# Moon v. State > Court of Criminal Appeals of Texas · October 4, 1978 · 572 S.W.2d 681 URL: https://www.frixlaw.com/law-library/cases/9680933 ## Case - **Full name:** Henry Earl MOON, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** October 4, 1978 - **Citations:** 572 S.W.2d 681; 1978 Tex. Crim. App. LEXIS 1278 - **Precedential status:** Published - **Opinion:** Dissent by Odom - **Judges:** Dally, Odom, Phillips, Roberts, Onion, Douglas - **Cited by:** 160 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9680933 ## How later opinions describe it (automated extraction) - holding judge was not required to withdraw defendant’s plea of guilty supported by judicial confession when evidence introduced by defendant raised issue of his being guilty of a lesser offense ## Opinion text ODOM, Judge, dissenting. Judge Carl Dally, a commissioner for this Court, submitted a proposed opinion affirming this conviction. I adopt his opinion as my dissent. “The appellant asserts that the evidence is insufficient to sustain his conviction for murder and his plea of guilty should have been withdrawn and a plea of not guilty *682 should have been entered for him by the trial court. Although the appellant made a judicial confession sufficient to sustain the conviction for murder, additional evidence, which was not withdrawn, clearly raises the issue of self-defense and voluntary manslaughter. Therefore, the only question presented for review is whether the appellant’s plea of guilty should have been withdrawn by the court and a plea of not guilty entered. “In a long line of authorities this Court has held that when the evidence introduced makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn, the trial court is required on its own motion to withdraw the defendant’s guilty plea or nolo contendere plea and enter a not guilty plea for the defendant. E. G. Harris v. State [ 76 Tex.Cr.R. 126 ], 172 S.W. 975 (Tex.Cr.App.1915); Edwards v. State [ 134 Tex.Cr.R. 153 ], 114 S.W.2d 572 (Tex.Cr.App.1938); Navarro v. State [ 141 Tex.Cr.R. 196 ], 147 S.W.2d 1081 (Tex.Cr.App.1941); Rayson v. State [ 160 Tex.Cr.R. 103 ], 267 S.W.2d 153 (Tex.Cr.App.1954); Fite v. State [ 163 Tex.Cr.R. 279 ], 290 S.W.2d 897 (Tex.Cr.App.1956); Richardson v. State [ 164 Tex.Cr.R. 500 ], 300 S.W.2d 83 (Tex.Cr.App.1957); Edworthy v. State, 371 S.W.2d 563 (Tex.Cr.App.1963); Reyna v. State, 434 S.W.2d 362 (Tex.Cr.App.1968); Swanson v. State, 447 S.W.2d 942 (Tex.Cr.App.1969); Hays [Hayes] v. State, 484 S.W .2d 922 (Tex.Cr.App.1972); Lee v. State, 503 S.W.2d 244 (Tex.Cr.App.1974); Lewis v. State, 529 S.W.2d 550 (Tex.Cr.App.1975); Gates v. State, 543 S.W.2d 360 (Tex.Cr.App.1976); Woodberry v. State, 547 S.W.2d 629 (Tex.Cr.App.1977); Malone v. State, [548] S.W.2d [908] ([Tex.Cr.App.] No. 54065, 4/6/77). 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 [ 145 Tex.Cr.R. 15 ], 165 S.W.2d 460 (Tex.Cr.App.1942); Gonzales v. State, 480 S.W.2d 663 (Tex.Cr.App.1972); Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974); Trevino v. State, 519 S.W.2d 864 (Tex.Cr.App.1975); Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976); Sanchez v. State, 543 S.W.2d 132 (Tex.Cr.App.1976). “Prior to January 1, 1966, the effective date of the 1965 Code of Criminal Procedure, the rule was properly applied when the jury had been waived and a plea of guilty entered before the court as well as when a plea of guilty had been entered before a jury. Prior to the effective date of the 1965 Code of Criminal Procedure, a defendant could not waive a jury and enter a plea of not guilty before the court. Article 11, V.A.C.C.P. 1925. If the defendant waived a jury trial and entered a plea of guilty before the court and it became necessary for the court to withdraw the defendant’s plea of guilty, the court was required to impanel a jury to hear the not guilty plea. This is explained in the opinion in Burks v. State [ 145 Tex.Cr.R. 15 ], 165 S.W.2d 460 (Tex.Cr.App.1942). “The 1965 Code of Criminal Procedure provides that a defendant may waive a jury trial and enter a plea of not guilty before the court in all except capital cases. Articles 1.13 and 1.14, V.A.C.C.P. There now seems to be no valid reason for the court to withdraw the guilty plea and enter a plea of not guilty for the defendant when the defendant enters a plea of guilty before the court after waiving a jury. It. is the duty of the trial court to consider the evidence submitted and as the trier of the facts the court may find the appellant guilty of a lesser offense and assess the appropriate punishment or it may find the defendant not guilty. It would serve no purpose to withdraw the plea of