*1 payment of prompt to make fault or failure indebtedness, to sell the part of such sale posting notice after
property days twenty-one pri- successive least Stevens had day of the sale.
or to the payment of prompt to make
clearly failed As discussed indebtedness.
part of the preclude did not
above, Ford’s waiver C. W. sale notices of were
the foreclosure. number requisite than the more
posted for failure tender after Stevens’ days require all of
delinquencies. Since complied were the deed of trust
ments of valid. Hav
with, sale was foreclosure due on the
ing to tender the amount failed sale, Respondents prior
note Breitkreutz v. cancel sale.
right 574, (1940);
Cook, Tex. 144 S.W.2d Watson, (1884); Tex. 679
Hemphill v. (Tex. Etheridge, v. 428 S.W.2d
Whalen 1968,writ ref'd n. r. Antonio
Civ.App. — San
e.). opinion it is
Accordingly, our judgment defendants’ favor
trial court’s judgment we reverse proper, and affirm the Appeals of Civil
the Court of the trial court.
judgment and A. L. Allen
Delbert GIBSON
Reeves, Jr., Appellants, Texas, Appellee.
The STATE
No. 50197. of Texas. Appeals of Criminal
Court
Nov. 1975.
Rehearing Feb. Denied
pleas and the refusal the trial judge, after assessment punishment, to permit withdrawal of the pleas and award new trials. The substance all grounds of er- ror is appellants’ stated in brief as follows: “The sole issue is ‘whether the plea by Gibson and made, Reeves was voluntarily or whether in fact, truth and it in- duced guarantee bargaining ” of the State and the Sheriff?’ The record on appeal before us contains transcribed court reporter’s notes from hearings on four different days. On May 16, 1974, the pleas guilty were entered and accepted, appellants and were found 11, 1974, guilty. July On appellants again appeared punishment and was assessed. August 28, 1974, On the court heard and appellants’ denied motion for new trial. Finally, appellants November were called before the court for formal pronouncement of sentence. 16, 1974,
On May accepting appel- before lant guilty, Gibson’s made the following inquiries, among others: “THE you COURT: Have been per- suaded to plead guilty against your will? No, “THE DEFENDANT: sir. Friloux, Anthony Jr., Houston, Rodger C. you “THE prom- COURT: Have Marcos, Zimmerman, appellants. M. San anything ised in this case— Vollers, Atty., Jim D. State’s and David No, “THE sir. DEFENDANT: Austin, Atty., State’s McAngus, Asst. S. plead “THE guilty. COURT: —to You the State. you plead guilty case, know that if in this and evidence shows you’re
OPINION guilty, attorneys may make a Court, recommendation to the and that’s ODOM, Judge. is, all that I recommendation. do not Appellants and third codefendant who take the recommendation. appeal his conviction waived trial did Yes, “THE DEFENDANT: sir. guilty entered jury of burglary court to the offense with intent it, “THE COURT: I will consider but The all; to commit theft. trial eourt denied that’s just consider it. If rec- appellants to these sentenced you granted ommend that years’ to five confinement the Tex- each may deny that recommendation and send Department of Corrections. you to the penitentiary for as much as years. twelve You understand that? Appellants grounds raise five of error challenging Yes, the voluntariness “THE DEFENDANT: sir. that, punishment The assessed in each case Knowing all do “THE COURT: years denied At that at five in this case? plead guilty still point appellants sought to withdraw their Yes, sir.” “THE DEFENDANT: pleas, defense stated as counsel following inquiries appel- were made grounds: *3 “ Reeves: lant course, has . . Of . State made its recommendation for anyone promised Has “THE COURT: course, discretionary of it’s with realizing, guilty? anything plead to you But, nevertheless, deci- Court. No, sir. “THE DEFENDANT: sion to of was based enter upon entirely solely and the recommenda- probation hope tion for and the delusive I don’t know whether I “THE COURT: ” of . . . getting probation. not, but the recom- A. L. Reeves or told Attorney of the District mendation The trial refused to allow withdrawal nothing is more than recommen- pleas. State probation He may dation. recommend Subsequently appellants filed motions for peniten- you could still to and I send new trial alleging part they in that entered tiary. only they of because had been pleas Yes, sir.” “THE DEFENDANT: guaranteed was an af- probation. Attached Kinser, by Bobby fidavit read into Sheriff guilty, of accepting pleas After evidence, it is in which stated: further judge stated: “ ‘I none of am aware fact that announcing judgment “In addition to this in case would