Martin, Ruth Ann v. State

• Court: Court of Appeals of Texas
• Decided: January 15, 2004
• Docket: 08-02-00144-CR
• Status: Published

Opinion

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

                                                                              )    

RUTH ANN MARTIN,                                        )                       No. 08-02-00144-CR

Appellant,                          )                                Appeal from

v.                                                                           )                 Criminal District Court No. 5

THE STATE OF TEXAS,                                     )                     of Dallas County, Texas

Appellee.                           )                        (TC# F-0175501-PL)

O P I N I O N

Ruth Ann Martin appeals her conviction and twenty-year sentence for the offense of injury to a child.  By three issues, she contends the trial court abused its discretion by not rejecting her plea of guilty, that the indictment is fundamentally defective, and ineffective assistance of counsel.   We reverse and remand.

I

Martin awoke to find her pre-teen daughter Heather had died in bed during the night.  Appellant was charged with injury to a child, a second-degree felony.  After appropriate admonishments by the trial court, appellant pled guilty to the indictment with an open plea agreement.  The indictment alleged appellant recklessly caused serious bodily injury to Heather Podloger, a child 14 years or younger, by leaving the child (her daughter), unsupervised by an adult and leaving morphine within access to the child.  The indictment also alleged appellant caused serious bodily injury to the child in that she failed to provide adequate medical care, knowing the child was vomiting and crying, at a time appellant had the legal duty to act, to-wit: Athe defendant was the parent of the complainant, and the defendant had assumed care, custody and control of the complaint . . . .@  Appellant made a judicial confession tracking the indictment, verbatim.

Appellant testified she was thirty-three years old at the trial.  She had been on probation for nine years after 1993 convictions for four drug offenses.  She also had two 1991 obscenity charges resulting from the sale of a video at an adult bookstore where she worked.  She was never charged with a probation violation.  She considered herself a recovering drug addict.  She also admitted to once trying the morphine in question, and that it made her sick.  Her husband acquired the morphine from his sister after his mother died of cancer.  The sister-in-law wanted appellant=s husband to sell the drug to raise money to help pay for the cremation of the mother-in-law.  The morphine was left in the original container, on the  high shelf of the medicine cabinet in the bathroom.  The container was brown and looked like an aspirin bottle.  The container had a screw top, thought to be childproof by appellant.  Appellant told her husband to get rid of illegal drugs after Heather=s death, when CPS was coming.  However, it was only later that the couple learned that Heather had ingested morphine.

Appellant and her husband left her daughter with her twelve, nearly thirteen, year-old son, Michael.  The youngest child, Raymond, age five, was taken to a sitter.  When appellant and her husband left to go to a sports bar/restaurant to watch a Mavericks basketball game, Heather had a headache.  The couple had a cell phone and spoke with the children once.  When they returned, Heather was asleep in the couple=s bed.  When awakened, Heather whimpered that she had a headache, perhaps a migraine, commonly suffered in her family.  Heather was put in her own bed and she covered her head with a pillow to block the light.  The couple discussed keeping Heather home the next day because she might have the flu.  They went to sleep believing the child was alright.  The next morning Heather was cold.  Vomit came from her mouth.  It was later determined that five undigested morphine pills were in Heather=s stomach.

Jennifer Hood testified appellant was a perfect mother who always cared for her children.  Appellant=s husband, who was no-billed by the grand jury, said he brought the morphine into the house.  He indicated they were gone about four hours and he was the one who brought the morphine into the home.  Appellant=s mother also testified appellant was a good mother and that she was depressed and remorseful over her daughter=s death.  She described appellant as protective of her children Alike a mother bear.@

II

In her first issue, appellant argues that the evidence did not show reckless conduct but instead showed innocent or, at worst, negligent conduct.  She also argues the penal code provides a defense to prosecution if there is no evidence on the date prior to the offense that the defendant was aware of injury to the child.  See Tex.Pen.Code Ann. ' 22.04(k)(2)(A)(Vernon 2003).^[1]

Appellant argues the standard for withdrawal of a plea is one of discretion.  She cites Aldrich v. State, 53 S.W.3d 460, 467 (Tex.App.--Dallas 2001), aff=d, Aldrich v. State, 104 S.W.3d 890 (Tex.Crim.App. 2003).  Appellant argues that after a case is taken under advisement, the decision to permit withdrawal of the plea rests in the trial court=s sound discretion.  Abuse of discretion is shown only when the trial court=s ruling lies outside the zone of reasonable disagreement.  See id.  The State responds that the trial court did not abuse its discretion and  counters with Moon v. State, 572 S.W.2d 681 (Tex.Crim.App. 1978).  Aldrich actually relies on Moon.  Aldrich, 53 S.W.3d at 467.  The State also argues the trial court had no jurisdiction to withdraw a guilty plea on its own motion after approving a plea bargain agreement.  See Perkins v. Court of Appeals, 738 S.W.2d 276, 281 (Tex.Crim.App. 1987).  We will address the latter argument below.

