Arismendez v. State, 63069
| Decision Date | 13 February 1980 |
| Docket Number | No. 1,No. 63069,63069,1 |
| Citation | 595 S.W.2d 535 |
| Parties | Ysidro ARISMENDEZ, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Charles J. Manning, Beeville, for appellant.
Marion E. Williams, Jr., County Atty., Beeville, Robert Huttash, State's Atty., Austin, for the State.
Before ONION, P. J., and ODOM and W. C. DAVIS, JJ.
This is an appeal from a conviction for assault in which punishment was assessed at six months in jail and a $1,000 fine.
In his third ground of error appellant contends the trial court committed error by failing to submit the issue of guilt or innocence to the jury. This case presents a highly unusual set of circumstances. The judgment recites, and the docket sheet reflects, that appellant waived his right to trial by jury and entered a plea of nolo contendere to the court. The court after hearing evidence then found appellant guilty. Thereafter he was allowed to elect to have punishment assessed by a jury. This procedure was improper, because a guilty or nolo contendere plea proceeding should not be bifurcated. Thom v. State, Tex.Cr.App., 563 S.W.2d 618. See also, Brown v. State, Tex.Cr.App., 487 S.W.2d 86, at footnote 2, and Thomas v. State, Tex.Cr.App., 477 S.W.2d 881.
The facts in this case are the converse of those presented in Rojas v. State, Tex.Cr.App., 404 S.W.2d 30. In that case the defendant entered a plea of guilty and was found guilty by a jury, but the trial court instead of submitting the punishment issue to the jury, discharged the jury and assessed punishment itself. It was held that Art. 26.14, 1 V.A.C.C.P., not Art. 37.07, V.A.C.C.P., controlled the proceedings in the guilty plea to a felony, and that absent a waiver punishment must be assessed by the jury.
In this misdemeanor case there was a waiver of the right to trial by jury. Therefore, punishment should have been assessed by the court, Art. 27.14(a), 2 V.A.C.C.P., and this should have been done without bifurcation from trial of the issue of guilt. Thom v. State, supra.
Since we hold that the trial court should have assessed punishment, and that the error arose by submission of the punishment issue to the jury, it will be sufficient on appeal to set aside the jury's verdict and remand the case for assessment of punishment by the court. See, Bullard v. State, Tex.Cr.App., 533 S.W.2d 812, 816.
Appellant's other two grounds of error concern the matter of...
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Wilkerson v. State, 684-86
...26.14, V.A.C.C.P., is a unitary trial, not a bifurcated one. Frame v. State, 615 S.W.2d 766 (Tex.Cr.App.1981); Arismendez v. State, 595 S.W.2d 535 (Tex.Cr.App.1981). A plea of guilty to a felony before a jury admits the existence of all incriminating facts necessary to establish guilt. Dard......
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...on reh'g)(when defendant changed plea to guilty, proceedings should have become unitary); Arismendez v. State, 595 S.W.2d 535 (Tex.Crim.App.1980)(guilty or nolo contendere plea proceedings should not be bifurcated); Basaldua v. State, 481 S.W.2d 851, 852-53 (Tex.Crim.App.1972)(proceedings o......
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In re State
...Lopez's plea of guilty, the respondent felt that it was precluded from allowing the jury to assess punishment by Arismendez v. State, 595 S.W.2d 535 (Tex. Crim. App. 1980). In Arismendez, the defendant waived his right to trial by jury and entered a plea of nolo contendere to the court. Id.......
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Carroll v. State
...hearing was held 3 months before hearing on pre-sentence investigation and even later pronouncement of sentence); Arismendez v. State, 595 S.W.2d 535 (Tex. Crim. App. 1980)(defendant pled nolo contendere but proceeding on punishment was erroneously bifurcated from guilt); Nunez v. State, 56......
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Defenses and special evidentiary charges
...In misdemeanor cases the trial on a guilty plea may not be bifurcated and the court should assess punishment. Arismendez v. State , 595 S.W.2d 535 (Tex.Crim. App. 1980); CCP Art. 27.14(a). B. Forms §3:960 Guilty Plea to Jury CCP Art. 1.15 and 26.13 MEMBERS OF THE JURY: The defendant, AB, st......
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Table of cases
...2:80 Apprendi v. New Jersey 120 S.Ct. 2348 (2000) 6:420 Arevalo v. State 943 S.W.2d 887 (Tex. Crim. App. 1997) 3:1320 Arismendez v. State 595 S.W.2d 535 (Tex. Crim. App. [Panel Op.] 1980) 3:950 Arivette v. State 513 S.W.2d 857 (Tex. Crim. App. 1974) 3:1380 Arline v. State 721 S.W.2d 348 (Te......