Gates v. State

543 S.W.2d 360, 1976 Tex. Crim. App. LEXIS 1193

• Court: Court of Criminal Appeals of Texas
• Decided: December 1, 1976
• Docket: 52836
• Status: Published

Opinions

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for aggravated robbery. The jury assessed punishment at five years’ confinement in the Texas Department of Corrections.

Initially, we note that the record reveals a confusing set of circumstances. Appellant was tried jointly with two co-defendants. There is no written waiver of a jury trial pursuant to Article 1.15, V.A.C.C.P., in the record. The stipulation of evidence signed by the appellant states that he waived arraignment and the reading of the indictment. On March 27, 1975, a proceeding was had, absent a jury, during which the indictment was read to the appellant. The appellant entered a plea of guilty and was admonished of the consequences of his plea. The docket sheet entry for March 27, 1975 reflects, inter alia, “Defdt. arraigned— entered a plea of guilty.”

After this proceeding, a jury was brought in and sworn. The indictments charging appellant’s co-defendants were read to the co-defendants and they pleaded guilty. From the face of the record, it appears that the indictment charging the appellant was not read nor did he enter any plea in front of the jury, though he was once again admonished of the consequences of his plea in front of the jury.¹

In order to enter a plea of guilty before the judge, the right to a trial by jury should be waived under the procedure provided for in Article 1.13, V.A.C.C.P. Article 1.15, V.A.C.C.P.; Wilson v. State, 154 Tex.Cr.R. 39, 224 S.W.2d 234 (1949). Otherwise, the plea of guilty must be before a jury which is impaneled to assess the defendant’s punishment. Article 26.14, V.A.C.C.P.

In the instant case, appellant and his co-defendants were arraigned, had entered pleas of guilty and had been admonished of the consequences of their pleas. Since no waivers of a trial by jury had been filed, the jury was apparently impaneled under Article 26.14, V.A.C.C.P., to hear evidence to enable them to assess punishment. The record reflects that after they were impaneled, the indictment was read to co-defendant Leonard Davis, to which he persisted in entering his plea of guilty. The indictment charging co-defendant Harold Davis was read and he, in turn, persisted in pleading guilty. However, for some inexplicable reason, the record reflects that the indictment was once again read to Leonard Davis and once again he entered a plea of guilty. The indictment was never read to the appellant nor did he enter any plea in front of the jury. In light of the subsequent admonishments to all the defendants, with each defendant answering out in turn, we hypothesize that an error was made by the court reporter when the notes were transcribed.² This is borne out by the following colloquy in front of the jury after the indictments were read:

“THE COURT: You still want to plead guilty?

“HAROLD EDWARD DAVIS: Yes, sir.

“LEONARD DAVIS: Yes, sir.

“JERRY ALONZO GATES: Yes, sir.”

We conclude that at this point appellant was proceeding under a valid plea of guilty.

By his first ground of error, the appellant contends that the evidence is insufficient to support a conviction for aggravated robbery. More specifically, he points to a complete absence of evidence that the complaining witness suffered bodily injury or was in fear of imminent bodily injury.

A plea of guilty before the jury admits all the elements of the offense. Ex Parte Taylor, 480 S.W.2d 692, 693 (Tex.Cr.App.1972); Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460 (1942).

Appellant’s first ground of error is overruled.

By his second and third grounds of error, the appellant contends that his plea of guilty was not voluntary and that, in light of the evidentiary development, the trial court erred in not withdrawing his plea of guilty, sua sponte.

The record reflects that after the appellant had pleaded guilty to the indictment at the arraignment, his counsel qualified his plea by making a motion to quash the indictment because “. . .if these defendants are guilty, the facts will show that they are guilty of an attempted robbery . . ..” The court overruled this motion. It was reurged after the State rested because “. . .we haven’t all of the elements of aggravated robbery . and we have only — the evidence only deals with attempt . . ..” The court overruled this motion again.

The appellant then took the stand. During vigorous cross-examination by the State, the appellant made clear that he was not guilty of the offense charged and that he was admitting guilt only as to attempted robbery.³

In Burks v. State, supra, this Court held:

“In the light of the adjudicated cases, the rule now appears to be that, where a plea of guilty is entered in a felony case, before a jury, and evidence is introduced which makes evident the innocence of the accused, or which reasonably and fairly raises an issue as to such fact, such evidence should be withdrawn or a plea of not guilty entered. At any and all events, the case should not proceed to final judgment under the plea of guilty.”

Accord, Cooper v. State, 537 S.W.2d 940, 943 (Tex.Cr.App.1976).

In Rayson v. State, 160 Tex.Cr.R. 103, 267 S.W.2d 153 (1954), the defendant pleaded guilty at arraignment but during the course of the trial took the stand and denied committing the offense charged. This Court held that the trial court properly changed the defendant’s plea to not guilty before the jury.

In Fite v. State, 163 Tex.Cr.R. 279, 290 S.W.2d 897 (1956), this Court held that the defendant’s own testimony that he could not recall his actions made it the duty of the trial court to withdraw his plea of guilty.

From the totality of the circumstances surrounding the case at bar, we conclude that appellant was not voluntarily pleading guilty to the offense charged in the indictment. The trial court charged the jury that the appellant had pleaded guilty and instructed them to return a verdict of guilty. This was reversible error. The circumstances reasonably and fairly raised an issue as to the fact of appellant’s guilt of the offense charged. The case should not have proceeded to final judgment under the plea of guilty. Burks, supra.

In a final ground of error, the appellant complains of the trial court’s comment upon a question asked by appellant’s counsel. We feel that any error committed by the trial court with regards to this matter will not occur again upon retrial of the case.

The judgment of the trial court is reversed and remanded.

DOUGLAS, J., concurs in the results.

1 . While this Court has stated it before, Wilson v. State, 436 S.W.2d 542 (Tex.Cr.App.1969), we take the opportunity to say it again: The proper time for a defendant to be admonished of the consequences of his plea of guilty is upon arraignment and before the jury is empaneled.

2 . Such hypothesizing would be unnecessary if the parties and the trial court did not automatically assume that the record spoke the truth. The parties have an obligation to examine the record after it is completed so that they may object to the record and make it speak the truth. Art. 40.09(7), V.A.C.C.P. The trial court has a similar duty under Article 40.09(7). See also. Art. 40.09(12) and Guzman v. State, 521 S.W.2d 267 (Tex.Cr.App.1975).

3 . The appellant testified “. . .1 attempted to rob a store, and it wasn’t complete .