Ex Parte Hopson

offense,” appellate will not bar an court from mission included the facts remain that reaching complaint.” bargain pursuant the merits of there was a to which Court ruled that appellant This V.A.C. entered his to an offense C.P., expresses Legislature’s intent to charged in of the statute then terms provide meaningful appeal, effect, while still en- court admonished him couraging guilty pleas only when the con- punishment range attached thereto example, tested issue lawfulness and the reflects his conviction of a search. Indeed, such terms. para- stated in the appeals court of first appel- The trial court’s assurances to graph opinion its conviction guilty plea that his lant would not waive § 4.03(c), 4476-15, of Article violation ruling appeal, addition to this Court’s as enacted in 1981. Morgan, supra, require we reverse judgment of Appeals, the Court of plenty I find that there is would material remand cause to that court for review showing that “the record state’s appellant’s search and claim seizure part plea bargain,” election was only. proceed to address the issue in that con- not, text. I am Because does CLINTON, Judge, concurring. opinion join unable to of the Court. developed For reasons stated in However, I do with the concurring opinion my — Hurwitz sustaining appellant’s 742-84,

S.W.2d — (Tex.Cr.App., No. ground second of review. April

delivered not base

a test of the nature and character of a J., TEAGUE, joins. on the as to admonishment

range involving in a case

impact of the Texas Controlled Substances

Act after its through revival the effect of Crisp,

Ex Parte (Tex.Cr.App.1983). analy

S.W.2d

sis the Court perform undertakes to dem the twisting, straining

onstrate tortur ing nature of the exercise. parte Alvin Ex James HOPSON. Smith, as in Ex No. 69310. 78 (Tex.Cr.App.1984), entirely Texas, Appeals Court of Criminal separate and distinct issue con- is whether En Banc. bargain siderations for provisions made in a context of April existed, they of the law as particularly respect punish- ranges available touching respective ment included offenses transaction in a

instrument. granted ground appel-

We review a petition representation

lant’s on his “ ‘plea negotiations’ primar- were based

ily upon a lesser which did included offense

not exist due to the unconstitutional stat-

ute,” provided but which in that was then Though appel- says

statute. asserting incorrect in “the

lant is State charge to reduce the a lesser

offered 42.12,

bility parole. Section 3f(a)(2) 15(b), and Section appli- us shows that record before pertinent part as fol- cant was indicted lows: being ar-

“... did then and there after offense, for and convicted of an rested Murder, did intentional- to-wit: knowingly escape from the ly and custo- Gunn, dy of Lester Sheriff of Bell to-wit: County, Texas the said James Alvin effect his Hopson did then and there to intentionally escape threaten to use and used a on, razor and a razor to-wit: blade....” para- Thereafter one enhancement followed graph. Code, 38.07,

V.T.C.A., pro- Section as follows: vides with, “(a) for, person charged A arrested an offense commits an or convicted of custody. escapes if he offense “(b) provided in Except as Subsections (d) section, (c) of this an offense A misde- under this section is Class meanor.

“(c) this section is a An offense under degree if the actor: felony of the third with, for, charged “(1) arrest is under Huntsville, Reeves, appel- D. John felony; of a or convicted lant. “(2) penal institution. is confined Huttash, Austin, Atty., Robert State’s “(d) An under this section is a for the State. degree if the second the actor felony of deadly threatened to use a used or escape.” weapon to effect his seen, applicant was the fact that As can be OPINION being convicted after McCORMICK,Judge. from a Class raised the offense of murder felony. third-degree A misdemeanor to a post application for This is a conviction alone, 38.07(c)(1),supra. This en- Section corpus. Article V.A. writ of habeas conviction, mandated prior one hanced alleges agreed Applicant C.C.P. punished for a second-de- to the offense enter a years, 2 to 20 and a gree felony, conviction, prior escape, enhanced one $10,000. V.T.C.A.,Penal exceed fine not to that he would be assessed on the condition 12.42(a) 12.33. and Section Section be no af- a life sentence but there would Moreover, firmative of the use alleged to have used a the of- was also weapon during the commission of escape. This addition- good weapon to effect thus entitled to fense and he would from a allegation raised the offense eligi- of his al credit in the determination third-degree felony second-degree Guilty. felo- “A.

