Moon v. State

PHILLIPS, Judge,

concurring.

Although not crystal clear, 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 trial court was vested only with the authority to resolve legal questions. The resolution of factual disputes was solely within the province of the jury prior to the 1965 codification of our criminal procedure. From the perspective of this Court, I cannot perceive that this case establishes any precedent of significant practical value. The reason for this conclusion is twofold. First, Article 44.02, V.A.C.C.P., as recently amended, 1 effectively forecloses our review of the great majority of convictions obtained by way of a plea of guilty. Thus, whether the trial court abused its discretion in failing to withdraw a plea of guilty, should the prior rule have been continued, would seldom reach us. Second, were we to require that the guilty plea be withdrawn and a not guilty plea entered, our standard of review (in a light most favorable to the verdict) requires, for our purposes, only that some evidence be introduced on each element of the offense.

The United States Supreme Court has decided that the United States Constitution does not prevent the conviction of a defendant on a plea of guilty who simultaneously asserts his innocence. Alford v. North Carolina, 400 U.S. 25 , 91 S.Ct. 160 , 27 L.Ed.2d 162 (1970). It is also clear that this Court has abdicated from the position expressed in Garcia v. State, 237 S.W. 279 , that “The court is required to exercise great care in preventing the improvident entry of a plea of guilty . . . .” This is evident from the rulings of this Court which have held that a judicial confession couched in the same terms as the indictment is sufficient evidence to support a plea of guilty for purposes of Article 1.15, V.A.C.C.P. This retreat in principle has apparently been approved by the Texas Legislature in its decision to restrict appeals from pleas of guilty. See Article 44.02, V.A.C.C.P.

As a corollary to the presumption that in a trial before the court the judge will disregard any inadmissible evidence in reaching a decision on factual issues, the majority holds that the plea of guilty will have no material effect on the neutral and detached position the trial judge holds as arbiter of fact and law. I, too, have every confidence in the fairness of our trial judges, but also realize the heavy burdens they are forced to *688 work under. 2 Despite this burden and the demands of extrajudicial obligations taken on by this State’s judicial officers, I commend the suggestion raised in my brother Roberts’ opinion that whenever evidence is presented during the course of a guilty plea that makes the innocence of the accused evident or reasonably and fairly raises the issue, a more detailed inquiry be pursued. The reason for this is that had there been a plea bargain and previous arrangement to enter a plea of guilty, a part of that agreement should have been to foreclose the development of any defensive issues upon the entry of a guilty plea. When such evidence is raised, it may indicate a breakdown in communications between attorney and client and State. It might also be an indication that the defendant has not been adequately advised of the law as it relates to the facts of his case. This is a constitutional prerequisite to a voluntary and knowing plea of guilty. See McCarthy v. U. S., 394 U.S. 459, 466 , 89 S.Ct. 1166 , 22 L.Ed.2d 418 (1969). Although it is true that the admonishments required under Article 26.13, V.A. C.C.P., were adequately given in the ease at bar and are, as a general matter, adequately given in all guilty plea contexts, the trial judge is indeed the presiding officer of the trial and the one most responsible for seeing to it that due process is accorded each defendant that appears before him. Given today’s decision and the recent enactment of Article 44.02, V.A.C.C.P., the implementation of these suggestions and procedures is left solely within the province of the trial court.

Since the procedural underpinnings for the doctrine requiring the sua sponte withdrawal of a guilty plea under the circumstances discussed in these opinions have been removed with the enactment of Articles 1.13,1.14, and 1.15, V.A.C.C.P., I concur with the majority’s opinion to overrule those decisions arising subsequent to their enactment which failed to discuss this principle. I also concur in the result.

I.

. “Article 44.02. Defendant may appeal. A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial. This article in no way affects appeals pursuant to Article 44.17 of this chapter.”

. In 1977 there were 136,392 criminal cases on the dockets of just the district courts of this State. See 49th Annual Report of the Texas Judicial Council, First Annual Report of the Office of Court Administration, May 1978, Page 142. The increase of new criminal cases in 1977 was 6 percent from 67,269 in 1976 to 71,839.