*1 868
was no showing evidence Cr.App.1984). State, third also Lugo 667 person, i.e., Thibo, weapon had a or made a S.W.2d 144 move as if weapon, to a draw and thus no Although appeals the court of charge joint on a attack was necessary. the trial court differed to which of the however, appeals, found: injured parties may have attacking been only “The threat testified to appellant according appellant’s trial tes regarding (the deceased) his ex-wife timony, appellant’s testimony we find clear got that she too close to him. This hard- ly demonstrated that he believed both were ly justified shooting her three times about to attack him. He testified the de head; therefore, in the appel- even if ceased carried a sometimes knife. He fur lant’s fears deceased’s son ther day testified that the offense justified, by were multiple an attack as- yard deceased ran into the up sailants by was not raised the evidence.” him as if positioning she were herself to Thus, appeals the court of found that the Moreover, “stick” him in ribs. appel trial court incorrectly given a charge replete lant’s testimony was with evidence appellant’s right to defend himself of his gun and, belief Thibo had against by an attack the deceased. The deceased, along with attempting court then charge concluded that a on the deadly upon appellant. make a assault Al right against defend an attack though charge its ac party deceased and a certainly third knowledged appellant’s testimony regard required. ing deceased, the attack The law of self-defense the use requested court refused the instruction on deadly long force been has codified in right against of self-defense multiple person Texas. A justified using dead Appellant requested assailants. such a ly against force another and to the charge and the of same denial was reversi degree he reasonably believes the force is Sanders, supra; ble error. See Warren v. immediately necessary protect himself State, 931 (Tex.Cr.App.1978). against the or attempted other’s use use of judgments unlawful if deadly per appeals force court of reasonable son in the actor’s situation would not are have trial court reversed and the §§ Code, 9.31, retreated. Penal V.T.C.A. cause is remanded to the trial court. Furthermore, 9.32. this Court has held charge
that a which is confined
right against of self-defense the deceased
is too if there is restrictive evidence that person
more than one attacked the defend
ant. Sanders v.
(Tex.Cr.App.1982). Accordingly, a defend charge
ant is right entitled to a on the against multiple self-defense assailants if Anthony Lawrence evidence, “there is viewed from the ac GIBAUITCH. standpoint, danger cused’s that he was in of an or a unlawful attack threatened at tack at the hands of one assail Texas, Court of Criminal 424, ant.” Wilson v. Tex.Crim En Banc. (1940). In determining S.W.2d presented May whether evidence been which has charge, raises the defensive issue of a we presented
must consider all of the evidence regardless “strong, of whether it is
weak, unimpeached, or contradicted.”
Booth v. *2 Anthony pro se.
Lawrence
Holmes, Jr.,
Atty.,
B.
Dist.
John
Montague McCarthy,
Eleanor
Asst. Dist.
Houston,
Huttash,
Atty.,
Robert
Invoking Brady
v. United
Austin,
Atty.,
(1970)
U.S.
for the
90 S.Ct.
his claim follows:
“[Applicant] having
tried
been
and con-
victed under a
which
statute
OPINION
thought he could have received a sen-
*3
PER CURIAM.
(99)
ninety-nine
years,
tence
life or
of
decided,
[applicant] would have
post-conviction application
This is a
for
of
strategy,
to have
case tried
corpus
11.07,
pursuant
habeas
filed
to Art.
court,
before a
rather than the trial
V.A.C.C.P.
known
punishment
the minimum
Applicant was
the
indicted for
offense of
(2) years
was two
pe-
and the maximum
delivery
grams
cocaine,
of
or more of
(20)
punishment
twenty
nal
years.
was
alleged
7,
have
occurred on December
It is
‘knowingly
not an
and intelli-
[sic]
agreement
By
1981.
appli-
gent act’ ...
‘with sufficient awareness
pled guilty
posses-
cant
of
the offense
likely
relevant circumstances and
grams
sion of 400
or more of cocaine.
consequences,’
plead guilty
and re-
punish-
There
no
was
(16)
sentence,
year
ceive a sixteen
when
pre-sentence investiga-
ment. After the
only possible
penal
punish-
maximum
tion,
the court
at six-
assessed
(20)
twenty
years
ment was
and then
years.
teen
Ap-
Fourteenth Court of
relinquish
rights.”
one’s constitutional
peals (Houston) affirmed the conviction in
appli-
answer
that
denies
unpublished per
an
curiam
deliv-
involuntary.
cant’s
or
12,
(No.
