*1 payment of prompt to make fault or failure indebtedness, to sell the part of such sale posting notice after

property days twenty-one pri- successive least Stevens had day of the sale.

or to the payment of prompt to make

clearly failed As discussed indebtedness.

part of the preclude did not

above, Ford’s waiver C. W. sale notices of were

the foreclosure. number requisite than the more

posted for failure tender after Stevens’ days require all of

delinquencies. Since complied were the deed of trust

ments of valid. Hav

with, sale was foreclosure due on the

ing to tender the amount failed sale, Respondents prior

note Breitkreutz v. cancel sale.

right 574, (1940);

Cook, Tex. 144 S.W.2d Watson, (1884); Tex. 679

Hemphill v. (Tex. Etheridge, v. 428 S.W.2d

Whalen 1968,writ ref'd n. r. Antonio

Civ.App. — San

e.). opinion it is

Accordingly, our judgment defendants’ favor

trial court’s judgment we reverse proper, and affirm the Appeals of Civil

the Court of the trial court.

judgment and A. L. Allen

Delbert GIBSON

Reeves, Jr., Appellants, Texas, Appellee.

The STATE

No. 50197. of Texas. Appeals of Criminal

Court

Nov. 1975.

Rehearing Feb. Denied

pleas and the refusal the trial judge, after assessment punishment, to permit withdrawal of the pleas and award new trials. The substance all grounds of er- ror is appellants’ stated in brief as follows: “The sole issue is ‘whether the plea by Gibson and made, Reeves was voluntarily or whether in fact, truth and it in- duced guarantee bargaining ” of the State and the Sheriff?’ The record on appeal before us contains transcribed court reporter’s notes from hearings on four different days. On May 16, 1974, the pleas guilty were entered and accepted, appellants and were found 11, 1974, guilty. July On appellants again appeared punishment and was assessed. August 28, 1974, On the court heard and appellants’ denied motion for new trial. Finally, appellants November were called before the court for formal pronouncement of sentence. 16, 1974,

On May accepting appel- before lant guilty, Gibson’s made the following inquiries, among others: “THE you COURT: Have been per- suaded to plead guilty against your will? No, “THE DEFENDANT: sir. Friloux, Anthony Jr., Houston, Rodger C. you “THE prom- COURT: Have Marcos, Zimmerman, appellants. M. San anything ised in this case— Vollers, Atty., Jim D. State’s and David No, “THE sir. DEFENDANT: Austin, Atty., State’s McAngus, Asst. S. plead “THE guilty. COURT: —to You the State. you plead guilty case, know that if in this and evidence shows you’re

