Moon v. State

ONION, Presiding Judge,

dissenting.

On original submission when this was still a five judge court appellant’s conviction was reversed and remanded because the trial court failed to sua sponte withdraw the appellant’s plea when the evidence reasonably and fairly raised an issue of fact as to the innocence of the appellant. It was undisputed that the evidence clearly raised the issue of self-defense. Now on rehearing before a nine judge court the majority grants the State’s motion for rehearing and affirms the conviction. In doing so, the majority relies upon the dissenting opinion on original submission and takes a well established rule applicable to both jury and bench trials and splits the rule in two, leaving the same applicable to jury trials, but inapplicable to bench trials. This is indeed regrettable. I adhere to the opinion on original submission. For the reasons stated there, I dissent. 1

OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for murder wherein the punishment was assessed at twenty (20) years’ imprisonment. The appellant waived the right to trial by jury and entered a plea of guilty before the court.

Appellant asserts that in view of the evidence offered his guilty plea should have been withdrawn by the court and a not guilty plea entered for him. Without detailing the evidence suffice it to say the evidence clearly raised the issue of self-defense.

This court has for years held that when evidence introduced before a jury (when a defendant had entered a guilty plea) 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the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn, the trial court is required sua sponte to withdraw the defendant’s guilty or nolo contendere plea and enter a not guilty plea for the defendant.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 *691 (1915); Taylor v. State, 88 Tex.Cr.R. 470 , 227 S.W. 679 (1921); Yantis v. State, 95 Tex.Cr.R. 541 , 255 S.W. 180 (1923); Aills v. State, 114 Tex.Cr.R. 345 , 24 S.W.2d 1097 (1930); Villa v. State, 122 Tex.Cr.R. 142 , 53 S.W.2d 1023 (1932); Thompson v. State, 127 Tex.Cr.R. 494 , 77 S.W.2d 538 (1935); Edwards v. State, 134 Tex.Cr.R. 153 , 114 S.W.2d 572 (1938); Navarro v. State, 141 Tex.Cr.R. 196 , 147 S.W.2d 1081 (1941); Rayson v. State, 160 Tex.Cr.R. 103 , 267 S.W.2d 153 (1954); Fite v. State, 163 Tex.Cr.R. 279 , 290 S.W.2d 897 (1956); Richardson v. State, 164 Tex.Cr.R. 500 , 300 S.W.2d 83 (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); Hayes v. State, 484 S.W.2d 922 (Tex.Cr.App.1972); Lee v. State, 503 S.W.2d 244 (Tex.Cr.App.1973); 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.1977).

Ever since Burks v. State, 145 Tex.Cr.R. 15 , 165 S.W.2d 460 (1942), the rule has been recognized and applied when the guilty or nolo contendere plea was before the court without a jury and has been consistently applied since the advent of the 1965 Code of Criminal Procedure. See, e. g., 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).

And it has even been held applicable to a revocation of probation proceeding where like the guilty plea before the court the trial judge is the trier of the facts, the judge of the credibility of the witnesses and the weight to be given their testimony. Roberson v. State, 549 S.W.2d 749 (Tex.Cr.App.1977).

In the instant case we hold that the trial court under the circumstances presented should have withdrawn the guilty plea on its own motion because the evidence reasonably and fairly raised an issue of fact as to the innocence of the appellant.

The dissent would reach out and would have this court, sua sponte, adopt a new rule. 1 The dissent would hold that since the advent of the 1965 Code of Criminal Procedure there would seem to be no valid reason for the trial court to withdraw the guilty plea and enter a plea of not guilty when the defendant enters a guilty plea before the court after waiving a jury.

In light of such statement, it is well that we examine the background of the rule involved. Prior to the 1931 amendment, Article 12, Vernon’s Ann.C.C.P., 1925, read:

“No person can be convicted of a felony except upon the verdict of a Jury duly rendered and recorded. . . . ”

Thus, a jury was required in every felony case regardless of the plea.

