Ex Parte Martin

747 S.W.2d 789, 1988 Tex. Crim. App. LEXIS 23, 1988 WL 10249

• Court: Court of Criminal Appeals of Texas
• Decided: February 10, 1988
• Docket: 67540
• Status: Published

Opinions

OPINION ON STATE'S MOTION FOR REHEARING

ONION, Presiding Judge.

This is a post-conviction habeas corpus proceeding. See Article 11.07, V.A.C.C.P.

Applicant alleged he was convicted of burglary of a vehicle on December 5, 1977, and that his punishment, enhanced by allegation and proof of two prior felony convictions, was assessed at life imprisonment. See V.T.C.A., Penal Code, § 12.42(d), then in effect. In his habeas application he challenged the use of one of the prior convictions for enhancement of punishment, claiming it was a void conviction by reason of former jeopardy.

The prior conviction in question was for felony theft in Cause No. C-72-441-IN in the 195th District Court of Dallas County. Applicant’s original conviction for such offense was reversed in Martin v. State, 491 S.W.2d 421 (Tex.Cr.App.1973), after it was found the evidence was insufficient to support the judgment based on his plea of guilty before the court. See Article 1.15, V.A.C.C.P. Shortly after the reversal applicant was again convicted of the same offense. It was this latter conviction, obtained after the reversal, which was alleged and used to enhance applicant’s punishment in his 1977 conviction for burglary of a vehicle.

On original submission this Court, finding that Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), had held that the Double Jeopardy Clause (Fifth Amendment) of the United States Constitution precludes a second trial once the reviewing court has found the evidence legally insufficient to support a conviction, and finding that Burks and Greene had been applied retroactively, see Ex parte Mixon, 583 S.W.2d 378 (Tex.Cr.App.1979), remanded the cause to the trial court for proper assessment of punishment since the court had assessed punishment rather than a jury.¹

We granted the State’s motion for rehearing. In Burks, a federal prosecution, the United States Supreme Court held that the Double Jeopardy Clause of the Fifth Amendment precludes a second trial once a reviewing court has determined that the evidence introduced at trial was insufficient to sustain the verdict. In Greene the Court held that since the constitutional prohibition against double jeopardy is fully applicable to state criminal proceedings, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the standard announced in Burks applies to state cases. Thus, in both federal and state cases where the prosecution has failed to prove its case, it does not get “an opportunity for the proverbial ‘second bite at the apple.’ ” Burks, 437 U.S. at p. 17, 98 S.Ct. at p. 2150. Both Burks and Greene made clear that reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the prosecution has failed to prove its case.

It is important to note that Burks and Greene involved contested jury trials where the plea was not guilty, and where the burden of proof was on the prosecution to prove each element of the criminal offense beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

In the instant case the prior conviction involved a plea of guilty before the court and a failure to comply with a state statute. Article 1.15, V.A.C.C.P.²

Only recently in Ex parte Williams, 703 S.W.2d 674 (Tex.Cr.App.1986), it was held there is no federal constitutional requirement that evidence of guilt must be offered to corroborate a guilty plea in a state criminal prosecution, and that the “rationality” test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),³ has no application thereto, and that a defendant cannot collaterally attack the sufficiency of the evidence to support his guilty plea or plea of nolo contendere.

In Williams, this Court wrote:

“Jackson and Winship are only applicable where the federal constitution places the burden on the prosecution to establish guilt beyond a reasonable doubt. Neither case is applicable where a defendant knowingly, intelligently and voluntarily enters a plea of guilty or nolo contendere. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In Boykin the Court made clear that a guilty plea is more far-reaching than a confession admitting that a defendant performed certain deeds. It is a conviction with nothing remaining but for the court to determine punishment and render judgment. Boykin, 395 U.S. at 242, 89 S.Ct. at 1711-1712; Machibrada v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962); United States v. Robertson, 698 F.2d 703 (5th Cir.1983); Wharton’s Criminal Procedure, 12th Ed. (Tureca), Vol. 2, § 339, p. 224.

