Walker v. State
524 S.W.2d 712
Tex. Crim. App.
1975
Check Treatment

*1 juror The Flores she would State, testified that Calverley not have voted for conviction Officer App.1974). State, Cf. Waffer v. Longoria’s testimony had been read back. (Tex.Cr.App.1973); Arivette v. testimony The juror to the effect that the The would not have voted verdict reasoning in these apply cases should had the testimony concerning the dying present' case. declaration been read is insufficient We hold that the statement entire grounds for new trial. To allow present case was motive admissible show permit would consideration for, committed, and who the homicide. processes mental juror which cannot be done. See Peak v. Next, appellant contends that there Luna v. (Tex. jury was misconduct because jury fore Cr.App.1970); Simmons v. would not ask man that the testimony of 937 (Tex.Cr.App.1973); Salazar Longoria concerning Officer dying dec State, 494 S.W.2d 548 (Tex.Cr.App.1973), be read laration to the jury after it had and Adams retired. Cr.App.1972).

Juror Alma Flores heаr- No testified at the judge abuse discretion of the trial appellant’s ing motion for new trial that is shown in overruling the motion for new she “confused” the dying about decla- trial.

ration of following Ricardo Gonzalez. The judgment is affirmed. occurred:

“Q. you And were confused because he

testified, you thought he testified people him,

that two shot the owner bar Well, owner,

“A. I understood the guess I

the rest understood it anoth- way.

