*1 Although the State details the appear brief,
аnce of Preludin in no its there is record, color, evidence in the other than showing that the distinctive nature of the
tablets seized description matched the
Preludin. We are unable to discern round, the record whether the tablets were oblong square. Further, there is tes no
timony regarding markings, any, appeared An tablets. exami
nation the Physician’s Desk Reference pink reveals numerous appearing tablets re markably similar to Preludin. Without
more description present than is in the in record, tablets,
stant the introduction of the aor chemical analysis, we cannot find
officer We, was able to identify pills.
therefore, find the State failed to show a preponderance evidence that the sub possessed
stance was phenmetrazine. See State, Duran v. (Tex.Cr. S.W.2d 840 App.1977) (police qualified officer not testify а brown powdered substance is her
oin).
Although we find the evidence is insuffi- support cient to probation, revocation of prohibited from re-prose- euting this cause. Davenport See
and the cause remanded. parte
Ex Joe WILLIAMS.
No. 68898. Texas, Court of Criminal Appeals of En Banc. 1982. Rehearing Sept. Denied *2 Jr., Huntsville, for DeLong, E.
Robert appellant. Austin, Huttash, Atty.,
Robert State’s the State.
OPINION
McCORMICK,Judge. corpus for habeas an application to this Court which was submitted provisions to the pursuant court trial 11.07,V.A.C.C.P. Article 11,1981, arraigned May applicant On $10,000. The over of theft charge on a prior felony convic- alleged two indictment guilty, pursuant to pled tions. whereby the en- plea bargain be dismissed would paragraphs hancement ten-year receive a fine. The sentence and a pro- a further contained bargain agreement that, to the effect vision рaid restitution Lampassas Cattle Company $5100.00 sentencing, State would by the time court, af- probation. recommend admonishing questioning ter carefully evidence, agreed applicant guilty found the The trial court $10,000 and assessed theft more in the Texas at confinement Department of Corrections for a term of Corrections at and fine of Sentenc- Unit, Box Hunts- Diagnostic SfS.OOO.OO.1 ing was set for June By agree- ville, Walker, County Tex- ment, sentencing was moved to June as. 12,1981, 1981. On June court called *3 arraigned “2. Joe Williams was case for sentencing. Applicant asked the en- upon of delay court to sentencing one for week so a part Bargain tered as of a Plea that he could finalize for arrangements 11, 1981 Agreement May on payment of finе and restitution. The the offense Cause No. 9443-B for 9, court continued sentencing July until 1981, Felony of Theft. giving applicant four additional weeks to pay the fine and restitution ac- Court, “3. and Defend- cording the plea to bargain agreement. Williams, ant, Joe be agreed to When the case 9, 1981, was called on Bargain Plea Agree- applicant’s attorney admitted ment. had not $5,000.00 been able to raise pay to Bargain “4. in- Agreement The Plea the fine. Before sentencing applicant, a provision prosecu- cluded court asked him if he had anything to say of imposition bar of sentence. tor would waive the enhancement Whereupon applicant asked to dismiss attorney and counts of the and indictment withdraw his of plead a ten year Defendant would receive guilty. The court refused and then sen- $5,000.00. a sentence and fine of tenced applicant years’ to ten confinement the approximate Restitution in sum in the Department of Corrections.2 $5,000.00 was to of also to be The court refused give to applicant leave to Lampassas Cattle Company, the in- appeal the case. jured to party, sentencing trial, filed a motion for new 12,1981. If pronounced be on June motion to judgment, reform sentence, and the fine and Lampas- restitution to for relief, further permission motion for actually sas Cattle were to file late notice of appeal good for cause paid at the time the case called shown, a petition for writ of habeas sentencing, for the Defendant corpus. In a hearing September 10, held on probation would receive as to the 1981, the trial court denied each of the term prison and if not motions and made the following findings sentenced to 10 T.D.C. and fact and conclusions of law: $5,000.00. fine OF
“FINDINGS
FACT
“5.
ac-
May
On
1981 the Court in
“1. Joe
currently
Bargain
Williams is
an
cordance with the Plea
inmate
the custody of the Texas
Agreement
punishment
assessed
1. The
May
any
notation
judgment
docket
sheet
Neither
nor
docket sheet
make
1981, reads:
possibility
probation.
mention of
called;
present
“Case
State and Def.
w/coun-
2. The
sheet
docket
reflects
ready;
duly arraigned
sel &
Def.
and Plea
sentenced
a term
than two nor
to
less
‘Guilty’; range
& admonitions
Departmеnt
more than
in Texas
ten
given;
Bargain
court;
Agmt.