The rule had long been that in any case where evidence is introduced that reasonably and fairly raises an issue as to the innocence of the accused and such evidence is not withdrawn, the defendant=s guilty plea must be withdrawn and a plea of not guilty must be sua sponte entered by the trial court.  Griffin v. State, 703 S.W.2d 193, 195 (Tex.Crim.App. 1986); see also Harris v. State, 172 S.W. 975 (Tex.Crim.App. 1915); Edwards v. State 114 S.W.2d 572 (Tex.Crim.App. 1938);  Navarro v. State, 147 S.W.2d 1081 (Tex.Crim.App. 1941); Rayson v. State, 267 S.W.2d 153 (Tex.Crim.App. 1954); Fite v. State, 290 S.W.2d 897 (Tex.Crim.App. 1956); Richardson v. State, 300 S.W.2d 83 (Tex.Crim.App. 1957); Edworthy v. State, 371 S.W.2d 563 (Tex.Crim.App. 1963);  Reyna v. State, 434 S.W.2d 362 (Tex.Crim.App. 1968); Swanson v. State, 447 S.W.2d 942 (Tex.Crim.App. 1969); Hayes v. State, 484 S.W.2d 922 (Tex.Crim.App. 1972); Lee v. State, 503 S.W.2d 244 (Tex.Crim.App. 1974); Lewis v. State, 529 S.W.2d 550 (Tex.Crim.App. 1975); Gates v. State, 543 S.W.2d 360 (Tex.Crim.App. 1976); Woodberry v. State, 547 S.W.2d 629 (Tex.Crim.App. 1977); Malone v. State, 548 S.W.2d 908 (Tex.Crim.App. 1977).

This rule has been recognized and applied even when a jury has been waived and the plea is before the court without a jury.  Burks v. State, 165 S.W.2d 460 (Tex.Crim.App. 1942); Gonzales v. State, 480 S.W.2d 663 (Tex.Crim.App. 1972); Faz v. State, 510 S.W.2d 922 (Tex.Crim.App. 1974); Trevino v. State, 519 S.W.2d 864 (Tex.Crim.App. 1975); Cooper v. State, 537 S.W.2d 940 (Tex.Crim.App. 1976); Sanchez v. State, 543 S.W.2d 132 (Tex.Crim.App. 1976).

The rule required the trial court to sua sponte withdraw a plea of guilty when evidence of innocence is fairly raised applies even though a defendant makes no effort during the trial to withdraw his plea of guilty, makes no objection to the court=s charge instructing the jury to render a verdict of guilty, and even though the defendant=s testimony shows him to be guilty of the offense.  Montalvo v. State, 572 S.W.2d 714, 715‑16 (Tex.Crim.App. 1978); Steele v. State, 22 S.W.3d 550, 553 (Tex.App.‑-Fort Worth 2000, pet. ref=d).  The Griffin court observed:

This rule is a vital safeguard which operates to protect the accused from any outside pressure which could result in an innocent party being convicted, upon his own plea of guilty, of a crime he did not commit.  Since a person cannot at any time involuntarily plead guilty to a crime for which he is accused, the totality of the circumstances of each case is assessed to assure the voluntary nature of the plea.  Gates v. State, 543 S.W.2d 360 (Tex.Crim.App.1976).  However, the rule is clear in our case 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.  See e.g., Lincoln v. State, supra; Montalvo v. State, 572 S.W.2d 714, 715 (Tex.Crim.App. 1978); Varela v. State, 553 S.W.2d 111 (Tex.Crim.App. 1977).

Griffin, 703 S.W.2d at 195.

The cardinal principle of criminal jurisprudence seeks to convict only the guilty and not the innocent.  Thus due process requires proof of every contested fact beyond a reasonable doubt.  In re Winship, 397 U.S. 358, 364 (1970).  Notwithstanding, when the Court of Criminal Appeals was expanded from five to seven members, many of the precedents and principles cited above were abolished sua sponte by the new court in Moon.  See Moon, 572 S.W.2d at 690 (Onion, PJ, dissenting).  As correctly argued by the State, Moon held that a trial court is not required to withdraw a guilty plea sua sponte and enter a plea of not guilty for a defendant when the defendant enters a plea of guilty before the court after waiving a jury, even if evidence is adduced that either makes the defendant=s innocence evident or reasonably and fairly raises an issue as to guilt.  Id. at 682.  The new high court, in the plurality opinion, reasoned it was the trial court=s duty to consider the evidence submitted, and, as the trier of fact, the court may find appellant guilty of a lesser offense or it may find the defendant not guilty.  Id.  Therefore, it would serve no valid purpose for the court to withdraw the guilty plea and enter a not guilty plea when the defendant enters a plea of guilty before the court after waiving a jury.  Id.

