DeVary v. State
| Citation | 615 S.W.2d 739 |
| Decision Date | 13 May 1981 |
| Docket Number | No. 1,No. 67139,67139,1 |
| Parties | Terry Carson DeVARY, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Steve Hebert, Baytown, for appellant.
John B. Holmes, Jr., Dist. Atty., Marqua McGul Billingsley and Pat McKenna, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before ONION, P. J., and ROBERTS and ODOM, JJ.
This is an appeal from a conviction for possession of lysergic acid diethylamide with intent to deliver. Punishment, upon appellant's plea of guilty, was assessed at five years.
In his sole ground of error appellant contends that the trial court abused its discretion in its failure to hold a hearing on his motion to withdraw his plea of guilty. The record reveals that appellant pled guilty and was admonished under Art. 26.13, V.A.C.C.P. 1 on October 4, 1979. At the subsequent hearing to assess punishment on November 29, 1979, appellant moved the court to withdraw his plea. The court denied this motion and assessed punishment at five years.
The law in this regard was well stated in Jackson v. State, Tex.Cr.App., 590 S.W.2d 514, 515:
Appellant's decision to withdraw his plea was too late since the court had two months earlier taken the matter under advisement. Under these circumstances we find no abuse of discretion in the court's overruling appellant's motion to withdraw his plea. Jackson v. State, supra at 515; Milligan v. State, 168 Tex.Cr.R. 202, 324 S.W.2d 864, 865 (1959).
The judgment is affirmed.
There is much, much the majority does not tell. In footnote 1 it simply refers to the court's admonishment as erroneous and then considerably clouds the case law concerning Articles 40.09, § 13, and 26.13, V.A.C.C.P.
This is an appeal from a conviction for possession of lysergic acid diethylamide with intent to deliver. Following appellant's guilty plea before the court, the punishment was assessed at five (5) years' imprisonment.
On appeal appellant, in his sole ground of error, claims the trial court erred and abused its discretion in its failure to hold a hearing on his motion to withdraw his plea of guilty.
The procedure involved was the Harris County bifurcated procedure for guilty pleas before the court. 1 After the appellant entered a guilty plea on October 4, 1979 and made a written judicial confession the court found the appellant guilty. Without assessing punishment and in light of appellant's motion for probation, the court re-set the matter to await a pre-sentence report. When the court reconvened on the matter some weeks later (November 29, 1979), the appellant filed on that date a written motion to withdraw his guilty plea. Attached thereto was appellant's affidavit that he did not have an understanding of the nature of the charge against him; that he understood he was pleading guilty to possession of a controlled substance, not to possession of a controlled substance with intent to deliver. 2 He stated he was not guilty of the latter offense. On the day in question the court announced it had the pre-sentence report and asked if there was anything further to be offered. Appellant's counsel asked for consideration of the motion to withdraw the guilty plea. It was overruled. The court then assessed punishment at five years' confinement in the Department of Corrections.
A liberal practice prevails in this state concerning the withdrawal of a guilty plea. Garcia v. State, 91 Tex.Cr.R. 9, 237 S.W. 279 (1921); Stanton v. State, 159 Tex.Cr.R. 275, 262 S.W.2d 497 (1953); McWherter v. State, 571 S.W.2d 312 (Tex.Cr.App.1978); Jackson v. State, 590 S.W.2d 514, 515 (Tex.Cr.App.1979). A defendant may withdraw his guilty plea as a matter of right without assigning reason until judgment has been pronounced or the case has been taken under advisement by the court. Milligan v. State, 168 Tex.Cr.R. 202, 324 S.W.2d 864 (1959); Rumage v. State, 324 S.W.2d 865 (Tex.Cr.App.1959); Stanton v. State, supra; Ralls v. State, 151 Tex.Cr.R. 146, 205 S.W.2d 594 (1947). 3 Where a defendant decides to withdraw his guilty plea where the proceedings are before the court after the trial judge has taken the case under advisement or has pronounced judgment, the withdrawal of such plea is within the sound discretion of the trial judge. Jackson v. State, supra.