er

“Q. you And wanted either to see the or to be exposed *2 State, Tex.Cr.App., 522

In Guster v. 494, this held: Court there is no “. . . where prejudiced in- a defendant was failure of the trial court to jured by the with Article fully comply objection no is made to such where and plea accepted time the is failure at the trial, new that fаilure to by motion for fully comply will not constitute reversible appeal.” error on case, the instant there was a total In range or even mention of is, therefore, appellant. punishment to scope not within the of the rule stated in State, supra. Guster See also Williams v. Rittenberry, L. Charles Charles W. Fair- 488, Tex.Cr.App., 522 and Ex weather, (Tom Jr., Upchurch, Amarillo Taylor, Tex.Cr.App., 522 S.W.2d 479. ‍​​‌‌‌‌‌‌​‌‌​​​​‌‌​‌‌‌‌​​​‌​​‌‌​‌​​​‌​‌​​​‌​​‌‌‌​‍Amarillo, Austin, Maloney, Frank rehearing only), appellant. for In Tellez v. Tex.Cr.App., 522 500, day decided thе same as Dowlen, George E. Atty., Canyon, Dist. Williams, supra, and this Court held Vollers, Jim D. Atty., David State’s S. that, if a trial admonishing court in McAngus, Austin, Atty., Asst. State’s accused of the consequences plea of his the State. range possible misstates the punishment, of but the accused is not preju- misled to his by admonishment, dice erroneous OPINION ON APPELLANT’S MOTION error is harmless. See also Cameron v. FOR REHEARING 618; Tex.Cr.App., 508 S.W.2d Jorden ODOM, Judge. State, Tex.Cr.App., 117; Val- State, Tex.Cr.App., dez v. 479 S.W.2d 927. prior opinion Our in this cause is with- apply That rule likewise doеs not in this drawn. case because the trial court gave absolutely On motion for rehearing appellant urges no admonishment respecting range of that his conviction be reversed because the punishment. possible trial court wholly failed to advise him of range punishment at the time of his here did not mere- Because the trial court plea of guilty, required compliance, in fact short of full ly fall Vernon’s Ann.C.C.P.1 totally admonish of the failed to 26.13, supra, has 1. We note thаt Article plea nolo gulty or a “(b) No (S.B. 122) recently and effec- been amended court accepted be shall contendere unless mentally provides: tive June is defendant appears GUILTY, free is (a) competent and the “Article 26.13. PLEA OF accepting voluntary. or a Prior contendere, admonishing defendant “(c) the court shall of nolo compliance provided, substantial the defendant of: admonish herein sufficient, the de- unless “(1) punishment is attached affirmаtively he offense; shows fendant consequences his “(2) the fact that prosecuting attorney recommendation aware not by the harmed punish- misled as to he was binding court.” on the court. ment admonishment disregard plea, of his total punishment been held to be “the provided (see concurring Y.A.C.C.P. law charged offense and the State, supra), Cameron which could inflicted under reversed. conviction is his plea.” Alexander v. 163 Tex. Cr.R. rehearing motion for Appellant’s Battenfield, *3 affirming judgment the con- granted; App.1971). And where there has been a aside; judgment is set viction to comply portion of Arti reversed and remanded. cle requiring admonishment as plea, reversal Judge (concurring in ONION, Presiding See, e., i. will follow. State, Williams v. 415 part). dissenting in part and 917 S.W.2d (Tex.Cr.App.1967); Miller v. State, 424 S.W.2d 430 (Tex.Cr.App.1968); by the result I concur in reached parte Ex Humphrey, (Tex. 456 S.W.2d 118 majority appellant’s raised on contention Cr.App.1970); parte Battenfield, Ex supra; appeal for thе first time on his motion for State, Crawford v. (Tex.Cr. 466 court, rehearing clearly in this 319 cannot App.1971); Vasquez State, v. reasoning 477 S.W.2d agree majority. with the 629 (Tex.Cr.App.1972); State, Loudd v. 474 26.13, Ann.C.C.P., pro- Article Vernon’s S.W.2d 200 (Tex.Cr.App.1971); Alvarez v. vides: State, 511 S.W.2d 521 guilty, “If or en- pleads the defendant And this court many has for years held contendere, ters of nolo he shall be that a failure to comply with the mandato- by the court of the conse- admonished ry provisions statute may be raised pleas neither of such quenсes; and shall State, May v. any 151 time. Tex.Cr.R. plainly appears received unless it be (1948); 209 S.W.2d 606 State, Alexander v. mentally competent, and is uninflu- he supra; parte Ex Battenfield, supra; Ex fear, by any by consideration of or enced Chavez, parte supra; State, Wilson v. 456 persuasion, hope par- of any delusive 941 (Tex.Cr.App.1970) (Concurring don, prompting guilt.” him to confess his Opinion). This statute and its forerunners have It is on the basis of authorities that these part every been Code Criminal Pro I would reverse this conviction for failure ever enacted in this State and have cedure to admonish appellant as to the conse- years. Bos remained the same for 118 See quences his though the conten- State, (Tex.Cr.App. v. 510 334 worth tion was first raised in this 1974) ‍​​‌‌‌‌‌‌​‌‌​​​​‌‌​‌‌‌‌​​​‌​​‌‌​‌​​​‌​‌​​​‌​​‌‌‌​‍(Dissenting years Opinion). Over the his motion rehearing. again again this court has held See, Now, e., Ex why i. as to mandatory. statute was I agree cannot Chavez, (Tex.Cr.App.1972); majority’s 175 reasoning: Battenfield, 466 S.W.2d The majority’s easily could Cr.App.1971); May State, v. 151 Tex.Cr.R. Guster,” labeled “Retreat from and it is v. (1948); Coleman retreat confusion that adds Tex.Cr.R. S.W. 1083 uncertainty concerning (1881). Tex.App. Saunders upon the visited bench and bar the ma following construction, Legis And jority Espinosa since 493 S.W.2d on a number of occasions lature reenacted (Tex.Cr.App.1973), and Mitchell v. virtually unchanged. See Bos statute State, 493 S.W.2d 174 (Tex.Cr.App.1973), State, supra (Dissenting Opinion). worth began when seriously erode Further, “consequences guilty legislative intent expressed in Article supra. Espinosa have long of nolo contendere” and Mitchell held de- “persuasion” was eliminated felony quiry case the trial court no in a dissenting In a decisions. inquire as to the earlier spite whether a longer needed wrote, is left to writer “One or nolo this contendere was to ‘fear’ is still any inquiry as hope pardon” a “delusive wonder prompted gone it is also inquiry. Higginbot or whether required similar See also (Tex.Cr. wind.” ham