Defendants here, you granted probation, if should be Guilty” to a changed plea of “Not their be, don’t think that I’m you if should and “Guilty” they assured to be I you’re going that because saying they that receive probation.” would know, your are not if records suffi- don’t by Also an affidavit District attached was cient, past are not your records sufficient Attorney Fielder which recites in Richard good I be to warrant what think would part: risk, well, I will send to the probation “ " allegations of cognizant T am . . Department Corrections. . foregoing contained in the verified Mo- July 11 case was called assess- On Defendants, tion Trial for New Prior assessment punishment.1 ment Reeves, Delbert Allen and A. L. Gibson recommended punishment prosecutor Jr., allegations and cor- and said are true made the and defense counsel probation Further, fairly rep- rect. in an effort to following the court: statement Texas, people resent the State request authority me as respectfully I and vested in “Judge, would compassionate Attorney in Judicial very District the 22nd the Court probation. District, grant boys agreement these I made an with the case and this Gibson, impor- Defendants, not that A. L. Delbert Allen The term Miller, Reeves, Jr., Larry fit after read- and Wayne has seen and Mr. Fielder tant. record, M. Zim- attorney Rodger to recommend their investigation ing all merman, probation in their you’re I the final to recommend know case, urge upon change But we would if their word. leniency this The basis Guilty” “Guilty.” extreme from Court exercise “Not trial agreement them was to move the grant proba- all three of this and case docket to see that was you.” restitution Thank tion. (1975). Cr.App., S.W.2d 263 Faurie v. Tex. Cf. made. Restitution was in- to the made and the I penitentiary. my duty realize terest of the of Texas best State individuals; defense counsel with these “plea bargaining” proce- served this further than duty, know- dure. ing this past what Court has done “ other what courts do the past. slightest ‘There not the doubt talked with these Defendants about it my mind that had these Defendants said, ‘Regardless and I of what the Dis- thought get proba- would not does, trict Attorney tion, none them would have power to do whatever he wants do Guilty” “Guilty” of “Not within what we’re thereby talking about. But given up their fundamental ’ when right the State’s attorney to a trial and the law by jury.” agencies enforcement get all behind appellants Both hearing testified at the *4 probation, recommend will go and far so on motion. Both they testified that as promise to and to if add that the Court promised probation, yet were both also ad- does join not for any reason at all ‘I’ll at they mitted that the time entered their you,’ think, with Judge, then I to send pleas they they told the that had been these young two men to the penitentiary promised nothing acknowledged and that ” would be a real . trick. . . judge explained trial had to them that any recommendations made would be noth- appellants On appeared November 21 for recommendations, ing more than and sentencing. pronouncement Prior to sen- trial court could peni- sentence them to the permitted sheriff, tence the trial judge tentiary despite any recommendation of defense counsel and himself to be called witnesses the defense “to make a record on some he matters.” Counsel that stated
Following presentation of evidence at had filed a to Judgment “Motion Set Aside hearing trial, on the motion for new counsel on Plea of Guilty Judg- and Assessment of argued: “ ment The testimony was not rele- [sic?].” . . . I am But convinced that vant to support or offered in of any of the men, young these two all three of these grounds 42.07, V.A.C.C.P., stated in Article men, young would not have their prevent as reasons to sentence.2 they if in their own mind weren’t go that were they going convinced not In their appellants brief assert: properly (Cf. If us they get jail before McCall any sured them would not 334), Tex.Cr.App., 512 S.W.2d the record time. hearing at made that reflects: Yes, “A. sir. The sheriff testified: that, your As a result of after con- “Q. right. your testimony it All Is that your “Q. following ference with negotiation, clients plea bargaining place took they between agree change did then prosecution you yourself with as the plea their on that assurance? investigating present, officer the defend- Yes, that, might “A. sir. I add to lawyer, ants and their Mr. Zimmerman? Attorney District something told us that in the event “A. Yes. happened, that the Court plea bargaining a result of