Gibson v. State

532 S.W.2d 69, 1975 Tex. Crim. App. LEXIS 1157
CourtCourt of Criminal Appeals of Texas
DecidedNovember 19, 1975
Docket50197
StatusPublished
Cited by38 cases

This text of 532 S.W.2d 69 (Gibson v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gibson v. State, 532 S.W.2d 69, 1975 Tex. Crim. App. LEXIS 1157 (Tex. 1975).

Opinions

OPINION

ODOM, Judge.

Appellants and a third codefendant who did not appeal his conviction waived trial by jury and entered pleas of guilty before the court to the offense of burglary with intent to commit theft. The trial eourt denied probation to these appellants and sentenced each to five years’ confinement in the Texas Department of Corrections.

Appellants raise five grounds of error challenging the voluntariness of their guilty pleas and the refusal of the trial judge, after assessment of punishment, to permit withdrawal of the pleas and award new trials. The substance of all grounds of error is stated in appellants’ brief as follows:

“The sole issue is ‘whether the plea by Gibson and Reeves was voluntarily made, or whether in truth and fact, it was induced by the plea bargaining guarantee of the State and the Sheriff?’ ”

The record on appeal before us contains transcribed court reporter’s notes from hearings on four different days. On May 16, 1974, the pleas of guilty were entered and accepted, and appellants were found guilty. On July 11, 1974, appellants again appeared and punishment was assessed. On August 28, 1974, the court heard and denied appellants’ motion for new trial. Finally, on November 21, 1974, appellants were called before the court for formal pronouncement of sentence.

On May 16, 1974, before accepting appellant Gibson’s plea of guilty, the trial judge made the following inquiries, among others:

“THE COURT: Have you been persuaded to plead guilty against your will?
“THE DEFENDANT: No, sir.
“THE COURT: Have you been promised anything in this case—
“THE DEFENDANT: No, sir.
“THE COURT: —to plead guilty. You know that if you plead guilty in this case, and the evidence shows that you’re guilty, that the attorneys may make a recommendation to the Court, and that’s all that is, a recommendation. I do not have to take the recommendation.
“THE DEFENDANT: Yes, sir.
“THE COURT: I will consider it, but that’s all; just consider it. If they recommend that you be granted probation, I may deny that recommendation and send you to the penitentiary for as much as twelve years. You understand that?
“THE DEFENDANT: Yes, sir.
[71]*71“THE COURT: Knowing all that, do you still plead guilty in this case?
“THE DEFENDANT: Yes, sir.”

The following inquiries were made of appellant Reeves:

“THE COURT: Has anyone promised you anything to plead guilty?
“THE DEFENDANT: No, sir.
“THE COURT: I don’t know whether I told A. L. Reeves or not, but the recommendation of the District Attorney or the State is nothing more than a recommendation. He may recommend probation and I could still send you to the penitentiary.
“THE DEFENDANT: Yes, sir.”

After accepting the pleas of guilty, the trial judge further stated:

“In addition to announcing judgment here, if you should be granted probation, if you should be, and don’t think that I’m saying that you’re going to be because I don’t know, if your records are not sufficient, your past records are not sufficient to warrant what I think would be a good probation risk, well, I will send you to the Department of Corrections. . . . "

On July 11 the case was called for assessment of punishment.1 Prior to assessment of punishment the prosecutor recommended probation and defense counsel made the following statement to the court:

“Judge, I would respectfully request the Court to be very compassionate in this case and grant these boys probation. The term of probation is not that important. Mr. Fielder has seen fit after reading all the investigation to recommend probation. I know that you’re the final word. But we would urge upon the Court to exercise extreme leniency in this case and grant all three of them probation. Thank you.”

The court assessed punishment in each case at five years and denied probation. At that point appellants sought to withdraw their guilty pleas, and defense counsel stated as grounds:

“ . . . Of course, the State has made its recommendation for probation, realizing, of course, it’s discretionary with the Court. But, nevertheless, the decision to enter a plea of guilty was based upon entirely and solely the recommendation for probation and the delusive hope of getting probation. . . . ”

The trial court refused to allow withdrawal of the pleas.

Subsequently appellants filed motions for new trial alleging in part that they entered pleas of guilty only because they had been guaranteed probation. Attached was an affidavit by Sheriff Bobby Kinser, read into evidence, in which it is stated:

“ ‘I am aware of the fact that none of the Defendants in this case would have changed their plea of “Not Guilty” to a “Guilty” plea had they not been assured that they would receive probation.”

Also attached was an affidavit by District Attorney Richard Fielder which recites in part:

“ T am cognizant of the allegations contained in the foregoing verified Motion for New Trial by the Defendants, Delbert Allen Gibson and A. L. Reeves, Jr., and said allegations are true and correct. Further, in an effort to fairly represent the people of the State of Texas, and by the authority vested in me as District Attorney of the 22nd Judicial District, I made an agreement with the Defendants, Delbert Allen Gibson, A. L. Reeves, Jr., and Larry Wayne Miller, and their attorney of record, Rodger M. Zimmerman, to recommend probation in their case, if they would change their pleas from “Not Guilty” to “Guilty.” The basis for this agreement was to move the trial docket and to see that restitution was [72]*72made. Restitution was made and the interest of the State of Texas was best served by this “plea bargaining” procedure.
“ ‘There is not the slightest doubt in my mind that had these Defendants thought that they would not get probation, none of them would have changed their pleas of “Not Guilty” to “Guilty” and thereby given up their fundamental right to a trial by jury.” ’

Both appellants testified at the hearing on the motion.

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Bluebook (online)
532 S.W.2d 69, 1975 Tex. Crim. App. LEXIS 1157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibson-v-state-texcrimapp-1975.