App.1973). Espinosa The In Wade v. just they Mitchell did not how could held that the in weight give weight less or no to “delusive quiry fatally defective because of a hope pardon” “any than consideration of guilty plea if the was due inquire failure to “any persuasion” found in the fear” “persuasion.” concurring to “fear” or statute, same sentence of the Odom, Judge joined opinion by by Judge time, apparently but the for some *4 Morrison, agreed to the result since there least, upon inquiry at looked an аs to “fear” inquiry Apparently was as to “fear.” the “persuasion” satisfy or as essential to the requirement as statutory inquiry to as to requirements” “minimal of the statute. was still alive and well. “fear” See also Ex example, State, For in Harris v. 500 S.W.2d Watson, parte (Tex.Cr.App. 508 S.W.2d 399 (Tex.Cr.App.1973), majority, speak 126 the 1974); Pigg State, (Tex. v. ing Morrison, through Judge held that mere State, Cr.App.1974); v. Cevilla 515 S.W.2d inquiry as to whether the was volun (Tex.Cr.App.1974). 676 insufficient, tary was but that the “minimal 26.13, requirements” as to State, supra, In the court was Gustеr v. consideration of persuasion fear or “must with an admonishment which confronted into inquired appear and of record.” See any inquiry did not include as to “fear.” State, also Martinez v. 494 (Tex. S.W.2d545 discussing majority’s approach Before the Cr.App.1973); State, Heathcock v. 494 important I think it to also ob 570 (Tex.Cr.App.1973). Mayse S.W.2d In majority doing what the was also to serve State, Ross v. 494 (Tex.Cr. S.W.2d 914 portion requiring that of the statute the majority, speaking through to admonish the trial court defendant Odom, Judge began inching away from plea. of his As observed the so-called “minimal requirements” portion in this that earlier established the majority. opinion upheld has been as mandatory. statute held that an inquiry there as to whether However, began the majority to even erode guilty was prompted by or force coer portion In that of the statute. Jorden v. promise or cion was sufficient comply State, (Tex.Cr.App.1973), 117 500 S.W.2d with statute. State, again in Cameron v. 508 S.W.2d that the cаses from these clear became upheld the court (Tex.Cr.App.1974), ad 618 “promise” “force” added had in which the trial court inac monishments hope eliminating “delusive while statute curately informed the defendant of the con Nevertheless, appeared pardon.” plea. also v. sequences of his See Valdez was still occasions some State, (Tex.Cr.App.1972). 927 479 S.W.2d “persua- “fear” as to inquiry requiring State, 522 500 And Tellez v. State, 500 e., Johnson See, i. sion.” majority upheld аn ad Cr.App.1975), the Ex (Tex.Cr.App.1973); 115 where the trial court incorrect monishment (an (Tex.Cr.App.1974) Scott, ly the defendant as to the advised Dick- Douglas); Judge opinion on both cases to which he was (Tex.Cr.App.1974). erson, pleading guilty, overruling Alvarez v. 521 (Tex.Cr.App.1974), 510 S.W.2d Bosworth In contrary. an in- necessity of (Tex.Cr.App.1974), 26.13, Article su was the status of This Farmer pra, when was confronted App.1967). Clearly Taylor followed Mead past Recognizing their efforts Guster. ows in a manner, like opinion stated, statutе had “By

