Bosworth v. State, 47746

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation510 S.W.2d 334
Decision Date13 March 1974
Docket NumberNo. 47746,47746
PartiesFoster L. BOSWORTH, Appellant, v. The STATE of Texas, Appellee.

Arthur A. Estefan, San Antonio, for appellant.

Ted Butler, Dist. Atty., Charles Roberts and David K. Chapman, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for felony theft. A plea of guilty was entered before the court and punishment was assessed at eight (8) years.

At the outset appellant contends that the court's admonishment to determine the voluntariness of the plea was not in compliance with Article 26.13, Vernon's Ann.C.C.P.

Appellant urges that minimal compliance with Article 26.13, V.A.C.C.P., is not present in that no inquiry is made to determine:

(1) If appellant were influenced by any persuasion.

(2) If appellant were influenced by any delusive hope of a pardon.

(3) If appellant were influenced by any force or threats.

After having the range of punishment for the offense explained to him, appellant told the court he was pleading guilty because he was guilty. Appellant was then asked and answered as follows:

'THE COURT: You are not doing this by reason of fear?

'MR. BOSWORTH: No, sir.

'THE COURT: You are not doing this because anyone has promised you anything?

'MR. BOSWORTH: No, sir.

'THE COURT: You are doing this voluntarily because you are guilty?

'MR. BOSWORTH: Yes, sir.'

Pursuant to questions by the court, counsel for appellant stated that he had known appellant for almost a year, he was a person of sound mind and definitely had been able to assist counsel in preparing for the hearing.

The court then accepted the plea of guilty.

The judgment recites:

'. . . it plainly appearing to the court that the defendant is sane and uninfluenced by any consideration of fear, or by any promises, persuasion or delusive hope of pardon prompting him to confess his guilt, the said plea of guilty was accepted by the court . . .'

Even though the court did not specifically inquire of appellant as to whether he was prompted to plead guilty because of a delusive hope of pardon nor was he asked if his plea was influenced by persuasion, in view of the entire record and the court's findings we find the admonitions to be in substantial compliance with Article 26.13, V.A.C.C.P. Espinosa v. State, tex.Cr.App., 493 S.W.2d 172; Mitchell v. State, Tex.Cr.App., 493 S.W.2d 174; Clayton v. State, Tex.Cr.App., 493 S.W.2d 176; Johnson v. State, Tex.Cr.App., 500 S.W.2d 115; Moreno v. State, Tex.Cr.App., 500 S.W.2d 114.

Appellant contends there is a variance in the indictment alleging that the property was owned by the complainant and in possession of the complainant and the proof offered by the State.

The indictment recites that an automobile over the value of fifty dollars was taken 'from the possession of Vincent W. Heyer, hereinafter called complainant, the owner thereof, . . .'

State's Exhibit No. 1 contains a written judicial confession, admitting all of the elements of the offense and specifically reciting that appellant 'did unlawfully and fraudulently take one automobile over value of $50 from Vincent Heyer, without his consent . . .' Pursuant to stipulation, a written statement of Vincent W. Heyer was introduced in which it was stated that Heyer had custody and control of the vehicle in question. Apparently appellant's complaint is directed to the allegation of ownership by Heyer in the indictment while the written statement shows that Heyer was a salesman for an auto company and the automobile was in his custody and control. Article 21.08, V.A.C.C.P. provides that 'where one person owns the property, and another person has the possession of the same, the ownership thereof may be alleged to be in either.' See Joshlin v. State, Tex.Cr.App., 468 S.W.2d 826. No error is shown.

Appellant next contends that the indictment is fatally defective in that the property alleged to have been taken is not described as 'corporeal personal property.'

'The omission of the word 'personal' or 'corporeal' in characterizing the property is immaterial where it is otherwise accurately described.' 55 Tex.Jur.2d, Theft, Section 110. The indictment alleged the theft of 'one (1) automobile.' Such description was held sufficient in Ward v. State, Tex.Cr.App., 446 S.W.2d 304. No error is shown.

Appellant contends that the allegation in the indictment that the value of the automobile taken is 'over the value of $50' is too general. Allegation as to value of property stolen is not descriptive further than as it affects question whether offense is felony or misdemeanor. Keenan v. State, 120 Tex.Cr.R. 616, 48 S.W.2d 264. The reason for alleging value of property stems from the necessity of the indictment showing on its face that court has jurisdiction of the offense. McKnight v. State, Tex.Cr.App., 387 S.W.2d 662. The indictment in the instant case alleges a felony offense and places jurisdiction in the district court. No error is shown.

Finding no reversible error, the judgment is affirmed.

Opinion approved by the Court.

ONION, Presiding Judge (dissenting).

'We must not be guilty of taking the law into our own hands, and converting it from what it really is to what we think it ought to be.' Coleridge, C.J., R 1--Ramsey (1883) 1 C. & A. 126, 136.