OPINION guilty, attorneys may make a Court, recommendation to the and that’s ODOM, Judge. is, all that I recommendation. do not Appellants and third codefendant who take the recommendation. appeal his conviction waived trial did Yes, “THE DEFENDANT: sir. guilty entered jury of burglary court to the offense with intent it, “THE COURT: I will consider but The all; to commit theft. trial eourt denied that’s just consider it. If rec- appellants to these sentenced you granted ommend that years’ to five confinement the Tex- each may deny that recommendation and send Department of Corrections. you to the penitentiary for as much as years. twelve You understand that? Appellants grounds raise five of error challenging Yes, the voluntariness “THE DEFENDANT: sir. that, punishment The assessed in each case Knowing all do “THE COURT: years denied At that at five in this case? plead guilty still point appellants sought to withdraw their Yes, sir.” “THE DEFENDANT: pleas, defense stated as counsel following inquiries appel- were made grounds: *3 “ Reeves: lant course, has . . Of . State made its recommendation for anyone promised Has “THE COURT: course, discretionary of it’s with realizing, guilty? anything plead to you But, nevertheless, deci- Court. No, sir. “THE DEFENDANT: sion to of was based enter upon entirely solely and the recommenda- probation hope tion for and the delusive I don’t know whether I “THE COURT: ” of . . . getting probation. not, but the recom- A. L. Reeves or told Attorney of the District mendation The trial refused to allow withdrawal nothing is more than recommen- pleas. State probation He may dation. recommend Subsequently appellants filed motions for peniten- you could still to and I send new trial alleging part they in that entered tiary. only they of because had been pleas Yes, sir.” “THE DEFENDANT: guaranteed was an af- probation. Attached Kinser, by Bobby fidavit read into Sheriff guilty, of accepting pleas After evidence, it is in which stated: further judge stated: “ ‘I none of am aware fact that announcing judgment “In addition to this in case would Defendants here, you granted probation, if should be Guilty” to a changed plea of “Not their be, don’t think that I’m you if should and “Guilty” they assured to be I you’re going that because saying they that receive probation.” would know, your are not if records suffi- don’t by Also an affidavit District attached was cient, past are not your records sufficient Attorney Fielder which recites in Richard good I be to warrant what think would part: risk, well, I will send to the probation “ " allegations of cognizant T am . . Department Corrections. . foregoing contained in the verified Mo- July 11 case was called assess- On Defendants, tion Trial for New Prior assessment punishment.1 ment Reeves, Delbert Allen and A. L. Gibson recommended punishment prosecutor Jr., allegations and cor- and said are true made the and defense counsel probation Further, fairly rep- rect. in an effort to following the court: statement Texas, people resent the State request authority me as respectfully I and vested in “Judge, would compassionate Attorney in Judicial very District the 22nd the Court probation. District, grant boys agreement these I made an with the case and this Gibson, impor- Defendants, not that A. L. Delbert Allen The term Miller, Reeves, Jr., Larry fit after read- and Wayne has seen and Mr. Fielder tant. record, M. Zim- attorney Rodger to recommend their investigation ing all merman, probation in their you’re I the final to recommend know case, urge upon change But we would if their word. leniency this The basis Guilty” “Guilty.” extreme from Court exercise “Not trial agreement them was to move the grant proba- all three of this and case docket to see that was you.” restitution Thank tion. (1975). Cr.App., S.W.2d 263 Faurie v. Tex. Cf. made. Restitution was in- to the made and the I penitentiary. my duty realize terest of the of Texas best State individuals; defense counsel with these “plea bargaining” proce- served this further than duty, know- dure. ing this past what Court has done “ other what courts do the past. slightest ‘There not the doubt talked with these Defendants about it my mind that had these Defendants said, ‘Regardless and I of what the Dis- thought get proba- would not does, trict Attorney tion, none them would have power to do whatever he wants do Guilty” “Guilty” of “Not within what we’re thereby talking about. But given up their fundamental ’ when right the State’s attorney to a trial and the law by jury.” agencies enforcement get all behind appellants Both hearing testified at the *4 probation, recommend will go and far so on motion. Both they testified that as promise to and to if add that the Court promised probation, yet were both also ad- does join not for any reason at all ‘I’ll at they mitted that the time entered their you,’ think, with Judge, then I to send pleas they they told the that had been these young two men to the penitentiary promised nothing acknowledged and that ” would be a real . trick. . . judge explained trial had to them that any recommendations made would be noth- appellants On appeared November 21 for recommendations, ing more than and sentencing. pronouncement Prior to sen- trial court could peni- sentence them to the permitted sheriff, tence the trial judge tentiary despite any recommendation of defense counsel and himself to be called witnesses the defense “to make a record on some he matters.” Counsel that stated

