Goodie v. State, B14-86-695-CR
Citation | 735 S.W.2d 871 |
Decision Date | 11 June 1987 |
Docket Number | No. B14-86-695-CR,B14-86-695-CR |
Parties | Curtis Ray GOODIE, Appellant, v. The STATE of Texas, Appellee. (14th Dist.) |
Court | Court of Appeals of Texas |
Charles F. Baird, Houston, for appellant.
John B. Holmes, Jr., J. Harvey Hudson, James R. Buchanan, Houston, for appellee.
Before PAUL PRESSLER, MURPHY and ELLIS, JJ.
Appellant pled guilty to the court to the offense of burglary of a habitation. The trial court deferred an adjudication of guilt and placed appellant on probation for five years and assessed a fine of $500. Five months later, the state filed a motion to adjudicate appellant's guilt based on his alleged commission of another burglary of a habitation. The trial court found appellant guilty and punishment was assessed at thirty years confinement. In three points of error appellant complains that he entered an involuntary plea, that the trial court failed to personally admonish him at the time of his plea pursuant to Tex.Code Crim.Proc.Ann. art. 26.13 (Vernon Supp.1987), and that he was denied effective assistance of counsel. We affirm.
In his first point of error appellant complains that the trial court erred in accepting his plea of guilty because it was not voluntarily entered. During the course of the plea the following exchange occurred:
No inquiry was made by the trial court of appellant regarding his protestation of innocence. However, appellant, immediately before making the above quoted statements, affirmed that his plea was voluntary in responding to the trial court's admonishments (the admonishments were read by the prosecutor for the convenience of the trial court after all parties consented):
Tex.Code Crim.Proc.Ann. art. 26.13(b) (Vernon Supp.1987) states:
No plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.
In determining whether a plea is voluntary, the court should consider all the facts and circumstances. See Brown v. State, 491 S.W.2d 124, 125 (Tex.Crim.App.1973). Appellant had entered his plea of guilty in response to the trial court's admonishments. The trial court was not under a duty to order appellant's plea withdrawn based on his subsequent protest. See Thomas v. State, 599 S.W.2d 823 (Tex.Crim.App.1980). In Thomas, the defendant signed a judicial confession stating she knowingly and intentionally possessed heroin. See id. at 824. She then testified that she did not purchase the heroin and had no idea it was in her purse. See id. at 824. The court held that after having already received the defendant's confession, the trial court did not err in failing to sua sponte withdraw appellant's guilty plea. See id. at 824. Thomas and the instant case both involved pleas to the trial court. In Moon v. State, 572 S.W.2d 681 (Tex.Crim.App.1978) (op. on reh'g), the Court of Criminal Appeals held that the trial court is not required to sua sponte withdraw a plea of guilty and enter a plea of not guilty for a defendant when the defendant enters the plea of guilty before the court after waiving a jury, even if evidence is adduced that might reasonably and fairly raise an issue of fact as to the guilt of the defendant. See id.
Appellant cites Griffin v. State, 703 S.W.2d 193 (Tex.Crim.App.1986), in support of his claim that the trial court should have ordered that his guilty plea be withdrawn and a plea of not guilty be entered. Griffin involved a plea of guilty to a jury for the offense of attempted capital murder. See id. at 194. However, when Griffin gave testimony to support his guilty plea he stated that the gun discharged accidentally and that he did not intend to shoot his victim. See id. at 194. The court stated the rule that:
Where a plea of guilty is entered in a felony case, before a jury, and evidence is introduced which makes evident the innocence of the accused, or which reasonably and fairly raises an issue as to such fact, such evidence should be withdrawn or a plea of not guilty entered.
Id. at 195. Griffin may be distinguished from the instant case. Griffin, and the rule stated therein, involved a plea before a jury rather than to the court. After considering all the facts and circumstances, we find that the trial court did not err in failing to withdraw appellant's freely and voluntarily made plea of guilty. See Thomas v. State, 599 S.W.2d at 824 (Tex.Crim.App.1980). Appellant's first point of error is overruled.
In his second point of error appellant complains that the trial court erred by failing to personally admonish him as required by Tex.Code Crim.Proc.Ann. art. 26.13(a) (Vernon Supp.1987), which states in pertinent part: "Prior to accepting a plea of guilty or nolo contendere, the court shall admonish the defendant ..." Id. The admonishments were read by the prosecutor after the trial court received the consent of appellant's trial counsel:
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