Plea
recited to
$5,000.00
and assessed a
fine. The
Corrections
evidence
Bargain
heard court bound
Plea
petitioner
to
sentence reflects
was ordered
Agmt.
Guilty
Degree
Hold:
of 2nd
Pun-
Theft
serve a term not less
two nor more than
$5,000.00
yrs.
ishment:
fine and 10
TDC.
years.
of the fine.
There is no mention
Sentencing
a.m.,
set for
6-11-81 at
Def.
sentence,
regarding
Below the notation
released on bond as heretofore set.”
judgment
docket sheet reads:
omits
mention of the
merely says
applicant:
sentencing
de-
“...
the court after
further
punished by
“... be
confinement
Tex-
‘Guilty’
permit
clined
Def.
withdraw
as
of Corrections
for a
term
guilty’.”
plea ‘not
enter
(10) years.
Judgment
in the
was made
in T.D.C. and
mention
confinement
However,
$5,000.00.
terms,
Bargаin
a fine
be-
the fine
the Plea
oversight
cause
the Court
of an
so
be made
or restitution
failed to mention the
to probation.
Defendant
entitle the
transferred to
Defendant was
“13. The
July 9,
“6. On
when the case was
custody
the Texas De-
the actual
sentencing,
called for
the Defend-
partment
Corrections.
ant had not
fine.
case
previously
had been
OF LAW
“CONCLUSIONS
set
formal
on June
of Criminal
“Only
Ap-
the Texas Court
had been continued at
request
grant post
con-
give
peals
jurisdiction
of Defendant
case,
Article
opportuni-
felony
Defendant
further
viction relief
*4
pay
11.07,
Appeals
to
the fine and
restitu-
of
ty
make
Criminal
Texas
jurisdiction only
tion.
to
(sic). This Court
Fact and Conclusions of
Findings
enter
of
“7.
gave
The Defendant
sworn testimo-
to the
all of the rеcords
Law and forward
at
ny
of
on
Appeals for its deci-
Court of Criminal
9,1981,
July
was financially
that he
not have the au-
This Court does
sion.
pay
unable to
fine in cash and
relief.
thority
grant
deny
to
or
plea
asked to withdraw his
guilty
plea
“Defendant,
Williams,
guilty
and enter a not
entered
Joe
11,
to
attorney.
and
dismiss his
1981 in Cause
May
plea
guilty on
9443-B,
Texas vs.
styled
No.
“8. The
to
request
Defendant's
with-
in
District Court of
Williams
the 87th
Joe
draw his plea
guilty
and to dis-
was
plea
Texas.
County,
Freestone
Said
miss bis counsel was denied.
Bargain Agreement
product
a Plea
“9. The
produce
Defendant did not
agreed.
Williams
to which Defendant
money
paid
to be
at sen-
required
the Plea
by
to be
agreed
The Court
tencing
pro-
as to entitle
so
him
9, 1981,
July
and on
Bargain Agreement
bation. Accordingly,
the Dеfend-
terms of said
with the
in accordance
was
probation
ant
denied
and for-
to ten
Defendant
sentenced
mally
sentenced to ten
Depart-
Texas
in the
years confinement
Department
of Corrections
and
fine of
ment
Corrections
9,
July
fine of
on
legally
$5,000.00.
confined
Defendant
1981.
of Corrections.”
in the Texas
9, 1981,
“10. On
the Defendant re-
plea
first contends
quested that he be allowed the
in this
sentencing procedure
bargain and
right
appeal and
be released
Equal
it
in that
violated
illegal
case
appeal
on
requests
bond. Such
States Con-
of the United
Protection Clause
upon
were denied
the Court
argument
on Bar-
stitution. He bases
Bargain Agree-
basis that the Plea
1977),
(5th
Hopper,
v.