Following presentation of evidence at had filed a to Judgment “Motion Set Aside hearing trial, on the motion for new counsel on Plea of Guilty Judg- and Assessment of argued: “ ment The testimony was not rele- [sic?].” . . . I am But convinced that vant to support or offered in of any of the men, young these two all three of these grounds 42.07, V.A.C.C.P., stated in Article men, young would not have their prevent as reasons to sentence.2 they if in their own mind weren’t go that were they going convinced not In their appellants brief assert: properly (Cf. If us they get jail before McCall any sured them would not 334), Tex.Cr.App., 512 S.W.2d the record time. hearing at made that reflects: Yes, “A. sir. The sheriff testified: that, your As a result of after con- “Q. right. your testimony it All Is that your “Q. following ference with negotiation, clients plea bargaining place took they between agree change did then prosecution you yourself with as the plea their on that assurance? investigating present, officer the defend- Yes, that, might “A. sir. I add to lawyer, ants and their Mr. Zimmerman? Attorney District something told us that in the event “A. Yes. happened, that the Court plea bargaining a result of go along plea, As that would necessary, “Q. not with if its that reached, not, agreement extent, an was it for was and to that he went probation? join opposing would in with us not a Mo- trial, put “A. That’s correct. tion a new in them back they prior changing the stature were in And at that time were defend- “Q. plea did, they their plea they which he ants that if did for which told would respect living I get up him go in to his in word would not have to so, doing jail. and he did. Yes, “A. sir.” any your question Defense counsel testified: Was there in “Q. right. you negotia- As a of a mind when discussed the matter after All result “Q. Attorney agree plea bargaining tion did the District that with that the clients probation he would recommend and as- would be honored? No, “A. “Q. sir. Note 2—Continued any right. your question judgment really All Is it wasn’t that There mind. “A. record based on defendants accordance with what my I knew the the conversations with the two acted in in individuals. always out- an they it was I knew cause this that discretionary being possibility they thought side was probation that agreement the Court an matter with would had which would resulted I necessarily granted. But be getting probation not in their ultimate idea, suspect of earthly I nor did decision? dreams, honorable that if this my wildest Yes, sir, alternate; “A. or in the probation grant after not Court State one-way least not have a ticket to the they it, and after had recommended penitentiary.” plea bargaining changed their trial testified: allow them system, withdraw he would not that Yes, “Q. sir. At time the put them back their was recommendation made the Court prior to were stature same had the matter referred plea. changing investigation. officer for an feeling right. “Q. was that It on All you and based on made that decision 'Right. “A. “Q. having experience had your prior never right. At the time sentenc- All you went problem that in this area ing of the recommendation of the State also tion place then was aware took the Court bargain and recommended ahead presence be in their had made proba- it the results of the honored. investigation. The Court at Yes, sir. “A. record, time, as recall from the advised your “Q. with the from discussion And to, boy, going one that was testify whether can client would been given probation. The sentence as to to the other *5 gone if had forward there have two, think, they years, had five I any was question mind there in their Corrections, Department in the Texas of getting jail any time? chance give probation. as the Court could not I No, absolutely no sir. There’s my “A. might specified have think the Court looking question that, back now in mind Honor, prior for it. Your to this reason time, question no there was at time, Attorney has been since this District they my not but that if were mind in office, question I’ll ask the as to the until the in they really that didn’t believe and assured up predecessor, has the Court get they probation they wouldn’t were and case on date the Reeves Gibson and, plea; changed their have proba- recommendation of the State for further, any idea on there was remote if plea bargaining had taken tion where they would not be allowed mind that their to not place, either to notice on has Court without plea probation was withdraw their if parties specific in and cases refused go they to the granted that would recommendation, accept even they have con- penitentiary, would never though the Court was then made aware sidered it. made, plea bargaining was, a had been Now, that decide that guess, com- “Q. was the Court would not foEow the yourself, to the defendants municated bargain subsequently pros- sentence them investigating officer and the jail time? ecutor. Yes, Now, “A. sir. “A. I have. “Q. regard “Q. in to the admonition prior Does Court recall to this given which defendants that was the Court any specific Reeves case Gibson and where this wasn’t cases not that was has advised given? recommendation, and so bound specifically “A. I don’t remember one forth, you this admonition heard Hays County. However, at or about bargaining plea other cases where the had pleas the time these were entered and the honored? plea bargaining was discussed between Yes, sir. “A. “Q. defendant, defense, and the and the like- the defendants In those cases attorney, State’s the recommendation was bar- say, had no defendant ‘No. The wise presentence made Court after a gain.’ investigation Court, presented to the two minor correct. “A. That’s “Q. having instead of the defendant prac- you’re with this familiar And found, wrap violations I sheet that was not as a result of a not, throughout are tice trying presented to the Court districts. other cases at the time was entered but was Yes, sir. “A. presented pre- then to the Court in the generally procedure fol- “Q. that the Is investigation, sentence that the defendant experience your been? as as far lowed had some ten or twelve arrests in the last procedure. no other “A. I know “Q. years; or four three which time I de- bargaining stat- have no We recommendation, clined to follow the sentence the defendant to par- specifies as which Texas ute years five questions. we? sequential Do ticular pellants’ guilty dispute following pleas “There is no were induced by a guarantee probation, contained in the was, material facts Statement on the record us, of Facts: an issue of fact which the trial against court resolved appellants. The record contains evidence sufficient to sup- “(6) attorney That the district Fielder port the implied trial court’s finding that they get guaranteed Defendants would there guarantee, was no but that instead go jail they and not if probation there was nothing more a than traditional changed plea. their plea bargain and valid by which prose- guaranteed “(7) That the sheriff agreed cutor to recommend probation. It if made restitution and Defendants appears upon that failure of the trial court changed plea, they get proba- their to follow the recommendation for probation go jail. tion and not appellants sought to pleas, withdraw their “(8) That the defense counsel assured bargain because failure guaran- bargain guarantee Defendants the teeing but because their assess- by the kept would be State. ment of weight prosecutor’s “(9) That the Defendants would not recommendation would carry with the trial proved inaccurate. except their for this guarantee.” The record not show appellants’ does guaranteed were induced by proba- reading whole, A record as grounds tion and the error are overruled. portions including quot those of the record above, ed reveals that the assertions made Suggested by the record but not by appellants “guaranteed” were adequately developed in evidence or ar are means established gued on appeal possible prose- are claims of undisputed Appellants at the fact. time misconduct, cutorial ineffective assistance entering informed the court that counsel, or both. The American Bar *6 to promises had been made and indicated Association Standards for Criminal Justice any recom the court that understood (though not adopted State), in this relating of would not be bind mendation Function, Approved the Prosecution court, ing on contrary, but Draft, (Section 2.8(a)), state, “It is imprisonment court could sentence them to unprofessional conduct for a prosecutor in notwithstanding of any recommendations tentionally misrepresent matters of fact by defense Statements counsel or law to the court.” The Standards relat acknowledged his understanding full ing Function, to the 1.1(d), Defense Section part and communication his clients of state, is unprofessional likewise “It conduct of principle law that on the decision of lawyer intentionally misrepresent a to grant probation is whether matters of fact or law the court.” Re discretionary garding “the final word” and “it’s plea bargains, the Standards relat issue, ultimate ing with the court.” The state to the Prosecution Function brief, appellants’ ap- 4.3(a) (b): framed in whether Section by recommendation been made Note 2—Continued the State. The Court’s well aware from burglary. rehearing penitentiary for On reply to the record the defendants’ it four when he made some reduced promised question Court’s ‘Have restitution. ’ by anybody . . . the rest admonition, said, they responded in right, All sir. Your Honor took “Q. negative. I would ask the Court this. during part proceeding and in the bargaining Generally speaking, sentencing pre- itself course the actual is cases isn’t it true where there a recom- paratory to the Motion for Trial. New from the State that the defend- mendation give admonition and did The Court did respond ants manner? make a statement that he not bound itself, by, according to the statutes “A. It is.” 4.3(a) (b), supra, and Defense Function for a conduct “(a) unprofessional It is 5.1(b), supra. represent com- To then any promise or Standard to make prosecutor which concerning entry the sentence to the court at the that no mitment concerning suspen- a plea bargain has been struck or that no imposed will be sentence; advise may properly he improper plea bargain has been struck sion of take position he will what the defense would violate Prosecution Function Stan- concerning disposition. 2.8(a), dard and Defense Function supra, 1.1(d), To stand silent supra. Standard imply- should avoid

