Wilson v. State

698 S.W.2d 145, 1985 Tex. Crim. App. LEXIS 1711

• Court: Court of Criminal Appeals of Texas
• Decided: October 16, 1985
• Docket: 443-84
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW AND ON THE COURT’S OWN MOTION

WHITE, Judge.

Appellant was convicted, in a trial before the court, of the offense of indecency with a child. See V.T.C.A., Penal Code Sec. 21.11. The trial court assessed his punishment at 10 years’ confinement in the Texas Department of Corrections.

Appellant argued, on appeal, that the evidence was insufficient to sustain his conviction, and further that he was deprived of a trial by jury.

The Dallas Court of Appeals found the evidence sufficient to uphold appellant’s conviction. The Court of Appeals also held that the trial court’s action in allowing the appellant to withdraw his plea of nolo con-tendere was equivalent to granting appellant a new trial. The Court of Appeals ruled that this revoked the appellant’s prior waiver of trial by jury, which resulted in an unlawful denial of his right to trial by jury. Wilson v. State, 669 S.W.2d 792 (Tex.App.—5th Dist., 1984).

This Court granted the State’s petition for discretionary review to examine the Court of Appeals’ holding that the appellant’s jury waiver was revoked when the trial court permitted appellant to change his plea. This Court also granted review, on its own motion, of the issue of the authority of a magistrate under Art. 1918c, V.A.C.S. We agree with the result reached by the Court of Appeals but not for the same reasons.

On November 8, 1982, appellant and counsel appeared before a magistrate to enter a plea to the charges against him. Appellant waived arraignment and his right to trial by jury. He then entered a plea of nolo contendere. The magistrate admonished appellant. The State introduced evidence in the form of an Agreement to Stipulate Evidence. The stipulation summarized the complaining witness’ testimony against appellant.

The magistrate found the appellant guilty. The case was passed to November 24, and then again to December 10. The delay was for the preparation of a pre-sen-tence report and for the assessment of punishment by the district judge, who presides over the Criminal District Court in the instant case.

On December 10, appellant appeared before the Criminal District Court. At that time appellant waived his right to a speedy trial. The judge noted that appellant’s pre-sentence report reflected that appellant denied he committed the offense in the instant case. Appellant acknowledged that was so.

The following colloquy took place between the appellant and the court:

“THE COURT: I am going to let you withdraw your plea. We will pick a date and we will have a jury trial, Mr. Wilson.

“THE DEFENDANT: I hoped that would not happen, but—

“THE COURT: Well, let’s get something clear. A person charged with a crime has a right to plead any way he wants to. Part of my job is to be sure that whatever your plea is, but most particularly if it is a plea of guilty or something that adds up to the same thing as no contest pleas generally do, that such a plea is freely and voluntarily entered and that a person who pleads guilty or no contest knows what they are doing and knows what the consequences are.

“Now, I am perfectly satisfied from all this not that you are not guilty — I am not saying that for one moment, Mr. Wilson. You may very well be guilty. I am perfectly satisfied that your plea of no contest was entered with all sorts of reservations, and as we used to say when we were children, with crossed fingers and king’s X’s and all of those things. I am not going to accept that kind of plea.

“Now, you may say, as I expect you are about to, ‘Well, gee, I am not at all sure, Judge, I want a jury trial, either.’ Well, if you are prepared to enter an unqualified plea of either guilty or no contest, then that is fine. You have a right to do that. But when you qualify it and you tell Judge Ellis one thing and tell the Probation Department something that is completely inconsistent with that, I have the discretion to accept that, if I want to, or not to accept it, and I choose at this time, as they say, not to accept it. Your alternative then is to put twelve people in the jury box and they get to decide, Mr. Wilson, ...”

On January 6, 1983, appellant and his counsel appeared again before the Criminal District Court. Appellant, with the permission of the judge, withdrew his plea of nolo contendere and pled not guilty. Appellant demanded a jury trial and objected to proceeding otherwise. Appellant based his argument on the theory that changing his plea rendered his jury waiver void. The trial court overruled appellant’s objection. The trial court explained that appellant, on December 10, 1982, made known that he wished to have his case heard by the court. The trial court emphasized that appellant, in his Speedy Trial Waiver, passed the case for a “Trial-Court.” However, this was a notation made by the court. There is nothing in the record at this hearing to show that the appellant, either orally or in writing, waived his right to a jury trial. Appellant then waived the reading of the indictment and evidence was heard by the trial court and he was found guilty.

In reversing appellant’s conviction, the Court of Appeals relied on Parker v. State, 626 S.W.2d 738 (Tex.Cr.App.1981), and Fairfield v. State, 610 S.W.2d 771 (Tex.Cr.App.1981). The Court of Appeals held that a change of a plea to not guilty revoked the prior jury waiver. The dictum in Parker (that permitting a withdrawal of a plea of guilty was, in effect, the granting of a new trial), cited by the Court of Appeals, is not supported by any citation of authority or any reasoning. We reject this reasoning as it is misleading.

The Court of Appeals misinterprets Fair-field. The defendant, in Fairfield, pled guilty before a jury. After both sides closed, the defendant moved “to set aside” his guilty plea and requested that the jury be instructed to acquit him. There was no waiver of jury trial in Fairfield. This Court did not hold, in Fairfield, that an expressed desire of a defendant to withdraw a guilty plea and enter a plea of not guilty acted as a revocation of a jury trial waiver. We call attention to footnote 11 in Fairfield, supra, at 778. Judge Clinton explained that, “It cannot be overemphasized that the statutory, evidentiary, and procedural law governing trials before the court, sitting without a jury, upon the plea of guilty, has evolved on the basis of different policy considerations, and is in fact entirely distinct from that treated herein.”

When a defendant pleads guilty before a jury and, during the trial, changes his plea to not guilty, the trial proceeds before the same jury. The same thing happens if the original plea is not guilty, and is changed later to guilty.

Even though we do not approve of the Court of Appeals’ interpretation of this Court’s decisions in Parker v. State, 626 S.W.2d 738 (Tex.Cr.App.1981) and Fairfield v. State, 610 S.W.2d 771 (Tex.Cr.App.1981), we agree that in this case the appellant’s jury waiver was revoked. It is very clear that in this case the court intended to return the appellant to his same status prior to his plea of nolo contendere (more specifically, the right to have a jury trial).

The trial court’s actions in this case clearly revoked all the prior proceedings before the magistrate.

Since we will affirm the judgment of the Court of Appeals, it is not necessary to address the issue of the authority of a magistrate under Art. 1918c, V.A.C.S.

The judgment of the Court of Appeals is affirmed, and the cause is remanded to the trial court.

TEAGUE, J., concurs in the result. TOM G. DAVIS, J., not participating.