*1 7 there were we observe First, only recently have And we nor charge objections to no written the rule to be the statement charges. Articles special requested to an admission amount And Ann.C.C.P. exculpate 36.14 and Vernon’s plus an that would assertion above, concluding for the reasons set out State, 439 accused. 488 Simon v. S.W.2d exculpatory were not State, the statements 506 (Tex.Cr.App.1972); Jordan statements, find we decline to fundamental (Tex.Cr.App. 217 1974). error. rule de- bring To himself within the is affirmed. purported scribed relies when confront- statements to first Johnson apartment, hearsay statement ed police what the told Gilmore about Gil- debt,
more about a claimed oral purportedly
statement made to Officer apartment that he into the
Gonzales went complain- to take the clothes of one of the WADE, Appellant, William ants who was indebted to him. Appellee. The STATE of Texas, Only this latter statement would
seem be an admission of the offense of burglary charged, but, may, be that as it there is no assertion which excul July 2, 1974. pate him if in true. Even Gilmore him, debted to this would not entitle
commit burglary. offense of Cf. State,
Crawford v. (deliv 582 May
ered 1974).
We conclude the statements re upon by
lied constitute excul
patory statements within the rule discussed State, supra.
in Otts v. See also Marion v.
State,
(Tex.Cr.App.1964);
Vaughn v.
(Tex.Cr.
App.1961); Hutchins Tex.
Cr.R. (1959). S.W.2d 880
Further, we note that the State did rely appellant’s alone confes
sion to connect him with the crime
charged, but called alleged witnesses to the
offenses, providing thus exception an discussed,
the rule even if it argued can be play rule came into in the instant
case. See Fernandez v. 172 Tex.
Cr.R. (1962).
Lastly, appellant complains fundamental
error failing jury on the
law of exculpatory by ap- statements made
pellant and introduced on direct examina- the State’s witnesses. *2 Collins,
Don compliance Gladden Marvin L. court’s lack of Article 26.- with 13, (Court-appointed), appel- Fort supra, Worth as confronts us in lant. case. In this Court said: Haire, Curry, Atty., Jr., Tim part Dist. of T. Article J. Crampton, Attys., R. Fort plea W. Asst. is that a Dist. Vollers, Atty.,
Worth and D. State’s not be received unless that one ‘. Jim Austin, for the State. is uninfluenced consideration
fear, .’” . then distinguished Mitchell v. OPINION State, Tex.Cr.App., 493 DAVIS, Commissioner. 493 S.W.2d on by cases relied herein and State Appeal is taken from a conviction for concluded, “Because the trial court not did robbery. pleaA was entered be- applicant ascertain from the he entered punishment fore the court as- plea by persuasion, reason fear or sessed at life. the conviction must be set aside.” Appellant contends that the ad- court’s Cameron v. monishment to determine the voluntariness concurring opinion stated: plea compliance was not in with Ar- ticle Vernon’s Ann.C.C.P. “However, the second Article [of 26.13, supra] tells us that it must plea After entered a appear to court defend- following colloquy: record reflects the (by ant is “THE COURT: Are persuasion, hope of pardon). quilty and for No magic words need be stated other reason? making such determination. is, course, necessary Yes, “THE sir. DEFENDANT: the records before us contain sufficient “THE COURT: Has does, language show that such any hope re- plainly appear.” ward in order In the instant case the court’s admonish- guilty ? ment language does not include from No, “THE DEFENDANT: sir. “plainly appears” which it guilty was “uninfluenced considera- “THE COURT: Now realize persuasion.” of fear or robbery I must find assault We conclude the trial court’s ad- you guilty and I must sentence in compliance monishment was not than penitentiary for less five 26.13,V.A.C.C.P.,' and that such er- years, years life any number of in the ror requires reversal. penitentiary ? reversed Yes, “THE sir. DEFENDANT: remanded. Opinion approved by the Court.