go along plea, As that would necessary, “Q. not with if its that reached, not, agreement extent, an was it for was and to that he went probation? join opposing would in with us not a Mo- trial, put “A. That’s correct. tion a new in them back they prior changing the stature were in And at that time were defend- “Q. plea did, they their plea they which he ants that if did for which told would respect living I get up him go in to his in word would not have to so, doing jail. and he did. Yes, “A. sir.” any your question Defense counsel testified: Was there in “Q. right. you negotia- As a of a mind when discussed the matter after All result “Q. Attorney agree plea bargaining tion did the District that with that the clients probation he would recommend and as- would be honored? No, “A. “Q. sir. Note 2—Continued any right. your question judgment really All Is it wasn’t that There mind. “A. record based on defendants accordance with what my I knew the the conversations with the two acted in in individuals. always out- an they it was I knew cause this that discretionary being possibility they thought side was probation that agreement the Court an matter with would had which would resulted I necessarily granted. But be getting probation not in their ultimate idea, suspect of earthly I nor did decision? dreams, honorable that if this my wildest Yes, sir, alternate; “A. or in the probation grant after not Court State one-way least not have a ticket to the they it, and after had recommended penitentiary.” plea bargaining changed their trial testified: allow them system, withdraw he would not that Yes, “Q. sir. At time the put them back their was recommendation made the Court prior to were stature same had the matter referred plea. changing investigation. officer for an feeling right. “Q. was that It on All you and based on made that decision 'Right. “A. “Q. having experience had your prior never right. At the time sentenc- All you went problem that in this area ing of the recommendation of the State also tion place then was aware took the Court bargain and recommended ahead presence be in their had made proba- it the results of the honored. investigation. The Court at Yes, sir. “A. record, time, as recall from the advised your “Q. with the from discussion And to, boy, going one that was testify whether can client would been given probation. The sentence as to to the other *5 gone if had forward there have two, think, they years, had five I any was question mind there in their Corrections, Department in the Texas of getting jail any time? chance give probation. as the Court could not I No, absolutely no sir. There’s my “A. might specified have think the Court looking question that, back now in mind Honor, prior for it. Your to this reason time, question no there was at time, Attorney has been since this District they my not but that if were mind in office, question I’ll ask the as to the until the in they really that didn’t believe and assured up predecessor, has the Court get they probation they wouldn’t were and case on date the Reeves Gibson and, plea; changed their have proba- recommendation of the State for further, any idea on there was remote if plea bargaining had taken tion where they would not be allowed mind that their to not place, either to notice on has Court without plea probation was withdraw their if parties specific in and cases refused go they to the granted that would recommendation, accept even they have con- penitentiary, would never though the Court was then made aware sidered it. made, plea bargaining was, a had been Now, that decide that guess, com- “Q. was the Court would not foEow the yourself, to the defendants municated bargain subsequently pros- sentence them investigating officer and the jail time? ecutor. Yes, Now, “A. sir. “A. I have. “Q. regard “Q. in to the admonition prior Does Court recall to this given which defendants that was the Court any specific Reeves case Gibson and where this wasn’t cases not that was has advised given? recommendation, and so bound specifically “A. I don’t remember one forth, you this admonition heard Hays County. However, at or about bargaining plea other cases where the had pleas the time these were entered and the honored? plea bargaining was discussed between Yes, sir. “A. “Q. defendant, defense, and the and the like- the defendants In those cases attorney, State’s the recommendation was bar- say, had no defendant ‘No. The wise presentence made Court after a gain.’ investigation Court, presented to the two minor correct. “A. That’s “Q. having instead of the defendant prac- you’re with this familiar And found, wrap