should have

been that it would at once become the duty of the trial court, upon a hearing

under the plea of guilty, if the evidence introduced showed insanity, to have

the plea of guilty withdrawn and a plea of not guilty entered upon behalf of

the accused and the issues fully and legally determined thereafter, and our

opinion is that the Harris Case should have been reversed and remanded for

the failure of the trial court to so proceed. (74)

Here the court delivered not only a dictum about Harris , but one that was broader

than the facts of that case required. Not only was there evidence of insanity in Harris's

trial; Harris vigorously sought his right to inspect the court's charge, and, when he was

belatedly given it, he informed the court of his desire to have the issue of insanity submitted to the jury. As we said in Taylor , a plea of insanity is surely a plea of not guilty. The

error in Harris was the trial court's refusal to charge the jury correctly when the defendant

raised his complaint in as timely and specific a manner as the trial court would permit. That

record did not call for the creation of a duty on the trial court to withdraw a plea of guilty

when it merely heard evidence that was inconsistent with guilt, while the defendant did

nothing.

In Taylor there was no evidence of insanity, and the defendant's actions were

significantly different. He did not call to the court's attention his plea of insanity, and his

request for a charge on sanity seemed unsupported.

For quite some time the conflict between these passages in Taylor seemed to have

little significance. In one case, we adhered to the passages in Taylor that required a

defendant to move to withdraw the plea of guilty. (75) In other cases, we repeated the passages

in Taylor that put the duty on the trial court to change the plea without a request by the

defendant, but the appeal did not turn on such statements. (76) Some cases were the reverse of

Harris : when defendants introduced evidence of insanity the trial court changed their pleas

from guilty to not guilty, and we affirmed. (77) In one case the trial court did what we said in

Taylor was unsound: it simultaneously instructed the jury to find the defendant guilty on his

plea of guilty and to consider whether he was insane. (78) In one case in which the judgments

were reversed, we said the trial court had a duty to act sua sponte , but the defendant

actually had made a motion in the trial court. (79)

But by the 1970's a line of cases had developed that, we said, stood for the rule that

upon receiving evidence that went "farther than just tending to show a defensive issue" and

"reasonably and fairly presented such issue… the trial court is required to withdraw the

guilty or nolo contendere plea." (80) In 1978 we specifically said that a trial court had such a

duty "even though no effort was made by the defense counsel at any time during the trial to

withdraw the plea and no objection was made to the court's charge to the jury instructing

them that a finding of guilty be rendered." (81)

In the same year, ironically, we held that the trial court had no such duty in a case in

which trial by jury has been waived. (82) Just last year we clarified that decision by holding that

when a defendant has waived trial by jury and pleaded guilty, the trial court has no duty to

conduct some special proceeding when evidence inconsistent with guilt is introduced. (83)

There are, then, a conflict within the opinion in our leading case, a conflict among

our subsequent decisions, and a conflict between the rules for trials with a jury and trials

without a jury.

We think that the rule was better stated in Taylor when we spoke in terms of the

familiar rule that a defendant has the right to withdraw a plea of guilty (or nolo contendere)

in a timely fashion, whether the trial be with or without a jury. The procedures involved are

different. As we have said, a defendant's decision to plead guilty entails the waiver of some

important, constitutional rights. These are "waivable-only" rights, in Marin 's taxonomy. It

is fitting that trial courts have a duty to implement those rights, which shield each defendant

at the outset of every criminal proceeding. But after a court has fulfilled those duties and a

defendant has made a valid waiver of those rights, it is appropriate that the defendant be

required to take some affirmative action to don the armor again. The number of cases in

which defendants want to "unwaive" their right to plead not guilty is small, the appearance

of evidence that is inconsistent with guilt is unpredictable, the significance of such evidence should be more apparent to the defense than to the trial court, and cases are

common in which there is some evidence in the defendant's favor but the defendant (like

Alford) had validly chosen to plead guilty after weighing the advantage of such a plea

against the chance of acquittal.