947 addition, States, In distinguishable Brady Barnett is jury.” v. United 397 U.S. the case at bar 742, 752, Barnett’s bar- 25 S.Ct. L.Ed.2d gain agreement merely provided that (1970).
prosecutor would rеcommend that the court
Essentially,
bargaining con
impose
ten-year probated sentence condi-
prosecutor making
sists of the
concessions
tioned on the payment of a
punishment,
regarding
specific
lesser
court costs. When
Barnett could not
charges, or
reduction
counts
fine,
he was
years’
sentenced to ten
comprise the
in ex
charging instrument
imprisonment. There
no
for
provision
change
the defendant’s
concession
an alternate sentence should the fine and
his plea
of nolo contendere.
court costs
be paid.
bar,
In the
at
case
Supreme
United States
Court in Bor
prosecutor
called for the
v. Hayes,
denkircher
U.S.
S.Ct.
recommend ten
in TDC with the addi-
(1978),
duced, the
processes
correctional
can be- ment,
carry
the State is bound to
out its
gin immediately,
the practical
and
bur-
side
bargain. Compare,
of the
v.
Santobello
dens of a trial are eliminated. For the
York,
495,
New
404
92
30
U.S.
S.Ct.
State there are also advantages —the
(1971);
State,
v.
L.Ed.2d 427
De Russe
579
more promptly imposed punishment after
Likewise,
S.W.2d 224 (Tex.Cr.App.1979).
an admission of
may
more effec-
the defendant
is bound to
out his side
carry
tively attain the objectives
punish-
v.
bargain.
This
in Joiner
Court
ment;
trial,
and with the avoidance of
State,
739 (Tex.Cr.App.1979),
578 S.W.2d
judicial
scarce
prosecutorial
and
resources
terms,
said that
speaking
contractual
are conserved for those cases in which
when a
plea bargain
kept,
proper
there is substantial
issue of the defend-
relief
specific
is either
enforcement of the
guilt
ant’s
inor which there is substantial
plea,
or
withdrawal
de
doubt that the State can sustain its bur-
requirements of
pending upon the
the cir
proof.
den of
It
mutuality
is this
also
cumstances in each ease. See
Santo-
advantage that
perhaps explains
fact
York, supra.
applies
bello v. New
This
present
thаt at
well over three-fourths of
both
the State and
defendant.
the criminal
country
convictions
this
left
terms of the
are
to the
pleas
rest on
a
guilty,
great many of
parties.
them no
part
doubt motivated at least in
hope
or
pen-
Wyatt
assurance of a
In
Wyatt
serving ten-year probat-
plea bargain,
had been
a
so
uphold
part
ed sentence when he was indicted for for-
bound to
aggravated
gery
robbery.
got
and for
what
bar-
We feel the
plea
entered into a
bar-
Wyatt
State
gained for.
exchange
gain agreement whereby in
case which falls under
a
Wyatt’s plea
forgery
case
Illinois,
expressed in Williams v.