violations I sheet that was not as a result of a not, throughout are tice trying presented to the Court districts. other cases at the time was entered but was Yes, sir. “A. presented pre- then to the Court in the generally procedure fol- “Q. that the Is investigation, sentence that the defendant experience your been? as as far lowed had some ten or twelve arrests in the last procedure. no other “A. I know “Q. years; or four three which time I de- bargaining stat- have no We recommendation, clined to follow the sentence the defendant to par- specifies as which Texas ute years five questions. we? sequential Do ticular pellants’ guilty dispute following pleas “There is no were induced by a guarantee probation, contained in the was, material facts Statement on the record us, of Facts: an issue of fact which the trial against court resolved appellants. The record contains evidence sufficient to sup- “(6) attorney That the district Fielder port the implied trial court’s finding that they get guaranteed Defendants would there guarantee, was no but that instead go jail they and not if probation there was nothing more a than traditional changed plea. their plea bargain and valid by which prose- guaranteed “(7) That the sheriff agreed cutor to recommend probation. It if made restitution and Defendants appears upon that failure of the trial court changed plea, they get proba- their to follow the recommendation for probation go jail. tion and not appellants sought to pleas, withdraw their “(8) That the defense counsel assured bargain because failure guaran- bargain guarantee Defendants the teeing but because their assess- by the kept would be State. ment of weight prosecutor’s “(9) That the Defendants would not recommendation would carry with the trial proved inaccurate. except their for this guarantee.” The record not show appellants’ does guaranteed were induced by proba- reading whole, A record as grounds tion and the error are overruled. portions including quot those of the record above, ed reveals that the assertions made Suggested by the record but not by appellants “guaranteed” were adequately developed in evidence or ar are means established gued on appeal possible prose- are claims of undisputed Appellants at the fact. time misconduct, cutorial ineffective assistance entering informed the court that counsel, or both. The American Bar *6 to promises had been made and indicated Association Standards for Criminal Justice any recom the court that understood (though not adopted State), in this relating of would not be bind mendation Function, Approved the Prosecution court, ing on contrary, but Draft, (Section 2.8(a)), state, “It is imprisonment court could sentence them to unprofessional conduct for a prosecutor in notwithstanding of any recommendations tentionally misrepresent matters of fact by defense Statements counsel or law to the court.” The Standards relat acknowledged his understanding full ing Function, to the 1.1(d), Defense Section part and communication his clients of state, is unprofessional likewise “It conduct of principle law that on the decision of lawyer intentionally misrepresent a to grant probation is whether matters of fact or law the court.” Re discretionary garding “the final word” and “it’s plea bargains, the Standards relat issue, ultimate ing with the court.” The state to the Prosecution Function brief, appellants’ ap- 4.3(a) (b): framed in whether Section by recommendation been made Note 2—Continued the State. The Court’s well aware from burglary. rehearing penitentiary for On reply to the record the defendants’ it four when he made some reduced promised question Court’s ‘Have restitution. ’ by anybody . . . the rest admonition, said, they responded in right, All sir. Your Honor took “Q. negative. I would ask the Court this. during part proceeding and in the bargaining Generally speaking, sentencing pre- itself course the actual is cases isn’t it true where there a recom- paratory to the Motion for Trial. New from the State that the defend- mendation give admonition and did The Court did respond ants manner? make a statement that he not bound itself, by, according to the statutes “A. It is.” 4.3(a) (b), supra, and Defense Function for a conduct “(a) unprofessional It is 5.1(b), supra. represent com- To then any promise or Standard to make prosecutor which concerning entry the sentence to the court at the that no mitment concerning suspen- a plea bargain has been struck or that no imposed will be sentence; advise may properly he improper plea bargain has been struck sion of take position he will what the defense would violate Prosecution Function Stan- concerning disposition. 2.8(a), dard and Defense Function supra, 1.1(d), To stand silent supra. Standard imply- should avoid
