*1 error four relates to Ground of argument defense
argument. During prosecutor anticipated
counsel ask, “Why bring didn’t Bearden
might It there He one of his clients.”
Culp? prosecutor error for the
fore was not didn’t Mr. Bearden call his
argue, “Why further Culp. in reference to We
client?” hence, nothing objection;
find for review. Jackson v.
presented 167; Boykin
Tex.Cr.App., 946. Tex.Cr.App., five contends that
Ground of error his oral motion denying court erred in during made the course
for continuance might so that he secure the testi is no Hernandez. There
mony of Felix made at
showing by affidavit or otherwise new trial as hearing on the motion for have testimony would
to what Hernandez’ Allen v.
been. No error is shown. 923; Articles
Tex.Cr.App., 505 S.W.2d
29.06, 29.08, V.A.C.C.P. error, judgment reversible
Finding no
is affirmed. PINSON, Appellant,
Donald Lee Texas, Appellee.
The STATE
No. Texas. Appeals of of Criminal
Court 17,
Dec. 14, 1976. Jan.
Rehearing Denied
Neither was there total failure to admon- appellant range punishment. ish as to the State, Cf. Walker v. Tex.Cr.App., 524 S.W.2d 712. Reversible error is not shown. ground The of error is overruled. ground appel his second of error lant asserts that new is required because other evidence by was received during deliberations, jury citing Gibbs v. Petronella, Houston, L. ap- Richard State, 370, 320, 163 Tex.Cr.R. pellant. and Baltazar v. Tex.Cr.App., 373 S.W.2d 753. In each of those cases the Vance, Atty., Carol Dist. James S. C. defendant offered evidence support Hinton, Brough, Alvin M. and Michael Titus his motion for new trial at the hearing Houston, Vollers, Attys., Asst. Dist. Jim D. thereon. In the instant appellant case Atty., McAngus, State’s and David S. Asst. failed to offer the affidavits that had been Austin, Atty., for the State’s State. motion, filed with and also failed to
offer
other evidence in support of his
motion when it was called for hearing. Not
OPINION
having
presented
with evidence in
support of the motion when it was called
ODOM, Judge.
for hearing, the trial court did not err in
murder;
Appellant
convicted of
pun-
denying
a new trial. Rios v.
Tex.Cr.
ishment,
death,
subsequent-
at
assessed
326;
App., 510
Stephenson
by
commuted
the Governor of Texas to
900;
Tex.Cr.App.,
Walker v.
confinement for life.
State, Tex.Cr.App.,
V.A.C.C.P., (dissenting). accepting before his nolo contendere.1 The court appel admonished has moved from the sublime range lant of the but did not to the ridiculous interpretation their whether his inquire was influenced Ann.C.C.P., Vernon’s aban- or persuasion, pardon. delusive doning any pretense of requirement that no showing appellant There is that there even “substantial compliance” with prejudiced injured the failure of the the statute which forbode dire consequences to make inquiries, trial court such nor was for the to be the 1975 objection made at the time the plea was amendment of the statute1 passed in an accepted by motion for new trial. Gus attempt past validate some of their ten v. Tex.Cr.App., S.W.2d 494. emasculation of a wholesome statute. court, appel- Only informing 1. The in addition was of sound mind. after this did the appellant change allow lant ascertained his not thoroughly nolo contendere. appellant At no by that had conferred objections inquiries time were made attorneys changing two with his before his appellant during proceedings. agreed attorneys plea, he with his advisability changing plea, his Ann.C.C.P., 1965, 1. Article personal plea, was his desire to 1973, Leg., p. was amended 968, Acts 63rd representation 399, he 2(A), was satisfied with the January 1, ch. Sec. effective receiving attorneys, again he was from his that he It was amended Acts doing, Leg., p. understood what he was and that he 64th ch. effective Further, com- required by the instant murder case the statute. there The trial of “force,” 31, 1972, jury “coercion” or January before was no menced on days several guilty.2 After which have on occasion been “promise,” on a of not changed requirements meet the appellant of trial the held sufficient to accepted statute, see, e., The court Mayse nolo contendere. i. *3 a to return jury and instructed the
plea (Tex.Cr.App.1973). Clearly 914 S.W.2d punishment. of and to assess guilty verdict was not sufficient to show court’s death. at jury punishment The assessed freely and voluntari- appellant was later commuted punishment entering plea. the nolo contendere ly of Tex- by the Governor imprisonment life