guidelines
a
and his
of true to
revocation
2018,
Although questioned this Court the terms give- with the dealing defendant. We plea bargain, Court refused to bar- negotiation and-take common rule that made such terms a void bar- and the prosecution between the gaining gain agreement. This found that defense, possess arguably relatively Wyatt had obliga- fulfilled contractual bargaining power. give-and- In equal tions robbery forgery but since the bargaining, the State cannot take of affirmed, cases were not the condition pun- unilaterally an unconstitutional impose to the precedent duty State's contractual free long so аs the accused is ishment did not occur and thus the did not accept offer. reject prosecution’s *6 aggravated have to dismiss the robbery Thus, bargain case. plea the terms Applicant’s first contention overruled. parties are to be left to the up dealing length. who are at arm’s the Applicant alleges next that Court will not interfere with those terms void and thus judgment and sentence are unjust. unless they appear manifestly to be process. violates due He his incarceration alleges judgment the should indicate the applicant We refuse hold that was with probation. disagree We granting plea bargain harmed terms Probation was never this contention. agreement. Applicant dealing was at arm’s earlier, the in this case. As noted granted length with the He was fully cogni State. prose was that the plea bargain zant of his own and financial situation ca recommend cutor would he pabilities. plea bargain agreed The However, years in TDC. unique was and tailored to his own individ before sentenc paid the fine and restitution ual no needs. There was violation further recommend ing, the State would equal protection clause. years. for ten probated the confinement be “Equal protection not free those does that, at the The statement of facts indicates who made a bad assessment of risks or a plea, applicant’s attorney time of both bad choicefrom the of their consequences this was a prosecutor agreed and that Jersey, decision.” Corbitt New proper construction of 492, 493,501, U.S. 58 L.Ed.2d S.Ct. went on to judge say: The trial (1978). the defendant “THE COURT: Will voluntarily en- knowingly please stand. tered “contractual” situation. Just stood) (Whereupon uphold part as was bound to its the defendant trial, applicant’s provides “THE COURT: Joe Ed Williams based at the time of upon evidence heard and considered filed within the motion new Court, agrees 41.02, the Court to be conviction. Article days after plea bargain agreement. V.A.C.C.P., appli- at the time of effect Now, at this time the Court you finds trial, the motion in provides cant’s guilty felony theft of offense of with- must also be filed judgment arrest of more than assesses your Thus, the days in ten after conviction. punishment at confinement in Tex- been sen- in this case could hаve Corrections for a anytime May tenced after ten years term of a fine of 9, 1981. he sentenced on indeed was $5000.00.” ground is overruled. Applicant’s third judge sentencing went on to set alleges that his Applicant’s ground fourth date objection and there no was viola- illegally suspended sentence was judgment by either his re- of the Texas tion of Article Section 11-A tained counsel. process clause of Constitution and due We believe the properly sets As have the Fourteenth Amendment. we out punishment announced in this case above, applicant’s punishment was stated recorded the docket At sheet. suspended. Any delay the trial court accepted the 12, 1981, after June occurred occurred guilty, punishment was confinement in rеquest applicant. at specifically years. TDC for ten Applicant’s second con- already pun- The trial had named the tention is overruled. pursuant the plea ishment Next, applicant argues that his “sen agreed applicant and the State. upon by tencing” was in fact the of his revocation Applicant’s ground fourth is overruled. probation without hearing, notice or fair or in right process. violation of his to due Applicant’s ground alleges fifth Applicant argues that since was released involuntarily was guilty entered. after entered, in effect argues He was not made aware imposition formal that, up if he could not come with suspended and he granted probation, money, prison. he would be sent to We the sole condition of his as a continuing free totally find this contention without merit. person being that he pay his fine. This statement of facts contention is totally without merit. which the was taken shows