Moon has progeny:  Beasley v. State, 634 S.W.2d 320, 321 n.1 (Tex.Crim.App. 1982); Solis v. State, 945 S.W.2d 300, 302‑03 (Tex.App.‑‑Houston [1st Dist.] 1997, pet. ref=d); Hinkle v. State, 934 S.W.2d 146, 148‑49 (Tex.App.‑‑San Antonio 1996, pet. ref=d); Graves v. State, 803 S.W.2d 342, 346 (Tex.App.‑‑Houston [14th Dist.] 1990, pet. ref=d); Coronado v. State, 25 S.W.3d 806, 809 (Tex.App.‑-Waco 2000, pet. ref=d); Brown v. State, 11 S.W.3d 360, 363 (Tex.App.‑-Houston [1st Dist.] 2000, pet ref=d).  Aldrich, 104 S.W.3d at 893.  Such a subsequent genealogy makes it difficult to question the legitimacy of the Moon exception to sound precedent requiring only the truly guilty be convicted.  We do not challenge the rationale of Moon; we analyze its applicability or rather its inapplicability to the case presented.

Moon=s negation of the rule requiring sua sponte withdrawal of a guilty plea occurred in the punishment phase of the trial, after the plea was accepted, and the trial court awaited some two-and-a-half months for a pre-sentence investigation.  Moon, 572 S.W.2d at 688 (Roberts, J., concurring and dissenting)(asserting it was too late to withdraw plea and that holding of Moon is dicta and advisory opinion).  Notably, in Moon there is no mention of a plea agreement and the cause was tried to the court.  See Moon, 572 S.W.2d at 682.  The case sub judice is inapposite because this is not a trial to the bench.  Rather, we are presented with a plea bargain agreement.  And in the specific situation before us, the State  argues the trial court to be without jurisdiction to withdraw appellant=s plea.  See Perkins, 736 S.W.2d at 281.  We address this latter argument below.

  In any case, in order to trigger the trial court=s duty to sua sponte withdraw a guilty plea, the evidence must do more than merely tend to raise a defensive issue.  Griffin, 703 S.W.2d at 196.  Thus, we begin our inquiry at this threshold.  The evidence must Areasonably and fairly raise the issue.@  Id.  The purpose of the rule is to ensure that guilty pleas are knowingly and voluntarily entered.  Id.  The trial court has the sound discretion to make that determination.  Id. at 197.  Whether the issue of appellant=s innocence was reasonably and fairly raised at his trial requires us to consider whether the trial court abused its discretion.  Id.  Each case must be evaluated in light of its unique circumstances and the offense charged.  Id. at 196.

The Penal Code provides:

(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.  The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor=s standpoint.

(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.  The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor=s standpoint.

Tex.Pen.Code Ann. ' 6.03(c)(d)(Vernon 2003).

Count one of the indictment required proof that appellant recklessly caused serious bodily injury to her daughter, Heather, by leaving her unsupervised by an adult and leaving morphine within Heather=s access.  Heather was left with her older brother, Michael, who was nearly thirteen.  Appellant checked with CPS, who responded that the two older children (Michael and Heather) were old enough that appellant could be gone for a certain amount of hours, leaving Heather without adult supervision.  The youngest son, Raymond, who was five, was taken to a sitter.

Appellant spoke with Heather by cell phone while the couple was at dinner.  In the phone call, Heather asked permission to lie in her mother=s bed, which appellant allowed.  Heather=s older brother, Michael, who was babysitting, asked for the location of a code to a video game.  The morphine, which appellant=s husband acquired from his sister, was left in its original brown prescription bottle on the top shelf of the medicine cabinet.  Appellant testified in partial answer to the prosecutor=s questions that she thought the prescription bottle to be Achild-proof.@  She told the prosecutor that the bottle was the push-and-turn type.  The trial court cross-examined appellant as follows:

The Court:  You said when you left this evening, your child was sick?

Appellant:  She had a headache.

The Court:  And you left her with your ten year old?

Appellant:  He was twelve.  He was fixing to be thirteen.

The Court:  Your daughter suffers from migraines?

Appellant:  We all do, every now and then.

The Court:  So you know what a migraine is.  You know how it feels.

Appellant:  A headache.

The Court:  You left your daughter home --

Appellant:  At the time, I didn=t think it was a migraine.  She just said she had a headache.

Appellant=s husband, who introduced the morphine to the home, stated he didn=t know what perils it could cause and he didn=t think Athey knew either.@  AI think we were just ignorant.@  However, appellant had already testified she tried one of the tablets and it made her sick.  The husband also testified that the morphine was on the top shelf of the medicine cabinet and the aspirin was on the lower shelf. 