plicant ing lowing rounding be void since ny enhanced offense of fine. Sections does not ed offense of conviction. life sentence. agreement deed, available according applicant’s potential punishment was raised ny. ment for one exceed The record shows that at the “[The Court]: Applicant argues in Our agreed 5 to 99 would be 12.42(b), Section had the terms of the range reading to enter a $10,000. V.T.C.A., occurred when the court asked prosecutor paragraph alleging support to the terms of his years an enhanced third plead only Section 12.32. taking twenty years prior 38.07(d), first-degree escape, return, of the circumstances sur- 12.42(a) such, But I plea: announced first-degree felony, with a conviction, life, greatest have been enhanced argument. his he would receive a to the lesser includ- supra. Adding and and a fine not to agreement felony. application plea, and a ready plea bargain the enhance- plea bargain we see that presented The fol- And in- $10,000 for the a supra. hear- prior felo- Sec- ap- But do “Q. “A. “The Court: It’s a first “Mr. Leitner: It’s a first “Mr. Leitner “Q. “Q. “A. “A. “Q. gain in each case? 000 punishment of life. supposed ment, right. run pleas1 there is a each case of life. there is a sfc youDo ^[*] Yes, These It’s And do Yes, Yes, Now fine, concurrently? you five to going mandatory But there is not a imposed in sjs sir. to be that these are sir. sir. up ^[*] understand that the to be five to sentences; you understand that? mandatory punishment —with mandatory punishment you [the to be that life, n $10,000.00 ^[*] understand with the understand the and a prosecutor]: have entered first addition. ^[*] is that ^[*] life, you $10,000.00 degree felony. degree punish- degree enhancement, fine. n and a receive mandatory right? ^[*] going and is That’s n here, $10,- plea bar- fine ^[*] life “Q. you And have discussed also with copies plea bargain here with Mr. Holbrook and agreement as [Defense Counsel] disclosed.... you explained has he 29,355 Now Cause it’s Number your plea, going return for October, alleged that on the 30th of make an affirmative that there Texas, in Bell County, you 1980 used in either was there, having and after been arrested one of these cases? offense, and convicted of an to-wit: Yes, “A. sir. murder, intentionally and “Q. you may given the knowingly escaped custody So that bene- (sic) sheriff, Gunn, crediting fit of that ommission you Lester and that did there, your penitentiary; your escape, then and to effect served you intentionally do understand that? and threaten you use did use razor—a Yes, “A. sir. razorblade. Now, that, “Q. knowing you all

Now, pleas charge, your to that how do still insist on made, plead, guilty guilty? or not true as for the record? Applicant pleading robbery case case. also at the same time he entered a See, (enhanced).” Ex degree felony “A. Yes sir.” Nino, (Tex.Cr.App.1983). 659 S.W.2d Thereafter, applicant’s the court examined any effectively deletes reformation Such judicial life confession and then assessed affirmative judi- applicant’s each Our review cause. the terms of this satisfies all cial confession shows that he confessed to bargain. using deadly weapon, razor Turner v. to-wit: a blade, effecting escape. Compare: razor Fur- Del (Tex.Cr.App.1983). thermore, pleading the record contains a (Tex.App.— S.W.2d 776 gado v. Bargain denominated “Disclosure of Plea 1984) (guilty plea case where San Antonio Agreement.” This document reflects that although com indictment “Escape was to gun, by shooting mitted murder Degree Felony 2nd to a 1st De- Enhanced judgment contained affirmative gree” exchange life sentence. weapon-nor did it reflect Thus, clear that firearm, deadly weapon used was pleading third-degree escape, but was pro ineligible thus defendant was not voluntarily pleading guilty and bation). escape,2 second-degree to the offense of It is so ordered. is, escape weapon. that a deadly with judgment We turn and sen- now CLINTON, Judge, concurring. tence entered in this cause. Both reflect During determining wheth- the course applicant that the of- was found applicant made plea guilty by er the “escape deadly weapon fense of freely, intelligently, the tri- (enhanced).” voluntarily and We with that judge inquired of him: wording judgment amounts to al deadly weapon an affirmative “Q. you And discussed also with have of the and thus violates terms has [your attorney] Mr. Holbrook parties. entered into explained you that the plea, going to your return is not York, In 404 Santobello v. New U.S. that there was (1971), 92 S.Ct. 30 L.Ed.2d 427 find 1 in either one these cases?” used Supreme Court wrote that where into, bargain agreement is it must Yes, entered A. sir. by specific performance be enforced either Q. be you So that will benefit or else defendant must allowed to crediting ommission [sic] plea. Examining the current withdraw his your penitentiary; served in the area, particular we feel case law in this understand that? remedy proper in the instant case Yes, A. sir.” is, deleting specific performance, Nevertheless, opinion as the weapon affirmative out, points does describe sentence, for when “escape offense as judgment, is included in the such (enhanced),” seeming contrary to assur- considered good conduct time served is not an “affirma- ances prisoner’s parole eligi- computing the Now, made. finding” would tive

