Rojas v. State

404 S.W.2d 30, 1966 Tex. Crim. App. LEXIS 965

• Court: Court of Criminal Appeals of Texas
• Decided: June 8, 1966
• Docket: 39635
• Status: Published

Opinions

OPINION

MORRISON, Judge.

Appellant was convicted, upon a. plea of guilty, of the felony offense of driving while intoxicated, and his punishment was assessed at five months confinement in jail.

The trial was on February 3, 1966, and governed by the provisions of the Code of Criminal Procedure of 1965, which became effective January 1, 1966. Appellant, being arraigned (Article 26.01, Vernon’s Ann.C. C.P.) for the purpose of fixing his identity and hearing his plea (Article 26.02, V.A. C.C.P.) and having been admonished by the court (Article 26.13, V.A.C.C.P.), persisted in pleading guilty (Article 26.14, V.A.C.C. P.). A jury was duly selected, impaneled and sworn in the case. Appellant’s having entered a plea of guilty to the indictment, evidence was presented, and the jury was then instructed by the court to find appellant guilty.

Appellant objected to the court’s charge on the ground that it failed to authorize the jury to assess punishment. The objection was overruled.

We need go no further than this point in order to properly dispose of this case. In overruling the objection, the court was proceeding under Article 37.07, V.A.C.C.P. It is appellant’s contention that he should have proceeded under Article 26.14, V.A. C.C.P.

Article 37.07, supra, by its terms applies to pleas of not guilty alone.

Article 26.14, supra, provides:

“Where a defendant in a case of felony persists in pleading guilty or in entering a plea of nolo contendere, if the punishment is not absolutely fixed by law, a jury shall be impaneled to assess the punishment, and evidence may be heard to enable them to decide thereupon, unless the defendant in accordance with Articles 1.13 or 37.07 shall have waived his right to trial by jury.”

When the time came for the judge to charge the jury in accordance with the terms of Article 26.14, supra, the defendant had not waived the right to trial by jury in accordance with Article 1.13, supra, and nothing had occurred during the trial to cause the plea of guilty to be withdrawn.

In cases where Article 37.07, supra, is applicable the time for waiving the right to have the jury assess the punishment does not arrive until such jury has found the defendant guilty, hence it cannot be said that appellant had waived such right “in accordance with Article 37.07.”

To the contrary, he objected to the court’s charge because the question of punishment was not submitted to the jury.

A former draft of the Code had made provisions for election prior to the selection'of the jury. This, and the possibility that the plea of guilty may be withdrawn during the trial, may explain the reference to Article 37.07 in Article 26.14.

It therefore follows that the trial court reversibly erred when he did not submit the question of punishment to the jury in accordance with the terms of Article 26.14, supra, as requested by the appellant.

The judgment is reversed, and the cause is remanded.