“THE COURT: Be seated.” parte Scott, In the recent case of ODOM, Judge (concurring). peti- Tex.Cr.App., 505 where I sought post-conviction tioner relief in a concur in l corpus proceeding, habeas this Court reversa is be case was. suffi faced cause the record with the defect contain by the general fact to show cient here, appel controlling but plainly appear to the pleas by the “determine if trial court to lant in was uninfluenced voluntarily concur were made uninfluenced my of fear. consideration persuasion, promises,” Tex.Cr. after exam ring opinion in Cameron v. entire ination of the App., record. *3 that suggestion Scott made no whatsoever gener- single The dissent would find the question by the single the formula you question guilty “Are be-
al would have been sufficient had you for no rea- cause are and other Scott, case, been asked. like the a son?” sufficient determine to whether inquiry by reflect the sufficient defendant is consider- uninfluenced justify to the that conclusion by persuasion ation of fear appeared. the conditions'plainly stated hope Clearly single gen- pardon.1 this question sweep eral in make the one MORRISON, J., joins concurring appear. absence of plainly all such elements opinion. State, Tex.Cr.App., S.W. State, Tex.Cr.App., 2d and were properly decided DOUGLAS, Judge (dissenting). expressed
the reasoning remains therein reverses this conviction for sound. the total set On of facts as stated cases, the properly in to support those found 26.13, admonish the under V. requisites conclusion that for the so, In doing part of the lan- guilty plea a accepting plainly to A.C.C.P. appeared Scott, guage parte Ex True, the court. this Court therein 602, quoted is magic no words are to comply with Article V.A.C.C.P. “The of Article The dissent you asserts that “Are is you because are for no not be received unless other reason?” are magic the which is show compliance. It is the total factual sideration of situation as record, reflected in the and not some elaborate shorthand formu
la, that must be considered deter before the admon- mining the whether record contains suffi to range punishment. ished as the As cient language did, to requisites show the plea, to the voluntariness follow- appear. ing occurred: dissenting opinion’s you distin been in- effort to “THE COURT: Have guish parte hope any 505 S. fluenced delusive W.2d is convincing. pardon prompting you re to confess Scott was versed not ? single guilt absence Although only “plainly appear” the dissent in this ease asserts to make it sufficient general question to-wit, fear, per influence, was sufficient there is no other hope most, suasion, pardon. reflect no influence reason of delusive Or at logic asking negate logic require no other “for reason” the dissent’s would must any certainly tliusly: apply thrice, of fear influence other of “no other reason” “no equal negate any ... no other reason? force influence reason? persuasion any reason?”, influence delusive each “other rea no other once for hope pardon. Necessarily, logic plainly appear then, son” which single influence, then, of the dissent would dictate like Bellman Lewis Hunting Snark”, pro pleading guilty “Are because Carroll’s claim, are and for no other I tell times is true.” reason?” “What three “DEFENDANT: No.” James COLSTON, Ray Appellant, present distinguishable case is be- court, accepting the ttial asked: STATE Texas, Appellee. you pleading guilty “Are guilty and Appel- for no other reason?” answered, “Yes,
lant Sir.” This was not done case. Scott July In the case the court also ascer-
tained that did not have of reward in order
get guilty.1
inAs
Court has noted that comply with Article su-
pra. appellant had
him. The questioning appellant was
sufficient to ascertain that neither persua-
sion nor fear plead caused
guilty. opinion
The Scott should not containing
strued as magic words that just
must be wording followed the exact
of Article 26.13 not have fol- to be
lowed. Judge Learned Hand Bustamonte,
cited Schneckloth
U.S. L.Ed.2d 854 S.Ct.
(1973), should be It is as here.
“. We decline what follow judicial scholar ‘the dom- has termed
ino adjudication method of every explanatory
wherein previous opinion
statement in a is made
the basis wholly for extension dif- ” ferent situation.’
The admonishment in the
although not in the exact terms of stat
ute, is sufficient.2 should be affirmed. fully concurring opinion, more admonished attempt opinion its a life to construe this in another he received for some cause where reason, question by day. leaves out the court: sentence on the per suffi- “Has in a it was curiam reward order to cient. guilty? ”, answer, “No, and the sir.”