May
A14-82-702-CR).
ered
hearing
At
applicant
the habeas
offered no
plea proceeding
August 9,
At
any
evidence about
alternative or aban-
1982,
applicant
the trial court admonished
Instead,
strategy.
doned trial
evi-
of
dence
offered on
admonish-
cocaine in the
alleged
amount
was confine- ment
of
issue was
statement
facts from
years,
ment for a term of not
than ten
plea proceeding,
which contained the
years,
life,
nor
than ninety-nine
or
given,
record of the admonishment
and his
and that the court could also assess a fine
testimony that,
own
had he known that the
$100,000.00.
not to exceed
range
of
“actual”
was from
two to
he would not have
The trial court’s
accurate-
pled guilty.
ly
range
stated the
for the
set
offense as
out
the 1981 amendment1
26.13,
pertinent
supra, provides
Article
Act,
to the Texas Controlled Substances
part:
4476-15,
V.A.C.S.
“(a)
accepting plea
of
Prior to
or
contendere, the
of nolo
court
parte Crisp, 661
In Ex
shall admonish the defendant of:
Cr.App.1983),we held the 1981 amendment
“(1)
of
attached
result, applicant’s
unconstitutional. As a
offense;
to the
subject
offense at
time of his
set
before the
That
void 1981 amendment.
“(c)
admonishing
In
the defendant as
felony punishment:2 con
second-degree
provided,
herein
substantial
sufficient,
term of not more than 20
finement for
by the court
unless the
possible
than 2
affirmatively
or less
defendant
shows
$10,000.00.
fine not to exceed
was not aware
1981,
268,
696, 700,
1973,
Leg.,
429,
1132, 1148;
Leg.,
pp.
pp.
67th
eff.
2. Acts
63rd
ch.
Acts
ch.
1983,
Leg.,
pp.
amended
Acts
(H.B.730).
68th
ch.
Sept.
2361, 2380,
Aug.
eff.
and that he was misled or
Court concluded
was not contradicted. The
harmed
the admonishment of the
of the conse-
that defendant
aware
court.”
plea,
quences of his
that he was harmed
further,
admonishment,
the court’s
un-
Article 26.13 requires
reversal
circumstances,
guilty plea
der all the
the conviction when
wholly
knowingly and voluntarily
entered.
fails to admonish the defendant
parte McAtee,
punishment. su
Brady
Whitten
United
Under
shows
an admon
made to the
any commitments
incorrect,
incomplete
ishment
or
court,
prosecutor,
his own
by the
prima
showing
there is a
of a know
facie
Smith, supra, defendant was
counsel.
ing
voluntary plea
guilty.
The bur
*4
of
appreciate the actual value
to
unable
den then shifts to the
to
defendant
show
punish
maximum
bargain because the
plea
plea
that he entered the
under
without
bargain was
the
he risked without
ment
standing
the
his action
of
to him.
State,
overstated
DeVary
v.
and thus was harmed.
parte See also State, (No. 742-84, witz v. Tex.Cr.App., de State, (Tex.Cr.App.1981), 471 10, 1985). livered A two-count indict State, Borrego 558 S.W.2d charged ment possessing defendant with App.1977),and Adams v. fifty pounds marihuana, more than of and (Tex.App.—Houston 1982 no [1st Dist] possessing with more than five but pet.) fifty. than Defendant posses Smith, parte In Ex sion of more than five fifty. but less than Cr.App.1984), pled guilty to de Under H.B. 730 that offense was a second- livery of marihuana less than five of degrée felony, and the accurately trial court pounds more but than four ounces. De admonished defendant of the on fendant was convicted for the offense range. As a result of Crisp, the 16, 1983, September days after our two degree offense was a third felony. Thus parte Crisp, supra.3 Ex in decision De the trial court admonished defendant that fendant was admonished that the for the offense was not less nor than two when in fact the maxi twenty years more than confinement. But years. mum was ten plea Pursuant to the Crisp, penalty applicable a result of the bargain, the trial court assessed two offense was nor not less than two years—the minimum under H.B. 730 both years. ten had a Defendant law. bargain as plea and was nor sessed not less than two argued that his appeal, defendant On eight years. plea was rendered improper admonishment. The Court can be no This Court stated that “there rejected this that con- Appeals and question that Following Appeals in Court of tention. The Court noted that defendant proper.” parte Ex distinguishing case from en- under oath he not have