“(b) prosecutor A representa- while makes the defendant dis- to influence the greater power ing a tions prosecutor known and defense possesses.” a case than position of possibly counsel to be false would violate proposed in are following Standards previously both cited standards and Defense Function: of the Defense the delineation 7.5(a), supra. Function Standard 5.1(b): Section stated, previously As record for a law- conduct unprofessional “It is prove before us does not and the brief does understate or over- intentionally to yer quoted not assert violation of the above risks, prospects hazards or state supports implied The record standards. influence on the to exert undue the case findings the trial court. ruling plea.” as to his accused’s decision Nevertheless, from the quoted we have 7.5(a): Section for Criminal Justice in order to Standards conduct for a law- unprofessional is “It draw the attention of bench and bar to evidence, knowingly to offer false yer proper plea negotia conduct of the need evidence, documents, tangible whether tions, and demonstrate the soundness of the witnesses, testimony or fail to or the practice upon entry recommended of a discovery upon thereof seek withdrawal guilty plea inquiring whether the falsity.” of its consequence negotiations, so, and if negotiated plea us no more what the terms of the are. Although the record before State, Tex.Cr.App., Galvan v. supports findings of conduct violative Of. court, 24, which the trial as in the supports than it S.W.2d quoted above standards case, highly were induced instant followed “the desirable finding that (Galvan v. only practice” we can con- S.W.2d guarantee of latter, 26) it to the accused that a support explaining clude that were it to recommendation, only certainly support the former. recommendation almost *7 No less desir are and does not bind the Court.3 and defense counsel prosecutor The practice any to a a is that the results of authority to bind the court able without plea negotiations upon plea which the is based probation by or to punishment fixed to the trial court and made negoti- a be made known negotiation. attempt An to base State, Cruz v. part of record. guarantee a See plea upon ated such proper- 817. Tex.Cr.App., Function Standard 530 S.W.2d Since violate Prosecution 26.13, V.A.C.C.P., appears also note that Art. unless it that the defendant 3. We amended, after the trial in this effective mentally competent plea and the is free case, provides: voluntary. guilty “(a) accepting plea of Prior to “(c) admonishing In the defendant as contendere, plea the court or a of nolo compliance provided, herein substantial of: admonish the defendant shall sufficient, by the court is unless the de- “(1) range punishment attached affirmatively that he fendant shows was offense; and to the consequences plea of his not aware of the any “(2) the fact that recommendation by and that he was misled or harmed attorney punish- prosecuting as to of the (Emphasis of the court.” admonishment added.) binding on the court. is not ment guilty plea “(b) plea or nolo No by accepted the court shall be contendere That acceptable plea process and im- negotiated pleas bargaining are ly is an plea indispensable invol- proper plea bargains render element of our jus- criminal tice nothing system and all to there untary, longer there is lose can no any be See, negotiations g., doubt. e. gain by bringing State, the fruit Guster v. 494 (Tex.Cr.App.1975) S.W.2d and into the record. out the closet (concurring opinion); York, Santobello v. New 404 U.S. supports The in the instant case record 257, 495, 92 S.Ct. 30 L.Ed.2d (1971). their appellants entered the conclusion The bedrock assumption process knowing voluntarily and by Supreme stated Court in Santobello prose- not bound the court was as follows: cutor’s recommendation “. . . when plea rests in sig- nificant degree promise on a agree- grounds are error overruled and prosecutor, ment of the so that it can be judgments are affirmed. said to part be of the inducement or