guilty and enter a not guilty plea. Those cases in which this Court has reached a different result are overruled to the extent they conflict with the opinion in this case.” The judgment should be affirmed. DOUGLAS, J., joins this dissent. APPENDIX THE COURT: All right, sir, you are Henry Earl Moon? THE DEFENDANT: Yes, sir. *683 THE COURT: Mr. Moon, in Cause No. 230,232 it is alleged by an indictment that reads: “In the name and by authority of the State of Texas, the Grand Jury of Harris County, State of Texas, duly organized at the May term, 1975, of the 176th District Court of said county, in said court, at said term, do present in the County of Harris and the State of Texas, one Henry Earl Moon, hereafter referred to as the Defendant, heretofore on or about June the 15th, 1975, did then and there intentionally and knowingly cause the death of Theodore Thomas Kelly, Jr. by stabbing and cutting him with a knife. “Against the peace and dignity of the State.” Signed Foreman of the Grand Jury. Sir, to this indictment, how do you plead? Guilty or not guilty? THE DEFENDANT: Guilty. THE COURT: Sir, let me ask you this: As to all of these offenses, the indictment that the Court read, as well as the other two, are you pleading guilty, because you are guilty and not because of any promises, not because of any fear, not because of any persuasion on the part of your attorney, the district attorney, your friends or relatives, or any delusive hope or idea that you would have a better chance of getting a pardon or parole? But are you pleading guilty, strictly because you are guilty; for none of the reasons enumerated or outlined or any other reason, except the fact that you are guilty? THE DEFENDANT: Yes, sir. THE COURT: Sir? THE DEFENDANT: Yes, sir. THE COURT: You are pleading guilty, because you are guilty? THE DEFENDANT: Yes, sir. THE COURT: Not because of any other reason? THE DEFENDANT: Yes, sir. THE COURT: Sir, do you understand your right of a trial by jury? THE DEFENDANT: Yes, sir. THE COURT: Do you want a trial by jury in any one of these three cases? THE DEFENDANT: Yes, sir. THE COURT: You do want a trial by jury? THE DEFENDANT: No, sir. THE COURT: Well, now, you said yes, sir, and now you say no, sir. You understand you can have a trial by jury, or you can waive the trial by jury and proceed before the Court without the benefit of a jury. What is your desire? THE DEFENDANT: No, sir. THE COURT: No, sir, what? THE DEFENDANT: No jury. THE COURT: No jury. You want to proceed and waive the jury and proceed before the Court; is that correct? THE DEFENDANT: Yes, sir. THE COURT: All right, sir. You understand that the penalty for the offense of murder, as you have pled guilty to, may be incarceration — that’s locked up — in the Texas Department of Corrections — that’s the penitentiary — for a period of not less than five years nor more than ninety-nine, or for life. Do you understand the penalty for that offense? THE DEFENDANT: Yes, sir. THE COURT: You understand that, in this case, the district attorney is not making any recommendation. The Court is going to — as I understand from your attorneys, they want the Court to secure a presentence investigation, to hear evidence concerning the alleged murder and take into consideration the offense reports and stipulations there will be in this case, and from that evidence, for the Court to make its determination as to the penalty to be assessed. Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: Is that your agreement and your understanding? THE DEFENDANT: Yes, sir. *684 THE COURT: Now, you are represented by Mr. Rasmus? THE DEFENDANT: Yes, sir. THE COURT: And what is your name? MR. BENNETT: Ealy Bennett, Your Honor. THE COURT: Bennett, that’s right. And by Mr. Bennett, both of whom are with you today. Have they been employed by you, or were they appointed by the Court? THE DEFENDANT: Employed. THE COURT: Are you satisfied with both of them as your attorney? THE DEFENDANT: Yes, sir. THE COURT: Have you had ample opportunity to counsel with them and to advise with them, so that they are familiar with the circumstances concerning the alleged offenses and the incidents leading up to and that transpired in the commission of the offense, as well as your arrest? THE DEFENDANT: Yes, sir. THE COURT: Have they had ample opportunity to counsel with you and to find out everything that you knew about the case? THE DEFENDANT: Yes, sir. THE COURT: And do you have good sense? THE DEFENDANT: Yes, sir. THE COURT: Nobody ever said you were crazy, except in jest? Nobody ever said you were crazy; did they? THE DEFENDANT: No, sir. THE COURT: You feel that you