bility. Carrillo the situation proposes remedy this Court Paso, 1982, p.d.r.). (Tex.App.—El deleting says it affirmative what Therefore, order now we finding. and sentence be reformed In I am concerned over wheth- all found case to reflect Department may be unwit- “escape, a er the Judicial guilty of offense of 2nd emphasis indi- All is mine unless otherwise judicial the "Disclo- 2. Both confession and signed, Bargain Agreement” were sure of Plea cated. 23, 1981, January dated same and filed was entered. date Indeed, that, tingly thwarting having the maxim is ascer the will and determination meaning Legislative Department enacting legislative tained intent and valid § 15(b) 41.12, statutory provisions, courts have a of Article they to take the law as find my judgment it is incumbent on this follow it. practice Court to notice and address the hand, county being routinely in the trial the other district and now followed On attorneys respect courts of this State in constitutional officers bar- gaining negotiated pleas representing in certain The State of partici- Texas in all cases in the district court and kinds of criminal actions—when all situations, can, pants prosecution know the “inferior courts”—in certain well does, regulation re- usually prove subject the accused did indeed of their Legislature. Article deadly weapon during spective use or exhibit a duties §V, 21, during commission of a offense or Constitution of the State of Texas. therefrom, flight assigned by immediate the Their basic have been within duties § 42.12, 3f.(a)(2), meaning Legislature of Article V.A.C. in Articles 2.01 and C.P., prevent generally undertake to but still V.A.C.C.P. See Garcia § id., 15(b). consequences prescribed by Laughlin, 155 Tex. 285 S.W.2d 191 being (1955)2 Alaniz, just Shepperd This such a I now turn to principle implicated by (Tex.Civ.App. deal with the S.W.2d 846 Antonio —San practice. history.3 Interpretive no writ As Commentary following correctly Legislative power “The of this State out, “overwhelming points importance” Legislature shall be vested in ... ‘The of ” from their inherent those officers flows § III, 1, the Texas.’ State of Article Con discretionary power to determine “whether stitution of the State of Texas. The Court prosecution any given case shall inau- delegates has held that this section to the or, inaugurated, pushed gurated, if Legislature lawmaking power and authori measure of the successful conclusion”—the ty including right the to define offenses being initially by determined the latter also prescribe penalties therefor. McNew (However, prosecuting attorney. since State, 166, (Tex.Cr.App. 608 S.W.2d 176 convict, “primary their not to but [is] 1980); see State ex rel. Smith v. Black done,” 2.01, justice to see that is well, 97, Judge, (Tex.Cr. 500 S.W.2d 104 V.A.C.C.P., respective electoral constituen- App.1973). And it is axiomatic that the is the ultimate arbiter of cies of each Department Judicial has no concern with “successful.”) prosecutions whether policy underlying legis the wisdom of enactment, belongs prosecuting lative a criminal for such exclu One manner of sively Legislative Department. action to a successful conclusion contem- Har State, 505, plated Legislature through is by well v. 147 Tex.Cr.R. 182 the 713, (1944); imple- bargain agreement 714 79 followed and Gay 305, 200, (1916); by trial court. See Articles Tex.Cr.R. 184 S.W. 202 Ex mented the Francis, 304, disposi- “The 72 165 S.W. 26.13 and Tex.Cr.R. 147, (1914); charges by agreement criminal be- 154 see also a host of decisions tion of accused, id., prosecutor and the notes 16 and 17 under 1. the annotated at tween attorney attorney attorney may represent county assist the district 2. district shall the “[T]he prosecution Id., State in of all criminal cases in at the district court.” in cases in except where he the district court of his district attorney disqualified. is disqualified When the district is county attorney given is always principal duty been the 3. "It has right represent county to the State. Also the county attorneys investigate to district and attorney required represent in all prosecute the violation of all criminal laws ... criminal cases in courts other than the district courts, away duties cannot be taken and these appear repre- and to in district courts as given Legislature to others.” them senting attorney the State when the district Id., at 850. court, and, further, absent from district loosely eligible on ac- ‘plea bargaining,’ called him that he not sometimes warn was having deadly component is an essential of the adminis- count of used justice.” committing offense murder tration Santabello v. New 495, York, 257, 260, 498, rejected The the con- panel 404 U.S. 92 S.Ct. on trial. tention, reasoning (1971); Brady provision “this 30 L.Ed.2d see v. United 751-752, States, 742, applicable trial court makes only 397 U.S. 90 S.Ct. when the 1470-1471, (1970). such finding L.Ed.2d 162 and enters an affirmative conviction,”5 course, right finding “There no absolute in the guilty plea accepted any have a court not reflect and since record