consideration, promise must ful- Id., 262, filled.” at at S.Ct. DOUGLAS, J., participating. When a defendant does not obtain the sen- ROBERTS, Judge (dissenting). for, tence he bargained even though the prosecutor made recommendation This goes case to the heart of the agreed to, there has been in a very real bargaining process, questioning the reasons sense a failure of consideration flowing to very its existence. It demonstrates how the defendant. process a common malfunction of the re- delays sults in justice further criminal briefly Consider of af- consequences administration, strained relations between firming convictions such as these. Defense bar, injustice and manifest bench lawyers are to be much more hesitant criminal defendants. plea bargains enter prosecutor’s with the especially Hays County office— —if surrounding guilty pleas The facts these simply going ignore them. This set amply majority opinion. are forth in the should necessitate trials least some They present an all too familiar scenario. cases which would otherwise be settled Accepting testimony most favorable to negotiated pleas. it is seen that the defendants “An accused will engage be reluctant exchange negotiations or to enter into a pro- the prosecutor’s recommendation of agreement if he cannot withdraw his Although they bated sentences. were ad- of guilty when he does not obtain the monished at the time expected promised.” concessions he was accept prosecutor’s was not bound Wolske, State v. 280 Minn. recommendations, probabili- and were in all (1968). N.W.2d 151-52 beforehand, they quite so rea- ty informed aspects Other delay jus- in criminal sonably expected to probated receive sen- *8 tice by administration caused the judge’s They tences. would never have rejection of plea bargain can be fore- thought if for a mo- in the lengthy seen wrangling over motions up ment that would wind in the peni- guilty plea withdraw the and in motions However, judge trial tentiary. rejected trial, case, for new inas this appeals and in plea bargain, the terms of the as was his such as this. fact, however, prerogative. It is that this prerogative by many Moreover, is never exercised rejection plea bargains can rest, by judges, only rarely for the only lead to strained relations between the Although reason that it defeats the whole obvious bench and bar. case involved system. purpose plea bargaining de- cooperation uncharacteristic between