that occurred between the lengthy discussion In bar, the case at there was suspen- no *7 prosecutor, applicant’s judge attorney sion the imposition of punishment. The to bargain agree the terms the record shows that following acceptance the ment. The record reflects applicant the of applicant’s plea the trial court answered the trial affirmatively when gave applicant almost sixty days try to judge asked him if he wanted the trial raise money the to pay the restitution and the plea bargaining court to be bound fine. The alrеady court’s had addition, re agreement. In the record announced punishment at ten in TDC. trial, at applicant flected that the time of Clearly the court placed applicant had not forty-five old and had attended probation. college. two and a half Immedi 42.03, 1, V.A.C.C.P., Article Section in ately accepting applicant’s plea after applicant’s effect at the time of pro- guilty, following: the asked the vides that “... sentence shall be pro- in in presence any anyone’s nounced the the “... Is there defendant doubt any ... at expiration obligation time after the mind what the of the defend- the (sic) time for making allowed ant are as far as the total of having motion for new satisfied, trial or the motion in judg- arrest 40.05, V.A.C.C.P., date, $5,100.00 ment.” Article to Lam- paid by in effect that Yes, sir. “MR. PEARL: passas Company satisfied at Cattle the recommendation to answer you receive I need “THE COURT: otherwise probation your response. confinement argue will in favor of
State Yes, sir, it It is my is. “MR. PEARL: of Corrections. Lampassas Cattle understanding the mind anybody’s Is there doubt restitution with their has been satisfied about that?” fine is thousand dollar the five still— as to question raise a Honor, at that time. I would like agreement the terms of Your “MR. GAGE: Furthermore, testimony presented no to— hearing this writ evidentiary at the me, gentlemen, Excuse “THE COURT: aware that show saying I if what am proceed I with may pay if he could not sent TDC lot? mind whole you don’t argu- Applicant’s the restitution and fine. or thereabout we 10th That on June is ment without merit. Court, June 12th hearing this had а be, does argues that the record to we had a dissent out turned defendant clearly reflect that understood which time the this court at obligations or continuance on conditions first motion for filed his A that time parties. sentencing. were clear to the At the matter of little the court that reading of this entire record leaves advised the defendant to get parties all understood had been unable doubt that the defendant is an- requested demon- money together throughout correct, Mr. Pearl? places week, strated numerous is that other sentencing, at the time of record. Even correct, Your PEARL: That “MR. applicant, attorney, prosecutor, Honor. court were all in had the at And State “THE COURT: conditions: complied with its completely that time 9443-B, No. regard “THE COURT: In agreement? plea bargaining end Williams, vs Ed The State of Texas Joe know, as I Your As far “MR. PEARL: says what State? Honor. Honor, (Prosecutor) Your “MR. GAGE: Court then said “THE And the COURT: ready. I enough and weeks be would two was, says yes, “THE What the Defense? two ‘Golly, COURT: response think the and I said will be super,’ weeks would We (Defense Attorney) “MR. PEARL: 9th, July reset it a month and give you time, Your ready proceed at this were you a.m. and morning, 9:00 Honor. to be here at 9:00 unable Now, it is Very “THE well. COURT: this after- 1:00 o’clock held off until plea bargain- my recollection that the past is now six minutes noon and it in this mat- ing was somewhat unusual 9th, afternoon on the 2:00 originally ter. it was entered When correct, Mr. Pearl? the position defendant took That is correct. PEARL: “MR. the restitution could *8 client, Now, your has “THE COURT: some Lampassas Cattle brought in defendant, Ed Williams Joe a five four five dollars and to thousand in accord- the five thousand dollar thirty fine on or before thousand dollar agree- plea bargaining ance with 1981,which days May, 11th ment? the 10th would have been about not, Honor. Your June, granted PEARL: He has then he would be “MR. problems it have the same Basically we and if he couldn’t years probation hearing on sentenc- last had at the time. Is we years would be ten hard has not the land correct, say is to ing sir? Not that I know of. been—the who “MR. PEARL: people going were the money against loan the land are anything there “THE COURT: Is title, not satisfied as to the as hadwe by the remains undone defendant? it you know is a homestead Yes, sir. sell— “MR. PEARL: Honor, property, Your and it had be a result of what “THE COURT: As sеparated proper proce- to follow the done, say, I should or not done had effectuated, dure and it has not been under penalty appropriate what is the the title company yet up has not come bargaining agreement? guarantee with sufficient title in the Texas PEARL: Ten “MR. person going loan. who make this Department of Corrections. “THE COURT: it appropriate Then right, probation, Without “THE COURT: go this for the Court to forward isn’t that correct? with the my understanding That is “MR. PEARL: Texas Department Corrections. the plea bargaining. Honor, great “MR. PEARL: Your with yours, Very well. Is that “THE COURT: I trepidation, guess, again I urge Mr. Williams? justice if the ends of were be served Yes, sir.” “THE DEFENDANT: and the bargaining would be added) (Emphasis served some other sen- means than If demonstrates this record anything, tencing Mr. Williams to the Texas De- more than he applicant got that the much
partment of Corrections at this I time. bargained for. would suggest Mr. Williams be incar- jail cerated here in county a week Furthermore, argues the trial or so to see if thing go this can through incorrectly applicant that court admonished promised to the Court. to which he could be maximum sentence Pearl, “THE COURT: Mr. first of all this argument is years. sentenced was ten always Court is greatly disturbed when of facts from also frivolous. The statement it has to prison send one to regardless at which of the nature of the crime for which he following admonish- taken contains the stands convicted. Kindly me interrupt ment: if I am in error. This defendant has well, sir. un- Very You “THE COURT:
pleaded guilty, has been admonished of a person found derstand a given range theft of more felony offense of cause, is that correct? punished by confine- may be of Cor- “MR. PEARL: That is true. ment not less period rections for “THE COURT: And the bargaining and a twenty more than than two nor writing referred to and reduced to $10,000.00. toup fine of thought in this matter. It was at least Yes, DEFENDANT: Sir. to, “THE orally agreed just top my off the head— Understanding “THE COURT: you persist range of do punishment, It “MR. GAGE: writ- was not reduced to your plea guilty? ing. Yes, Sir.” “THE DEFENDANT:
“THE COURT: It was reduced to writing agreed. All merely orally friv- applicant makes another Additionally, right. The record will reflect whatever argument olous when asserts was, but whatever it was court that the could prosecutor promised everything State done it was supposed plea bargaining agreement. days over thirty ago? dо refutes clearly of facts statement Yes, “MR. PEARL: sir. allegation: *9 understand, Now,
“THE
do
anything
you
COURT: Is there
that
“THE COURT:
Williams,
is not
remains undone
that
this Court
State?
Mr.
CLINTON,
dissenting.
Judge,
follow
rec-
obligated
may
ommendation that the
make
State
verity
opinion demonstrates
majority
in this mat-
regards
cases make bad
saw that hard
of that old
ter?
agreement to
Likening plea bargain
a
law.
Yes,
“contract,”
carefully places
majority
“THE DEFENDANT:
Sir.”
a
marks,
quotation
thereby
within
the term
We
that
not shown
hold
But whatever a
the likeness.
qualifying
the plea
involuntarily
that
entered.
its
is, certainty in
terms and
negotiated plea
We have
all
circumstances
examined
to a clear
a touchstone
surely
conditions is
surrounding
agreement
plea.
consequences of
hold
voluntarily
that
entered
understanding,
its оwn
majority
states
States,
by applicant. Brady
v. United
can,
determine, if
what the
let
we
us
supra.
understood.
parties to
“contract”
appli-
admonishing
the course
During
ground
Applicant’s
alleges
sixth
his awareness
indicated
judge
cant the trial
he was
deprived of effective assistance
attorney
and asked
agreement1
of an
counsel
guaranteed by
the Sixth Amend
that plea
“to recite what
bar-
applicant2
ment
permitted
when his retained counsel
record.”
gaining is
him to
allegedly illegal,
enter into the
void
sir,
understand,
As I
Mr.
“MR. PEARL:
plea bargain agree
unconstitutional
negotia-
I have entered into
Gage and
ment.
Effectiveness of counsel must
Mr. Williams
tions
in that
which resulted
gauged
ef
“reasonably
the standard of
indictment in
plead guilty
fective
parte
assistance of counsel.” Ex
a
recommendation.
return for
two-tiered
Duffy,
(Tex.Cr.App.1980).