did a] [and may reject a in exercise of sound finding showing there was Santabello, supra, 404 judicial “ineligible discretion.” probation.” Jones at once reasoning, U.S. S.Ct. at 498. Delgado followed accepted agreed parties whereas Chief Justice Cadena believed the specifically bargain must be panel assumed that did Jones performed or accused will be an finding contain an because affirmative opportunity plea. withdraw Santa- had its attention not been directed “the bello, 404 U.S. 92 S.Ct. at 499. at concerning required findings rules following guilty or to the be made is such a In the instant case there judgments,” rules for construction though bargain; perhaps “it is shown that “the opined that under such rules weapon,” [appellant] used ... finding guilty, was re- court § 3f(a)(2), supra, part of to find that murder was accom- quired make the trial since in use of a plished effect and enter affirmative to that adjudica- of such the absence judgment, The notion has ibid. impossible.” guilt tion of would have been expressed, supra, at Delgado, 779.6 “obligated of law court was as a matter used a make a Although showing that the defendant committing weapon in the course weapon” “deadly seems used or exhibited escape,” support there is remaining provisions of trigger in, proposition e.g., Delgado § 3f(a)(2), reasoning em- implicit in the (Tex.App. Antonio 677 S.W.2d making —San by panel the is that ployed Jones C.J., (Cadena, 1984), PDR dis- history fact and en- finding of that an affirmative senting).4 are tering in the of conviction it mandatory discretionary acts rather than and the Delgado majority Both the dis- that when judge, so part the trial opinionby panel a of this on sent examined eligible State, acts are not done an otherwise in 596 S.W.2d 910 such Jones probation his eligibility retains (Tex.Cr.App.1980), coming to a differ- accused each notwithstanding the fact meaning and im- from the court conclusion about its ent deadly a 3f(a)(2) he did indeed use or exhibit scrutiny came under that pact. Section deference, extending that weapon. With case it was contended in the Jones when by to that failing reasoning leads the conclusion in to make that the trial court erred making expedient not and consequences simple the full admonishment as a finding a entering trial although he an affirmative guilty plea in was that against could the bar probation judge judge did not remove applying for finding by "Since, My view is alluded appellant own 6. 4. in order to find indictment,’ an "inferred trial Justice Cadena is at best murder ‘as in the Chief weapon deadly allegations find a finding” court had to used, instru- in duty mandatory to enter ment, was under finding guilt; it a evidence is and finding judgment. in its Its failure do finding” meaning “affirmative within not an Id., statutory ...” mandate so violated clear 3f(a)(2) (b). and of § at 780. opinion. panel Emphasis is added in granting in “shall enter probation any accused court’s similarly court,” consequences pro- situated. those and law, in including constraints vided What Jones overlooked that under is § 15(b), V.A.C.C.P. § 3f(a)(2) (b) and it is not so much matter the court it is eligibility In a trial before is authori- accused as it that defendant used or exhibited ty probation of trial court or shown jury grant prescribed in circumstances weapon “when it is shown ‘ § 3f(a)(2), question remaining is yet defendant used or exhibited a State, af- on.” Rivas v. (Tex. judge whether the trial must make an 627 S.W.2d 494 finding to App. refused, firmative that effect and enter Antonio PDR —San opined of the court. judge jury neither is autho- nor grant probation rized to in those circum- legislative pur- Given a clear intent and stances; May § 3f(a) pose enacting (b), its (Tex.App. 1983), disagreed with —Austin affirmatively providing only upon rec- Rivas correctly held that while the jury may of a ommendation a defendant judge alone “expressly forbidden to shown and to have used or found exhibited so,” jury proba- when the recommends do placed probation tion required by grant court is 3a to confinement, plea bargain lieu of that a § 3f(b) probation and is authorized agreement justify cir- a trial will order a defendant found cumventing certainty of extended con- of the second higher to be con- supported by any finement previous- Department fined Texas of Correc- ly rationale other espoused than in an exer- days. May for not tions more than 120 In Jones, supra. discretion, cise as in And 113-84, (Tex.Cr.App., No. deliv- Cadena in Delgado, supra, if Chief Justice 5, 1984), ered December found this Court accurately perceived shortcomings Austin Court Appeals that “the Jones correctly concluded the trial Rivas erroneous,” rationale is affirmed court had to find Thomas, judgment. Ex See also had perforce mandatory used and “a (Tex.Cr.App.1982). 907-908 judgment,” enter such surely refusal to so constitutes an abuse Accordingly, the results are that a trial of discretion. grant court alone probation to an eligible proba- accused who otherwise brought Thus we are back to the matter yet