“(b) prosecutor A representa- while makes the defendant dis- to influence the greater power ing a tions prosecutor known and defense possesses.” a case than position of possibly counsel to be false would violate proposed in are following Standards previously both cited standards and Defense Function: of the Defense the delineation 7.5(a), supra. Function Standard 5.1(b): Section stated, previously As record for a law- conduct unprofessional “It is prove before us does not and the brief does understate or over- intentionally to yer quoted not assert violation of the above risks, prospects hazards or state supports implied The record standards. influence on the to exert undue the case findings the trial court. ruling plea.” as to his accused’s decision Nevertheless, from the quoted we have 7.5(a): Section for Criminal Justice in order to Standards conduct for a law- unprofessional is “It draw the attention of bench and bar to evidence, knowingly to offer false yer proper plea negotia conduct of the need evidence, documents, tangible whether tions, and demonstrate the soundness of the witnesses, testimony or fail to or the practice upon entry recommended of a discovery upon thereof seek withdrawal guilty plea inquiring whether the falsity.” of its consequence negotiations, so, and if negotiated plea us no more what the terms of the are. Although the record before State, Tex.Cr.App., Galvan v. supports findings of conduct violative Of. court, 24, which the trial as in the supports than it S.W.2d quoted above standards case, highly were induced instant followed “the desirable finding that (Galvan v. only practice” we can con- S.W.2d guarantee of latter, 26) it to the accused that a support explaining clude that were it to recommendation, only certainly support the former. recommendation almost *7 No less desir are and does not bind the Court.3 and defense counsel prosecutor The practice any to a a is that the results of authority to bind the court able without plea negotiations upon plea which the is based probation by or to punishment fixed to the trial court and made negoti- a be made known negotiation. attempt An to base State, Cruz v. part of record. guarantee a See plea upon ated such proper- 817. Tex.Cr.App., Function Standard 530 S.W.2d Since violate Prosecution 26.13, V.A.C.C.P., appears also note that Art. unless it that the defendant 3. We amended, after the trial in this effective mentally competent plea and the is free case, provides: voluntary. guilty “(a) accepting plea of Prior to “(c) admonishing In the defendant as contendere, plea the court or a of nolo compliance provided, herein substantial of: admonish the defendant shall sufficient, by the court is unless the de- “(1) range punishment attached affirmatively that he fendant shows was offense; and to the consequences plea of his not aware of the any “(2) the fact that recommendation by and that he was misled or harmed attorney punish- prosecuting as to of the (Emphasis of the court.” admonishment added.) binding on the court. is not ment guilty plea “(b) plea or nolo No by accepted the court shall be contendere That acceptable plea process and im- negotiated pleas bargaining are ly is an plea indispensable invol- proper plea bargains render element of our jus- criminal tice nothing system and all to there untary, longer there is lose can no any be See, negotiations g., doubt. e. gain by bringing State, the fruit Guster v. 494 (Tex.Cr.App.1975) S.W.2d and into the record. out the closet (concurring opinion); York, Santobello v. New 404 U.S. supports The in the instant case record 257, 495, 92 S.Ct. 30 L.Ed.2d (1971). their appellants entered the conclusion The bedrock assumption process knowing voluntarily and by Supreme stated Court in Santobello prose- not bound the court was as follows: cutor’s recommendation “. . . when plea rests in sig- nificant degree promise on a agree- grounds are error overruled and prosecutor, ment of the so that it can be judgments are affirmed. said to part be of the inducement or
