Ex parte Martin

• Decision Date: 10 February 1988
• Docket Number: No. 67540,67540
• Citation: 747 S.W.2d 789
• Parties: Ex parte Dallas Alan MARTIN, Jr.
• Court: Texas Court of Criminal Appeals

Page 789

747 S.W.2d 789

Ex parte Dallas Alan MARTIN, Jr.

No. 67540.

Court of Criminal Appeals of Texas En Banc.

Feb. 10, 1988.

Dallas Alan Martin, Jr., pro se.

Henry Wade, Former Dist. Atty. and Gregg S. Long, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

ONION, Presiding Judge.

This is a post-conviction habeas corpus proceeding. See Article 11.07, V.A.C.C.P. Applicant alleged he was convicted of burglary of a vehicle on December 5, 1977, and that his punishment, enhanced by allegation and proof of two prior felony convictions, was assessed at life imprisonment. See V.T.C.A., Penal Code, § 12.42(d), then in effect. In his habeas application he challenged the use of one of the prior convictions for enhancement of punishment, claiming it was a void conviction by reason of former jeopardy.

The prior conviction in question was for felony theft in Cause No. C-72-441-IN in the 195th District Court of Dallas County. Applicant's original conviction for such offense was reversed in Martin v. State, 491 S.W.2d 421 (Tex.Cr.App.1973), after it was found the evidence was insufficient to support the judgment based on his plea of guilty before the court. See Article 1.15, V.A.C.C.P. Shortly after the reversal applicant was again convicted of the same offense. It was this latter conviction, obtained after the reversal, which was alleged and used to enhance applicant's punishment in his 1977 conviction for burglary of a vehicle.

On original submission this Court, finding that Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), had held that the Double Jeopardy Clause (Fifth Amendment) of the United States Constitution precludes a second trial once the reviewing court has found the evidence legally insufficient to support a conviction, and finding that Burks and Greene had been applied retroactively, see Ex parte Mixon, 583 S.W.2d 378 (Tex.Cr.App.1979), remanded the cause to the trial court for proper assessment of punishment since the court had assessed punishment rather than a jury. ¹

We granted the State's motion for rehearing. In Burks, a federal prosecution, the United States Supreme Court held that the Double Jeopardy Clause of the Fifth Amendment precludes a second trial once a reviewing court has determined that the evidence introduced at trial was insufficient to sustain the verdict. In Greene the Court held that since the constitutional prohibition against double jeopardy is fully applicable to state criminal proceedings, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the standard announced in Burks applies to state cases. Thus, in both federal and state cases where the prosecution has failed to prove its case, it does not get "an opportunity for the proverbial 'second bite at the apple.' " Burks, 437 U.S. at p. 17, 98 S.Ct. at p. 2150. Both Burks and Greene made clear that reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the prosecution has failed to prove its case.

It is important to note that Burks and Greene involved contested jury trials where the plea was not guilty, and where the burden of proof was on the prosecution to prove each element of the criminal offense beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

In the instant case the prior conviction involved a plea of guilty before the court and a failure to comply with a state statute. Article 1.15, V.A.C.C.P. ² Only recently in Ex parte Williams, 703 S.W.2d 674 (Tex.Cr.App.1986), it was held there is no federal constitutional requirement that evidence of guilt must be offered to corroborate a guilty plea in a state criminal prosecution, and that the "rationality" test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), ³ has no application thereto, and that a defendant cannot collaterally attack the sufficiency of the evidence to support his guilty plea or plea of nolo contendere.

In Williams, this Court wrote:

"Jackson and Winship are only applicable where the federal constitution places the burden on the prosecution to establish guilt beyond a reasonable doubt. Neither case is applicable where a defendant knowingly, intelligently and voluntarily enters a plea of guilty or nolo contendere. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In Boykin the Court made clear that a guilty plea is more far-reaching than a confession admitting that a defendant performed certain deeds. It is a conviction with nothing remaining but for the court to determine punishment and render judgment. Boykin, 395 U.S. at 242, 89 S.Ct. at 1711-1712; Machibrada v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962); United States v. Robertson, 698 F.2d 703 (5th Cir.1983); Wharton's Criminal Procedure, 12th Ed. (Tureca), Vol. 2, § 339, p. 224.