emasculate our holding today, we do not in any logical, way been consistent diminish the requirement of complying parte Taylor, in Ex upon seizes Article 26.13 . . and added Tay footnote # 2 which stated, “Our holding the court held that a collateral attack lor does not apply to cases on direct appeal.” felony resulting conviction from a upon a Nevertheless, in Williams v. or nolo contendere will not be S.W.2d 488 (Tex.Cr.App.1975), majority, peti considered аbsent a disregarding the Taylor fact that was based prejudiced injured tioner on Meadows and the quoted statements fully comply ‍​​‌‌‌‌‌‌​‌‌​​​​‌‌​‌‌‌‌​​​‌​​‌‌​‌​​​‌​‌​​​‌​​‌‌‌​‍trial court to with Arti above, theory Taylor advanced the sup 26.13, supra. Taylor represented sig cle ports the appeal non-review on direct departure holdings from the nificant of this of the mandatory provisions violation comply the failure to unassigned if it be er mandatory provisions of Article su ror, and that it would not be considered and its forerunners pra, could be raised under Article Vernon’s Sec. Ann. conviction, upon attack, collateral after “in the C.C.P. interest jus'ice” unless See, e., May any time. i. at injury harm or has been shown. Then in *5 (1948); 209 S.W.2d 606 Alex Tex.Cr.R. Guster 522 ander v. 163 Tex.Cr.R. the majority, using Taylor and Battenfield, parte Ex 466 as a bootstrap, Williams held that unless (Tex.Cr.App.1971); Ex preju there is that the accused is Chavez, (Tex.Cr.App.1972). injured by diced or the failure of the trial Taylor primarily decision was based fully comply court to with the “mandatory” Meadows, upon statute, objection there is no made to In the court Meadows non-compliance at plea the time of the attack confronted with a collateral was trial, appellate or motion for new no upon comply a conviction for failure to follow, though review ground will even the Article Vernon’s Ann.C.C.P. Arti [now appellate of error is raised an brief filed 26.04(b)], required which cle the waiver of court in in the trial accordance with Article period days’ preparation ten to be in the Sec. Vernon’s Ann.C.C.P. Thus writing. petitioner Meadows held that the judicial muscle the statute was laid flat. relief on at was not entitled to collateral Guster made comply if the clear that even if there was tack failure to with the man of the trial datory injury fully comply statute did not result in a failure court to to the portion any deprive such as would him the statute the law now petitioner casts burdеn deny upon possibly or him a right. unwary fair trial constitutional illiterate contrary were over defendant cases to Earlier burden of calling the not, however, legally judge’s trained attention attempt ruled. Meadows did error, any oversight to or omission to undermine or diminish the involved, requirements at the the statute nature of and it is trial, plea time of the comply or motion for new a failure to clear that question cannot be days’ prepara waiver of ten raised on requirement of brief, appeal by appellate for reversal on direct even one filed period will call tion trial See, Young in the court. It is observed that no i. e. appeal. Taylor, distinction was made in the Wil- (Tex.Cr.App.1970); Steward v. liams and Guster cases between admonition (Tex.Cr.App.1968); consequences of the and the toas there was a since total failure fact, Taylor of the statute. ac- balance even mention of punishment, properly the failure to tually involved ad- only which relates to portion of the stat- plea. ute, as to the of the monish somehow Guster apply. does not This clearly is not what Guster held. It made no this writer a dis- observed in In Guster distinction between portions of the statute. (footnote 3) that, # “In senting opinion Is the saying that total failure to majori- opinions earlier of the light of other comply with the consequences meaning left to wonder the ty, one requirement calls for оne result but an inac- ‘fully’ complying with the man- trial curate admonition as to the consequences of statute,” and also wrote: datory would fall within Guster ? It approach may last “This new seem would so.1 than the longer majority’s ‘substantial applicable to approach total failure Is this compliance’ approach, which was a label inquire as to whether a total conclusion, applied, not a test to be for a prompted by “any consider- рlea was approach advanced in the semicolon inquire failure to fear”? To a total ation of Cameron To a total failure “any persuasion”? toas Cr.App.1974) (Concurring Opinion).” hope par- to a “delusive inquire as Guster, Now, shortly after we find the to a approach apply this new Would don”? retreating from Guster. In the any or all of inquire as to failure to total object case the did not instant not, it does above? If factors the three the failure trial court to admonish as be- making the distinction consequences of at the time - portion one tween motion for new trial as majority giving more Is the another? nor required even raised the statute than weight portion to one appellate by the brief filed in the trial is observed that the another? original After sub- court. conclusion, approval cites with *6 mission, appellant’s it was raised in first v. opinion in Cameron concurring the rehearing filed in this court. To motion (Tеx.Cr.App.1974), which 508 S.W.2d at all unassigned considered error approach, holding in semicolon the favored circumstance, this it under would have to be everything prior in the statute that effect justice,” “in the considered interest of (including in the statute semicolon to the Williams, Taylor, based on which said was a plea requirement) of the the Nevertheless, “no, no.” the majority, de- rest was not. Has mandatory and the spite Williams and considers the the judge one now become approach of this properly presented matter as to whether ? since Guster majority’s approach court “fully” complied the trial with the though partial statute there was a that when there is a The holds compliance range statute. The as to the of total to admonish attempts to presumed that in the punishment prejudice instant case will be and penalties by judge. 1. Surely Since the cites Tellez stated the it is a (Tex.Cr.App.1975), ap punishment 522 S.W.2d pears it horse assessed different color if the appli that Tellez and beyond Guster in would be such a situation was by cable to those judge situations where the trial that stated ishment. The quoting the trial in his admon range punishment majority opinion Tellez, court misstates the of but prejudice is not misled to dissenting opinion the accused thereby. his from the in Alva Tellez, Cameron, (Tex.Cr.App. rez Jordan and judge 1974), point. the trial misstated the Clearly, Valdez correct makes this then Gus- statutory range punishment, pun of but the ter would not control as to that situation subsequently imposed either, creating ishment was both exception thus another statutory range range within the and of the Guster rule. reversed, conviction will be but what just These are a few of questions that judge totally about cases where the trial come to mind regarding the Guster ap- to advise fails any range accused as to proach, and the instant case is a good exam- punishment of but the record reflects thаt ple of the invalidity of that approach, and range punishment of was mentioned the first of many exceptions that will have during voir dire examination of jury, to be made to such approach. Guster is a Wilson house built upon sand. instrument filed accused, Vavra 171 Tex.Cr.R. For the stated, reasons I concur in the (1961). Is pre harm to be result but dissent to the majority’s reason- sumed there? ing.2 that the plea plea

