*1
explained
was not
of intent
original pro
the element
appeal is from the
This
rev
guilt
of
ceedings
adjudication
respondent.”
as the
to
reviewable.
proceedings are not
ocation
in
slight
be
differences
There
v.
Shields
v.
and Lincoln
in this case
the records
App.1980).
substantially the same
they are
supra, but
trial
“The
controlling
asserts that:
case is
that
opinion
and our
during
to
by failing
establish
court erred
“all of the
opinion,
in that
It was said
here.
that
guilty plea proceeding
the appellant’s
cor
were
the offense
elements in
required
an
voluntary
was
and based
plea
the
record
the indictment.
rectly stated
understanding
charge.”
the
of
intelligent
was
to show that
case fails
this
of
the elements
of
explanation
an
given
not
coun-
the
In an excellent brief
v.
Henderson
As stated in
offense.”
the
argument as
appeal summarizes his
sel on
presume
appropriate
supra, it is
Morgan,
follows:
notice of
explained the
defense counsel
that
“The United States Constitution
give
the
detail
in sufficient
the offense
process to be
in order for due
quires that
understanding of
and an
notice
the
plea proceeding,
in a guilty
satisfied
There is
to admit.
asked
what he was
plea
the
was
record must establish that
suggest
nothing in the record
the
voluntary,
In order
be
voluntary.
explained to
offense was
element of the
the defendant
record must show that
the
charge against
understanding
an
him and the factual basis
pro
argues
also
Appellant
Although the
it
to the
Unit-
related
law.
Rules of
11 of the Federal
cedure of rule
directly
Supreme
ed
States
Court
held to be
be
should
Criminal Procedure
issue,
appears
it
the
addressed the
States and
the United
under both
required
trial court to
requires
Constitution
the
of
Supreme Court
Texas Constitution.
the
personally address
defendant
held and we
never so
States has
the United
even if
in the record. But
these matters
reject this contention.
required by
inquiry
such an
is
showing
is no
record there
Under
Constitution,
fails the
clearly
this record
of
was not
establishing
requirement
constitutional
understanding of
voluntarily with an
made
the plea.”
the voluntariness of
charge against
Essentially
same
judgment
case of Lin
rejected
presented
(Tex.Cr.App.
coln v.
1978). In that case as in this
Morgan,
v.
426 U.S.
on Henderson
(1976).
There either “Normally the record contains KING, Jr., Appellant, Holman charge by the explanation of the an judge, representation or at least a nature of the counsel that defense STATE of ac- explained to the offense has been No. 67183. such even without cused. appro- be representation, may it
express Criminal de- most cases priate presume that in 2. Panel No. the nature routinely explain
fense counsel give in sufficient detail of the offense is he
the accused notice what be- unique admit. This case
asked to a fact that found as judge the trial
cause *2 prior felony offense. The only issue
before the was that jury punishment. The appellant’s complaint sole is that the trial court allowing erred in the State to argue that appellant’s wife failed to testify good his did testify and offered no State offered tes timony prove primary offense and evidence to prove prior conviction. Witnesses also testified that in the reputation community as a good law citizen was bad. abiding prosecutor’s about argument which com plaint is made is: Now, both sides in “[PROSECUTOR]: bring kind of are entitled to forward to evidence of you the Defend- character, prior reputation prior ant’s and history, help things might you, which might you point you which show right trying to make your direction in decision proper sentence to assess. Let me this: you brought ask you who three witnesses testified as to reputation, Holman King’s witnesses who him known of and known of his reputation Every ever since one of reputation them his testified that for be- ing peaceful a law-abiding and citizen Dallas, Law, Howard B. for appellant. here in you Dallas was bad. Did hear Wade, Henry Deborah E. any witnesses for the Defense come for- Farris, Christopher Milner and William M. anything repu- ward to you tell Jr., Fry, Dallas, Attys., Robert tation other than bad? anything State’s you any No. Did witnesses for the hear State. you Defense and tell come forward you Did hear good? character is DALLY, Before W. C. and DAVIS CLIN- up family say, member come and ‘He’s a TON, JJ. brother; good good he’s boy; he’s a husband,’ good good parent’? or ‘a object I “[DEFENSE ATTORNEY]: DALLY, Judge. arguing him his wife didn’t improper that’s I think This is from a conviction of the against of Procedure and ask the Rules offense of a motor burglary vehicle. The disregard jury be instructed to punishment, aby prior enhanced felony argument. conviction, is imprisonment twenty “THE Overruled. COURT: We ask ATTORNEY]: “[DEFENSE entered for a mistrial. the primary offense and a of true to the allegation that he had been convicted of “THE Overruled.” COURT: have called witness appellant could reputation knowledgeable about MENEFEE, Appellant, Sylvester reputa- of his bad but the evidence so, tion; do when did not jury The STATE State had *3 call such appellant’s on failure to comment No. 58634 witnesses. of Criminal the fail comment on may Banc. En wife produce ure the accused to when she could have testified witness properly matters admissible in
Ferrell v. Battles v.
App.1968); 53 Tex.Cr.R. 195 (1908). 109 S.W. Cole (1922) Tex.Cr.R. 243 S.W.
misplaced. In that ease it was held error to failure to use
comment on defendant’s witness, fact she was
his wife as a because present when the crime was committed
and it was a fair that if she knew inference it must have been
anything about the crime by
from statement made to her some
defendant. the instant prosecutor’s statement merely
case was in nature and whom possible appel-
named some witnesses concerning
lant called record does
not show whether or not the The trial did not err over- wife. court
ruling objection.
The judgment CLINTON, Judge, dissenting. (Court-ap- Davies, Lubbock D. Russell ques- the rhetorical majority says for pointed), argu- in his prosecutor tions raised Griffin, and John C. respect Atty. part, with R. pass ment muster Alton Lubbock, Rob- wife, record does show Kilpatrick, because “the Walk- had wife.” and Alfred Atty. whether or ert fact, what If the not show that for the State. er, record does Asst. State’s doing arguing then outside prosecutor is the I submit that the State the record? to comment on jury argument
“the call such witnesses” appellant’s failure to ON SECOND STATE’S exist. The they only if the record shows FOR REHEARING MOTION allowed to create a should not be prosecutor ODOM, Judge. and then denounce any accused family for in to vouch coming him and them for not from a conviction This is an character. as- Punishment robbery. aggravated at five sessed I dissent.