At the end of the hearing, the trial court observed that appellant had not lived a crime-free life:  ABad judgment on your part, and your child dies.@  The court told appellant she had a responsibility to stay away from drugs and she didn=t.  He further observed appellant was a danger to society who allowed drugs in her house Aand the damage is to your children.@  I don=t understand how you leave a child who is complaining of headaches -- how you leave that child in the care of another child to go to a sports bar.  You lost that child, because you violated the conditions of probation and you violated the trust of this Court.@  AI don=t think you intended that the child take the morphine, but it happened.@ 

At that point, the court accepted appellant=s plea, found it freely and voluntarily made, that she was competent to enter her plea, and assessed the maximum confinement of twenty years.

In view of the record as a whole, we believe that the evidence reasonably and fairly raised the issue whether appellant consciously disregarded a substantial and unjustifiable risk.  See Griffin, 703 S.W.2d at 196.  The fact that a brown prescription drug container, was placed on the highest shelf of a medicine cabinet, in a lock-top container, reasonably and fairly raises the issue whether appellant=s conduct amounted to such disregard that it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.  See Tex.Pen.Code Ann. ' 6.03(c).  Similarly, going to dinner to watch the Mavericks and leaving a child with a headache in the charge of her older brother, nearly thirteen, raises serious concerns whether such conduct is a gross deviation from the standard of care that an ordinary person would exercise.  See id.

The second count of the indictment charged that appellant recklessly caused serious bodily injury to Heather by failing to provide adequate medical care for the complainant, knowing that she was vomiting and crying.  When appellant returned from dinner, Heather was sleeping in appellant=s bed.  When appellant awakened Heather, Heather said she had a headache and that she could not walk right.  So appellant told Heather to hold on to her, and walked her to bed.  Michael giggled when Heather ran into the doorjamb.  Appellant said, AI thought she was okay.@  Heather was put to bed.  Heather covered her head to block out the light because she then had a migraine.  Appellant discussed with her husband the possibility of keeping Heather home from school the next day because she might have the flu.  AThat=s all we thought.  We didn=t think anything else.@  The observation of vomit did not occur until after Heather was dead the next morning.  This is directly contrary to the indictment.

Once again, the evidence reasonably and fairly raised the issue whether appellant consciously disregarded a substantial and unjustifiable risk.  See Griffin, 703 S.W.2d at 196. A mother, who presumably best knows her own daughter, thought Heather had a migraine, common to her family, or perhaps the flu.  Putting a child back to bed, under the circumstances, raises serious questions whether such conduct is a gross deviation from the standard of care that an ordinary person would exercise.  See id.

If we believed Moon were applicable, our inquiry would end.  See Moon, 572 S.W.2d at 682 (negating the rule requiring sua sponte withdrawal of a guilty plea after evidence of innocence in a non-jury trial).  In Moon, however, there is no mention of a plea agreement.  Id.  And as we noted, the State argues the trial court was without jurisdiction to withdraw appellant=s plea.  See Perkins, 736 S.W.2d at 281.

Citing Perkins, the State maintains Athe trial court lacked jurisdiction to withdraw the Appellant=s guilty plea on its own motion.@  The State argues that after approving a plea bargain agreement, the lower court cannot withdraw the guilty plea.  Indeed Perkins held that the trial judge Ahad no lawful authority to sua sponte withdraw [the defendant] Le=s plea of guilty.@  Id. at 280. Perkins reasoned that a cap was placed on the punishment by the agreement and Ain refusing to go forward with the plea bargain agreement and withdrawing Le=s plea of guilty, actually amounted to the granting on his own motion a new trial for Le.@  Id. at 280-81.  Perkins approved Morris v. State, 658 S.W.2d 310 (Tex.App.--Houston [1st Dist.] 1983, no writ), holding that the court of appeals did not grant the defendant a new trial because it concluded that specific performance, which it could order to be accomplished, and which was all that the defendant in that case apparently wanted, was the proper remedy.  Id. at 281.  [T]he defendant is entitled to specific enforcement if the agreement can be enforced, or, if not enforceable, is entitled to withdraw his plea.@  Id. at 283.  AThe court of appeals implicitly found that there is no known impediment to specifically enforcing the agreement.@  Id.

It is apparent from the record, and based on the holdings in Moon and Perkins, that the trial court felt compelled to accept appellant=s plea of guilty and find her guilty on the basis of her plea.^[2]  This was not a trial to the bench, as was the case in Moon, where the trial court was unencumbered to find appellant not guilty.  The State itself argues there was an enforceable contract between the State and appellant  See Perkins, 736 S.W.2d at 281.  And the State admits the trial court was without power to withdraw the plea.  Thus, the rationale of Moon is inapplicable.  According to the State=s own argument, the court could not withdraw the guilty plea and enter a not-guilty plea when the defendant enters a plea of guilty before the court after waiving a jury.  Cf. Moon, 572 S.W.2d at 682; Perkins, 736 S.W.2d at 281.  In other words, the rationale of Perkins prohibits the trial court from sua sponte withdrawing appellant=s plea, which in turn makes Moon inapplicable because Moon presupposes the trial court=s ability to find the defendant not guilty.  Moon, 572 S.W.2d at 682.