alleged Smith, supra, we wrote: bargain plea if he had known tered the filed a “Appellant pre-trial motion only one-half maximum told, allegation quash this the indictment which was based he was and that what September January on affirmed on mandate issued The (Dec. 1983). rehearing, The 661 S.W.2d solely upon ton, J., concurring). Third Court are Presumably all opinion Crisp State, in 487 agreed, however, that such an admonish (Tex.App. 1982). hearing com constitutes least substantial — Austin on this motion occurred this Court pliance 26.13, supra. parte with after granted had petition for dis Smith, supra; Hurwitz, supra. The bur cretionary in Crisp. review The record applicant den is then on harm. show reflects extensive between the discussion supra; McAtee, supra. Devary, Court, and defense counsel case, unsettled state of instant until this Court its rendered decision found as a fact that there was no Crisp. As appeals pointed the court of record decision, apparent out in its it was proceeding clearly reflects that both everyone charged acknowledged or, third-degree felony with either a al trial court bar ternatively, aggravated gain. Applicant testified at the habeas (Count I), second-degree felony hearing that when he went before the (Count II), depending this Court’s judge entered his did guilty, holding Crisp. what know “Appellant very clearly going had knowl- to assess. further testified edge when he entered into bar- neither the State nor the trial agreement gain promised punish with the State....” him certain term of then, case, ment. There is no issue in this quoted approval We then with the rea- *5 applicant’s ability about evaluate a soning of the Appeals: Court of bargain; Appli bargain. may appellant’s “While we conclude that cant’s or involun may decision as to his entered to be tary because of his unawareness of have been by rendered more burdensome plea bargain. of a actual value law, the unsettled state we cannot conclude that he or was misled harmed Moreover, the fact trial court found as admonishment, the court’s which the motion applicant’s that had filed a might might record reflects he or knew un- quash the indictment on the based clear, equally not be correct. It is as to constitutionality statute, of the and that knowledge of the of his disposition Applicant’s “the of the was case plea, that he was that he had aware delayed Applicant’s coun- upon and his bargained punishment for the minimum request, hope expectation in the sel’s and. available, regardless uncertainty of the that the Act would be declared unconstitu- toas whether the offense a second- was prior disposition tional of the case.” third-degree felony.” (Emphasis in or hearing, applicant At the asked habeas was original.) whether, plea, the time of he regarding the state of the aware “that the defendant in Thus able changing substances act was the controlled correctly. bargain evaluate his Even change,” or about to answer- though was contin- bargain the value of the “Well, ed I was aware that it was inaccu- upon gent the ultimate resolution has failed Applicant rate.” to show affirm- issue, Crisp this. knew that, despite awareness, atively the ad- to factor into his cal- contingency able misled or monishment harmed him. of the relative to him of culation benefit waiving guilty in jury pleading trial and applicant’s Finally, claim amounts to exchange agreed for an punishment. that bare assertion he “would have decided the case dispute
We ... to have tried before a note that there is some court, accurately rather known an admonishment than had he whether range range of H.B. to 20 rather 10 to recites [the Hurwitz, (Clin improper. supra sup- Applicant 730 is has established no life].” port countervailing original act); for this assertion. The see also Fuentes v. applicant pled (defendant fact that (Tex.Cr.App.1985) with no punishment makes his claim all years; was assessed 7 both the amendment unlikely. the more pre-amendment provided act offense). range years for the of 5 to 99 Applicant carry has failed to his burden proof that his The cause is remanded to the trial court unknowing. All for reassessment of other prayed relief for is denied.