77 believe, office, important, “More we counsel, if with- prosecutor’s fense officials, upon proof the record re- drawal is refused of an un- enforcement law kept plea agreement, and distrust and unfulfilled lack of communication de- veals deprived is concerned. When fendant has been in effect of his judge where right jury to a to a trial and the benefit of the no more credence judge lends presumption of innocence —constitutional exhibited in the instant bargain than was only safeguards guaranteed every accused case, disappoint is bar, prosecutor’s regard probability office as without of his but the defense guilt or the truthfulness pretrial well. v. State admissions or confessions.” for the respect also the cost in Consider Wolske, supra at 151. engender. system that cases such as this What can be more unfair than proce- segments of our important “It is for all by dure the majority, countenanced where- society systems that our court to believe by uphold a defendant must his end of the justice. the crimi- dispense This includes bargain, prejudice, to his irrevocable before as well as the law abid- nals themselves whether prose- court decides or not the ing especially citizens and those criminals bargain upheld? cution’s side of the will be cooperated fully police who have inves- State, Dube v. 257 Ind. tigations.” growing recognition There has been a (Ind.1971). jurisdictions problems other 275 N.E.2d discussed variety safeguards above. A surround- group might of criminals be added To ing guilty pleas adopted, have been but the bargain uphold those who their end of the one I urge today simply is this: when plead guilty. The disillusionment with rejects judge plea bargain, trial justice system already the criminal fester- defendant, upon timely request, should have ing jails prisons help in our cannot but right guilty plea. to withdraw his be exacerbated cases such as those of admittedly statutory There is or case likely Gibson and Reeves. And it is not fact, authority in Texas for this rule. In general public readily will more urged rule would have the effect of justness results. perceive overruling express authority to the con State, Williams trary. The denial of motions to withdraw 487 S.W.2d 363 The cases of Trevino v. (Tex.Cr.App.1972). in such cases also results in manifest State, injustice guilty plea (Tex.Cr.App.1975), to the defendant. His S.W.2d State, Galvan v. usually rights, including waives (Tex.Cr.App. numerous 525 S.W.2d 24 trial, and Cruz v. jury right 1975), to a con- right Tex.Cr.App., right (this day decided) witnesses and the to assert front S.W.2d the same distinguishable. whatever defenses he thinks he has. What effect are In none of those timely request for these concessions if cases was there a to with is the consideration rejects bargain guilty plea imposition and the draw the sentence.1 It should also be irrevocable? noted that usually probated judge, 1. Since sentences are not tenced the same trial who did not report pre-sentence after a until warning afford them this advance of his filing for new filed and the time for motion intentions. hearing expired, sentencing trial has See also the American Bar Association the first indication a defendant has often Relating Guilty (Ap- Standards to Pleas of time, probation will be denied. At this Draft, proved 1968), 3.3(b); Sec. The Ameri- require good trial faith would that the can Law Institute’s Model Code of Pre-Ar- prosecu with the indicate his dissatisfaction *9 raignment (Proposed Procedure Official recommendation, thereby allowing a tor’s Draft, 1975), 350.5(4), 11(e), Sec. and Rule timely guilty plea the motion to withdraw Crim.Proc., 1, 1975, Fed.Rules of eff. Dec. imposition of sentence. It is noted containing similar recommendations. Trevino, were all sen Galvan Cruz 78 to a even if it policy touching