Since the Court of Criminal Appeals, as presently constituted, has recently been sharply divided over the proper interpretation to be given to Article 26.13, Vernon's Ann.C.C.P., and since the majority opinion in the instant case holds, in effect, that the trial court how need not inquire whether the guilty plea was prompted by either 'delusive hope of pardon' or 'persuasion' as required by statute, it may be well that the problems presented should be explored.

It is common knowledge that most criminal convictions result from guilty pleas or pleas of nolo contendere. It has been estimated that 90 percent of all criminal cases in this country are disposed of on such pleas. The President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts (1967). There is no reason to doubt that this is not true in Texas in criminal cases.

Therefore, it is of the utmost importance that the very highest standards be applied to our procedures in dealing with pleas of guilty and nolo contendere to insure that these proceedings, which dispose of the bulk of our criminal case load, are fairly conducted, that defendants are not overridden and that innocent individuals are not unjustly confined. And this is particularly true in felony cases.

Our foresighted Legislatures, years before the modern day concern with such proceedings, wisely enacted laws to provide certain safeguards. And such safeguards have been consistently interpreted until recently.

Prior to the adoption of the first Penal Code and first Code of Criminal Procedure in Texas, the common law, with a few penal statutes, constituted the criminal law of this State.

These first codes were passed after John W. Harris, O. C. Hartley and James Willie had been appointed commissioners to prepare codes revising the laws, civil and criminal, of this State.

The proposed codes, after many amendments, were adopted at the adjourned session of the Sixth Legislature in 1856, and took effect February 1, 1857.

In the first Code of Criminal Procedure (1856) is found Article 475, which reads:

'If the defendant plead guilty, he shall be admonished by the court of the consequences; and no such plea shall be received unless it plainly appear that he is sane, and is uninfluenced by any consideration of fear, by any persuasion or delusive hope of pardon prompting him to confess his guilt.'

This statute was brought forward unchanged as Article 518 in the 1879 Code of Criminal Procedure. It was again reenacted without change in the 1895 Code of Criminal Procedure as Article 554. Such statute became Article 565 in the 1911 Code of Criminal Procedure, again unchanged. In the 1925 Code of Criminal Procedure the statute was enacted as Article 501 without amendment and it was not amended until 1959, when it was slightly changed to incorporate a plea of nolo contendere.

Such 1959 amendment to Article 501, Vernon's Ann.C.C.P. 1925, read:

'If the defendant pleads guilty, Or enters a plea of nolo contendere, he shall be admonished by the court of the consequences; And neither of such pleas shall be received unless it plainly appears that he is sane, and is uninfluenced by any consideration of fear, or by any persuasion, or delusive hope of pardon, prompting him to confess his guilt. (Acts 1959, 56th Leg., p. 257, ch. 149, Sec. 1) (changes italicized).

And when the current 1965 Code of Criminal Procedure was enacted, said Article 501 as amended in 1959 was brought forward as Article 26.13, Vernon's Ann.C.C.P., completely unchanged. See also Article 27.13, Vernon's Ann.C.C.P.

Thus, it is clear for over 116 years the same statute, virtually unchanged in verbiage, has governed the procedure in accepting guilty pleas in felony cases. And over the years it has been interpreted numerous times and until recently consistently in the same manner.

The interpretation has been that a guilty plea in a felony case can be made only by the accused in person and in open court. It can only be accepted under the three following conditions, viz.: (1) The accused must be admonished by the trial court of the consequences of the plea; (2) It must plainly appear that the defendant is sane at the time of making the plea; and (3) It must plainly appear that he is uninfluenced by any consideration of fear or by any persuasion or delusive hope of pardon prompting him to make such plea. These prerequisites to the validity of such plea and acceptance thereof by the court are indispensable. Saunders v. State, 10 Tex.App. 336 (1881); ...

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  • Ex parte Williams
    • United States
    • Texas Court of Criminal Appeals
    • February 19, 1986
    ...contendere," it was the language used from 1856 in all of the forerunners of Article 26.13. See dissenting opinion in Bosworth v. State, 510 S.W.2d 334 (Tex.Cr.App.1974).In Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779 (App.1956), this Court wrote:"It is apparent that the court faile......
  • Ex parte Taylor
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    ...(Dissenting Opinion); Tellez v. State, 522 S.W.2d 500 (Tex.Cr.App.) (this day decided) (Dissenting Opinion); Bosworth v. State, 510 S.W.2d 334 (Tex.Cr.App.1974) (Dissenting Opinion). ROBERTS, Judge I dissent from the decision by the Court to deny petitioner leave to file his motion for rehe......
  • Walker v. State
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    ...of every Code of Criminal Procedure ever enacted in this State and have remained the same for 118 years. See Bosworth v. State, 510 S.W.2d 334 (Tex.Cr.App.1974) (Dissenting Opinion). Over the years this court has again and again held that the statute was mandatory. See, i.e., Ex parte Chave......
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