2. It is observed takes note cept contendere of nolo such addressing of the amendment Vernon’s the defendant first without Ann.C.C.P., in footnote # 1 of determining its personally understanding which amendment became effective June voluntarily of is made 19, 1975, applicable it is not charge to the and the conse- of the the nature appears supporters instant case. of quences plea. refus- If a defendant majority’s interpretation of the now for- plead court refuses to ac- or if the es to cept sought bring mer Article 26.13 this act guilty if а defendant a majority’s in line the statute inter- corporation appear, the court shall fails to pretation. This amendment will be no an- guilty. court shall not enter a problems guilty upon swer to the raised the decisions judgment not enter Taylor, Williams and Guster and the re- there is a factual it is satisfied that unless July from in the instant case. plea.” treat Guster 1966. Effective basis for Boykin is a there from And it is clear federally Further, while the amendment to the stat- right determi- pleas constitutional requires only compli- ute now ance,” “substantial of voluntariness nation is, upon and when there there is cast proceedings. If the admoni- criminal State affirmatively the defendant the burden to range punishment knowl- tion of the show that “he was not aware of the conse- quences penalty in- comprehension edge or of his and that he was misled guilty plea was affects whether volved intelligently, by the admonishment or harmed voluntarily knowingly en- court.” tered, does, record as to a silent it then compliance” may While “substantial now support a conviction not sufficient satisfy statutory requirements, ap- State guilty plea the instant case. upon as in pears question process to me a of due Alabama, supra. Boykin v. presented where the court does not admon- noted, place Boykin, it is does ish the accused at all as to record is where the on the defendant burden any suggestion the record is silent as to silent. punish- knew the jurisprudence day of this for the It is a sad ment. have ex- high which standards when State years many are lowered when process, isted validity Due as related to the *7 are to raise nationwide the bar efforts guilty plea, requires that the be volun- standards. tarily understandably made, those and such Bar Associa- the American noted that understanding It is knowledge includes and com- Justice, tion, Stan- for Criminal Standards only prehension not as to the nature of the Guilty, provide Relating in to Pleаs dards charge, penalty but also as to the which can part: 1.4 thereof Section imposed. compare be See and Kotz v. Unit- accept a should not States, “The court (8th 1965); ed F.2d 312 Cir. Bai- a defend- contendere from guilty or nolo ley MacDougall, (4th 392 F.2d 155 Cir. addressing the defendant first without 1968). Alabama, ‍​​‌‌‌‌‌‌​‌‌​​​​‌‌​‌‌‌‌​​​‌​​‌‌​‌​​​‌​‌​​​‌​​‌‌‌​‍ant Boykin The decision in personally and 395 U.S. 89 S.Ct. 23 L.Ed.2d 274 determining “(a) he understands (1969), in effect held that a State criminal charge; the nature guilty plea proceeding compelled a can —“(b) only accepted analogous if in a manner informing “(c) him: Cr.Proc., Fed.Rules rule Rule U.S.C. possible “(i) sentence maximum 11 reads as follows: including possible charge, on the may plead guilty, “A defendant sentences; court, from consecutive or, with the consent of the “(ii) minimum sen- may nolo contendere. The court refuse to charge; tence, any, . on the guilty, accept and shall not ac- McAngus, Atty., and David Asst. S. State’s MEDRANO, Jr., Appellant, Antonio Austin, Atty., State. State’s OPINION Texas, Appellee. The STATE of 50,137. ROBERTS, No. Judge. delivery Appellant was convicted Appeals