In this case the appellant did not waive his right to trial by jury, but he did waive his

right to a plea of not guilty. It is not suggested that there was any error in the proceedings

leading up to, and including, his plea of guilty. His strategies were to seek a verdict of

second-degree murder by proving that he acted under the immediate influence of sudden

passion arising from an adequate cause, and to prove that his punishment should be

mitigated by voluntary intoxication that amounted to insanity. His attention was specifically

called to the inconsistency between his plea of guilty and his testimony about lack of intent

or knowledge. The inconsistency between his testimony and the other evidence has not

escaped us. The appellant did not ask to withdraw his plea. If it had been in his interest to do

so, he would have known it.

It is reasonable to put on such a defendant the requirement of timely seeking, in one

way or another, to withdraw the plea of guilty. The appellant not having done so, he may not

complain for the first time on appeal that the trial court did not do it for him.

The judgment of the court of appeals is affirmed.

En banc.

Delivered June 30, 2004.

Publish.

1. "At the punishment stage of a trial, the defendant may raise the issue as to whether he caused

the death under the immediate influence of sudden passion arising from an adequate cause. If the

defendant proves the issue in the affirmative by a preponderance of the evidence,

the offense is a felony of the second degree." Tex. Penal Code § 19.02(d).

2. "A jury that imposes confinement as punishment for an offense may recommend to the judge

that the judge suspend the imposition of the sentence and place the defendant on community

supervision. A judge shall suspend the imposition of the sentence and place the defendant on

community supervision if the jury makes that recommendation in the verdict." Tex. Code Crim. Proc.

art. 42.12, § 4(a).

3.

See Tex. Penal Code § 8.04(b) et seq.

4.

Mendez v. State , 42 S.W.3d 347, 348-49 (Tex. App. -- Eastland 2001).

5. "The Court of Criminal Appeals has recently held that, '[e]xcept for complaints involving

fundamental constitutional systemic requirements …, all other complaints … are waived by failure to

comply with Rule 33.1.'

Ibarra v. State , 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). The United

States Supreme Court has classified these 'fundamental' requirements 'as those which, when denied,

"defy analysis by 'harmless error' standards." ' Foster v. State , 8 S.W.3d 445, 446 (Tex. App. --

Waco 1999, no pet. h.) (quoting Arizona v. Fulminante , 499 U.S. 279, 309 (1991)).

"A question concerning the voluntariness of a guilty plea does not fall within the definition of

such 'fundamental' requirements. See Cain v. State , 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).

In Cain , the Court wrote:

"Except for certain federal constitutional errors labeled by the United States Supreme

Court as 'structural,' no error, whether it relates to jurisdiction, voluntariness of a

plea , or any other mandatory requirement, is categorically immune to a harmless error

analysis.

" Id. (emphasis added). Because a challenge to the voluntariness of a guilty plea does not

implicate one of the 'fundamental' requirements identified by the Supreme Court, an appellant must

properly preserve such a complaint for appellate review. See Foster , at 447 ; see also Ibarra , at 197 .

"Williams's sole complaint on appeal relates to the voluntariness of his guilty plea. Griffin, 703

S.W.2d at 195 . Thus, it must be properly preserved for appellate review in accordance with Rule

33.1." Williams , 10 S.W.3d, at 789 .

6.

Cain v. State , 947 S.W.2d 262, 254 (Tex. Cr. App. 1997).

7.

Johnson v. United States , 520 U.S. 461, 468-69 (1997) (citations omitted).

8.

Arizona v. Fulminante , 499 U.S., at 306 ("the Court has applied harmless-error analysis to

a wide range of errors and has recognized that most constitutional errors can be harmless") (collecting

cases).

9.

See Marin v. State , 851 S.W.2d 275, 280 (Tex. Cr. App. 1993).

10.

See Prystash v. State , 3 S.W.3d 522 (Tex. Cr. App. 1999); State v. Yount , 853 S.W.2d 6

(Tex. Cr. App. 1993).