Perkins in turn presupposes a valid, enforceable contract.  Perkins, 736 S.W.2d at 281-83.  But where a contract with the State purportedly binds an accused to plead guilty when the evidence reasonably and fairly raises issues of innocence, is such a contract enforceable?  Or is such a contract illegal and against the public policy of the State of Texas?

A[A]n action founded upon an illegal contract the courts of this State have uniformly held that they will leave the parties where they found them.@  After Hours, Inc. v. Sherrard, 456 S.W.2d 227, 229  (Tex.Civ.App.--Austin 1970), rev=d on other grounds, 464 S.W.2d 87 (Tex. 1971).  The courts have held otherwise freely entered contracts void because they were contrary to public policy.  Juliette Fowler Homes, Inc. v. Welch Assoc., Inc., 793 S.W.2d 660, 663 (Tex. 1990)(unreasonable covenant not to compete).  When the courts do hold contracts void, they rely upon the state=s expression of public policy in its statutes.  Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985)(holding employment termination for refusal to perform illegal act contrary to public policy expressed in state and federal criminal laws).  Thus, to determine whether a contract violates public policy, we must consider the policies underlying the applicable statutes.

Whether a contract violates public policy is a question of law, which we review de novo.   Barber v. Colorado I.S.D., 901 S.W.2d 447, 450 (Tex. 1995); Insurance Co. of North America v. Easton, 73 Tex. 167, 11 S.W. 180, 181 (1889).  Generally, if a contract violates public policy, it is void, not merely voidable.   Continental Fire & Cas. Ins. Corp. v. American Mfg. Co., 221 S.W.2d 1006, 1009 (Tex. Civ. App.‑‑Fort Worth 1949, writ ref=d n.r.e.)(explaining that it is Athe law that contracts prohibited by statute, either expressly or impliedly, are void@).  Estoppel and ratification doctrines will not make a contract that violates public policy enforceable.  Continental Fire & Cas. Ins. Corp., 221 S.W.2d at 1009 (AAn illegal contract cannot be ratified by either party.@).^[3]  However, we are also cautioned:

            Courts must exercise judicial restraint in deciding whether to hold arm=s‑length contracts void on public policy grounds:  Public policy, some courts have said, is a term of vague and uncertain meaning, which it pertains to the law‑making power to define, and courts are apt to encroach upon the domain of that branch of the government if they characterize a transaction as invalid because it is contrary to public policy, unless the transaction contravenes some positive statute or some well‑established rule of law. 

Lawrence v. CDB Services, Inc., 44 S.W.3d 544, 553, (Tex. 2001)(citations omitted).

Article 1, section 19 of our state constitution provides:  ANo citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.  Tex.Const. art. 1, ' 19.  Article 1, section 29 provides:   ATo guard against transgressions of the high powers herein delegated, we declare that everything

in this >Bill of Rights= is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.@  Tex.Const. art. 1, ' 29.  Our law only authorizes a conviction where guilt is shown beyond a reasonable doubt.  If there be no legal guilt, a conviction cannot be sustained, although the defendant entered a plea of guilty.  Harris v. State, 172 S.W. 975, 977 (Tex.Crim.App. 1915).  We can only conclude that appellant=s contract with the State to plead guilty, when the record evidence reasonably and fairly raised issues of innocence, was void as against public policy.  See Griffin, 703 S.W.2d at 195 (AIn any case where evidence is introduced which reasonably and fairly raises an issue as to the innocence of the accused . . . the defendant=s guilty plea must be withdrawn and a plea of not guilty must be sua sponte entered by the court.@)(emphasis in original).

We set aside appellant=s plea of guilty, and remand this cause for a new trial.  See Burke v. State, 80 S.W.3d 82, 96 (Tex.App.--Fort Worth 2002, no pet.).^[4]

January 15, 2004

DON WITTIG, Senior Justice

Before Panel No. 5

Larsen, McClure, and Wittig, JJ.

(Wittig, J., sitting by assignment)

(Do Not Publish)

DISSENTING OPINION

Ruth Ann Martin appeals her conviction for injury to a child.  Appellant waived her right to a jury trial and entered an open plea of guilty to a two paragraph indictment which charged Appellant with recklessly causing serious bodily injury to her daughter.  The trial court found Appellant guilty and assessed her punishment at a fine of $1,000 and imprisonment for a term of twenty years.  Appellant raises three issues on appeal:  (1) the trial court erred by failing to reject her guilty plea because the evidence adduced at the guilty plea hearing negates the culpable mental state; (2) the indictment is fundamentally defective; and (3) ineffective assistance of counsel.  Finding that the trial court abused its discretion in accepting the guilty plea when evidence inconsistent with guilt had been introduced, the majority opinion sustains the first issue.  The majority opinion refuses to follow Moon v. State, 572 S.W.2d 681 (Tex.Crim.App. 1978)(op. on reh=g), claiming that the instant case involves a plea bargain.  The appellate record plainly shows that Appellant entered an open plea of guilty, not a negotiated plea of guilty.  I respectfully dissent.