Texas subscribes liberal is based hope on a of guilty pleas. State, withdrawal of Garcia v. which turns out to be delusive. theAll rule 9, (1922). 237 279 91 Tex.Cr.R. S.W. urged today would do would permit be to the accused to withdraw guilty his plea, injustices in Perhaps concerned about upon timely request, if that hope turns out voluntary pleas, area of 64th guilty to be delusive. No modification of Art. Legislature recently applica- amended the necessary. 26.13 is Moreover, the amended statute, 26.13, V.A.C.C.P., by ble Art. add- Art. only 26.13 requires now that a guilty ing among things following other re- plea be voluntary, free and dropping the quired prior acceptance admonishment of proscriptions against fear, persuasion, pleas: such promises, and hopes pardon. delusive of “(2) the that any fact recommendation of way The is opened for spreading the terms prosecuting attorney as to punish- bargains upon the record, as my binding ment is not court.” on.the Brother has prudently Odom recommended action This codified recommendations of Cruz, supra. practice”. some cases as to “the better Tre It juris- remains consider where other State, 864, (Tex.Cr. vino v. 519 S.W.2d 868 dictions stand this Following matter. State, App.1975); 24, Galvan v. 525 S.W.2d the lead eighth3 of the third2 and circuits, 26 (Tex.Cr.App.1975). It nevertheless Congress finally adopted the long contemplate clear that the statutes not do awaited amendments to the Federal Rules urged today. noted, the rule It should be 11(e)(4), Criminal Procedure. Rule effec- however, that a rule would not rob the 1, tive provides December 1975 as follows: judge his accept trial discretion to “Rejection Agreement. of a Plea If plea. reject guilty a discretion is es This rejects agreement, court the plea judge prevent op sential if the trial is to shall, record, court on the inform the pressive bargains protect or unfair and to parties fact, of this advise defendant public merely interest. The rule would or, personally open on showing permit opt an accused for the uncertain good cause, camera, that the court is ties of trial his by changing plea to not plea agreement, bound afford when confronted with a trial opportunity defendant to then unwilling accept the prosecutor’s recom withdraw plea, his and advise the defend- mendation. ant persists that if he his guilty plea necessary appropriate It neither nor plea of disposition nolo contendere the Legislature fashioning defer may case be less favorable to the wisely Legislature left rule. “delusive contemplated by defendant than that probation” out Art. hope 26.13 plea agreement.” (Emphasis added) might guilty plea. factor which invalidate a State, also Valdez v. 507 202 appears See S.W.2d It thus sys- the entire federal Legislature (Tex.Cr.App.1974). The is not tem now subscribes to rule urged today. fact most negotiated blind A majority confronting of the states guilty pleas hope are based on permit some sort of issue also a defendant to withdraw language Under the strict guilty plea his if the judge rejects 26.13, accepted bargain.4 can Many Art. of those rejecting states Rundle, State, (Fla. Florida —Davis 2. United States ex rel. v. 308 Culbreath v. So .2d 27 (3rd 1972). 1975). F.2d 730 Cir. Georgia State, Ga.App. v. —Burkette Gallington, United v. 3. States 488 F.2d 177, (1974). 205 S.E.2d 496 den., 907, (8th 1973), Cir. cert. 416 U.S. Ill.Sup.Ct. 402(d)(2) (1970); Rule Illinois — (1974). 40 L.Ed.2d 112 S.Ct. Ill.Rev.Stat.1973, 110A, 402(d)(2). ch. Sec. Robinson, Indiana —Watson v. 300 N.E.2d 354 Quintana Connecticut — Conn.Sup. (1973). (Ind.1973). 319 A.2d 515

