Griffin v. State

703 S.W.2d 193, 1986 Tex. Crim. App. LEXIS 1172

• Court: Court of Criminal Appeals of Texas
• Decided: January 15, 1986
• Docket: 311-84
• Status: Published

Opinions

CLINTON, Judge,

dissenting.

In recent times and with rote precision the Court has recited a “rule” found by the majority in such decisions as Lincoln v. State, 560 S.W.2d 657, 658 (Tex.Cr.App.1978). Satisfied with having found it stated in earlier opinions, the Court seems never to have explained it. See, e.g. Varela v. State, 553 S.W.2d 111 (Tex.Cr.App.1977) and Montalvo v. State, 572 S.W.2d 714 (Tex.Cr.App.1978)—both cited in the majority opinion along with Lincoln for the following proposition:

“However, the rule is clear in our ease law that when the exculpatory evidence is produced by the defendant himself, that it may be withdrawn by him and a plea of guilty may still be taken upon his own volition.”

Maj. opinion, p. 195. That rule may not even exist.

Another rule apparently originated in cases where facts adduced tended to show accused to be insane or that he acted in selfdefense, such as Harris v. State, 76 Tex.Cr.R. 126, 192 S.W. 975, 977 (1915), and Taylor v. State, 88 Tex.Cr.R. 470, 227 S.W. 679, 686 (1921); see also Villa v. State, 122 Tex.Cr.R. 142, 53 S.W.2d 1023, 1024 (1932). They are among the host of decisions collected by the Court in Varela, supra, at 112, down through Navarro v. State, 141 Tex.Cr.R. 196, 147 S.W.2d 1081 (1941); all were later cited by the Court in Burks v. State, 145 Tex.Cr.App. 15, 165 S.W.2d 460 (1942), to support its statement of law, viz:

“It is also well settled by the decisions of this court that, where a plea of guilty is entered in the trial of a felony, before a jury, and facts are introduced in evidence which make evident the innocence of the accused, the plea of guilty should be withdrawn and a plea of not guilty entered.”

The Court then noticed that in Harms and Villa, where evidence suggested self-defense, the trial court should have seen to it that no conviction was had by withdrawing the guilty plea before the jury. Id., S.W.2d at 463. It restated the rule, viz:

“In light of 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the innocence of the accused, or which reasonably and fairly raises an issue as to such fact, such evidence should be withdrawn or a plea of not guilty entered.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.”

Ibid,¹ The Court thought its restated rule “material in construing applicable provisions of Art. 12, C.C.P. [now Article 1.15, Y.A.C.C.P.], relative to a plea of guilty where at trial by jury is waived.” Ibid. It concluded under the facts presented, “the trial judge was without authority to find appellant guilty of the offense here charged,” id., S.W.2d at 464.

Thus, in a cause involving a plea of guilty before the court after waiver of trial by jury, the clause “such evidence should be withdrawn” crept into a rule governing a plea of guilty before a jury. There was no explanation whatsoever of the meaning of the clause, nor was it applied in any fashion to indicate how and by whom evidence was to be “withdrawn”. If there has been one opinion of the Court doing either in all the years since Burks neither the motion for rehearing nor the majority opinion call our attention to it.

Furthermore, if there has been a single opinion of the Court holding that the clause means that an accused may “withdraw” evidence in this context, the majority has not cited it. Certainly, neither Lincoln nor Montalvo nor Varela does.

I would deny the motion for rehearing; because the Court does not, I respectfully dissent.

CAMPBELL, J., joins.

1 . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.