Underlying Facts

Appellant, who characterized herself as a recovering drug addict, had been on felony community supervision since 1993 for three delivery of a controlled substance offenses and possession of a controlled substance.  Despite it being a violation of the terms and conditions of her community supervision, Appellant knowingly possessed a bottle of morphine which she stored in Aa regular aspirin bottle@ in the medicine cabinet of her home.  Appellant did not recall whether the bottle had a childproof cap; she believed it was a Apush and turn@ type.  Appellant=s mother-in-law had taken morphine prior to her death from cancer.  A relative gave the morphine to Appellant=s husband, Raymond Martin, and asked him to sell it to raise money to pay for the funeral expenses.  Mr. Martin had been unable to sell any of the morphine pills but they had not disposed of the drug or returned it to the relative.  Appellant knew the drug was dangerous because she and a friend had become ill after ingesting one of the morphine tablets from the same bottle. 

On May 3, 2001, Appellant and her husband, Raymond Martin, decided to go out to a sports bar and watch a Dallas Mavericks basketball game.  Appellant left her pre-teen daughter, Heather, and twelve-year-old son, Michael, alone at home.  When Appellant left, she knew that Heather had a headache.  According to Appellant, migraine headaches were common in her family.  Appellant and Mr. Martin returned home after four hours and found Heather asleep in their bed.  Heather whimpered when Appellant told her that she needed to get in her own bed.  Heather walked into a door jamb and told Appellant that she could not Awalk right,@ so Appellant held on to her daughter and walked her to her room.  When Heather got into her bed, she shielded her eyes from the light and covered her head because it hurt.  In a written statement, Appellant said that Heather had cried and vomited all night.¹  The following morning, Appellant went into Heather=s room.  Heather did not Alook right@ and she was cold to the touch.  Appellant picked her up and vomit came out of Heather=s mouth.  She ran outside and screamed for someone to call 911.  A neighbor came over and performed CPR while they waited for an ambulance.  Appellant later learned that Heather had died sometime during the night.  After five undigested morphine tablets were found in Heather=s stomach, a Child Protective Services case worker and a detective went to Appellant=s house.  When Appellant learned that the caseworker and detective were on their way to her house, she instructed her husband to dispose of the morphine and marihuana in the house.

A grand jury indicted Appellant for injury to a child.  The first paragraph of the indictment alleged that Appellant recklessly caused serious bodily injury to her daughter by:

[L]eaving said complainant unsupervised by adult supervision, in the defendant=s home, and leaving Morphine, a dangerous and lethal drug, within access of the complainant, which the complainant ingested. 

The second paragraph of the indictment alleged that Appellant recklessly caused serious bodily injury to Heather by:

[F]ail[ing] to provide adequate medical care for the complainant, knowing the complainant was vomiting and crying, and at the time of the offense the defendant had a legal duty to act, to-wit:  the defendant was the parent of the complainant, and the defendant had assumed care, custody and control of the complainant.

Although the majority opinion refers to the existence of a plea bargain, the appellate record demonstrates that Appellant waived her right to a jury trial and entered a non-negotiated or open plea of guilty.¹  Appellant executed a written judicial confession by which she specifically admitted that the allegations contained in both paragraphs of the indictment were true and that she was guilty of the injury to a child offense alleged in the indictment.  After introducing Appellant=s judicial confession, the State rested.  Appellant testified and offered other evidence in support of her request that she be placed on community supervision.  After Appellant rested and both sides closed, the trial court accepted Appellant=s guilty plea and assessed her punishment at imprisonment for a term of twenty years. 

Sua Sponte Withdrawal of Guilty Plea

In Issue One, Appellant complains that the trial court abused its discretion by failing, on its own motion, to withdraw her plea of guilty since the evidence presented by Appellant at the guilty plea  is Aconsistent with innocence@ and negated a reckless culpable mental state.  She argues that the evidence showed nothing more than negligence.  The State responds with two separate arguments.  First, citing Perkins v. Court of Appeals for the Third Supreme Judicial District, 738 S.W.2d 276, 281 (Tex.Crim.App. 1987), the State responds that the trial court lacked jurisdiction to withdraw Appellant=s guilty plea after approving a plea bargain agreement.  Second, citing Moon v. State, 572 S.W.2d 681 (Tex.Crim.App. 1978), the State argues that the trial court is not required to withdraw the guilty plea but rather could consider all of the evidence and either find Appellant not guilty or find her guilty of the lesser offense.  I will consider the State=s arguments in the order presented.

