Holman KING, Jr., Appellant, v. The STATE of Texas, Appellee.
No. 67183.
Court of Criminal Appeals of Texas, Panel No. 2.
April 15, 1981.
616 S.W.2d 165
The appellant asserts that: “The trial court erred by failing to establish during the appellant‘s guilty plea proceeding that the plea was voluntary and based on an intelligent understanding of the charge.”
In an excellent brief the appellant‘s counsel on appeal summarizes his argument as follows:
“The United States Constitution requires that in order for due process to be satisfied in a guilty plea proceeding, the record must establish that the plea was voluntary. In order to be voluntary, the record must show that the defendant had an understanding of the charge against him and the factual basis for the plea as it related to the law. Although the United States Supreme Court has not directly addressed the issue, it appears that the Constitution requires the trial court to personally address the defendant about these matters in the record. But even if such an inquiry is not required by the Constitution, this record clearly fails the constitutional requirement of establishing the voluntariness of the plea.”
Essentially the same argument was presented and rejected in the case of Lincoln v. State, 560 S.W.2d 657 (Tex.Cr.App.1978). In that case as in this case there was reliance on Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). There it was said:
“Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. This case is unique because the trial judge found as a fact that the element of intent was not explained to respondent.”
There may be slight differences in the records in this case and Lincoln v. State, supra, but they are substantially the same and our opinion in that case is controlling here. It was said in that opinion, “all of the required elements in the offense were correctly stated in the indictment. The record in this case fails to show that appellant was not given an explanation of the elements of the offense.” As stated in Henderson v. Morgan, supra, it is appropriate to presume that defense counsel explained the notice of the offense in sufficient detail to give the appellant notice and an understanding of what he was asked to admit. There is nothing in the record to suggest that any element of the offense was not explained to the appellant.
Appellant also argues that the procedure of
Under this record there is no showing that the appellant‘s plea of guilty was not made voluntarily with an understanding of the charge against him.
The judgment is affirmed.
Henry Wade, Dist. Atty., Deborah E. Farris, Christopher Milner and William M. Fry, Jr., Asst. Dist. Attys., Dallas, Robert Huttash, State‘s Atty., Austin, for the State.
Before DALLY, W. C. DAVIS and CLINTON, JJ.
OPINION
DALLY, Judge.
This is an appeal from a conviction of the offense of burglary of a motor vehicle. The punishment, enhanced by a prior felony conviction, is imprisonment for twenty years.
The appellant entered a plea of guilty to the primary offense and a plea of true to the allegation that he had been convicted of the prior felony offense. The only issue before the jury was that of punishment. The appellant‘s sole complaint is that the trial court erred in allowing the State to argue that appellant‘s wife failed to testify to his good reputation.
The appellant did not testify and offered no evidence. The State offered testimony to prove the primary offense and evidence to prove the prior conviction. Witnesses also testified that appellant‘s general reputation in the community as a good law abiding citizen was bad. The prosecutor‘s argument about which complaint is made is:
“[PROSECUTOR]: Now, both sides in this kind of trial are entitled to bring forward to you evidence of the Defendant‘s prior reputation and character, prior history, things which might help you, which might show you or point you in the right direction in trying to make your decision of the proper sentence to assess. Let me ask you this: The State brought you three witnesses who testified as to Holman King‘s reputation, witnesses who have known of him and known of his reputation ever since 1967. Every one of them testified that his reputation for being a peaceful and law-abiding citizen here in Dallas was bad. Did you hear any witnesses for the Defense come forward to tell you anything about his reputation being anything other than bad? No. Did you hear any witnesses for the Defense come forward and tell you that his character is good? Did you hear any family member come up and say, ‘He‘s a good boy; he‘s a good brother; he‘s a good husband,’ or ‘a good parent‘?”
“[DEFENSE ATTORNEY]: I object to him arguing that his wife didn‘t testify for him. I think that‘s improper and against the Rules of Procedure and ask that the jury be instructed to disregard that argument.”
“THE COURT: Overruled.”
“[DEFENSE ATTORNEY]: We ask for a mistrial.”
“THE COURT: Overruled.”
The State may comment on the failure of the accused to produce his wife as a witness when she could have testified about matters properly admissible in evidence. Ferrell v. State, 429 S.W.2d 901 (Tex.Cr.App.1968); Battles v. State, 53 Tex.Cr.R. 202, 109 S.W. 195 (1908).
The appellant‘s reliance on Cole v. State, 92 Tex.Cr.R. 368, 243 S.W. 1100 (1922) is misplaced. In that case it was held error to comment on the defendant‘s failure to use his wife as a fact witness, because she was not present when the crime was committed and it was a fair inference that if she knew anything about the crime it must have been from some statement made to her by the defendant.
The prosecutor‘s statement in the instant case was general in nature and merely named some possible witnesses whom appellant may have called to testify concerning his reputation. Moreover, the record does not show whether or not the appellant had a wife. The trial court did not err in overruling appellant‘s objection.
The judgment is affirmed.
CLINTON, Judge, dissenting.
The majority says the rhetorical questions raised by the prosecutor in his argument pass muster in part, with respect to the wife, because “the record does not show whether or not the appellant had a wife.” If the record does not show that fact, what then is the prosecutor doing arguing outside the record? I submit that the State has “the right in jury argument to comment on appellant‘s failure to call such witnesses” only if the record shows they exist. The prosecutor should not be allowed to create a family for any accused and then denounce him and them for not coming in to vouch for his character.
I dissent.