as. Part I filed in the appellate In his brief 26.13, Ann.C.C.P., Vernon’s in ef- with Article in accordance trial, at the time of reads as follows: fect Ann.C.C.P., appellant com- pleads guilty, “If the defendant or en- trial court’s failure of the plains plea ters a of nolo contendere he shall be required by admonish him the court of the conse- admonished existence, and contends then in supra, pleas and neither of such shall quences; provi- Under the calls for reversal. same plainly appears be received unless it court, sions of Article sane, by any uninfluenced he is and is briefs appellate of the consideration after fear, by any persua- or consideration of right had the any, if arguments, and oral sion, pardon, prompt- or delusive of court, however, The trial grant a new trial. ing guilt.” him to confess his ground pass action to took no court and the error thus raised have and its forerunner been The statute to this court. record was forwarded Procedure part every Code of Criminal in in this and have been ever enacted State appellant after The record reflects that since 1857. See Bosworth v. existence to the trial court his counsel indicated and (Tex.Cr.App. to nolo conten- plea his change he desired to The statute 1974) (Dissenting Opinion). range of advised him of the dere the court stat enlightened were and its forerunners was of whether he inquired pre designed provide procedure utes his mind3 and if he desired sound plea or later a of nolo plea guilty vent a notes, there majority opinion As the plea. felony in a being entered contendere plea inquiry as to whether was no that the same case without a determination consideration of prompted by any voluntarily and entered. freely as was pardon or delusive persuasion applicable admonishing “(c) Such are not here the defendant June 1975. However, trial. provided, to this 1972 substantial herein as follows: sufficient, amendment reads unless the defendant the court affirmatively he was not aware plea guilty shows that “(a) accepting Prior contendere, consequences the court shall and that he of nolo defendant of: admonish the the admonishment misled or harmed of the court.” “(1) attached offense; and Septem- this court on The record reached “(2) recommendation the fact that 15, 1975. ber punish- attorney prosecuting binding not on the court. ment sepa- trial there was a Prior to the instant “(b) of nolo con- No sanity hearing pre-trial wherein rate accepted un- the court shall be tendere appellant competent jury to stand found the appears is mental- that the defendant less it trial. competent and volun- is free tary. statute, verbiage in changed change, showing little lature little years, governed procedure statutory under well established rule of over the has cases, approval felony interpre- construction this of such pleas accepting tation same construction is consist recently interpreted has until applicable.4 years again Over the this court has ently. was manda again held that statute Ignoring such well established rule of Chavez, e., Ex parte See,
tory.
i.
construction,5
statutory
the three
ma
man
parte
(Tex.Cr.App.1972);
S.W.2d
jority, constituting itself a
Legis
three man
Battenfield,
views,
and imposing
lature
their own
be
1971); May
151 Tex.Cr.R.
gan an emasculation of the statute in 1973.
Coleman
(1948);
Their efforts at emasculation have been
*4
Saun
(1896);
S.W. 1083
Tex.Cr.R.
33
detailed elsewhere and will not be detailed
State,
ders v.
Tex.App.
10
336
And
in Espinosa
here.7 It
is observed
v.
that
many years
the
held that failure
State, 493
172 (Tex.Cr.App.1973),
S.W.2d
provisions
comply
mandatory
the
State,
and Mitchell v.
(Tex.
4. 53 (Tex.Cr.App. 1975), S.W.2d in an states: opinion by Judge authored Odom. It “Where a statute that has con- however, conveniently ignored, in new strued, either last court of resort 26.13, supra, to Article officers, by executive is reenacted without majority. verbiage, substantial it will continue receive the same construction dissenting opinion in Coleman 6. See and cf. State, 1975), (Tex.Cr.App. a statute is without “Where reenacted Judge Roberts. change, generally presumed it is material legislature adopted or knew and dissenting opinion in Bosworth v. interpretation placed approved the on the State, supra; Guster v. 522 S.W.2d act, original the new and intended (Tex.Cr.App. Walker v. enactment should receive the same con- 1975). old . struction as the one . . rule 5. The seems be alive well as Carvajal recently utilized in parte In Walker v. dissenting opinion in majority’s opinion inquired: (Tex.Cr.App.1975),
Taylor,
departure
significant
represented
also
approach applica-
“Is this total failure
concerning interpreta-
decisions
past
inquire
to a total
failure to
as to
ble
opinion
supra.
tions of
guilty plea
prompted by
whether the
was not entitled to
petitioner
that the
held
of fear’? To a
‘any consideration
total
if the failure to
collateral attack
relief on
‘any persuasion’?
failure to
as to
inquire
mandatory
otherwise
stat-
comply with the
inquire
a total failure to
as to a ‘delu-
To
injury
petitioner
not result
ute did
pardon’?
sive
Would this new
a fair trial or
deprive him of
such as would
approach apply to a total failure to in-
right. Then
a constitutional
deny him
quire
or all of the three factors
majority in Williams
not,
If it does
is the above?