“In Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed.2d 1009 (1927), it was written:

“A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury, it is conclusive. More is not required; the court has nothing to do but give judgment and sentence.” See also North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

“The entry of a valid plea of guilty has the effect of admitting all material facts alleged in the formal criminal charge. United States v. Bendicks, 449 F.2d 313 (5th Cir.1971); Brazzell v. Adams, 493 F.2d 489 (5th Cir.1974). See also McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Moore v. United States, 425 F.2d 1290 (5th Cir.1970), cert. den. 400 U.S. 846 [91 S.Ct. 91, 27 L.Ed.2d 83]. A plea of guilty waives all nonjurisdictional defenses including contention as to the insufficiency of the evidence. Mapson v. Cox, 313 F.Supp. 465 (D.C.Va.1970).

“If the court is satisfied a factual basis exists for the guilty plea, a federal court may enter judgment upon that plea. Fed.Rules Cr.Pro., Rule 11(f); United States v. Oberski, 734 F.2d 1030 (5th Cir.1984). See also American Bar Association Standards for Criminal Justice, 2nd Ed., Standards Relating to Pleas of Guilty, Chapter 14, § 1.6.

“It is clear then there is no federal constitutional requirement that evidence of guilt must be offered to corroborate a guilty plea in a state criminal prosecution, and that the “rationality” test of Jackson has no application thereto.”

We now turn to the necessity of evidence in Texas when the plea is guilty or nolo contendere. In Williams, supra, this Court also wrote:

“In a misdemeanor case when a defendant enters a plea of guilty before the court he admits every element of the offense. Ex parte Clinnard, 169 S.W.2d 181 (Tex.Cr.App.1943); Brown v. State, 507 S.W.2d 235 (Tex.Cr.App.1974). See also Dees v. State, 676 S.W.2d 403 (Tex.Cr.App.1984). The same rule applies where the guilty plea to a misdemeanor is before the jury. Brown v. State, supra. Article 27.14, V.A.C.C.P., provides that in pleas of guilty or nolo contendere in a misdemeanor case before the court punishment may be assessed by the court with or without evidence within the discretion of the court. See Foster v. State, 422 S.W.2d 447 (Tex.Cr.App.1967); Brown v. State, supra. Thus, normally on appeal from a misdemeanor conviction based on a plea of guilty or nolo conten-dere there can be no question of the sufficiency of the evidence. It follows that a collateral attack of the sufficiency of the evidence to support a misdemean- or conviction by habeas corpus is not permitted.

“In felony cases a plea of guilty before the jury admits the existence of all necessary elements 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, 495 (Tex.Cr.App.1968), and cases there cited; Renesto v. State, 452 S.W.2d 498 (Tex.Cr.App.1970); Brown v. State, 507 S.W.2d 235 (Tex.Cr.App.1974); Brinson v. State, 570 S.W.2d 937 (Tex.Cr.App.1978); Williams v. State, 674 S.W.2d 315 (Tex.Cr.App.1984). In such cases there is no question of the sufficiency of the evidence on appeal, Brinson v. State, supra, or on collateral attack. Ex parte Taylor, 480 S.W.2d 692 (Tex.Cr.App.1972).