11.

Marin , 851 S.W.2d, at 279 .

12.

Id. , at 280.

13.

Id. , at 279.

14.

Ibid.

15.

Ibid.

16.

Id. , at 278.

17.

Id. , at 280.

18.

Ibarra v. State , 11 S.W.3d 189, 197 (Tex. Cr. App. 1999).

19.

Marin , 851 S.W.2d, at 279 .

20.

Saldano v. State , 70 S.W.3d 873, 887 (Tex. Cr. App. 2002).

21.

Id. , at 887-88 (quoting George E. Dix & Robert O. Dawson, Texas Practice --

Criminal Practice and Procedure § 42.121 (1st ed. 1995)).

22.

Id. , at 888.

23.

Ibarra , 11 S.W.3d, at 197 .

24.

See ibid.

25. Brief in court of appeals, at 3.

26.

Mendez , 42 S.W.3d, at 349 .

27.

Ibid. ("We note that this very issue has been decided recently by the Waco Court of Appeals

in Williams v. State , 10 S.W.3d 788 (Tex. App. -- Waco 2000, pet'n ref'd)").

28.

Mendez , 42 S.W.3d, at 349 ; Williams , 10 S.W.3d, at 789 ("the trial court has a duty to sua

sponte withdraw the defendant's guilty plea and enter a not guilty plea. … Williams's sole complaint on

appeal relates to the voluntariness of his guilty plea. Thus, it must be properly preserved for appellate

review in accordance with Rule 33.1") (citation omitted).

29.

See Tex. Code Crim. Proc. art. 1.051(e) ("An appointed counsel is entitled to 10 days to

prepare for a proceeding but may waive the preparation time with the consent of the defendant in

writing or on the record in open court").

30.

Marin v. State , 801 S.W.2d 944 (Tex. App. -- Austin 1990).

31.

Marin v. State , 851 S.W.2d 275, 280 (Tex. Cr. App. 1993).

32.

Id. , at 278.

33. "(a) General Rule. In order to preserve a complaint for appellate review, a party must have

presented to the trial court a timely request, objection or motion, stating the specific ground he desired

the court to make if the specific grounds were not apparent from the context. It is also necessary for the

complaining party to obtain a ruling upon the party's request, objection or motion. If the trial judge

refuses to rule, an objection to the court's refusal to rule is sufficient to preserve the complaint. It is not

necessary to formally except to the rulings or orders of the trial court." Tex. R. App. P. 52(a) (1986).

34. The rule is set out above, at page 6.

35. Tex. Code Crim. Proc. art. 27.16(a).

36.

See id. , art. 27.02.

37.

Marin , 851 S.W.2d, at 279 .

38.

See Boykin v. Alabama , 395 U.S. 238, 243 (1969).

39.

Brady v. United States , 397 U.S. 742, 748 (1970).

40.

Henderson v. Morgan , 426 U.S. 637 (1976).

41.

North Carolina v. Alford , 400 U.S. 25, 38 (1970).

42.

See id. , at 38 n.11 ("A criminal defendant does not have an absolute right under the

Constitution to have his guilty plea accepted by the court, see Lynch v. Overholser , 369 U.S.[ 705], at

719[ (1962)] (by implication), although the States may by statute or otherwise confer such a right.

Likewise, the States may bar their courts from accepting guilty pleas from any defendants who assert

their innocence. Cf. Fed. Rule Crim. Proc. 11, which gives a trial judge discretion to 'refuse to

accept a plea of guilty * * *.' We need not now delineate the scope of that discretion").

43. Tex. Code Crim. Proc. art. 27.13.

44.

See id. , art. 26.13(a)(1)-(5), (c), (d), & (h).

45.

See id. , art. 26.13(b).

46.

See id. , art. 26.14.

47. The Bureau of Justice Statistics, in the United States Department of Justice, reported in a

study of the organization of state courts that in three states (Arkansas, Missouri, and Virginia) juries

assess punishment (which the judge could alter) in non-capital felony cases, and in two others (Indiana

and Kentucky) juries recommended punishment that was assessed by the judge in such cases. State

Court Organization, 1998 300-01 (2000).