79 rejects a plea when the trial quest, lengthy only after done so rule have having given bargain. Only after dissenting opinions.5 and over discussions after opportunity such an in the direction Thus, trend is can a defendant’s rejects plea bargain here. urged rule voluntary. Accord- as plea be characterized found in can also be the rule Support for the rule discussed adopt I would ingly, Bar the American revisions proposed these convictions. The and reverse above Relating to Pleas Standards Association appel- and the causes should be remanded Draft, 1968), Sec. (Approved Guilty change pleas. given lants a chance Law Insti- the American 2.1(a)(ii)(5)6 Pro- Pre-Arraignment Code Model tute’s DOUGLAS, J., participating. not Draft, 1975), Secs. Official (Proposed cedure 350.5(4) 350.6.7 join the right for Texas time is jurisdictions permitting number

growing timely re- pleas, upon guilty

withdrawal plea being Fisher, and he did not affirm his advised that curred and after 223 N.W.2d 243 v. Iowa—State longer con- the court 1974). (Iowa upon Wolske, being called to either 280 Minn. v. Minnesota —State plea. 146, (1968). his 465, affirm or withdraw 152 160 N.W.2d Farris, Hampshire 320 v. New —State Action to be 642, (N.H.1974) 350.5. Additional recommended 7.Section 644 A.2d Where There is Plea Taken Agreement the Court “prudent”. Nuss, Jersey 131 v. N.J.Su- New —State 502, (A.D.1974). per. A.2d 610 330 319, Pennsylvania Pa.Rules accepting (4) Ruling Plea. Before —Rule on the Wilson, Crim.Proc.; v. 335 Commonwealth agreement, plea pursuant to a a court shall advise the (Pa.Super.1975). A.2d 777 parties whether it agreement dispose approves the and will West, 595, People v. 3 Cal.3d 5. California— the case in accordance therewith. If 385, (1970). Cal.Rptr. 409 477 P.2d 91 disapprove the court determines v. Stan- Massachusetts —Commonwealth dispose agreement in accordance not to of the case ton, (Mass.App.Ct.1974). N.E.2d 487 317 therewith, it shall so inform Rogers, Michigan People 55 Mich. v. — accept parties, the defendant’s the plea vise the 491, (1974). App. 223 N.W.2d contendere, ad- or nolo State, 499 S.W.2d v. Missouri—Huffman personally that he is defendant 1973). (Mo.Ct.App. not bound. Ramos, 85 N.M. Mexico—State v. New (N.M.Ct.App.1973). 438, 512 P.2d 1274 Selikott, People 35 N.Y.2d v. New Sentencing Following Plea York— Section 350.6. 623, (N.Y. 227, 318 N.E.2d 784 360 N.Y.S.2d If, any sentencing, the court for at the time of cert, 1122, den., Ct.App.1974), U.S. impose reason determines to a sen- (1975). 42 L.Ed.2d 822 S.Ct. provided for more severe than that tence State, supra. v. Texas—Williams plea agreement parties, in a the court shall inform the defendant of that fact between McKnight, 65 Wis.2d Wisconsin—State (1974). 223 N.W.2d and shall the defendant inform the court will entertain a motion to 6. 2.1 Plea withdrawal. that withdraw nouncing (a) plea. pro- defend- should allow the The court The court after or nolo his ant to withdraw contendere the sentence of a defendant who defendant, upon pleaded guilty whenever or nolo contendere withdrawal, proves timely personally inquire motion for of the defendant shall necessary to correct pronounced withdrawal is the sentence violates whether injustice. understanding any agreement manifest the de- respect to the sentence. had with fendant that the sentence If the court determines necessary (ii) to correct Withdrawal agree- with an pronounced is inconsistent injustice defendant whenever the manifest ment, it differs from the defend- or that proves that: way understanding in such a that it ant’s would be plea charge sen- (5) receive the he did not unjust permit the defendant’s contemplated concessions tence stand, plea. court, it shall vacate the agreement concurred