Gonzales v. State

• Decision Date: 13 May 1970
• Docket Number: No. 42580,42580
• Citation: 456 S.W.2d 137
• Parties: Sammy GONZALES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 137

456 S.W.2d 137

Sammy GONZALES, Appellant, v. The STATE of Texas, Appellee.

No. 42580.

Court of Criminal Appeals of Texas.

May 13, 1970.

Gillespie & McClendon, by Jack McClendon, Lubbock, for appellant.

Roger Gorrell, County Atty., Muleshoe, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION ON APPELLANT'S SECOND MOTION FOR REHEARING

ONION, Judge.

Our opinion on original submission is withdrawn. We adopt and reaffirm, however, the disposition in the original opinion of the first two grounds of error.

The adopted part of the original opinion by Presiding Judge Woodley reads as follows:

'The appeal is from a conviction on a plea of guilty before the court of the offense of using profane language over the telephone, (Art. 476 V.A.P.C.) with punishment assessed at three months in jail and a fine of $500.00.

'A prior appeal from such conviction, in our Cause No. 41,815, was dismissed for want of a proper sentence. Gonzales v. State, Tex.Cr.App., 440 S.W.2d 847.

'Upon remand sentence was entered and notice of appeal was given and the appeal is properly before us.

'Three grounds of error are set forth in appellant's brief as propositions of law. They are:

"PROPOSITION OF LAW NO. 1

The appellant was deprived of his right to counsel as guaranteed by the Sixth and Fourteenth Amendments of the Constitution of the United States of America and by the laws of the State, of Texas, and no intelligent waiver of such right was made by the appellant.

"PROPOSITION OF LAW NO. 2

The appellant's plea of guilty was involuntarily made and should not have been received by the court.

"PROPOSITION OF LAW NO. 3

The appellant was denied due process of law in-as-much as he was uninformed of his right to make application for a probated sentence and made no waiver of such right.'

'The record reflects that the complaint and information were filed and capias issued on May 23, 1968. The next day the capias was executed and appellant was taken before the County Judge and after being given the statutory warning appellant advised that he wanted to consult a lawyer and was released on bond.

'Three days later he appeared before the County Judge accompanied by his employer, the Postmaster at Muleshoe, and pleaded guilty to the charge in the information.

'The judgment reflects that the court again explained to appellant that he was entitled to have a lawyer represent him; that the court could appoint a lawyer if he was unable to hire one, and that appellant waived having a lawyer of his choice and also waived appointment of a lawyer by the court; that appellant was admonished by the court of the consequences of his plea, including the minimum and maximum punishment, and was again advised of his right to trial by jury and appellant waived said right and asked the court to try the case; and that the court received the plea and upon such plea found appellant guilty of the offense charged and assessed the punishment.

'As a witness for appellant at the hearing on appellant's motion for new trial, Muleshoe Postmaster Spencer Beavers testified that he discussed the case with appellant prior to the time they went before the judge and recommended that he plead guilty and get it over with; that he did not think he would get such a severe punishment; that he discussed the case with the County Judge 'but there was no commitment made'; that he had given appellant his opinion that probation would be granted and recommended that if he was going to plead guilty he didn't need to hire a lawyer, and that the judge 'knew that we were coming up there because we had talked to him and told him we were going to plead guilty.'

'As to the proceedings in connection with the plea of guilty, the Postmaster's testimony was consistent with the recitations of the judgment above mentioned.

'The first two grounds of error are overruled.'

In his third ground of error the appellant contends he was denied due process of law at the time of his misdemeanor conviction since he was 'uninformed of his right to make application for a probated sentence and made no waiver of such right.'

Article 26.13, V.A.C.C.P., 1965 (former article 501, V.A.C.C.P.), does require that a defendant be admonished as to the consequences of his plea, etc., but under the former codes it was held that such statute had no application to misdemeanor cases and such admonishment was not necessary. See Johnson v. State, 39 Tex.Cr.R. 625, 48 S.W. 70; Berliner v. State, 6 Tex.App. 181; Scott v. State, 29 Tex.App. 217, 15 S.W. 814; Bumguardner v. State, 147 Tex.Cr.R. 188, 179 S.W.2d 768; Burton v. State, 112 Tex.Cr.R. 334, 16 S.W.2d 828; Brewer v. State, 147 Tex.Cr.R. 289, 180 S.W.2d 167; Letterman v. State, 146 Tex.Cr.R. 37, 171 S.W.2d 349; Townsel v. State, 162 Tex.Cr.R. 221, 283 S.W.2d 944. Such holdings have been sustained since the enactment of the new Code. Gallegos v. State, Tex.Cr.App., 425 S.W.2d 648.

In Wilson v. State, Tex.Cr.App., 436 S.W.2d 542, a felony case, it was held that in admonishing a defendant as to the consequences of his plea of guilty it was not necessary for the court to inform the defendant as to the jury's authority to recommend probation.

Articles 776 (jury) and 776a (non-jury--judge) of the Former Suspended Sentence Law (Article...