consideration, promise must ful- Id., 262, filled.” at at S.Ct. DOUGLAS, J., participating. When a defendant does not obtain the sen- ROBERTS, Judge (dissenting). for, tence he bargained even though the prosecutor made recommendation This goes case to the heart of the agreed to, there has been in a very real bargaining process, questioning the reasons sense a failure of consideration flowing to very its existence. It demonstrates how the defendant. process a common malfunction of the re- delays sults in justice further criminal briefly Consider of af- consequences administration, strained relations between firming convictions such as these. Defense bar, injustice and manifest bench lawyers are to be much more hesitant criminal defendants. plea bargains enter prosecutor’s with the especially Hays County office— —if surrounding guilty pleas The facts these simply going ignore them. This set amply majority opinion. are forth in the should necessitate trials least some They present an all too familiar scenario. cases which would otherwise be settled Accepting testimony most favorable to negotiated pleas. it is seen that the defendants “An accused will engage be reluctant exchange negotiations or to enter into a pro- the prosecutor’s recommendation of agreement if he cannot withdraw his Although they bated sentences. were ad- of guilty when he does not obtain the monished at the time expected promised.” concessions he was accept prosecutor’s was not bound Wolske, State v. 280 Minn. recommendations, probabili- and were in all (1968). N.W.2d 151-52 beforehand, they quite so rea- ty informed aspects Other delay jus- in criminal sonably expected to probated receive sen- *8 tice by administration caused the judge’s They tences. would never have rejection of plea bargain can be fore- thought if for a mo- in the lengthy seen wrangling over motions up ment that would wind in the peni- guilty plea withdraw the and in motions However, judge trial tentiary. rejected trial, case, for new inas this appeals and in plea bargain, the terms of the as was his such as this. fact, however, prerogative. It is that this prerogative by many Moreover, is never exercised rejection plea bargains can rest, by judges, only rarely for the only lead to strained relations between the Although reason that it defeats the whole obvious bench and bar. case involved system. purpose plea bargaining de- cooperation uncharacteristic between
77
believe,
office,
important,
“More
we
counsel,
if with-
prosecutor’s
fense
officials,
upon proof
the record re-
drawal is refused
of an un-
enforcement
law
kept
plea agreement,
and distrust
and unfulfilled
lack of communication
de-
veals
deprived
is concerned. When
fendant has been in effect
of his
judge
where
right
jury
to a
to a
trial and the benefit of the
no more credence
judge lends
presumption of innocence —constitutional
exhibited in the instant
bargain than was
only
safeguards guaranteed
every
accused
case,
disappoint
is
bar,
prosecutor’s
regard
probability
office as
without
of his
but the
defense
guilt
or the truthfulness
pretrial
well.
v.
State
admissions or confessions.”
for the
respect
also the cost in
Consider
Wolske, supra at 151.
engender.
system that cases such as this
What can be more unfair than
proce-
segments of our
important
“It is
for all
by
dure
the majority,
countenanced
where-
society
systems
that our court
to believe
by
uphold
a defendant must
his end of the
justice.
the crimi-
dispense
This includes
bargain,
prejudice,
to his irrevocable
before
as well as the law abid-
nals themselves
whether
prose-
court decides
or not the
ing
especially
citizens and
those criminals
bargain
upheld?
cution’s side of the
will be
cooperated fully
police
who have
inves-
State,
Dube v.
257 Ind.
tigations.”
growing recognition
There has been a
(Ind.1971).
jurisdictions
problems
other
275 N.E.2d
discussed
variety
safeguards
above. A
surround-
group
might
of criminals
be added
To
ing guilty pleas
adopted,
have been
but the
bargain
uphold
those who
their end of the
one I
urge today
simply
is
this: when
plead guilty.
The disillusionment with
rejects
judge
plea bargain,
trial
justice system already
the criminal
fester-
defendant, upon timely request, should have
ing
jails
prisons
help
in our
cannot
but
right
guilty plea.
to withdraw his
be exacerbated
cases such as those of
admittedly
statutory
There is
or case
likely
Gibson and Reeves. And it is not
fact,
authority in Texas for this rule.
In
general public
readily
will more
urged
rule
would have the effect of
justness
results.
perceive
overruling express authority to the con
State,
Williams
trary.
The denial of motions to withdraw
Texas subscribes
liberal
is based
hope
on a
of
guilty pleas.
State,
withdrawal of
Garcia v.
which turns out to be delusive.
theAll
rule
9,
(1922).
237
279
91 Tex.Cr.R.
S.W.
urged today would do would
permit
be to
the accused to withdraw
guilty
his
plea,
injustices in
Perhaps concerned about
upon timely request, if that hope turns out
voluntary
pleas,
area of
64th
guilty
to be delusive. No modification of Art.
Legislature recently
applica-
amended the
necessary.