48. Act of April 30, 1846, 1st Leg., R.S., 1846 Tex. Gen. Laws 161 ,

reprinted in H.P.N.

Gammel, 2 The Laws of Texas 1467.

49.

See Tex. Code Crim. Proc. art. 519 (1879).

50.

See Patton v. United States , 281 U.S. 276 (1930).

51. Act of April 9, 1931, 42nd Leg., R.S., ch. 43, 1931 Tex. Gen. Laws 65 .

52.

Id. , § 8, 1931 Tex. Gen. Laws, at 66.

53.

See Code of Criminal Procedure Act of 1965, 59th Leg., R.S., ch. 722, § 1, arts. 1.13-.15,

1965 Tex. Gen. Laws vol. 2, p. 317, 321-22.

54.

McWherter v. State , 571 S.W.2d 312 (Tex. Cr. App. 1978).

55.

Jackson v. State , 590 S.W.2d 515 (Tex. Cr. App. 1979).

56. 76 Tex. Crim. 126 , 172 S.W. 975 (1915).

57.

Harris , 76 Tex. Crim., at 129 , 172 S.W., at 976

58.

Ibid.

59.

Ibid.

60.

Id. , at 130, 172 S.W., at 976 .

61.

Ibid.

62.

Id. , at 130, 172 S.W., at 976-77 .

63.

Id. , at 130, 172 S.W., at 977 .

64.

Id. , at 132, 172 S.W., at 977 .

65.

Id. , at 130-31, 172 S.W., at 977 .

66.

See Tex. Penal Code art. 711 (1895) ("All murder committed by poison, starving, torture,

or with express malice, or committed in the perpetration or in the attempt at the perpetration of arson,

rape, robbery or burglary, is murder in the first degree, and all murder not of the first degree is murder

of the second degree"); id. , art. 712 ("If the jury shall find any person guilty of murder, they shall also

find by their verdict whether it is of the first or second degree; and if any person shall plead guilty to an

indictment for murder, a jury shall be summoned to find of what degree of murder he is guilty, and in

either case they shall also find the punishment"); id. , art. 714 ("The punishment of murder in the first

degree shall be death or confinement in the penitentiary for life, and the punishment of murder in the

second degree shall be confinement in the penitentiary for not less than five years").

67.

Martin , 38 Tex. Crim., at 641, 38 S.W., at 196.

68. 6 Tex., at 344 .

69.

Ibid.

70. 88 Tex. Crim. 470 , 227 S.W. 679 (1921).

71.

Id. , at 473-74, 227 S.W., at 680-81 .

72.

Id. , at 483, 227 S.W., at 686 .

73.

Ibid.

74.

Ibid.

75.

Aills v. State , 114 Tex. Crim. 345 , 24 S.W.2d 1097 (1930).

76.

See Navarro v. State , 141 Tex. Crim. 196 , 147 S.W.2d 1081 (1940) (evidence insufficient

to trigger duty); Villa v. State , 122 Tex. Crim. 142 , 53 S.W.2d 1024 (1932) (reversed for other

errors in charge).

77.

Edwards v. State , 114 S.W.2d 572 (Tex. Cr. App. 1938); Yantis v. State , 95 Tex. Crim.

541 , 255 S.W. 180 (1923).

78.

Thompson v. State , 127 Tex. Crim. 494 , 77 S.W.2d 538 (1934).

79.

Gates v. State , 543 S.W.2d 360 (Tex. Cr. App. 1976).

80.

Varela v. State , 553 S.W.2d 111 (Tex. Cr. App. 1977).

81.

Montalvo v. State , 572 S.W.2d 714, 715-16 (Tex. Cr. App. 1978).

82.

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

83.

Aldrich v. State , 104 S.W.3d 890 (Tex. Cr. App. 2003).