Glenn v. State, 42008

• Decision Date: 02 April 1969
• Docket Number: No. 42008,42008
• Citation: 442 S.W.2d 360
• Parties: Paul Nelson GLENN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 360

442 S.W.2d 360

Paul Nelson GLENN, Appellant, v.The STATE of Texas, Appellee.

No. 42008.

Court of Criminal Appeals of Texas.

April 2, 1969.

Rehearing Denied June 4, 1969.

Second Rehearing Denied July 9, 1969.

Abney & Burleson, by Phil Burleson, Dallas, for appellant.

Henry Wade, Dist. Atty., Malcolm Dade, Camille Elliott and James P. Finstrom, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is indecent exposure to a person under the age of 16 years; the punishment, 7 years' confinement in the Texas Department of Corrections.

Initially, appellant complains of the court's action in permitting the prosecutrix to make an in-court identification of him without affording him a hearing to determine if such identification was tainted by a police lineup.Appellant advances a due process claim since the alleged lineup occurred before the effective date (June 12, 1967) of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149andGilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.SeeStovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.See alsoGraham v. State, 422 S.W.2d 922;Cobbins v. State, 423 S.W.2d 589.

The record reflects that prior to trial the court granted appellant's motion for such a hearing but declined to hear evidence at that particular time.

Thereafter, however, the appellant, being duly admonished, entered a plea of guilty before the jury.The prosecutrix's in-court identification was not objected to or challenged in any manner, nor was any hearing then requested.There is nothing in the record to show that there was in fact a lineup.

Only recently in Darden v. State, 430 S.W.2d 494, this Court said:

'It is well established that a plea of guilty to a felony charge before a jury admits the existence of all facts necessary 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.Miller v. State, Tex.Cr.App., 412 S.W.2d 650;Richardson v. State, 164 Tex.Cr.R. 500, 300 S.W.2d 83;Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460;Grounds v. State, 140 Tex.Cr.R. 209, 144 S.W.2d 276;Hawkins v. State, 158 Tex.Cr.R. 406, 255 S.W.2d 875;Vance v. State, 122 Tex.Cr.R. 157, 54 S.W.2d 118;Aills v. State, 114 Tex.Cr.R. 345, 24 S.W.2d 1097;Crumbley v. State, 103 Tex.Cr.R. 391, 280 S.W. 1064.

'Where the guilty plea is before the jury, the presumption of innocence does not obtain under the plea and there is no issue of justification under it.Stullivan v. State, 47 Tex.Cr.R. 615, 85 S.W. 810;Garcia v. State, 91 Tex.Cr.R. 9, 237 S.W. 279.See alsoJackson v. State, 155 Tex.Cr.R. 466, 236 S.W.2d 623.Where such plea is before a jury, the accused may at any time before the retirement of the jury withdraw his plea and thus put upon the State the burden of proving his guilt beyond a reasonable doubt.Alexander v. State, 69 Tex.Cr.R. 23, 152 S.W. 436.It is observed that appellant made no effort to withdraw his guilty plea.'

In the case at barwe note that appellant made no effort to withdraw his guilty plea nor do we find any evidence which would have obligated the court to have withdrawn such plea.

Identification has assumed a constitutional dimension, but '(w)ith reference to appellant's claim of deprivation of federal constitutional due process, attention is directed to Bee v. Beto, 384 F.2d 925, wherein the Fifth Circuit Court of Appeals held that a guilty plea entered by a Texas state defendant was conclusive as to the defendant's guilt, admitted all facts charged in the indictment and waived all nonjurisdictional defects (including federal constitutional questions), citing White v. Beto, 367 F.2d 557;Law v. Beto, 370 F.2d 369andHaynes v. United States, 372 F.2d 651.'Hoskins v. State, Tex.Cr.App., 425 S.W.2d 825.

Ground of error #1 is overruled.

Next, appellant contends the trial court erred in admitting into evidence a 1964 suspended sentence judgment against appellant at his November 7, 1967, trial.

The State offered such judgment, over objection, as part of appellant's prior criminal record.Such judgment dated October 28, 1964, reflects that appellant was convicted of indecent exposure and was placed on a suspended sentence for a term of two years.

It appears to be appellant's contention that the suspended sentence was granted pursuant to the provisions of former Articles 776--781, V.A.C.C.P., 1925; that such Suspended Sentence Law or Act was repealed by the 1965 Code of Criminal Procedure.SeeArticle 54.02, Vernon's Ann.C.C.P.;Moats v. State, 402 S.W.2d 923;Ex parte McCarter, Tex.Cr.App., 415 S.W.2d 409;Walker v. State, Tex.Cr.App., 440 S.W.2d 653; that at the expiration of the two year period there existed no procedure for setting aside such suspended sentence (seeformer Article 780); that since he had been deprived of any procedure to terminate his suspended sentence the court erred in admitting evidence of the same at his trial long after the expiration of the two year period.

Former Article 780, supra, did provide in part:

'* * * After the setting aside and dismissal of any judgment of conviction as herein provided for, the fact of such conviction shall not be shown or inquired into for any purpose except in cases where the defendant has been again indicted for a felony and invokes the benefit of this law.'

It is observed that in Attorney General's Opinion M--27 (Feb. 15, 1967), it was held that while the 1965 Code of Criminal Procedure repealed the former Suspended Sentence Act, such repeal did not affect the provisions of Article 780 for setting aside suspended sentences where the judgment was entered prior to its repeal.Such holding was bottomed on the constitutional provision which prohibits the passage of retroactive laws which takes away or impairs vested rights acquired under existing laws.Article I, Sec. 16, Texas Constitution, Vernon's Ann.St.See alsoArticle 42.12, Sec. 35, V.A.C.C.P.

Thus, contrary to appellant's claim, there does appear to be a procedure for the setting aside of a...