26.13 is
Moreover, the amended
statute,
26.13, V.A.C.C.P., by
ble
Art.
add-
Art.
only
26.13
requires
now
that a guilty
ing among
things
following
other
re-
plea be
voluntary,
free and
dropping the
quired
prior
acceptance
admonishment
of
proscriptions
against
fear,
persuasion,
pleas:
such
promises, and
hopes
pardon.
delusive
of
“(2) the
that any
fact
recommendation of
way
The
is opened for spreading the terms
prosecuting attorney
as to punish-
bargains upon the record, as my
binding
ment is not
court.”
on.the
Brother
has prudently
Odom
recommended
action
This
codified
recommendations of
Cruz,
supra.
practice”.
some cases as to “the better
Tre
It
juris-
remains
consider where other
State,
864,
(Tex.Cr.
vino v.
519 S.W.2d
868
dictions
stand
this
Following
matter.
State,
App.1975);
24,
Galvan v.
525 S.W.2d
the lead
eighth3
of the third2 and
circuits,
26
(Tex.Cr.App.1975).
It
nevertheless
Congress
finally adopted
the long
contemplate
clear that
the statutes
not
do
awaited amendments to the Federal Rules
urged today.
noted,
the rule
It should be
11(e)(4),
Criminal Procedure. Rule
effec-
however, that
a rule would
not rob the
1,
tive
provides
December
1975
as follows:
judge
his
accept
trial
discretion to
“Rejection
Agreement.
of a Plea
If
plea.
reject
guilty
a
discretion is es
This
rejects
agreement,
court
the plea
judge
prevent op
sential if the trial
is to
shall,
record,
court
on the
inform the
pressive
bargains
protect
or unfair
and to
parties
fact,
of this
advise
defendant
public
merely
interest. The rule would
or,
personally
open
on showing
permit
opt
an accused
for the uncertain
good cause,
camera,
that the court is
ties of trial
his
by changing
plea to not
plea agreement,
bound
afford
when confronted with a trial
opportunity
defendant
to then
unwilling
accept
the prosecutor’s recom
withdraw
plea,
his
and advise the defend-
mendation.
ant
persists
that if he
his guilty plea
necessary
appropriate
It
neither
nor
plea of
disposition
nolo contendere the
Legislature
fashioning
defer
may
case
be less favorable to the
wisely
Legislature
left
rule.
“delusive
contemplated by
defendant
than that
probation”
out
Art.
hope
26.13
plea agreement.”
(Emphasis added)
might
guilty plea.
factor which
invalidate a
State,
also Valdez v.
507
202
appears
See
S.W.2d
It thus
sys-
the entire federal
Legislature
(Tex.Cr.App.1974). The
is not
tem now subscribes to
rule urged today.
fact
most negotiated
blind
A majority
confronting
of the states
guilty pleas
hope
are based on
permit
some sort of
issue also
a defendant
to withdraw
language
Under the strict
guilty plea
his
if the judge rejects
26.13,
accepted
bargain.4
can
Many
Art.
of those
rejecting
states
Rundle,
State,
(Fla.
Florida —Davis
2. United States ex rel.
v.
308
Culbreath v.
So .2d 27
(3rd
1972).
1975).
F.2d 730
Cir.
Georgia
State,
Ga.App.
v.
—Burkette
Gallington,
United
v.
3.
States
488 F.2d
177,
(1974).
79 rejects a plea when the trial quest, lengthy only after done so rule have having given bargain. Only after dissenting opinions.5 and over discussions after opportunity such an in the direction Thus, trend is can a defendant’s rejects plea bargain here. urged rule voluntary. Accord- as plea be characterized found in can also be the rule Support for the rule discussed adopt I would ingly, Bar the American revisions proposed these convictions. The and reverse above Relating to Pleas Standards Association appel- and the causes should be remanded Draft, 1968), Sec. (Approved Guilty change pleas. given lants a chance Law Insti- the American 2.1(a)(ii)(5)6 Pro- Pre-Arraignment Code Model tute’s DOUGLAS, J., participating. not Draft, 1975), Secs. Official (Proposed cedure 350.5(4) 350.6.7 join the right for Texas time is jurisdictions permitting number
growing timely re- pleas, upon guilty
withdrawal
plea
being
Fisher,
and he did not affirm his
advised that
curred and
after