It was then and now well established that a plea of guilty to a felony charge before a jury admits the existence of all facts necessary to establish guilt and, in such cases, the introduction of testimony by the State is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed. Darden v. State, 430 S.W.2d 494 (Tex.Cr.App.1968), and cases there cited; Ex parte Taylor, 480 S.W.2d 692, 693 (Tex.Cr.App.1972); Gates v. State, supra; Brown v. State, 487 S.W.2d 86 (Tex.Cr.App.1972); Durham v. State, 466 S.W.2d 758 (Tex.Cr.App.1971); Ochoa v. State, 481 S.W.2d 847 (Tex.Cr.App.1972); West v. State, 480 S.W.2d 640 (Tex.Cr.App.1972); Renesto v. State, 452 S.W.2d 498 (Tex.Cr.App.1970).

Where the guilty plea is before the jury, the presumption of innocence does not obtain under the plea and there is no issue of justification under it. Reyna v. State, 434 S.W.2d 362 (Tex.Cr.App.1968); Darden v. State, supra, and cases there cited.

In such cases there are no defenses or defensive issues for the jury to pass upon. Reyna v. State, supra; Jackson v. State, 155 Tex.Cr.R. 466 , 236 S.W.2d 623 (1951); 16 Tex.Jur.2d, Criminal Law, § 362, p. 558.

*692 If at such trial before the jury on a guilty plea the defendant deems the evidence insufficient, he may change his plea to not guilty at any time before the retirement of the jury to deliberate upon the case and put upon the State the burden of proving his guilt beyond a reasonable doubt. Reyna v. State, supra; Alexander v. State, 69 Tex.Cr.R. 23 , 152 S.W. 436 (1912); Garcia v. State, 91 Tex.Cr.R. 9 , 237 S.W. 279 (1922). See also Lewis v. State, 438 S.W.2d 816 (Tex.Cr.App.1969).

Despite the procedures above described, the rule in question in the instant case has long had application. If the evidence introduced before the jury on a guilty plea makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact 2 and such fact is not withdrawn, then it becomes the obligation of the court to withdraw the guilty plea and enter a plea of not guilty for the defendant if he fails to do so himself. Reyna v. State, supra, and cases there cited; Burks v. State, 145 Tex.Cr.R. 15 , 165 S.W.2d 460 (1942), and cases there cited; Gates v. State, supra; Woodberry v. State, supra.

Turning to pleas of guilty before the court; it is observed that by Acts 1931, 42nd Leg., p. 65, ch. 43, § 3, Article 12, supra, was amended to read:

“No person can be convicted of a felony except upon the verdict of a Jury duly rendered and recorded, unless in felony cases less than capital, the defendant upon entering a plea of guilty has in open Court in person and with the approval and consent of the Court and the State’s Attorney, as provided in Section 1 of this Act, (Article 10a of Code of Criminal procedure of the State of Texas), waived his right of a trial by Jury. Provided, however, that it shall be necessary for the State to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the Court as the basis for its verdict, and in no event shall a person charged be convicted upon his plea of guilty without sufficient evidence to support the same.”

By the same enactment, Article 11, Vernon’s Ann.C.C.P., 1925, was amended to read:

“The defendant in a Criminal prosecution for any offense, may waive any right secured him by Law except the right of a trial by a Jury in a felony ease when he enters a plea of not guilty.” (Emphasis added.)

The Amendatory Act of 1931 added the italicized words above. See also Article 10a, Vernon’s Ann.C.C.P., 1925, which is also a part of the same enactment.

Prom the above it is clear that a defendant could waive trial by jury in a non-capital case if he entered a plea of guilty, but a jury was still required in such cases if his plea was not guilty.

