where record is silent, appellate court presumes that proper number of jurors 5 impanelled
How later courts described this case
- where record is silent, appellate court presumes that proper number of jurors 5 impanelled
- where record is silent, appellate court presumes that proper number of jurors impanelled
- presumed that proper number jurors empaneled
Written by the judges who cited it.
The opinion
ONION, Presiding Judge
(concurring).
I feel compelled to state my reasons for concurring as to the disposition of ground of error # 3 contending there was not a proper admonishment under Article 26.13, Vernon’s Ann.C.C.P.
The judgment reflects that the appellant was properly admonished as required by Article 26.13, supra. Nevertheless, the appellant relies upon the transcription of the court reporter’s notes, which reflects that after the indictment was read to the trial jury on May 1, 1973, the following occurred :
“THE COURT: And to which indictment the Defendant, William Davis, pleads guilty or not guilty ?
“THE DEFENDANT: Guilty, Your Honor.
“THE COURT: And I have hereto (sic) advised you of the consequences and you thoroughly understand that?
“THE DEFENDANT: Yes, sir.”
The docket sheet reflects that on May 1, 1973, prior to the jury trial on the same date, the appellant was “arraigned and *743 warned of his rights and the consequences of a plea of guilty. . . . ” Also in the record, not objected to by the appellant, is a written instrument dated May 1, 1973, and signed by the judge entitled “Arraignment of the Defendant on Plea of Guilty.” Such instrument reflects on its face a compliance with the requirements of Article 26.13, supra. There is also another instrument in the record signed by the appellant entitled “Defendant’s Plea of Guilty, Waiver, and Judicial Confession.” This instrument likewise reflects that the appellant had been admonished as required by Article 26.13, supra.
It appears from this record that the ar-riagnment was delayed until the date of the trial and that shortly before trial the appellant, in connection with the arraignment, was admonished in accordance with Article 26.13, supra, and that before trial the court merely asked the appellant to affirm that he had been so admonished.
Article 26.13, supra, is found in the chapter on Arraignment in the Code of Criminal Procedure and sets forth the procedure to be used at the time of arraignment if the defendant enters a plea of guilty or nolo contendere. Article 27.13, Vernon’s Ann.C.C.P., is found in the chapter on Pleading and requires, among other things, that a plea of guilty or nolo con-tendere in a felony case shall be made in open court “and the proceedings shall be as provided in Article 26.13 . . . ” It is thus Article 27.13, supra, which calls for Article 26.13, supra, to be followed in pleas of guilty and nolo contendere in felony cases.
In the instant case it would have been better practice for the court to have complied with the requirements of Article 27.-13, supra, and again admonished the appellant, but given the particular circumstances of this case, I agree that reversible error is not reflected.
I concur.