are competent to stand trial at this time? THE DEFENDANT: Yes, sir. THE COURT: Now, you have filed with the Court several instruments; one of which is a stipulation of evidence, wherein you acknowledge that you understand you have a right to be confronted by your accusers and you and your attorney have the right to cross examine the witnesses. And you state you want to waive that right. Is this correct? THE DEFENDANT: Yes, sir. THE COURT: And you further state that you are agreeable to and consent to the oral stipulation of evidence, as well as to the introduction of affidavits, written statements of the witnesses and other documentary evidence, including this stipulation itself, wherein you acknowledge as being true all of the allegations set out in the indictment alleging the offense of murder. Is that your agreement, your stipulation and your understanding? THE DEFENDANT: Yes, sir. THE COURT: And you understand that, along with this stipulation, there is a waiver of a trial by jury? Is that your signature? THE DEFENDANT: Yes, sir. THE COURT: And likewise there is attached hereto numerous reports, offense reports and a motion for probation. You understand that the district attorney is not recommending probation. Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: You understand, to the contrary, that they are asking that you be given hard time. Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: And you understand that there is a voluminous amount of reports and_ statements and various other instruments attached to the stipulation of evidence in which you state, I understand, that that’s agreeable for the Court to take into consideration as evidence in this case; is that correct? THE DEFENDANT: Yes, sir. THE COURT: Now, I don’t know what has been told you, but I am telling you that the district attorney is not recommending probation. And you understand, of course, that no one else has any authority to tell you that the Judge is going to give you probation, to get you to plead guilty. You understand the Court takes murder as a serious offense? THE DEFENDANT: Yes, sir. *685 THE COURT: And until I hear the evidence and until I read the stipulations and all of the records that are attached to it and until such time as I can have a presentence investigation made, I certainly will not be in a position to assess any penalty. Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: This is your signature on a waiver of a trial by jury? THE DEFENDANT: Yes, sir. THE COURT: In this you have got here, you are asking that the jury assess the punishment. MR. RASMUS: Judge, I think that was filed prior to making an agreement in this matter. I think I filed all of those documents. THE COURT: I have got a paper here in which you have asked the Court, upon your plea of guilty, — well, you have it styled a Defense motion at the time of entering a plea of not guilty. And this was in anticipation— MR. RASMUS: Of trial. THE COURT: And does he understand that you are withdrawing and asking the Court to assess the penalty in this regard? MR. RASMUS: I have explained that to him and his family. THE COURT: Do I understand this, Mr. Moon, that even though you have filed here a request that the jury assess the punishment, that is not your desire; is that correct? THE DEFENDANT: Yes, sir. THE COURT: All right, Mr. Rasmus, how long have you been representing the Defendant? MR. RASMUS: Judge, I have been representing him, I would say, for the past year and a half. THE COURT: And have you had ample opportunity to see him, to counsel with him, to advise with him? MR. RASMUS: Definitely, Judge. THE COURT: Are you satisfied that he is sane? MR. RASMUS: Yes, sir. THE COURT: You are satisfied that he is competent to stand trial? MR. RASMUS: Yes, sir. THE COURT: Do you know of any reason why I shouldn’t accept his plea of guilty? MR. RASMUS: At this time I do not, Your Honor. THE COURT: And, Mr. Bennett, how long have you been representing the Defendant? MR. BENNETT: Basically, Your Honor, about three months. THE COURT: Have you had an opportunity to counsel and to advise with him? MR. BENNETT: Yes, sir, Your Honor, I have. THE COURT: Are you satisfied that he is sane? MR. BENNETT: Yes, sir, Your Honor. THE COURT: You are satisfied that he is competent to stand trial? MR. BENNETT: Yes, sir, Your Honor. THE COURT: Satisfied that he understands all of the rights that he is entitled to and the rights, particularly, that he is waiving? He is waiving a number of rights, the right to be confronted by his accusers,— MR. BENNETT: Yes, sir, Your Honor. THE COURT: —and the right to cross examine the witnesses and the right