Applicant further claims that his illegal confinement is because the trial ONION, P.J., dissents. wrong penalty range court considered the CLINTON, Judge, concurring. assessing punishment. Applicant points out that year the trial court’s sixteen as disposing We seem to be of each cause part sessment was in the lower of the 10 to implicating ramifications our decision range life authorized the 1981 amend parte Crisp, ment. Sixteen four short of App.1983),on an ad hoc basis. Thus Smith year the 20 maximum term authorized un won because swore had he known appli der the Thus law. later found to be relatively light cant term meas received available was one half of what he was told amendment, ured the void and a rela it was he would not have entered into a tively pre- harsh term measured plea bargain wrong range of “based on the amendment act. Smith, punishment.” that, The trial court found as a fact Hurwitz lost be Applicant’s “When the Court assessed the cause he entered into a based (16)years, at sixteen or another —no one purposefully ultimately assessed a one knew for sure which would fall gained within the turn out be correct—but pre-amendment statute, in the event that minimum in either case. Hurwitz v. the Act would later be declared unconstitu- 742-84, (Tex.Cr.App. delivered tional.” The trial court’s focus was on the 1985). See Fuentes v. *6 range,
amendment’s more severe see also Hernandez precaution as a did the court take into (Tex.Cr.App.1984) S.W.2d 734 pre-amendment account act’s lesser (judgment imposing punishment assessed range. It seems undeniable verdict of reversed because within penalty range amendment’s from higher range than authorized revived —which perspective presump- the trial court’s provision of Texas Controlled Substances tively the law—exerted on the court’s dis- Act) and Uribe and Correa v. pressure higher
cretion a distinct
toward a
S.W.2d 534 (Tex.Cr.App.1985). And
Ias
is,
punishment; that
toward
understand its
today, though like
provided by
act. Toler-
pros
aware of his
ating
such influence exerted
the amend- pects
Crisp,
under
the majority says he
give
effect to what we have
loses
because there is not a
as
held to be “void
initio.” Ex
elsewhere
ab
nothing
and therefore
for
Hurwitz,
supra.
supra
parte Crisp,
Cf.
applicant “to evaluate.”1 If
any
there is
(defendant
years,
was assessed 2
the mini-
principle
this,
common
in
at work
all
it has
either the amendment or the
mum under
not manifested itself.2
plea agreement:
paragraph
a
of four hundred or
1. Of course there was
grams of cocaine.
exchange
aban-
for his
the State
paragraphs
doned and dismissed two of three
in
irony
supreme
In the instant cause the
is that
delivery
alleging aggravated
the indictment
uncertain state
since
was aware of the
cocaine,
charge
and reduced the
in the first
trial,
get
of the law he does not
a new
but
judge expressed
because the trial
a similar
Concurring Hurwitz,
Nor,
in
pointed
Id.,
I
U.S. at
S.Ct. at
so far
out,
aware,
“But for
any
statutory
the fact that
I
is there
such
H.B. 730
am
subsequently
requirement.
found unconstitutional there
question
would be no
prose-
about what the
Finally,
majority
would have this
agreed
cution and accused
to do and did Court remand the cause for reassessment
did,”
and what the trial
ultimately
Dubitante,
I defer to the
added,
the statute was later
“[T]hat
judgment
majority.
of the
collective
found
ipso
unconstitutional would not
facto
For these
I
in
reasons
concur
the order
render an otherwise free and voluntary
of the Court.
”
plea ‘involuntary,’ although other factors
might require reversal of the conviction.
TEAGUE,
dissenting.
Judge,
In the cause at
I
bar
do not find
I continue to ad
Notwithstanding that
reversible feature.
concurring
in
I stated
here to what
Obviously
prepared
the State was
opinion that I
filed Hurwitz v. State
prove
applicant possessed
that'
and deliv- Cr.App.1985)(No. 742-84,
10, 1985),
I
grams
ered four hundred or more
of co-
compelled
am
in this instance to dissent to
caine.
In this case and others like it we
majority opinion
because the record in
should follow the rationale
Brady
this
clearly
cause
reflects that
United
397 U.S.
90 S.Ct.
appellant,
is entitled to relief-either be
(1970),
However, reason, yet there is another 69293. other than fact Gibauitch’s Texas, of Criminal involuntary, why plea of En Banc. guilty should be set aside. 1,May instance, In this because of what Taylor held in Court stated and v. (Tex.Cr.App.1981)(Opinion there Rehearing), Motion for substantial, compliance,
was no much
compliance provisions Art. 26.- with
13(a)(1),supra, judge the trial admon- when
ished Gibauitch as to pled guilty.
the offense to which he instance, judge
In this trial did judge
admonished pun either
not state the correct minimum punish
ishment or correct maximum for the offense. Cf.
State, supra. The admonishment that was me, else,
given, if represents no one part
total failure on
to admonish on the punishment Gibauitch
for the offense to which Gibauitch committing. The admonishment rep
Gibauitch received from trial provisions
resents no 26.13(a)(1),supra.
of Art. “In such a case danger entering of the defendant an also, Tex.Cr.App., 671 S.W.2d involuntary plea great is so specific
that no harm need be shown.” McAtee,
App.1980). Borrego Cf. grant majority
To the failure of the relief,
Gibauitch either because re-
guilty was or because he pursuant no
ceived 26.13(a)(1),
provisions I com-
pelled respectfully dissent.