“As to the necessity of evidence where a plea of guilty or nolo contendere in a non-capital felony case is entered before the court, the rule is different. Texas has a procedural requirement in such cases unlike that of most jurisdictions and even unlike such pleas in misdemean- or cases in this state. Article 1.15, V.A. C.C.P. (former Article 12, V.A.C.C.P., 1925) requires that the State offer sufficient proof to support any judgment based on a guilty or nolo contendere plea to a felony case tried before the court. Under this statute evidence is received to support the judgment, not to accept a plea of guilty or nolo contendere. Thornton v. State, 601 S.W.2d 340, 347 (Tex.Cr.App.1980) (opinion on rehearing). Article 1.15, supra, is an additional procedural safeguard required by the State of Texas but not by federal constitutional law. The history of the statute and its requirements are discussed in Rodriguez v. State, 442 S.W.2d 376, 379 (Tex.Cr.App.1969), and Thornton v. State, supra. In 1931 former Article 12, V.A.C.C.P., 1925, was amended along with other statutes to permit a defendant to waive a jury trial and enter a plea of guilty before the court in a felony case less than capital. Prior to such time there had to be a jury trial in felony cases regardless of the plea. Since there would no longer be a verdict of one’s peers before a defendant was sent to prison, the statute required sufficient evidence to support the judgment where he entered a guilty plea before the court to a non-capital felony. See Franklin v. State, 144 S.W.2d 581 (Tex.Cr.App.1940).”

It should be clear from what has been said that Burks and Greene do not apply in a federal constitutional sense in either federal or state cases where the defendant has intelligently, knowingly and voluntarily entered a plea of guilty or nolo contendere. Boykin v. Alabama, supra, makes clear such a plea is a conviction with nothing remaining but for the court to determine punishment and render judgment. Boykin, 395 U.S. at 242, 89 S.Ct. at 1711. See and cf. Fed.Rules Cr.Pro., Rule 11(f).

Texas is somewhat unique in that since 1931 there has been a state statute (Article 1.15, V.A.C.C.P., and its forerunner) which requires that in a felony case less than capital, where the defendant waives trial by jury and enters a plea of guilty or nolo contendere, it is 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 judgment_” (Emphasis supplied.) The failure to comply with such state statute does not a federal constitutional violation make, nor does it render Burks and Greene applicable to such proceedings so that the defendant who knowingly, intelligently and voluntarily enters a guilty plea goes free and stands acquitted for evermore of the crime to which he had pleaded guilty. To the extent that Laflore v. State, 595 S.W.2d 862 (Tex.Cr.App.1980), and Thornton v. State, 601 S.W.2d 340 (Tex.Cr.App.1980) (opinion on rehearing), and their progeny are in conflict with today’s holding, they are overruled to the extent of the conflict.

There is another reason why Burks and Greene are not applicable to the instant case. In Martin v. State, 491 S.W.2d 421 (Tex.Cr.App.1973), this Court found that following the guilty plea before the court in Cause No. C-72-441-IN in the 195th District Court, the evidence was insufficient to support the judgment. Thus if the court accepted such evidence as the basis for its judgment, there was trial error in light of Article 1.15, V.A.C.C.P. Burks and Greene have no application to trial error.

For the reasons stated, the earlier order granting relief is set aside, and the relief prayed for by the applicant is denied.

CAMPBELL, J., concurs. MILLER, J., dissents.

1 . It does not appear that the applicant objected to the use of the prior conviction for enhancement of punishment on the ground of double jeopardy. On original submission it was held that the issue of double jeopardy could be raised in these proceedings citing Jones v. State, 586 S.W.2d 542 (Tex.Cr.App.1979).

2 . Article 1.15, supra, provides:

"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, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; 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 judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause."

3 . In Jackson, the Court held that in a challenge to a state conviction brought under habeas corpus statute, which requires federal courts to entertain a state prisoner's claim that he is being held in custody in violation of the constitution or laws of the United States, the applicant is entitled to federal habeas corpus relief if it is found that upon the evidence adduced at trial no rational trier of fact could have found proof of the essential elements of the crime beyond a reasonable doubt.

The implications of Jackson are not limited to the habeas corpus context. This Court has applied the "rationality” test on direct appeals in both direct and circumstantial evidence cases. See Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983) (Opinion on State’s Motion for Rehearing); Brandley v. State, 691 S.W.2d 699, 703 (Tex.Cr.App.1985); Houston v. State, 663 S.W.2d 455 (Tex.Cr.App.1984); Dickey v. State, 693 S.W.2d 386 (Tex.Cr.App.1984).