to have a jury trial. Does he understand he has these rights? MR. BENNETT: Yes, sir, Your Honor. THE COURT: You feel that he is freely and voluntarily waiving all those rights? MR. BENNETT: Yes, sir, Your Honor. THE COURT: And he is acknowledging that it is agreeable upon the Court accepting his plea of guilty, that this testimony will be by virtue of stipulations, by written statements which ordinarily might be inadmissible by virtue of some of them being hearsay and various other things, but that he is acknowledging in the stipulations' that *686 they are a part of the stipulations to be entered into the record, for the Court to take into consideration in assessing his penalty? MR. BENNETT: Yes, sir, Your Honor. THE COURT: And the same thing is true as to the ordering of the presentence investigation, which I understand both Mr. Rasmus and yourself, as well as Mr. Moon, are asking the Court to accept his plea of guilty and then to reset the matter for the purpose of securing a presentence investigation. Is this your understanding? MR. BENNETT: Yes, sir. THE COURT: Is this your understanding? MR. RASMUS.: That is correct, Your Honor. THE COURT: And this is your desire? MR. MOON: Yes, sir. THE COURT: All right, the Court will accept your plea of guilty in all three cases. (State’s Exhibit No. 1 was marked for identification purposes by the court reporter.) MR. GUERINOT: Mr. Moon, let me show you what’s been marked as State’s Exhibit No. 1, Cause No. 230,232, which states that on June the 15th, 1975, in Harris County, Texas, you did intentionally and knowingly cause the death of Theodore Thomas Kelly, Jr. by stabbing him with a knife. Is that your signature on that instrument? THE DEFENDANT: Yes, sir. MR. GUERINOT: Are all those facts true and correct? THE DEFENDANT: Yes, sir. MR. GUERINOT: You realize that you are judicially confessing to the felony offense of murder? THE DEFENDANT: Yes, sir. MR. GUERINOT: And have you had an opportunity to discuss all of this stipulation, the waiver of a trial by jury and all of the attachments to this stipulation; that is, the autopsy report, the offense report, your statement that you made to the officers and the statements of the other witnesses? THE DEFENDANT: Yes, sir. MR. GUERINOT: Is that your signature which appears on this waiver of a trial by jury in a felony less than capital in Cause No. 230,232, wherein you state you wish to waive your constitutional right to a trial by jury and have the Court hear the evidence in this case? THE DEFENDANT: Yes, sir. MR. GUERINOT: That’s your signature? THE DEFENDANT: Yes, sir. MR. GUERINOT: And that is your desire, to give up your constitutional right to a trial by jury? THE DEFENDANT: Yes, sir. MR. GUERINOT: You realize you are waiving that right and asking the Court to hear the evidence in this case and to assess the punishment? THE DEFENDANT: Yes, sir. MR. GUERINOT: It is also your agreement to introduce into evidence, along with these two documents, the formal stipulation of evidence, the waiver of trial by jury, all of these attachments; that is, the autopsy report and the offense report, pictures, drawings, diagrams, statements of all the witnesses. THE DEFENDANT: Yes, sir. MR. GUERINOT: Have you discussed this with your attorney fully? THE DEFENDANT: Yes, sir. MR. GUERINOT: All of these documents that are in here? And is it your agreement and your understanding they are to be a part of this record for the purposes of not only your plea of guilty, but the sentence to be assessed? THE DEFENDANT: Yes, sir. MR. GUERINOT: Your Honor, at this time the State would offer into evidence State’s Exhibit No. 1: The stipulation of evidence, the waiver of trial by jury, signed by the Defendant, Mr. Rasmus and myself, the autopsy report which is attached to the stipulation of evidence and the offense report which contains all of the details con *687 cerning the murder, the diagrams, the statements of Mr. Moon, the statements of Freddy Lee Williams, Kenneth Celestine and numerous other notations which are made in the file. THE COURT: All right, sir. Mr. Moon, stand up, please. Do I understand it is agreeable with the Defendant that the exhibits and stipulations be entered? MR. RASMUS: It is, Your Honor. THE COURT: And by the Defendant? THE DEFENDANT: Yes, sir. THE COURT: And by Mr. Bennett? MR. BENNETT: Yes, sir. THE COURT: All right, sir, the Court will order the exhibits and stipulations filed of record. Is it my understanding there is no recommendation? MR. GUERINOT: There is no recommendation as to the murder. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9680933. Public record. Not legal advice.