*1 prior to jury2 the absence of the of the prior acceptance to the Willie Festus HOGAN. of nolo guilty plea plea of the or 26.13, supra. Article contendere. See Appeals Court Criminal of Texas. was no In the instant case there 26.13, required by admonishment prior prior accept to trial or supra, guilty plea.3 of the The admonish
ance came after both sides rested but be
ment jury. the case to the
fore was submitted belated,
While admonishment
appellant pleading insisted he was still objec no
guilty guilty as he was and made to the lateness of the
tion admonishment. makes no claim now that
He plea, that consequences of the of his
aware harmed, prejudiced misled or
he was While the of the admonishment.
lateness should have made
admonishment conclude accepting plea, we cannot reversible error reflected.
that
Appellant’s next contention is that that any court did not admonish him prosecuting
recommendation of the attor binding
ney upon is not required by
the court as su requirement It is true that
pra. such is a statute and the court failed to However, such
make admonishment. be remembered that
should jury, was before the not
guilty authority that it was within the punishment. to assess the See Article
jury
26.14, supra. Such admonishment is there irrelevant in a There was jury case.4
fore any plea bargain, and the
no evidence no recommendation
prosecutor punishment. perceive as to
jury We fail appellant was
how harmed. judgment affirmed. Vance,
Carol Dist. Atty., Clyde S. DeWitt, III, Atty., Houston, Asst. Dist. Jim State, (Tex.Cr. judge might Wood v. 4. A careful trial 2. See want to admonish App.1974); punish- Minafee v. defendant recommendation of 1972), (Tex.Cr.App. jury jury cited. and cases there ment is on a where a is to empaneled or nolo contendere formally required by 3. The court the instant case did is not but one statute. accepting guilty plea, it was announce proceed jury permitted the trial appellant’s guilty. plea of announced *2 Austin, involuntary. Furthermore, coerced or Vollers, Atty., for the there State’s D. nothing suggesting is in the record State. involun- support tariness sponte that would sua OPINION sideration issue. For want of an that, true, if allegation facts en- of would ODOM, Judge. relief, petitioner the title to cause is dis- This and for cause ordered filed set missed. the extent that Ex To Dick- as a habeas cor post-conviction submission 99, ey, Tex.Cr.App., 543 in S.W.2d conflict V.A.C. pus application under overruled, this it is opinion, with and here- C.P. a right after no attack on waiver of the to convicting court entered an order The in appeal will be entertained the absence of reciting part: in allegations supporting factual such a claim. convicted in this “The Petitioner was It is so ordered. 238020, in hereafter court Cause No. sentenc- primary the case. After styled by the court and
ing he was addressed ONION, Presiding Judge, in concurring writing right his of orally in waived and part dissenting part. and in ac- approved that attorney His appeal. I concur in the result but I dis- tion. overruling of Ex parte Dickey, sent to the has filed what Petitioner now “The (Tex.Cr.App.1976), ex- appeal in the to be a notice of purports tent of conflict. There for is no need filing for the case. Good cause primary case as this and appeal of is not shown. Permis- notice not in conflict. of appeal withdraw the waiver sion to appeal is ineffec- petitioner The notice of In the the denied. instant case appellate process in to initiate the tive appeal days written notice of within ten primary the case. pronounced after sentence had been al- “Construing appeal though of had been an earlier waiver of the notice as there for ha- application appeal writ of in- post-conviction after sentence. handwritten corpus in which the Petitioner as- gave beas notice merely appeal strument of his appeal serts that waiver of request. made no other The trial court entered, voluntarily the court finds permission denied withdraw right appeal waiver of the Petitioner’s appeal then the notice construed of as days give of ten in which to of notice for post-conviction application writ of habe- knowingly, were appeal his corpus asserting appeal as waiver of voluntarily good for entered and cause voluntarily was not entered. This was a filing appeal an out has not been of time gratuitous for there was no construction shown.” petitioner assertion was denied his his appeal of or that waiver of appeal the Although district court construed the voluntarily was not entered. The appeal of as an assertion that the notice portions certain of then forwarded selected appeal1 voluntary, of waiver record, that, including the oral and written appeal allege of does not facts notice waivers sentence. proven, appeal would show waiver was after if 44.02, V.A.C.C.P., amended, defendant, pun- election of assesses 1. Note Article 940, 351, Leg., p. punishment 65th ch. effective ishment and the does not exceed Acts 29, 1977, provides: August by prose- which now recommended agreed his cutor and defendant and may appeal 44.02. “Art. Defendant may prosecute appeal, attorney his he must any criminal “A defendant action court, permission except have of the trial under the rules herein- those which have raised matters however, provided, prescribed, after written This arti- motion filed trial. the defendant who has been convicted way appeals pursuant cle in affects nolo con- either chapter.” of this 44.17 court and the tendere before the parte Dickey, supra, the defendant dissenting part, In Ex then this should be made plain notice of within for the bench and may also filed a written bar. It be that the overruling is directed to the sentence. The trial court conclusion days ten after part and dis- finding such notice of denied senting allegations that the in Dick- knowing intelligent earlier made a ey’s habeas were insuffi- waiver of The trial court took no *3 so, cient. If this be then it should be re- action in connection therewith. further membered that while Dickey’s pro se habe- Subsequently, Dickey, unlike the instant may not have been drawn case, pro post-conviction applica- se with lawyer-like precision or form book ac- corpus seeking tion for writ of habeas curacy, when its allegations were con- burglary conviction. The court in light sidered of the record of invalid evidentiary hearing, did not conduct an premature etc., ques- waivers of findings of facts and conclusions of tion of whether the waiver after sentence law and denied relief. was voluntary, knowingly and intelligently The record which reached this court clearly made was raised. Dickey Dickey showed had waived his stated, For the reasons I concur in the appeal prior during to trial and trial result but I would not overrule writing. confirmed waiver he made in Dickey. supplemental A record was later filed show- ing Dickey had answered “Yes Sir” inquiry
court’s after sentence if he wanted
to waive his This court
held that to trial or the
confirmation of during such waiver premature Dickey,1 was and not GILL, Appellant, James that evidence of waiver after sentence v. and, more, meager without made it Texas, Appellee. The STATE of difficult to determine if the waiver after knowingly intelligently sentence was Dickey may thought made for well have Court of Criminal Appeals of Texas. choice in the matter in light earlier invalid The cause waivers. was re- evidentiary hearing for an to deter- manded
mine if the waiver of made after knowingly intelligently
sentence was Following deter-
made. remand
mined that the waiver after sentence was
knowingly made.
Thus, Dickey and the instant case are
clearly distinguishable and which has been Dickey, frequently
flict. court, need not be
cited overruled
even if the is limited to the
extent of conflict which is not ex- holding What
plained. If it
majority opinion is to be overruled?
something majority opin- attributed to the
ion
consistently
(Tex.Cr.App.1976);
parte
holding
Ex
Town-
1. This
send,
Thomas,
(Tex.Cr.App.1976).