Williams v. State

522 S.W.2d 483, 1975 Tex. Crim. App. LEXIS 934
Court of Criminal Appeals of Texas·Decided April 30, 1975·No. 49322·Published·Cited by 146 cases

Opinions

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for assault to murder a police officer. Appellant pled guilty and the court assessed punishment at five years.

Appellant’s sole contention is that the trial judge did not comply with Article 26.-13, Vernon’s Ann.C.C.P., before accepting appellant’s plea of guilty.

At the trial the following occurred:
“THE COURT: ... you have now, along with your counsel . filed with this court certain pleadings, among them being a written Plea of Guilty advising the court that you now wish to waive formal arraignment and enter a Plea of Guilty to this charge. Is this your desire in the matter ?
“THE DEFENDANT: Yes, Sir.
“THE COURT: In this Plea of Guilty, you are making certain representations to this court, which I take it you have gone over with your attorney . and these representations you are making are true, is this correct ?
“THE DEFENDANT: Yes, Sir.
“THE COURT: You will understand that upon your Plea of Guilty you will be found guilty of the offense charged, that being assault to murder a police officer ?
“THE DEFENDANT: Yes, Sir.
“THE COURT: I further advise you that under the law of this State a person found guilty of such an offense, assault to murder a police officer, to which you are pleading guilty, may be punished by confinement in the Texas Department of Corrections for any term of years not less than two years or by confinement for life. The court is not bound to follow recommendations, if any, concerning punishment. I may do so. I may not do so. Now, being so advised as to the consequences of your Plea of Guilty, do you still desire the court to accept same?
“THE DEFENDANT: Yes, Sir.
it * * *
“THE COURT: Then the Court accepts the Defendant’s Plea of Guilty and orders same to be entered on the Minutes of this Court. . . . ”

The record also contains the following form signed by the appellant and the attorney for the appellant and an order signed by the -judge at the time of the hearing, omitting the formal parts:

“I, the undersigned Defendant, appearing in person and with the undersigned Counsel, hereby waive formal arraignment and reading of the indictment or information herein; and I voluntarily and of my own free will plead guilty, as charged in the above entitled and numbered indictment or information.
The undersigned Defendant, in person and by Counsel, hereby states to the Judge of said Court the following:
“1. I have never been treated for any kind of mental illness and that I am sane now and was sane at the time of the commission of the offense to which I have pled guilty; and
“2. No one has promised me anything, or threatened me in any way, or placed me under any kind of fear, [485]*485or promised me that I would get probation, a pardon or early parole, in order to cause me to enter a plea of guilty to the charge herein; and
“3. I fully understand that the Judge is not bound to follow recommendations, if any, concerning punishment herein; and
“4. I went to the 11th grade in school and can read, write, and understand the English language.
/s/ Wilbert L. Williams Defendant
“The undersigned Counsel, attorney of record for the above Defendant herein, hereby states to the Judge of said Court the following:
“I have counseled and advised with said Defendant and it is my opinion that said Defendant is sane and is able to and does understand the nature and consequences of these proceedings.
/s/ William G. Rosch, III Attorney for Defendant
“ORDER
“The Court having considered the foregoing plea of guilty of the Defendant, it plainly appears to the Court that the Defendant is sane, and is uninfluenced by any consideration of fear, or by any persuasion, or delusive hope of pardon, prompting him to confess his guilt; and the Court having duly admonished the Defendant of the consequences of his plea, and the Defendant having persisted in pleading guilty, the Court accepts the Defendant’s plea of guilty and orders that such plea shall be entered upon the minutes of this Court.
“Signed and entered this the 14 day of January, 1974.
/s/ Dan E. Walton Presiding Judge”

The record also contains a Waiver of Trial by Jury and Felony Less Than Capital form signed by appellant and approved by his attorney and the trial judge.

The trial judge properly admonished appellant as to the consequences of his plea. He had before him sufficient information for it to “plainly appear” that the appellant was mentally competent and uninfluenced by any consideration of fear, or by any persuasion, or delusive hope of pardon.

In reversing a conviction based on a plea of guilty, Justice Douglas in Boykin v. Alabama, 395 U.S. 238, at 244, 89 S.Ct. 1709, at 1713, 23 L.Ed.2d 274, at 280 (1969), wrote:

“The three dissenting justices in the Alabama Supreme Court stated the law accurately when they concluded that there was reversible error ‘because the record does not disclose that the defendant voluntarily and understanding^ entered his pleas of guilty.’” (Emphasis Added)

The Supreme Court’s requirement for the determination of voluntariness is the consideration of the entire record. The review of the voluntariness of the guilty plea should not be based solely on questions and answers in the statement of facts, but on the record as a whole.

This Court recently in Toombs v. State, 514 S.W.2d 259 (Tex.Cr.App.1974), held that an affidavit in the record, executed by appellant and approved by the trial court, is insufficient and may not be used as a substitute for the trial court’s personal admonishment as to the range of punishment. We overrule Toombs. See Williams v. State, Tex.Cr.App., 522 S.W.2d 488 (decided this date), and Guster v. State, Tex.Cr.App., 522 S.W.2d 494 (decided this date).

The record, taken as a whole, reflects that the trial judge satisfied Article 26.13 before his acceptance of the defendant’s guilty plea.

[486]*486In this case:
(1) The defendant executed a written statement stating that he is uninfluenced by fear, persuasion, or delusive hope of pardon;
(2) The appellant’s attorney signed the statement and declared that he had advised and counseled the appellant concerning the statement;

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Williams v. State, 522 S.W.2d 483, 1975 Tex. Crim. App. LEXIS 934 (Tex. 1975).

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