tion is shown to have used or exhibited prosecutorial inherently discretion vest- but a recommenda- county attorneys repre- ed in district and jury required place court is senting a criminal action. See probation the defendant on in certain ante. premises being considered the may impose period cases of confinement power constitutionally tension between to be served at the outset. Legislature granted prescribe penal- penal ties for offenses and that defined the Court While does not deal prosecutorial power inherent exercise probation matter in the instant apparent at once discretion becomes Leg- context taught the lesson resolve, problem stressful. The is how to islature is that an accused to have shown ease, the or at least tension. deadly weapon used or exhibited a com- mitting fleeing from commission a in a criminal is a prosequi Nolle action suffering felony may not avoid prosecuting record at- declaration of consequences Depart- confined in the Texas torney prosecute” will “no further that he makes jury ment Corrections —unless a part the case either whole or in as finding, such affirmative and notwithstand- or some defendants. some counts Black’s finding, probation (Rev. Ed.). ing Dictionary its own recommends Law Fourth A.t com- granted. prosecuting But refuse to jury attorney be should the mon law the alone probation, to enter power prosequi, recommend the trial court still had the a nolle but contemplated by initially change Legislature saw fit to that which Texas the charging instrument. leave of the common law rule to the extent upon required court is reasons felony escape is a of the The offense judgment. in the and stated Wallace “used or degree if the accused second State, 625,170 762, v. 145 Tex.Cr.R. S.W.2d deadly weapon to ef- to use threatened (1943). deadly weap- escape” fect —“exhibited In the prescribed element. is not a on” legislatively is now em- crafted rule ap- case at bar the indictment 32.02, V.A.C.C.P., bodied in Article viz: to use and used a pellant did “threaten attorney representing “The That one “threatened deadly weapon ...” court, dismiss may, by permission of the necessarily that one not mean to use” does filing any action at a criminal meaning within the “used or exhibited” papers statement with written § Thus, 3f(a)(2). what setting the case out his reasons for majority opinion denomi- and the sentence dismissal, incorporated be which shall (en- “escape nate with judgment of dismissal. No ease shall hanced)” enough to ambiguously broad of the dismissed without the consent “threatened to use include presiding judge.” entering into prosecutor’s on.” Since authority of that statute the Under the agreement effectively plea bargaining may obtain dismis- Court has held State to use” and abandoned elected “threatened try “used,” accused higher offense and of the trial court sal of and the allega- agreement, the latter any approved included offense embraced lesser thereby dis- in the indictment was Clay instrument. within a the trial In these circumstances State, 451, missed. 157 S.W. 164 70 Tex.Cr.R. required to make an affirma- 567, State, court was (1913); Gentry v. 68 Tex.Cr.R. appellant “used” tive (1913). long Since it has 152 S.W. judg- enter such nor part providing held that of the statute been ment “merely directo- for a written statement the tri- necessarily mean does not sentence ry mandatory, and an oral motion ... court did. al sufficient,” supra, 170 Wallace approval at Therefore, was done what allegations ag- court verbal dismissal offend does not thwart or criminal action higher grade of offense is gravation Legisla- or of a determination the will and practice, and it has commonly accepted 3f(a)(2). since enacting ture in prosecuting attorney found that a the offense of which description dismiss, abandon, thereby adjudged to be may elect or he “used” a mean that paragraphs of a count—with read to one of two judgment and weapon, I the trial court. Foster permission of to describe be reformed (Tex.App.