Norwood v. State

728 S.W.2d 62, 1987 Tex. App. LEXIS 7112

Opinions

OPINION

DIAL, Justice.

This is an appeal from the conviction of the offense of aggravated robbery. The defendant entered a plea of guilty before a jury to the charge of aggravated robbery, which is the basis for this appeal, as well as two other charges of aggravated robbery. The jury assessed punishment in this cause at five years’ confinement.

The offense occurred at a 7-Eleven store in San Antonio on September 20, 1984. The State’s evidence established that the defendant participated with two other men in robbing the store. The defendant took some hats and picked up the cash register tray. When the indictment was read before the jury, the defendant stated he was pleading guilty. The jury was excused, and the trial judge properly admonished the defendant of the consequences of his plea as required by TEX.CODE CRIM. PROC.ANN. art. 26.13 (Vernon Supp.1987). At this time the defendant acknowledged that he was pleading guilty because he was guilty.

The defendant testified before the jury that he had gone into the store to buy a soda. When his companion drew a gun and demanded money, the defendant ran out because he did not want to be involved. The defendant denied touching the money tray and reiterated that the robbery was not planned.

At the close of the evidence the court instructed the jury to find the defendant guilty and set his punishment. The jury found the defendant guilty and set the punishment at five years’ confinement.

The rule in Texas is where a plea of guilty is entered in a felony case before a jury, and evidence is introduced which reasonably and fairly raises an issue as to the innocence of the accused, and the evidence is not withdrawn, the defendant’s guilty plea must be withdrawn, and a plea of not guilty must be entered by the court on its own motion. The exculpating evidence must do more than merely tend to show a defensive issue. It must reasonably and fairly raise the issue. The totality of the circumstances of each ease must be evaluated in light of its unique circumstances and the offense charged. Griffin v. State, 703 S.W.2d 193, 195-96 (Tex.Crim.App. 1986).

Though the trial judge may not have believed the testimony of the defendant under the circumstances, it was not the judge’s duty to pass on credibility. It has long been the rule in our State that no one will be allowed to plead guilty in a felony case when any evidence is introduced which casts doubt on the actual guilt of the accused. Lincoln v. State, 560 S.W.2d 657 (Tex.Crim.App.1978). Since the defendant’s equivocating testimony was not withdrawn, the trial judge should have withdrawn the defendant’s plea of guilty and entered a plea of not guilty in his behalf.

The judgment of conviction is reversed, and the cause is remanded to the trial court.