Under the procedure established in every case where the defendant entered a guilty plea before the trial court, the State was required to introduce evidence showing the guilt of the defendant, and if the State failed in this respect the defendant was entitled to a new trial if there had been a conviction. Spivey v. State, 140 Tex.Cr.R. 107 , 143 S.W.2d 386 (1940); Franklin v. State, 140 Tex.Cr.R. 251 , 144 S.W.2d 581 (1940); Howell v. State, 140 Tex.Cr.R. 627 , 146 S.W.2d 747 (1941); Wilson v. State, 154 Tex.Cr.R. 39 , 224 S.W.2d 234 (1949). Thus, while a plea of guilty constitutes an admission of guilt, it would not alone authorize conviction when trial by jury was waived and such plea was entered before the trial court. The burden remained _ upon the State to introduce sufficient evidence to show the guilt of the accused and all necessary elements of the offense. Burks v. State, supra; Spivey v. State, supra. See also Utsman v. State, 485 S.W.2d 573 (Tex.Cr.App.1972); Edwards v. State, 463 S.W.2d 733 (Tex.Cr.App.1971).

*693 If during the proceedings on a plea of guilty the defendant considers the evidence insufficient, the plea should be withdrawn and a plea of not guilty entered. Garcia v. State, supra; Alexander v. State, supra; Ralls v. State, 151 Tex.Cr.R. 146 , 205 S.W.2d 594 (1947).

The trial court, of course, is required to exercise great care in preventing the improvident entry of a plea of guilty and a liberal practice prevails touching its withdrawal. Garcia v. State, supra; Stanton v. State, 159 Tex.Cr.R. 275 , 262 S.W.2d 497 (1953).

In cases where the plea of guilty is before the court, and all formalities have been complied with, evidence heard, etc., and the judge announces judgment or has taken the case under advisement, it is too late to withdraw a guilty plea. Ralls v. State, supra. See also Stanton v. State, supra; Milligan v. State, 168 Tex.Cr.R. 202 , 324 S.W.2d 864 (1959).

In Burks v. State, supra, the question arose as to whether the rule requiring withdrawal of a guilty plea under certain conditions where the plea was before a jury was also applicable to such a plea before the court. The court in Burks noted that the amendment to Article 12, supra (Acts 1931, 42nd Leg., p. 65, ch. 43), contained no provision evidencing the legislative intent that the rule applied theretofore in pleas of guilty before the jury was not to be applied in pleas of guilty before the trial court. The court then wrote:

“. . . The amendment and rule are, therefore, to be construed together; and, when so construed, it now appears to be the settled law of this state that one accused of a felony less than capital may, under his plea of guilty, waive a trial by jury and his punishment may be fixed by the trial judge, provided: (a) the State introduces evidence sufficient to show the accused guilty of the offense charged; and (b) no facts are received in evidence making evident the innocence of the accused, or which reasonably and fairly present such as an issue of fact. Unless the facts bring the case within the rule stated, the trial judge is without authority to render a judgment finding-the accused guilty, because, if the State fails to show the guilt of the accused, no conviction can follow; and, if evidence be received showing the accused to be innocent of the offense charged, then the plea of guilty is supplanted by the entry of a plea of not guilty, in which event the trial judge is without authority to determine the guilt of the accused.”

It appears that the rule established in Burks has been followed before and since the adoption of the 1965 Code of Criminal Procedure. See, e. g., Gonzales v. State, supra; Faz v. State, supra; Trevino v. State, supra; Cooper v. State, supra; Sanchez v. State, supra.

The dissent now takes the position that since Articles 1.13 and 1.14 and 1.15, Vernon’s Ann.C.C.P., 1965, permit a defendant to waive a jury and enter a plea of not guilty before the court in all felony cases except capital ones there is no valid reason for continuing the rule announced in the Burks case decided under the former Code of Criminal Procedure, and those decisions since the effective date of the 1965 Code of Criminal Procedure which followed Burks are overruled. We do not agree.

