Tutor v. State
599 S.W.2d 818
Tex. Crim. App.
1980
Check Treatment

*1 revoking court had abused discretion

probation there was insufficient ev- because rev- ground

idence his stated for

ocation. stated: We

“Although it that there was appear would

ample prove evidence available pro- conditions of violated

bation, is no that he there evidence which court

breached the condition

found been breached.” Similarly, S.W.2d at 644.

although ap- is evidence to show the there pro- violated a condition

pellant had leaving

bation without State permission, judgment

court’s must

reversed because there is no evidence to

show he committed offenses on in relied revoking probation. trial order court’s unnecessary makes it holding

This to con- appellant’s

sider contentions raised

pro se brief. 63,885 No. is re- judgment Cause Isbell, Houston, appellant. for Allen C. versed and the cause is remanded. Jr., Holmes, Atty., Dist. Calvin John V. 63,884 in Cause No. is af- Hartmann, Williams, A. B. Asst. Connie firmed. Huttash, Houston, Dist. Attys., Robert Austin, Atty., for State. State’s J., P. and ROBERTS Before DALLY, JJ.

OPINION DALLY, Judge. TUTOR, Appellant,

Frank Allen appeal a conviction This is an from Punish- aggravated robbery. offense for- imprisonment ment was assessed at Texas, Appellee. STATE ty-five years. No. 63949. error, ground the conten- single In a tion is that Appeals indictment, Panel No. failed to call 11, 1979, January

On appeared his counsel indictment was read judge, pleaded that he who stated appellant, him of guilty. The plea, after guilty, affirmed his no waiver judge accepted. Since *2 819 filed, by jurors plea of been guilty had of not Court has held that this charge were the to object to hear evidence to enable failure to the pled them to had not punishment. appellant assess recited that the right appellant V.A.C.C.P. The indictment was read waived the the jury, plead jury; the was said after which the trial the plea this statement: court entered the the defendant charge stating appellant pled in his the by “Ladies and of jury, Gentlemen the the State, v. guilty. 158 Tex. See Seale pleaded guilty has to the of- (1953). Cr.A. 86 256 S.W.2d fense charged in the indictment. You may proceed argument with the of that Appellant authority no other points to plea of guilty which was made notwith- than his contention Lumsden to standing the having Court admonished that actions judge’s the rights.” Defendant of his deprived him of personally his guilty plea the The stat- Appellant made no objection to this state- governing proper plea utes on a ment. heard, After the evidence had been right. of guilty reveal no such the court instructed the charge its that: provides: charge

“To this [aggravated robbery] “(a) plea accepting the Prior to of plea contendere, defendant has his guilty. entered of or a of the nolo He persisted has of: his admonish the defendant guilty, notwithstanding Court, that the as “(1) range punishment the the at- required law, by offense; has admonished him of tached to the consequences. the plainly appearing to “(2) the fact that the recommendation the Court that the mentally defendant is of the prosecuting attorney as to competent, and that he makes ment is on the binding court. freely and voluntarily, by the Court received.” “(3) punishment if the fact punishment assessed does not exceed the

Appellant asserts that his trial was recommended by the “rendered null” because he did not enter a agreed the defendant and his attor- plea before jury. Appellant’s reliance ney, give permis- court must State, on Lumsden v. (Tex. 384 S.W.2d 143 sion to before may pros- he Cr.App.1964) misplaced. Lumsden, In af any ecute an matter in appeal on the case ter information was read to the jury, except for raised those matters writ- how pled, was asked he but ten prior motions filed trial. response, made no nor was the entered “(b) No nolo him. The trial charged the jury accepted by contendere shall be the court pled “not guilty,” had appears unless it that the defendant which the timely objected, on the mentally competent plea is free ground that he had a plea not entered dur voluntary. ing the trial none and that had been en “(c) admonishing In tered for him. This Court found that no provided, herein compliance substantial cause, was entered in the and reversed. sufficient, by the court is unless the de- Lumsden does the present not control case fendant shows that he was affirmatively entered a not aware of the objection and he made no when that he was misled or harmed the indictment was to the jury, admonishment of court.” stated that had en tered a record in the a de proper time admonish any objec instant case does not reveal that arraigned, when he fendant is was charge punish tion made to the which recited to to assess his State, pled guilty. Even on ment. 556 349 Palacios v. S.W.2d State, provisions discussed 436 We conclude that (Tex.Cr.App.1977); Wilson give above a defendant (Tex.Cr.App.1968). appel- do not S.W.2d reaffirm a plead personally was the trial court fully lant impaneled to determine before a at appropriate time in this case. punishment, has once proce- out sets been trial court. accepted *3 when jury punish- dure a is to assess the The is affirmed. ment: felony “Where a in a case of Judge, concurring. Presiding pleading in or in persists contendere, if a of nolo judge The that contention is law, a is fixed absolutely ment erroneously failed to call pun- shall be to assess jury. enter his before the Un- may be heard ishment and evidence particular der circumstances thereupon, unless enable them to decide no is shown. certainly reversible error Articles accordance with Regardless may how be in- the statutes or shall waived his 1.13 37.07 have however, not, reach out terpreted, I would jury.” procedure that would de- and commend prive contemplates a de- clearly language jury. It has been guilty” pleading “persists fendant who enter his for the defendant traditional jury. after the indictment before the suggest other- does not V.A.C.C.P. prosecutor. jury by read to the has been wise: practice. can’t believe is far better I ‘guilty’ of ‘nolo “A or in the instant case that in a case must be felony contendere’ intentionally to call on the failed not be used for his This case should plea. be as person; proceedings shall promoting a vehicle for one 26.13, 26.14, and 27.- provided in Articles alone, If when that jury after the indictment read may made in the same manner same be and anoth- or nolo contendere 1.15.” by Articles 1.13 and provided as is procedure when the er establishes Uniformity prevail. should procedure to be followed at trial: being impaneled any crimi- “A action, proceed in the cause shall

nal

following order:

“1. indictment or information attorney

shall be read

prosecuting. pleas, any,

“2. if shall special counsel, if the defendant’s POUSSON, parte Joseph Jr. Ex upon, is also relied Nos. also be stated. A << * [*] [*] tl is not a “special plea;” En Banc. Appeals of provides “special 11, 1980. jeopar- pleas” pleas are of former limited requirement no in this There is thus dy. may

provision the defendant must

state reaffirm