Ex Parte Barnes
547 S.W.2d 631
Tex. Crim. App.
1977
Check Treatment

Ex parte Rickey Van Buren BARNES

No. 53933

Court of Criminal Appeals of Texas

March 9, 1977

631 S.W.2d 185

No effort was made by defense counsel at any time during the trial to withdraw the plea and no objection was made to the court‘s charge to the jury instructing that a finding of guilty be rendered.

The holding in

, is controlling. Both Gates and the instant case involved pleas of guilty to juries on the charges of aggravated robbery. In both cases the defendants admitted confronting the complaining witnesses with the intent to commit robbery, brandishing pistols, but denied that the robbery was completed as no property or money was obtained from the victims due to extenuating circumstances. In neither case did the defendant request to withdraw the plea or make an objection to the court‘s charge instructing the jury to enter a verdict of guilty.

This Court reversed the conviction in

holding that, from a review of the totality of circumstances, the appellant was not voluntarily pleading guilty to the offense charged in the indictment. The appellant stated that he “made no effort of trying to rob the man” and further equivocated about his intent and his actions during the alleged robbery. It appearing that the admissions made by the defendant in
are even stronger than those admissions made in the case at bar, it follows that the same result must occur even though in both cases the testimony of the defendant showed that he was guilty of the offense of aggravated robbery under V.T.C.A., Penal Code, Sections 29.01(1) and 29.03(a)(2).1

Even though appellant‘s testimony shows him to be guilty of the offense of aggravated robbery, the equivocal nature of his testimony still requires a reversal under the authority of

.2

For the reasons stated, the judgment is reversed and the cause remanded.

ROBERTS, Judge, concurring.

The question is not whether the appellant‘s testimony shows him to be guilty of the offense, but whether his testimony allows the case to be submitted to the jury on a plea of guilty.

If the appellant‘s testimony raises a fact issue as to whether he was guilty of the offense charged, then it doesn‘t mean he is not guilty, it just means that the case should not proceed to a final judgment under a plea of guilty.

;
.

Irrespective of whether the appellant‘s testimony shows him to be guilty of the offense charged, the case should not have proceeded to a final judgment under a plea of guilty because of the fact issue created by appellant‘s testimony that he “made no effort of trying to rob the man.”

I concur in the result.

ONION, P. J., joins in this opinion.

Notes

1
As the State‘s brief correctly points out, appellant and his companion went to the robbery scene armed, with the intent to commit theft, brandishing weapons, which forced the complaining witness to flee the scene, screaming for the police. Such testimony is sufficient to support a conviction for aggravated robbery. See
;
;
;
. The fact that no money or property was ever obtained from the complaining witness is not material in a prosecution for aggravated robbery under the new Penal Code. See
.
2
The writer did not agree with the decision in Gates but is bound by it.