While in the bifurcated procedure utilized without objection in the instant case, the judgment had not been fully pronounced since a judgment must contain the punishment to be assessed, see Article 42.01, V.A.C.C.P., the court had found the appellant guilty and thus had in effect taken the case under advisement. The appellant's motion to withdraw his guilty plea as a matter of right came too late. The motion which assigned reason was thus addressed to the sound discretion of the court. The appellant requested the court to consider his motion, which was overruled. There was no requested hearing on said motion, the lack of which the appellant complains of on appeal. Appellant's sole ground of error is without merit.
There is, however, another matter which in my humble opinion should be considered "in the interest of justice." See Article 40.09, § 13, V.A.C.C.P. The question concerns the court's admonishment concerning the range of punishment for the offense charged under Article 26.13, V.A.C.C.P., as amended in 1979, and in effect at the time of appellant's guilty plea.
While some early cases talked of review of a question under § 13 of Article 40.09, supra, only because the question was of constitutional dimension, 4 this court has made clear that the term "interest of justice" is not limited to questions of constitutional dimension or of fundamental error. See Taylor v. State, 549 S.W.2d 722 (Tex.Cr.App.1977); Williams v. State, 522 S.W.2d 488, 493 (Tex.Cr.App.1975) (Dissenting Opinion), and cases there cited.
I must express my concern and surprise at my brethren's refusal to consider the admonishment, which even they acknowledge is erroneous, under Article 40.09, § 13, supra, particularly when all the facts surrounding the admonishment are available to them and have been pointed out to them. Footnote one of the majority gives the facial appearance of a minor infraction having occurred and then interprets the opinion of Ex parte McAtee, 599 S.W.2d 335 (Tex.Cr.App.1980), to give an entirely new look to Article 26.13, V.A.C.C.P., overruling sub silentio many recent cases interpreting the same since its 1975 amendment.
Let's take a look at the facts revealed by this record which give a background for the proper consideration of the question involved.
Appellant was indicted for possession of lysergic acid diethylamide, a first-degree felony. LSD is included in Penalty Group 1. Article 4476-15, § 4.02(b)(5). Under § 4.04(b)(1) of the Controlled Substances Act, possession of a controlled substance in Penalty Group 1 is a felony of the second degree. However, under § 4.03(a), (b)(1), possession of a controlled substance in Penalty Group 1 with intent to deliver is a felony of the first degree.
§ 4.01(b)(1) and (2) provides:
The record reflects that at the time of admonishment of the appellant for the first-degree felony of possession of LSD with intent to deliver the following occurred:
The court then continued to admonish the appellant and subsequently admitted the written judicial confession.
The record then shows:
"THE COURT: ... Under your plea of guilty and upon your stipulation of evidence, the Court finds you guilty of the second degree felony of which you are charged...." (Emphasis supplied.)
It is obvious that the appellant was charged with a first-degree felony under the Controlled Substances Act. The court did not admonish him as to the...
To continue reading
Request your trial
-
Sarker v. Collier
...to withdraw a plea is untimely once a plea has been taken under advisement or guilt has been adjudicated). See DeVary v. State, 615 S.W.2d 739, 740 (Tex. Crim. App. 1981). Therefore, any motion to reopen the case or withdraw Petitioner's original guilty plea over four years later would have......
-
Dorsey v. State, 13-99-720-CR
...Accordingly, the trial court had discretion in deciding whether to permit appellant to withdraw his plea. See DeVary v. State, 615 S.W.2d 739, 740 (Tex. Crim. App. 1981) (court had discretion to refuse withdrawal of plea when defendant attempted to withdraw for the first time at the punishm......
-
Gottson v. State
...considered untimely, and the trial court has discretion whether or not to allow the defendant to withdraw his pleas. DeVary v. State, 615 S.W.2d 739, 740 (Tex.Crim.App.1981); Jackson, 590 S.W.2d at 515; see Milligan v. State, 168 Tex.Crim. 202, 324 S.W.2d 864, 865 (App.1959). If the defenda......
-
Saldana v. State
...investigation is "taking the case under advisement." Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App. [Panel Op.] 1979); DeVary v. State, 615 S.W.2d 739, 740 (Tex.Crim.App. [Panel Op.] 1981); Davis v. State, 861 S.W.2d 25, 27 (Tex.App.-Houston [14th Dist.] 1993); Thompson v. State, 852 ......