Court of Criminal of Texas. marijuana under the Controlled Substances June 1975. jury assessed his at Act. a fine of confinement and three years’ five dollars. thousand ground alleges that Appellant’s third fatally defective for fail the indictment ing allege quantity involved or that for remuneration. delivery was We agree. 4.05 of Controlled Substances

Section part, as follows: provides, Act . . . 4.05 “Sec.

“(d) Except prоvided otherwise Act, commits an offense if person this intentionally delivers knowingly or he marihuana.

“(e) Except provided in Subsection section, this an offense under Sub- (f) of felony this section is (d) of section degree. the third (d) is “(f) under ‍​​‌‌‌‌‌‌​‌‌​​​​‌‌​‌‌‌‌​​​‌​​‌‌​‌​​​‌​‌​​​‌​​‌‌‌​‍Subsection An offense if the actor B misdemeanor deliv- a Class ounce or less without re- one-fourth ers ceiving remuneration.” In Wilson Mears v.

Cr.App.1975), and (Tex.Cr.App.1975),we held that: & Brown, Deyeso Appleberry, Alan indictment in the in- failure of the “The Antonio, appellant. Haase, San of mari- аllege the amount case stant allegations of or other Odom, delivered Carroll, Atty., Bob D. huana Dist. Joe pun- Vollers, as to reflect what so Belton, Jim D. remuneration Atty., Dist. Asst. prosecuting attorney Further, If provides has Section 1.5 reached. thereof as fol- *8 charge agreed to seek or sentence conces- lows: court, approved by accept sions which must be “The court should person- guilty mining must advise the defendant or nolo the court contenderе without first deter- ally cuting attorney prose- voluntary. By that the recommendations of the in- (cid:127) binding quiry prosecuting attorney are not on the court. and de- counsel, should then fense the court address the defendant should determine personally promises any and determine whether other whether prior plea tendered is the result of plea agreement, force or threats were used discussions and a is, and, plea.” agreement what to obtain has been notes to the testi- WALKER, Appellant, Earnest again? mony “A. Yes.” Texas, Appellee. The STATE also jury She testified that she asked the No. 49289. foreman, Hall, request C. D. the court to Appeals Texas. of Criminal Court back testimony read Longo- of Officer concerning the dying ria declaration of Ri- 25, 1975. June Gonzalez. cardo Flores also testified that Rehearing July 1975. Denied juror Hall and another stated that Officer Longoria’s testimony could not be read back. Assuming properly be- the matter us, the question fore will be discussed. allegation is no There Longoria’s testimony of Officer was in dis- require pute reading of testimony under Article Vernon’s Ann.C.C.P.