Mock v. State

298 S.W.2d 583, 164 Tex. Crim. 335, 1957 Tex. Crim. App. LEXIS 2107

• Court: Court of Criminal Appeals of Texas
• Decided: January 2, 1957
• Docket: 28674
• Status: Published

Opinions

WOODLEY, Judge.

Appellant was charged by indictment with assault with intent to murder with malice.

The judgment rendered against him recites in its heading: “Indicted for assault with intent to murder but on motion by the State reduced to aggravated assault, a misdemeanor.”

The judgment then recites that appellant, in open court, pleaded guilty to the charge contained in the indictment and that no jury was demanded; that the court heard the indictment read, the defendant’s plea of guilty thereto, and the evidence submitted; that the court found appellant guilty of aggravated assault and assessed his punishment at one year in jail.

The appeal from this judgment raises the question of whether or not the district court lost jurisdiction when the offense was reduced to aggravated assault.

The allegations of an indictment showing the offense charged to be a felony confer jurisdiction in the case upon the district court. Such jurisdiction is not lost when the facts fail to sustain the felony charge, the district court retaining jurisdiction until final termination of the case. Robles v. State, 38 Texas Cr. Ren. 81, 41 S.W. 620; Nance v. State, 21 Texas Cr. Rep. 457, 1 S.W. 448; Hughes v. State, 68 Texas Cr. Rep. 584, 152 S.W. 912.

We see no valid distinction between an accusation reduced by agreement between the attorneys representing the state and the accused and one reduced by the facts proved or by acquittal of the felony charge by reason of a misdemeanor verdict and judgment afterwards set aside.

The state being satisfied to prosecute only for the lesser included offense of aggravated assault, thereby reducing the charge to a misdemeanor, and the defendant not desiring a jury trial upon that charge, but electing to plead guilty before the court to the offense of aggravated assault, the district court was not without jurisdiction to entertain the plea, hear the evidence if evidence was offered, and render judgment.

The plea of guilty being to a misdemeanor offense, Art. 10a V.A.C.C.P., relating to waiver of jury and plea of guilty in felonies less than capital, is not applicable.

The same may be said as to the remaining complaint that appellant was not admonished of the consequences of his plea of guilty, for Arts. 501 and 517 C.C.P. apply only where the offense is a felony. Berliner v. State, 6 Texas App. 181; Johnson v. State, 39 Texas Cr. Rep. 625, 48 S.W. 70; Scott v. State, 29 Texas Cr. Rep. 217, 15 S.W. 814. However, the record on appellant’s motion for new trial contains a statement by the trial judge that the admonition required by Art. 501 C.C.P. in a felony case was given appellant before he pleaded guilty to aggravated assault.

The judgment is affirmed.