So terms the Court’s sentence of the purported $5,000.00, the were al- it still leaves the impose respect tered in one each or another plea bargаining of the portion unsatisfied them, to state especially someone undertook the notarized being that agreement, regard continuing with to applicant’s liabili- Lampassas of of satisfaction statement $5,000; for ty fine its payment of a of was until restitution Company Cattle the judgment omission from the of made.” a during court became of point discussion a we of So, the fact learn months after the habeas viz: hearing, an- yet there was party belief one that by “MR. I cannot find the DeLONG: the “contract.”6 aspect purported other $5,000.00fine anywhere judgment. in the the solution of majority approaches THE COURT: I don’t it in believe is cause on the problems presented in this there, see, that is Gage’s point, you Mr. plea key is to find in the premise that the the was part punishment, fine not of the applicant which that bargain the part punish- restitution was of the it, do, understands majority was to as ment, his bargain but was if he made the his obli- understood applicant and whether fine, paid restitution and then he them. But gations majority as finds probated.”5 would have ten years all approach presume seems to moments, In a presumably having few of the other terms and conditions perused the judgment, County Attorney provide a clear under- enough certain Gage his frankly recanted assertion that the applicant if he standing consequences fine been in judgment, had assessed majority believes perform as then opined: demonstrated, to do. As obligated was a two-pronged bargaining, “[I]t however, is now the record far even Lampassas Compa- satisfaction of Cattle re- Still, majority certain clear. $5,000.00fine, ny either which rationale that problems solves the on the not being calls for a ten year satisfied en- “knowingly voluntarily sentence. Certainly restitution is ‘contractual’ situation”— tered punishment, it is term and condition in the sense intelligently, he did so whether probation or, if probation granted, is consequences, its is that he full understood case, part in the plea bargaining this not addressed. regardless event So $5,000.00 cautioning an accused purpose whether not the should be statutorily and whether or admoni- through prescribed by that, way,” referring by be confined have not seen Certainly, for Corrections a term of not less than two “some form of affidаvit tendered.” nor more impression in accordance under the Mr. Pearl was provisions satisfied, with the law and of law...” Lampassas had been Cattle Thus, notwithstanding colloquys the earlier represented approximately one “there is entered, when the a fine was neither deposit office on Clerk’s thousand dollars imposed. assessed nor suggest- having to do with another matter” be confined in Freestone ed that good day applicant proba- personally Till County four Jail see if the last of this “to bly know, majori- its does not and in note 2 the jme suppos- can «. in as was thousand dollars ty reveal, fails 1981 docket impose on to the court moved entry ed to.” When it mentions recites that fine is allocution, parole.” sentence and еxtended “to be collected as term of change Pearl and first tried “dismiss” Mr. July 9, 6. At outset plea; too that he he also demonstrated then court, hearing, my Mr. Pearl advised “It suppos- “was believed the matter of restitution Lampassas has been Cattle having disposed ed to have been of” satisfied with their restitution five but the thou- company “four transferred to interrupted sand dollar still —” but was compa- put [the cows and four calves... Gage Honor, Mr. “Your with: would like vicinity ny] somewhere interrupted to —” who in turn the trial profit they claim as a loss.” judge. Gage say managed Later Mr. is, mind; probably what was on his that “I Brooks, tion before accepting guilty, pro Arti- Charles Elton se. 26.13, V.A.C.C.P., cle “is to that the insure Huttash, Austin, Robert Atty., State’s
defendant entered his
with full knowl-
the State.
edge
consеquences,”
its
and its function
is to make
showing
affirmative
“[a]n
OPINION
knowledge
such
re-
constitutionally
[that]
*12
quired
Alabama,
as well. Boykin v.
395
ROBERTS, Judge.
238,
U.S.
89 S.Ct.
constitutional requirement discharged. BE- “SUBSCRIBED AND SWORN TO Accordingly, grant _8_ Feb, relief. [signed] Since FORE ME DAY OF 1982 not, the Court does I respectfully dissent. E. E. Alford IN NOTARY PUBLIC
AND FOR ANDERSON COUNTY TEXAS. ALFORD, E. E. NOTARY PUBLIC AN- P.J., ONION, ROBERTS, J., join. CO., TEXAS, DERSON MY COMMISSION EXPIRES, JUNE 1984.” only petition answer State’s was,
“Applicant’s Application Writ of Corpus Habeas is in- filed this Court law sufficient in and should not be heard every this Court as each and allegation parte Ex in Applicant’s Application contained Charles Elton BROOKS. required by Ex sworn law.
No. 69015.
Young,
[(Tex.Cr.
Parte
It and the convicting Young court have misread Jackson, supra. Young examined then- 11.07, recent revision V.A.C.C.P. Article applications seq., govern Sections et corpus felony for habeas relief from final