In Perkins, the trial court approved a plea bargain agreement where the State and defense agreed to a twenty-five year sentence.  Perkins, 738 S.W.2d at 278.  The trial court indicated that it would consider sentencing the defendant to less than twenty-five years but would not exceed the twenty-five year term agreed to by the parties.  Id. at 279.  The parties also agreed to the completion of a pre-sentence investigation (PSI).  Id. at 278.  When the parties returned to court, the State asked the trial court to not follow the plea bargain agreement because one of the victims had provided new information regarding the defendant=s participation in the offense.  Id. at 279-80.  The defendant objected but the trial court permitted the State to withdraw its plea agreement; consequently, the defendant withdrew his plea of guilty under protest.  Id. at 280.  The defendant sought mandamus relief from the Third Court of Appeals.  That court granted mandamus relief requiring that the trial judge enforce the plea bargain agreement.  Id. at 277-78.  The trial judge then sought mandamus relief from the Court of Criminal Appeals.  When a defendant enters into a plea bargain agreement with the prosecutor, and the trial judge approves the agreement, and the agreement is not kept, the proper relief is either specific performance of the agreement, if it can be enforced, or withdrawal of the plea if it cannot.  Id. at 283-84.  Finding the agreement enforceable, the Court of Criminal Appeals held that the trial judge had a ministerial duty to go forward with the plea bargain agreement which the court had approved.  Id.  Further, the trial court had no discretion to set aside the guilty plea and plea bargain agreement.  Id. at 284.  Perkins is factually distinguishable because it involved a plea bargain which had been approved by the trial court.  Thus, the crux of the dispute in Perkins is whether the defendant could insist on specific performance of the plea bargain.  The instant case does not involve a plea bargain or a question of specific performance.  Consequently, the State=s first argument is without merit. 

By its second argument, the State relies on a long line of cases holding that when the defendant waives his right to a jury trial and enters a guilty plea, the trial judge is not required to withdraw the defendant=s guilty plea if evidence inconsistent with guilt is introduced.  See Aldrich, 104 S.W.3d at 892-93; Moon, 572 S.W.2d at 682.  Prior to the decision in Moon, the trial court would have been required to withdraw the defendant=s guilty plea and enter a plea of not guilty if evidence inconsistent with guilt had been introduced.  The majority opinion paints Moon as creating a new rule but as the Court of Criminal Appeals stated in Aldrich, AMoon did not impose a new requirement on the trial court; it removed an old requirement.@  Aldrich, 104 S.W.3d at 893.  The court did so because Ait is apparent that the doctrine requiring a trial court to sua sponte withdraw a guilty plea when evidence was adduced that either made evident the defendant=s innocence or reasonably and fairly raised an issue as to his guilt was rooted upon the proposition that the court was vested only with the authority to resolve legal questions.@  Aldrich, 104 S.W.3d at 893, quoting Moon, 572 S.W.2d at 687 (Phillips, J., concurring).

The majority opinion does not acknowledge the major statutory changes which led to the decision in Moon.  Prior to January 1, 1966, the Code of Criminal Procedure did not permit a defendant to waive a jury and enter a plea of not guilty before the trial court.  Moon, 572 S.W.2d at 682.  Thus, a trial court=s authority in felony cases was restricted to resolving legal questions and only a jury could decide factual issues.  Consequently, if the defendant waived a jury trial and entered a plea of guilty before the court and the court was presented with evidence inconsistent with guilt thereby raising a fact issue, the court was not authorized to find the defendant guilty of a lesser included offense or not guilty because it did not have fact-finding authority.  In those circumstances, the trial court was required to withdraw the defendant=s guilty plea, enter a plea of not guilty, and impanel a jury to hear the not guilty plea.  Aldrich, 104 S.W.3d at 893; Moon, 572 S.W.2d at 682.  The1965 amendments to the Code of Criminal Procedure made a significant change by providing that the defendant could waive a jury trial and enter a plea of not guilty before the court in all cases except capital cases.  Id. at 682 (citing Articles 1.13 and 1.14 of the Code of Criminal Procedure).  These statutory changes authorized the trial court to resolve factual questions in felony cases.  As the trier of fact, the trial court may now find that the evidence did not create a reasonable doubt as to guilt, find the defendant guilty of a lesser offense and assess the appropriate punishment, or find the defendant not guilty just as a jury would have done under the pre-1966 procedure.  See Aldrich, 104 S.W.3d at 893; Moon, 572 S.W.2d at 682.  It would serve no purpose to withdraw the guilty plea and enter a not guilty plea.  Id.

The majority claims that it is not challenging the rationale of Moon, yet it makes a caustic reference to Moon as an exception to the constitutional requirement that only the truly guilty be convicted.  The not-so-thinly-veiled criticism is simply inaccurate.  Because the trial court has the duty to consider all of the evidence and is authorized to find the defendant guilty of a lesser-included offense or even find the defendant not guilty based upon the evidence, Moon does not promote the conviction of innocent people.  To the contrary, Moon made it clear that trial courts are obligated to consider the evidence in determining whether the defendant is guilty. 