It is true that the 1965 Code of Criminal Procedure permits the defendant to enter a plea of not guilty before the court after waiving trial by jury, and that a defendant’s inability to waive trial by jury where the plea was not guilty was indeed a factor in the Burks decision, but it was not the sole factor. Further, we find nothing in the 1965 Code of Criminal Procedure evidencing a legislative intent that there should be an abandonment of the rule under discussion because of any revision in the applicable statute.

There should be no difference in the application of the rule regardless of whether the guilty plea is before the jury or the judge. There are perhaps stronger reasons for its application in guilty pleas before the court than before the jury. As noted, a guilty plea before the jury admits the existence of all facts necessary to establish guilt, *694 and the only purpose of the State offering evidence is to enable the. jury to intelligently assess punishment. On the other hand, while a plea of guilty before the court constitutes an admission of guilt, it alone does not authorize a conviction. The State has the burden of producing sufficient evidence to show the guilt of the accused and all necessary elements of the offense. When under these circumstances evidence is introduced which makes evident the innocence of the defendant or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn, it is as important, if not more so, that the plea be withdrawn and a not guilty plea entered than in the jury type situation. When the plea is withdrawn and a not guilty plea entered, the trial court, trier of the facts, will be more apt to hold the balance nice, clear and true between the State and the accused. The State will be alerted that the case is now proceeding upon a not guilty plea, that the admission of guilt is no longer viable, that its burden of proof is now beyond a reasonable doubt rather than the lesser burden of “sufficient evidence.” 3 See Article 1.15, supra. Further, the defendant will be in a better position to elicit and fully develop any defenses he may have.

The dissent contends that under a guilty plea before the court the court may find the defendant not guilty and no purpose is served in withdrawing the guilty plea and entering a not guilty plea as required by the rule. Such action may be technically correct, but is not too likely to occur. Most trial judges will not permit the State to assume its burden is only “sufficient evidence” to support the guilty plea when in light of the evidence adduced the court intends to acquit the defendant from which action the State has no right of appeal, Article V, § 26, Texas Constitution; Article 44.01, Vernon’s Ann.C.C.P., and where the case will not be tried again in light of the federal and state constitutional provisions regarding double jeopardy. See also Article 1.10, Vernon’s Ann.C.C.P. Allowing the rule to remain viable will serve to benefit the State as well as the defendant and will promote the ends of justice.

What the dissent seeks to do is to create a harmless error rule for all cases appealed from guilty pleas before the court where the evidence makes evident the innocence of the accused or which reasonably and fairly raises such issue and where such evidence is not withdrawn. There exists, however, no necessity to change the rule.

The evidence in the instant case having reasonably and fairly raised an issue as to the defense of self-defense, we conclude the court erred in not withdrawing the guilty plea and entering a plea of not guilty.

The judgment is reversed and the cause remanded.

. It is interesting to note that the State in its motion for rehearing made no effort to endorse the dissenting opinion on original submission now warmly embraced by the majority.

. The State has not urged the court to adopt such position.

. It would appear the evidence must go farther than just tending to show a defensive issue, but must reasonably and fairly present such issue before the trial court would be required to withdraw the guilty plea. Reyna v. State, supra. See also Galvan v. State, 525 S.W.2d 24 (Tex.Cr.App.1975); Davis v. State, 507 S.W.2d 740 (Tex.Cr.App.1974); Jones v. State, 491 S.W.2d 883 (Tex.Cr.App.1973).

. In 9 Houston Law Review 641, Bruder, “Pretrial Motions in Texas Criminal Cases,” the procedure for guilty pleas before the court in felony cases was discussed. There it was written:

“In such cases, the State is under a burden to prove with sufficient evidence the guilt of the accused. The plea of guilty in such cases only constitutes an admission of guilt and does not authorize a conviction. The State, however, may discharge this lesser burden of proof by obtaining a stipulation of all the evidence with the defendant’s consent."