Moon v. State

ROBERTS, Judge,

concurring in part and dissenting in part.

I agree that the judgment should be affirmed. On March 31, 1976, appellant pleaded guilty and received careful admonishments from the trial court. See Art. 26.13, Vernon’s Ann.C.C.P. The court then found him guilty but abated the case for a pre-sentence investigation and also to allow appellant to prepare and present evidence on the issue of punishment.

On June 3, 1976, the court reconvened the case to hear evidence on punishment. During this hearing, testimony was presented which, quite clearly, raised the issue of self-defense. I would hold that because the trial judge had already found the appellant guilty, the issue was raised too late to require the judge to withdraw appellant’s plea.

II.

However, I do not agree with the majority holding which eliminates the requirement that the trial court withdraw the plea of guilty of an accused wherever the evidence fairly and reasonably brings his guilt into question in a hearing before the court. This holding is dicta in the form of an advisory opinion and unnecessary to the decision of the case. Faced with such a sweeping change in our established law, I would reject the majority’s broad holding and hold instead that whenever the evidence raises a question of the defendant’s innocence the trial court must — at the very least — stop the hearing and determine whether the plea is voluntary and whether the accused is aware of conflict between his plea of guilty and the evidence presented.

III.

The majority opinion rests on three basic assumptions. The first of these, stated in *689 the opinion, is that the trial judge will fairly consider the evidence presented, even though some of that evidence is in plain conflict with the defendant’s plea of guilty. I have no general quarrel with the even-handedness and fair-mindedness of our State’s trial judges; however, I believe that the rule which the majority abolishes is not concerned with mere evidentiary questions, but is instead a reflection of this Court’s concern for the principles of due process as guaranteed by our State 1 and Federal 2 Constitutions. When a question arises as to the voluntariness of a plea of guilty, the sufficiency of the evidence to support that plea takes a position of distinctly secondary importance; simply put, due process — and the rights which it embodies in this context — comes first. 3

By its broad-sweeping new rule, the majority allows trial judges to ignore their constitutional duty to inquire carefully into the voluntariness of each guilty plea. Although one recent Supreme Court decision held that a trial judge may accept a plea of guilty despite the defendant’s protestation of innocence, the Court also made it clear that in any guilty plea the trial judge may accept the plea only after making a careful determination that the plea is knowing and voluntary. North Carolina v. Alford, 400 U.S. 25, 32, 38, n. 11 , 91 S.Ct. 160 , 27 L.Ed.2d 162 (1970), relying, inter alia, on Brady v. U. S. 397 U.S. 742, 748 , 90 S.Ct. 1463 , 25 L.Ed.2d 747 (1970).

The holding in Alford , which upheld the validity of that State court guilty plea, was dependent upon a finding by the Supreme Court that the plea was knowing and voluntary and supported by ample evidence of guilt.

IY.

The Court’s decision in Alford also serves to refute what I believe to be the second, albeit unstated, assumption contained in the majority opinion: that the trial judge is merely an umpire, nothing more than a caller of balls and strikes. I cannot agree with this conclusion. The trial judge is the presiding officer of the trial, and it is his duty above all to see that justice under law is not thwarted. Certainly he must remain impartial, but he is nonetheless the principal public official whose obligation it is in a criminal ease to see that “all individuals are tried and sentenced in accordance with law.” Ex Parte Curtis, 568 S.W.2d 363, 367 (Tex.Cr.App.1978). As such, he must intrude himself into the guilty plea hearing when the voluntariness of the plea comes into question. See Boyd v. Dutton, 405 U.S. 1 , 92 S.Ct. 759 , 30 L.Ed.2d 755 (1972); Henderson v. Morgan, supra (note 3); Boykin v. Alabama, supra (note 3).

V.

The majority’s final assumption, not stated but certainly woven into the fabric of the opinion, is that because the accused is represented by counsel his rights will be adequately represented and defended. See Brady v. U. S., supra at 748-749, n. 6, 90 S.Ct. 1463 .

In this regard, I am aware that my dispute with the majority puts me in the position of advocating an intrusion by the trial judge into the relationship between the accused and his attorney. In most cases, that relationship — and the privileges and responsibilities it carries with it — should not be infringed upon. However, a guilty plea is a special case, an exception to the general rule, because in a guilty plea the defendant, upon the advice and counsel of his lawyer, abandons his normal role as an active litigant in the adversary process and joins with the prosecution to help pull the State’s case to shore. Here it should be remembered that the accused is helping the prosecutor shoulder the heaviest of evidentiary bur *690 dens — that of proof beyond a reasonable doubt. 4

Thus, in a plea of guilty or nolo conten-dere, an accused formally and officially abandons his traditional position as opponent of the prosecution. Admittedly, he does so actively, as a supposedly knowing and voluntary participant in the proceedings. Nonetheless, his position is analogous to that of a defendant who passively and unknowingly abandons his position as a litigant on appeal when his retained attorney fails to prosecute the defendant’s appeal after promising to do so. 5 In these latter cases, we, as an appellate court, intervene in the attorney-client relationship because we realize that the defendant has become an unwitting accomplice in the State’s efforts to affirm his conviction. We recognize in those cases that due process requires that the defendant himself be afforded the opportunity to resume his position as an active litigant on appeal.

Similarly, when an accused agrees, after consultation with counsel, to plead guilty and present evidence which is ostensibly in support of his plea, he abandons his status as an active litigant. Should he then present evidence which reasonably and fairly brings his guilt into question the trial court should intervene in order to determine with care and discernment whether he wishes to reassert his role as a contestant in the adversary process. I would hold that federal due process requires this much at the very least.

. Tex.Const., Art. I, Sec. 19.

. U.S.Const., Amends. 5, 14.

.See Boykin v. Alabama, 395 U.S. 238, 243 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969); Henderson v. Morgan, 426 U.S. 637, 644-645 , 96 S.Ct. 2253 , 49 L.Ed.2d 108 (1976).

. See In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970); Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975).

. See Ex Parte Raley, 528 S.W.2d 257 (Tex.Cr.App.1975). Ex Parte Hill, 528 S.W.2d 259 (Tex.Cr.App.1975); Ex Parte Shields, 550 S.W.2d 670 (Tex.Cr.App.1976). See also Yates v. State, 557 S.W.2d 115 (Tex.Cr.App.1977); Guilory v. State, 557 S.W.2d 118 (Tex.Cr.App.1977).