If there were any doubt about the validity of Moon, the Court of Criminal Appeals dispelled it in Aldrich.  Aldrich, 104 S.W.3d at 893.  There, the defendant entered an open plea of guilty to two counts of impersonating a public servant.  Id. at 891.  The State introduced the defendant=s judicial confessions and the defendant testified that she had claimed to be a police office in order to gain entrance to a motel room.  Id.  The court found the evidence sufficient to prove her guilty but did not find her guilty, and set the case for Asentencing@ at a later date.  Id.  When the parties returned to court, a different judge was presiding.  Id.  During a statement to the court, the defendant admitted claiming to be a police officer.  Id. at 891-92.  She told the arresting officers that she had done so because some men were trying to rape her.  Id. at 892.  The visiting judge, operating under the mistaken belief that the defendant had already been found guilty by the other judge, incorrectly informed Aldrich that he could not find her not guilty.  Id.  Aldrich replied that she was guilty of claiming to be a police officer.  Id.  On appeal, the defendant argued that the evidence raised the defense of necessity and that the court should have rejected her guilty plea.  Id.  The Dallas Court of Appeals affirmed.  Aldrich v. State, 53 S.W.3d 460 (Tex.App.--Dallas 2001).  In her petition for discretionary review, Aldrich argued that the trial court was obligated to conduct what she termed a AMoon review@ and consider whether her defenses were valid.  Aldrich, 104 S.W.3d at 892.  The Court of Criminal Appeals held that Moon did not impose such an obligation on the trial court and simply acknowledged the statutory changes granting the trial court the authority to resolve factual issues.  See id. at 893-94.  Additionally, the court held that Aldrich had an obligation to object when it became apparent that the visiting judge mistakenly believed she had already been found guilty and he had no authority to consider whether or not she was in fact guilty.  Id.  at 895.  Because Aldrich did not bring this error to the trial court=s attention, and she never sought acquittal or withdrawal of her guilty plea, the Court of Criminal Appeals held that she could not present her claim for the first time on appeal.  Id.  at 896.  In my opinion, Aldrich=s waiver rule pertains to the specific error which occurred in that case, namely, the visiting judge=s failure to consider defensive evidence due to a mistaken belief about the procedural posture of the case, and does not apply to the more general issue presented here.

Turning to the issue at hand, the evidence supports the finding of guilt.  Appellant judicially confessed to both paragraphs in the indictment.  Additionally, there is evidence showing that she left her young daughter in the care of her twelve-year-old son, knowing that her daughter had a headache and knowing that she had left a dangerous drug, morphine, stored in a Aregular aspirin bottle@ in the family=s medicine cabinet.  Appellant knew of the morphine=s danger through personal experience as she had become quite ill from ingesting a single tablet.  While Appellant attempted to explain or mitigate certain aspects of her conduct, the trial court apparently resolved the conflicting evidence and credibility issues against Appellant and found her guilty of recklessly causing serious bodily injury to a child.  Applying Moon to the instant case, I would overrule Appellant=s first issue.  See Brown v. State, 11 S.W.3d 360, 362‑63 (Tex.App.‑-Houston [1st Dist.] 2000, pet. ref=d)(robbery defendant=s testimony at sentencing that she had not intended to do anything like this and was forced to commit the crime did not obligate trial court to sua sponte withdraw the guilty plea).  For these reasons, I respectfully dissent.

ANN CRAWFORD McCLURE, Justice

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^[1]  We do not believe this defense is available.  See Tex.Pen.Code Ann. ' 22.04(k)(2)(B)(i) (Vernon 2003).

^[2]  See also Article 1.15, which  provides, in relevant part:

[T]hat 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.

Tex.Code Crim.Proc.Ann. art 1.15 (Vernon Supp. 2004).

^[3]  We read the law to mean that an unlawful agreement is not only unenforceable as against public policy, but also the illegality of the bargain cannot be waived by estoppel or ratification.

^[4]   Because of our disposition of the first issue, we do not address appellants other two issues.   While we could also simply remand to factually determine whether or not the plea bargain agreement was lawful, this would, for all practical purposes, amount to the same remedy as a new trial.

¹  At the guilty plea, Appellant contradicted her written statement.  She testified that she was only referring to her daughter Awhimpering@ when she initially put her to bed, and based upon what she observed the following morning, she had assumed Heather had vomited during the night. 

¹  The plea papers do not state that there is a plea bargain in the case and the judgment refers to the guilty plea as an Aopen plea.@  Further, at the beginning of the guilty plea, the following exchange occurred between the trial court and Appellant=s counsel:

[The trial court]:  You=re coming before me on what=s called an open plea agreement.  It=s my -- is it an open plea?

[Appellant=s trial counsel]:  Yes, sir.

[The trial court]:  Open plea agreement.  It=s my understanding, when you=re arraigned, you=re going to enter a plea of guilty and you=re asking me to assess punishment somewhere within the punishment range I described to you earlier.