Pinson v. State

530 S.W.2d 946, 1975 Tex. Crim. App. LEXIS 1205

• Court: Court of Criminal Appeals of Texas
• Decided: December 17, 1975
• Docket: 50983
• Status: Published

Opinions

OPINION

ODOM, Judge.

Appellant was convicted of murder; punishment, assessed at death, was subsequently commuted by the Governor of Texas to confinement for life.

In his first ground of error appellant contends the trial court failed to properly admonish him as required by Article 26.13, V.A.C.C.P., before accepting his plea of nolo contendere.¹ The court admonished appellant of the range of punishment but did not inquire whether his plea was influenced by fear, persuasion, or delusive hope of pardon. There is no showing that appellant was prejudiced or injured by the failure of the trial court to make such inquiries, nor was objection made at the time the plea was accepted or by motion for new trial. Gusten v. State, Tex.Cr.App., 522 S.W.2d 494. Neither was there a total failure to admonish appellant as to the range of punishment. Cf. Walker v. State, Tex.Cr.App., 524 S.W.2d 712. Reversible error is not shown. The ground of error is overruled.

In his second ground of error appellant asserts that a new trial is required because other evidence was received by the jury during deliberations, citing Gibbs v. State, 163 Tex.Cr.R. 370, 291 S.W.2d 320, and Baltazar v. State, Tex.Cr.App., 373 S.W.2d 753. In each of those cases the defendant offered evidence in support of his motion for new trial at the hearing thereon. In the instant case appellant failed to offer the affidavits that had been filed with the motion, and also failed to offer any other evidence in support of his motion when it was called for hearing. Not having been presented with evidence in support of the motion when it was called for hearing, the trial court did not err in denying a new trial. Rios v. State, Tex.Cr. App., 510 S.W.2d 326; Stephenson v. State, Tex.Cr.App., 494 S.W.2d 900; Walker v. State, Tex.Cr.App., 440 S.W.2d 653. The ground of error is overruled.

The judgment is affirmed.

1 . The court, in addition to informing appellant of the range of punishment, ascertained that appellant had conferred thoroughly with his two attorneys before changing his plea, that he agreed with his attorneys on the advisability of changing his plea, that it was his personal desire to change the plea, that he was satisfied with the representation he was receiving from his attorneys, that he understood what he was doing, and that he was of sound mind. Only after this did the court allow appellant to change his plea from not guilty to nolo contendere. At no time were objections or inquiries made by appellant during the proceedings.