Taylor
extended
(Tex.Cr.App.1975),
making
por-
the distinction between one
of Article
if the violation
held
26.13, supra,
tion of Article
and another?
assigned as error
supra, was not
majority giving
weight
Is the
more
to one
Ann.C.
court under
than another? It is
portion of
statute
C.P.,
not be considered
it would
majority opinion,
observed that
“in the interest
unassigned error
court as
conclusion,
approval
cites with
the con-
*5
13,
40.09,
Ver-
Sec.
under Article
in Cameron v.
justice”
curring opinion
In Guster
non’s Ann.C.C.P.
which fa-
(Tex.Cr.App.1974),
S.W.2d 618
(Tex.Cr.App.1975),
the
holding in
approach,
vored the semicolon
showing
there is a
held that unless
prior
further
in the statute
everything
effect that
injured by
prejudiced
(including
that the accused
in the statute
to the semicolon
fully
comply with
plea require-
court’s failure to
the
consequences
the
of
objection
ment)
no
to such
mandatory
and there is
was
and the rest was
the statute
plea
the
or motion
approach
judge
at the time of
not. Has this
of one
now
failure
trial,
review will fol-
appellate
majority’s approach
since
for new
become
assigned as error
Guster ?”
failure is
low even if such
9,
40.09,
Vernon’s Ann.C.
Article
Sec.
under
instant
many
case answers
of these
C.P.,
brief filed
by appellate
that more
for it is now obvious
questions
juris-
retains
the trial court still
court while
consequences
to the
of
weight
new trial. Article
grant
can
a
and
diction
(range
punishment) than to the bal-
of
12,
40.09,
Vernon’s Ann.C.C.P.
Sec.
Thus,
the statute.
where there is a
ance of
in Walker
range
Subsequently
total failure to admonish as
of
the failure to
(Tex.Cr.App.1975),
compliance
of
can
question
26.13, supra, was raised
with Article
for the first time at least as late
comply
be raised
a
for
appeal
rehearing
on
in motion
in this court. On
the first time
as a motion for
for
hand,
opinion
comply
court after an
a total failure to
rehearing in this
the other
down.
persuasion,
had been handed
delusive
original
any inquiry
submission
as to
etc.,
majority announced that
to
whether
In Walker
pardon,
of
determine
entered,
trial
voluntarily
raised because the
and
freely
then be
was
error could
fully complied
with the stat-
very
is the
essence of
inquiry
had not
which
total failure to
ex-
statute,
by appellate
be raised
brief
there was a
cannot
ute since
when the
punish-
the trial court at a time
range
filed in
even mention
plain or
Walker,
new trial.
grant
court can still
a
plea),
(consequences
ment
12,
Vernon’s Ann.C.C.P.8
with the Article
Sec.
there was
although
to adhere to the semi-
approach seems
statute.
of the
balance
possible
this deci-
appears
under
inquiry
It now
even misin-
voluntariness and
may
judge
proper
fail to make
a
sion that
as to
the accused
form
interpretation espoused
colon
in the concur-
and voluntarily given in
case,
the instant
ring opinion
Cameron v.
I further conclude that
the appellant was
deprived
Cf.
due
of the
course of the law. See
I,
parte Rodriguez,
19,
Shelley, The
Historical
Southwestern
XLVIII,
terly, Vol.
No.
April,
Parí III
noted,
As
there
total failure
earlier
was a
the nolo con-
any inquiry
whether
light
majority’s
of the
prompted
tendere
was
consider-
exists
there further
fear, any persuasion
ation delusive
problem. Boykin v.
federal constitutional
pardon
anything equivalent
1709, 23
Alabama, 395 U.S.
89 S.Ct.
Further,
inquiry
thereto.
there was no
error,
(1969), held that
L.Ed.2d 274
it
“force,”
or “promise,”
“coercion”
etc.
error,
judge
accept
state trial
plain
clearly
The record
shows the
court’s
plea of
without an
affirmative
was not
to show
sufficient
intelligent
volun-
showing that
and
freely
voluntarily
For failure
entered.
tary. The
mandate of the Constitu-
basic
comply with
statute I
reverse
would
interpreted by
States as
tion
United
never
remand this conviction.
It
ceases
Supreme
of the United States is
Court
require
amaze me that
this court will
must
that a
trial court
determine
trained,
peace officers, not
legally
give
“knowingly, intelligently,
guilty is
required
the warnings
by Miranda v. Arizo- voluntarily
willingly
entered.”
na,
U.S.
S.Ct.
L.Ed.2d
(Court
but will not contendere legally judges trained is the same a guilty admonish insofar defendants their criminal prosecution is guilty pleas, passing even concerned in burden Texas. Ann.C.C.P.; unwary timely defendant call to the So well v. legally S.W.2d 793 judge’s trained attention where he Lucero v. has fallen obligations required short S.W.2d 750 really law. We have a sad state reached of affairs. does not reflect an af- Since record showing that the contendere nolo firmative
Part II voluntarily given, intelligently Alabama, Boykin conclude that I grave “. guilty plea . .a also call for reversal. would only solemn be accepted act to with care . Brady and discernment . . .” stated, For the I dissent. reasons States, United U.S. S.Ct. 25 L.Ed.2d was a
Since there failure to determine ROBERTS, J., joins in Part III of this whether the nolo contendere was free- dissent. (Tex.Cr.App. 1975), overruling S.W.2d 500 and the will hold the (Tex.Cr. Alvarez v. same a Ver- App.1974). non’s Ann.C.C.P. Tellez