Adkison v. State

762 S.W.2d 255, 1988 Tex. App. LEXIS 3333, 1988 WL 143066
CourtCourt of Appeals of Texas
DecidedNovember 23, 1988
Docket09-87-078-CR
StatusPublished
Cited by27 cases

This text of 762 S.W.2d 255 (Adkison v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adkison v. State, 762 S.W.2d 255, 1988 Tex. App. LEXIS 3333, 1988 WL 143066 (Tex. Ct. App. 1988).

Opinions

OPINION

BROOKSHIRE, Justice.

Appeal from Revocation of Probation.

Originally, Appellant was charged by indictment with the offense of involuntary manslaughter. The indictment alleged that on August 8, 1980, Adkison, when operating a motor vehicle while intoxicated, and by reason of such intoxication, caused the death of Criss Coats. The Appellant was found guilty by the court and punishment was assessed at confinement for a period of ten years. The confinement was probated immediately. Appellant was given the full benefit of adult probation. There was a fine assessed of $750.00.

The Appellant takes the position, in his brief, that a plea of nolo contendere was made for the Appellant to the manslaughter charge by the Appellant’s trial counsel and, therefore, the plea is invalid.

In March of 1986, a petition to revoke probation and to impose sentence was filed. The motion alleged that on or about January 24, 1986, the Appellant violated his probation by driving while intoxicated in Montgomery County. A hearing was held on March 10, 1987, before the 75th District Court of Liberty County. Appellant’s probation was revoked. A sentence was pronounced that he be confined for not less than two nor more than ten years. An order revoking probation and imposing sentence was signed and entered.

The Appellant’s initial trial in July of 1982 was presided over by a visiting judge. That hearing is the basis for the Appellant’s first two points of error. The Appellant in his brief argues:

“Appellant’s attorney arguably entered a plea of nolo contendere to the indictment although the Appellant did not.”

The Appellant’s first point of error is that the judgment and sentence originally entered against Appellant should be set aside and his conviction reversed because the Appellant’s plea of “nolo contendere” was not made in open court by the Appellant in person as required by TEX. CODE CRIM. PROC.ANN. art. 27.13 (Vernon 1966). Appellant’s second point of error is akin. This point of error sets forth that no plea of guilty or nolo contendere was made in open court as required by Article 27.13.

First, it should be dogmatically stated that the Appellant was in open court in person. The record clearly proves that there was an actual dialogue or colloquy between the visiting judge and the Appellant, himself, in open court.

The record clearly reflects an intelligent and detailed direct dialogue between the visiting judge presiding, the Honorable Fred Hooey, and Clayton Lamar Adkison, having taken place on July 19, 1982. The court asked the Appellant his full name which the Appellant affirmed. The court explained that Appellant was charged with the offense of involuntary manslaughter. The Appellant understood the charge. The court inquired if the Appellant had signed a waiver of his constitutional right to a trial by jury, the right of confrontation of witnesses, and a judicial confession. The court indicated that signed documents reflected Adkison’s desire to plead guilty to this offense. Then, the court asked if these waivers, documents and confessions were correct and understood. Mr. Adkison personally answered “Yes.”

“THE COURT: Are you asking — Actually guilty as charged?
“MR. ADKINSON [ADKISON]: Yes.”

Then, upon further questioning, Adkison affirmed that no one had promised him [258]*258anything to get him to plead guilty and that he was not afraid of anybody or anything that induced him to plead guilty. At this late point the trial attorney for the Appellant interjected:

“MR. CUMMINGS: ... [H]e’s pleading no contest.
“THE COURT: Well, do you want to plead no contest, nolo contendere. If you plead nolo contendere that is the same thing as if you pled guilty before this Court.
“Do you understand that?
“MR. ADKINSON [ADKISON]: Yes.”

Then, for a second time, the court asked, in substance, if the Appellant was afraid of anybody or anything to induce him to enter a nolo contendere plea. The Appellant answered an unequivocal and simple “No.” The court then, for a second time, asked also did anyone threaten the Appellant or coerce the Appellant to enter such a plea of nolo contendere. Mr. Adkison’s direct answer out of his own mouth was “No.”

Then the court asked Adkison if he was entering such a nolo contendere plea because Adkison entertained some kind of elusive hope to obtain a pardon or to receive a light sentence. Again, Adkison’s straightforward, personal answer was “No.” The court then established that Adkison had never been adjudged insane or had any type of mental problem and, further, that Appellant could read and write the English language. Adkison, unequivocally, personally said that he was satisfied with his trial lawyer’s representation.

At that point, the court explained the plea bargain which was that the State intended to recommend ten years’ confinement in the State Department of Corrections which would be immediately probated. A fine of $750.00 would be assessed. Adkison said he understood the plea bargain. Then the court unequivocally announced that if the trial court did follow the recommendation, the trial court would not permit an appeal on the part of Adki-son or on behalf of Adkison. Adkison said he fully understood that proposition. Adki-son also was warned that the court did not have to follow the recommendation.

“THE COURT: Now, you have the right to have this indictment formally presented and formally arraigned and answer guilty or not guilty to it.
“Or you may waive that and your plea of nolo contendere will be entered.”

To which the trial attorney for Appellant indicated that that was the manner in which Appellant desired to pursue the matter. The trial counsel stated the Appellant desired to waive the formal reading of the indictment. Then the State entered a signed stipulation of evidence which was sworn to by the Appellant and fully approved by the attorney for Adkison and approved by the court. This stipulation of evidence was State’s Exhibit No. 1.

In State’s Exhibit No. 1, Clayton Lamar Adkison judicially confessed to the following facts: that on or about August 8, 1980, in Liberty County, Texas, Adkison did then and there, by accident and mistake, when operating a motor vehicle while intoxicated, and by reason of such intoxication, cause the death of one Criss Coats by then and there driving the said motor vehicle of Appellant into, and causing it to collide with, a motor vehicle occupied by Criss Coats. There was no objection to State’s Exhibit No. 1 which was admitted into evidence by agreement.

Adkison took the stand and qualified himself for a probated sentence. Adkison said he understood and realized that if the court granted him probation there would be certain terms and conditions that would be set forth in the court’s orders and that Adkison would have to live by them. The court followed the State’s recommendation. Thereafter, Adkison affirmed that he understood all that had happened in the proceeding. The court specifically admonished and warned the Appellant in this manner:

“Among the other conditions of probation you’re not to violate the laws of this State or of the United States or any other state.

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Adkison v. State
762 S.W.2d 255 (Court of Appeals of Texas, 1988)

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Bluebook (online)
762 S.W.2d 255, 1988 Tex. App. LEXIS 3333, 1988 WL 143066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adkison-v-state-texapp-1988.