— sentence should 2nd “escape, a the offense as refused. PDR Houston [1st] (enhanced).” fully cognizant of the to be Presumed and or- join Accordingly, hold- findings and and related common law der of the Court. respect to nolle ings enacting predecessor prosequi, by TEAGUE, Judge, dissenting. Legislature reenacting agree with the to exer- I am unable to given approval and sanction Because has n appeal clearly every the record of discretion that prosecutorial cise of pleading to action, applicant of the that “was subject approval to reflects criminal third-degree escape, but was that well aware trial court guilty to the of- voluntarily pleading less actually assessed punishment second-degree escape, than, fense of than, consequences other related escape deadly weapon,” bargain agreement, with appli- I am com- The which pelled would approved, I would cant that he dissent. vote to set aside primary to the offense “true” to Hopson, appli- conviction Alvin James return, paragraph. the enhancement cant, would attacks and remand the cause judge the trial would not make an affirma- convicting to the Hopson court so that can finding tive that a had been replead to the indictment that cause—be- applicant used when committed offense cause of way judge trial read escape, applicant’s punishment would be actually indictment to him and to what he imprisonment, assessed at life and no fine pled guilty committing. appears This judge ap- would assessed. The trial impression. be a case of first proved plea bargain agreement and as- The applicant conviction that attacks imprisonment punishment sessed at life prose- this cause appears many be what penitentiary. cutors, attorneys, judges defense and trial juncture, ask, might At one this “What’s case,” would call a “wash out appears as it wrong legally with conviction?” represent nothing nothing more and less off, the judge, contrary First trial by than an get effort all to re- the case plea bargain agreement, after found moved from trial court’s in a docket applicant guilty, judgment entered in the satisfactory manner to all concerned. See applicant conviction had been post. question us, however, The before “guilty found ESCAPE not whether improper quickly it was (EN- WITH A DEADLY WEAPON case, but, dispose instead, is whether HANCED).” law, Under see our Art. 42.- disposed manner in which case was 15B, V.A.C.C.P., this finding Section judge the trial was done in accord- grave appli- have effect ance with the law. am unable to eligible parole cant could become judge correctly legally this conviction. This also caused a disposed of this case. plea bargain agreement. breach time, present At the serving learning judge, upon The trial or dis- (40) forty year sentence for murder covering contrary that his conviction, imprisonment robbery life for a bargain agreement, which he had conviction, prior felony enhanced with one approved, attempted things right to make conviction, and another life imprisonment entering tunc, pro nunc conviction, escape for an which is the con- appli- which new reflected viction attacks in cause. “ESCAPE, cant had found A The running concurrently. sentences are OFFENSE THE INDICT- LESSER THAN (ENHANCED).” MENT that applicant record reflects and his attorney into soon learned entered of, pro nunc would not prosecuting attorney in- tunc dispose things alia, legally right. He soon make re- Appli- ter that is cause before us. judgment, reinstated the scinded that cant was indictment original judgment of conviction. weapon, escape offense of degree felony. which is law second problem that appears It is be- Code, Y.T.C.A., A See Penal Section 38.07. fore this Court lies the fact that under prior felony conviction was statute, supra, see