"In Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed.2d 1009 (1927), it was written:

"A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury, it is conclusive. More is not required; the court has nothing to do but give judgment and sentence." See also North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

"The entry of a valid plea of guilty has the effect of admitting all material facts alleged in the formal criminal charge. United States v. Bendicks, 449 F.2d 313 (5th Cir.1971); Brazzell v. Adams, 493 F.2d 489 (5th Cir.1974). See also McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Moore v. United States, 425 F.2d 1290 (5th Cir.1970), cert. den. 400 U.S. 846 [91 S.Ct. 91, 27 L.Ed.2d 83]. A plea of guilty waives all nonjurisdictional defenses including contention as to the insufficiency of the evidence. Mapson v. Cox, 313 F.Supp. 465 (D.C.Va.1970).

"If the court is satisfied a factual basis exists for the guilty plea, a federal court may enter judgment upon that plea. Fed.Rules Cr.Pro., Rule 11(f); United States v. Oberski, 734 F.2d 1030 (5th Cir.1984). See also American Bar Association Standards for Criminal Justice, 2nd Ed., Standards Relating to Pleas of Guilty, Chapter 14, § 1.6.

"It is clear then there is no federal constitutional requirement that evidence of guilt must be offered to corroborate a guilty plea in a state criminal prosecution, and that the "rationality" test of Jackson has no application thereto."

We now turn to the necessity of evidence in Texas when the plea is guilty or nolo contendere. In Williams, supra, this Court also wrote:

"In a misdemeanor case when a defendant enters a plea of guilty before the court he admits every element of the offense. Ex parte Clinnard, 169 S.W.2d 181 (Tex.Cr.App.1943); Brown v. State, 507 S.W.2d 235 (Tex.Cr.App.1974). See also Dees v. State, 676 S.W.2d 403 (Tex.Cr.App.1984). The same rule applies where the guilty plea to a misdemeanor is before the jury. Brown v. State, supra. Article 27.14, V.A.C.C.P., provides that in pleas of guilty or nolo contendere in a misdemeanor case before the court punishment may be assessed by the court with or without evidence within the discretion of the court. See Foster v. State, 422 S.W.2d 447 (Tex.Cr.App.1967); Brown v. State, supra. Thus, normally on appeal from a misdemeanor conviction based on a plea of guilty or nolo contendere there can be no question of the sufficiency of the evidence. It follows that a collateral attack of the sufficiency of the evidence to support a misdemeanor conviction by habeas corpus is not permitted.

"In felony cases a plea of guilty before the jury admits the existence of all necessary elements to establish guilt, and in such cases, the introduction of testimony by the State is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed. Darden v. State, 430 S.W.2d 494, 495 (Tex.Cr.App.1968), and cases there cited; Renesto v. State, 452 S.W.2d 498 (Tex.Cr.App.1970); Brown v. State, 507 S.W.2d 235 (Tex.Cr.App.1974); Brinson v. State, 570 S.W.2d 937 (Tex.Cr.App.1978); Williams v. State, 674 S.W.2d 315 (Tex.Cr.App.1984). In such cases there is no question of the sufficiency of the evidence on appeal, Brinson v. State, supra, or on collateral attack. Ex parte Taylor, 480 S.W.2d 692 (Tex.Cr.App.1972).

"As to the necessity of evidence where a plea of guilty or nolo contendere in a non-capital felony case is entered before the court, the rule is different. Texas has a procedural requirement in such cases unlike that of most jurisdictions and even unlike such pleas in misdemeanor cases in this state. Article 1.15, V.A.C.C.P. (former Article 12, V.A.C.C.P., 1925) requires that the State offer sufficient proof to support any judgment based on a guilty or nolo contendere plea to a felony case tried before the court. Under this statute evidence is received to support the judgment, not to accept a plea of guilty or nolo contendere. Thornton v. State, 601 S.W.2d 340, 347 (Tex.Cr.App.1980) (opinion on rehearing). Article 1.15, supra, is an additional procedural safeguard required by the State of Texas but not by federal constitutional law. The history of the statute and its requirements are discussed in Rodriguez v. State, 442 S.W.2d 376, 379 (Tex.Cr.App.1969), and Thornton v. State, supra. In 1931 former Article 12, V.A.C.C.P., 1925, was amended along with other statutes to permit a defendant to waive a jury trial and enter a plea of guilty before the court in a felony case less than capital. Prior to such time there had to be a jury trial in felony cases regardless of the plea. Since there would no longer be a verdict of one's peers before a defendant was sent to prison, the...