Section punishment indictment for enhancement of alleged where a is not purposes. allegations pos- These made the instrument, the maximum punishment sible provided same as that possible punishment for offense is that a first carries a which provided degree felony, as for a third punishment imprisonment which, maximum of life prior enhanced if with one $10,000 V.T.C.A., conviction, and a fine. See raises the from that provided degree felony, Section for a third 12.32. which punishment (10) carries a maximum Notwithstanding of ten applicant’s that it was years’ confinement in the penitentiary and plead guilty intention to to the indictment $5,000, V.T.C.A., a maximum fine of see drawn, I as it was believe that when the Code, Penal provided Section to that judge omitted the indictment the a second which carries a deadly weapon” effectively words “a (20) maximum twenty years’ against reduced the appli- accusation confinement in the penitentiary and a fine cant escape. to the lesser offense of $10,000. V.T.C.A., See Sec- fact, judge applicant asked the at But, everyone agreed ap- 12.33. plea proceeding, “Q: conclusion of the plicant sentence, would receive a life and Now, that, knowing all still there would not be a your pleas guilty insist on and true as they? didn’t made, Yes, (Em- for the record? A: sir.” Added). However, phasis provides the law Well, imprisonment it seems that life might that before the escape only possible the offense of offense, reduced to a lesser it must be done alleges proves that a prosecuting attorney. motion used or threatened to be used 32, Chapter See during escape the commission of the alleges proves the State also majority, without citation past had sustained at authority, says that as knew prior felony least one conviction. to, plead what he intended to guilty instance, In this without motion from the pled guilty fact that he to a different and prosecuting attorney, Chapter see V.A. another offense makes no difference. I C.C.P., page reflected on but as 547 of the must ask: Is this another form harmless majority opinion, judge when the trial read error that this Court has manufactured? applicant, indictment to the which Art. Compare (Tex.Cr.App. Almanza v. 26.11, V.A.C.C.P., done, requires must be 1985). so, If is this Court not bound allega he omitted from the indictment the to so inform the bench and bar of this tion that the instrument that was used in State? the commission of the was “a dead I Because am unable to with the ly weapon.” In Essary v. 53 Tex. legal that there is no difference (Tex.Cr. Cr.R. S.W. 930-931 person between what a intends to stated, alia, App.1908),this Court inter guilty actually pled guilty to and what he purposes requirement “one of the to, and because I further believe that what shall be read to the [the indictment] applicant’s plea occurred caused jury precise is to inform them in terms of knowingly, not to have been done which particular charge against laid de plea involuntary, turn renders I must applicable fendant on trial.” Is this not respectfully dissent. to set would vote where the indictment is read a defend aside the conviction and remand the cause ant? County to Bell so that can back Therefore, ask, effect, if we must what replead to the indictment in this cause. any, judge’s omitting did the trial from the allegation “a indictment the

on” have conviction? undisputed appli-

It is or should be go

cant’s did to all of the

elements that are contained in his indict- clearly

ment. The record reflects that

when the trial read from the indict-

ment he omitted from the indictment the

words “a deadly weapon.” page See 547 of opinion.

the majority

Case Details

Case Name: Ex Parte Hopson

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 17, 1985

Citation: 688 S.W.2d 545

Docket Number: 69310

Court Abbreviation: Tex. Crim. App.