Lucero v. State, s. 47804
| Decision Date | 19 December 1973 |
| Docket Number | 47805,47807 and 47808,Nos. 47804,s. 47804 |
| Citation | 502 S.W.2d 750 |
| Parties | Tony LUCERO, alias Tony Yanez, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Arthur A. Estefan, San Antonio, for appellant.
Ted Butler, Dist. Atty., Fred Rodriguez and David K. Chapman, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., Buddy Stevens, Asst. State's Atty., Austin, for the State.
These appeals arise out of two convictions for felony theft and one conviction for assault with intent to commit robbery wherein the punishment was assessed in each case at ten (10) years and one conviction for rape wherein the punishment was assessed at twenty-five (25) years.
The records in these cases reflect that in each of these cases the appellant waived trial by jury and entered his pleas before the court. The cases were heard together, and at the same time 1 the court admonished the appellant individually as to each case.
We shall first discuss the grounds of error that are common to all of the cases.
Appellant complains that all of the convictions must be reversed because he entered a plea in each case which was unauthorized and unknown to law.
In first admonishing the appellant as to the rape charge, we find the following in the record:
The remainder of the admonishment used similar terms. In the admonishment for the first felony theft charge, we find the following:
Thereafter, in describing the plea the court used the term 'guilty and nolo Contendre' or 'guilty or nolo Contendre.'
In the admonishment on the robbery case, we find the following:
Later in the admonishment, the court referred to the plea as a 'plea of guilty.'
In the record the admonishment as to the second felony theft charge reflects the following:
Later, the court announced it would accept the 'plea of guilty.'
To add to the confusion, we observe that the docket sheets in all four cases indicate the appellant plead guilty, while the judgments in three of the cases reflect the plea was 'guilty nolo contendere.' The judgment in the second felony theft case (72--779) (No. 47,805), reflects the plea as 'nolo contendere.'
Appellant contends that Article 27.02, Vernon's Ann.C.C.P., lists the only pleadings permitted an accused, and that, while both a plea of guilty and a plea of nolo contendere are listed, the court could not accept both pleas or a plea of 'guilty on a nolo Contendre.' It is his contention that an accused is entitled to a single plea and cannot as a matter of right file more than one plea. See 22 C.J.S. Criminal Law § 416.
Article 27.02, Vernon's Ann.C.C.P., provides in part as follows:
Under such statutory provision, the legal effect of a plea of nolo contendere is the same as a plea of guilty insofar as the criminal prosecution is concerned. Martinez v. State, 170 Tex.Cr.R. 266, 340 S.W.2d 56 (1960); Chavarria v. State, 425 S.W.2d 822 (Tex.Cr.App.1968); Fierro v. State, 437 S.W.2d 833 (Tex.Cr.App.1969).
While the court clearly should have made the appellant either enter one plea or another in light of his statements, 2 we conclude that it was the appellant's desire to enter pleas of nolo contendere in each of the cases.
The judgments in the rape, assault with intent to commit robbery and first felony theft cases are reformed to reflect that appellant entered pleas of nolo contendere.
In a series of grounds of error appellant complains of failure to comply with the requirements of Article 26.13, Vernon's Ann.C.C.P. Appellant complains that the court 'failed to elicit any testimony with regard to the appellant's sanity in the case.'
As noted earlier, the pleas of guilty were heard together and at the same time. During the admonishment on the first case--the rape charge--the court inquired of appellant's counsel if in his opinion the appellant was sane and of sound mind and knew the difference between right and wrong and understood the nature and consequences of his acts, which counsel answered in the affirmative and added, 'In my opinion, he is sane and he is able to assist me in this hearing today.'
Thereafter, the court made no further inquiry as to sanity. It is apparently this failure to inquire in each individual case as to whether appellant was of sound mind that appellant's counsel, who also represented him at trial, now complains of.
In Ring v. State, 450 S.W.2d 85, 88 (Tex.Cr.App.1970), the court noted that the careful practice usually followed was for trial judges to inquire into the accused's competency to stand trial before accepting a plea of guilty or nolo contendere incorporating such inquiry in the record, but, following the earlier decisions, held that unless an issue is made of the same the court need not hear evidence or make inquiry. See Kane v. State, 481 S.W.2d 808 (Tex.Cr.App.1972); Thorn v. State, 491 S.W.2d 425 (Tex.Cr.App.1973), and cases there cited; White v. State, 495 S.W.2d 903 (Tex.Cr.App.1973); Williams v. State, 497 S.W.2d 306 (Tex.Cr.App.1973).
In the instant cases the court once inquired of appellant's counsel as to appellant's sanity, was able to observe him in open court, to hear him speak and to note his demeanor, and to engage in a colloquy with him regarding the voluntariness of his pleas. At no time was the issue of appellant's sanity ever raised. In light of the circumstances of these particular cases, the pleas being taken together, we cannot conclude the court failed to satisfy the requirements of Article 26.13, Vernon's Ann.C.C.P., with regard that 'it plainly appeared to the court that the appellant is of sound mind.'
Next, appellant complains that in determining the voluntariness of the pleas the court did not use the word 'persuasion' and did not ascertain whether the pleas were being entered as a result of any 'persuasion' as required by Article 26.13, supra. An examination of the record shows that in each instance the court inquired whether the pleas were being entered as a result of 'fear,' 'false or delusive hope of pardon' and in addition inquired if the pleas were being entered as a result of threats, coercion, force, promises, and ascertained the pleas were freely and voluntarily entered. While the court's inquiry was not consistent in each case, we also find this inquiry in the record:
Although the exact language of the statute should be used in the admonishment, we conclude that the inquiries in question were sufficient to reflect that the appellant was not entering his pleas as a result of any persuasion. See Kane v. State, 481 S.W.2d 808 (Tex.Cr.App.1972); Jackson v. State, 488 S.W.2d 451 (Tex.Cr.App.1972).
Still further, appellant contends that, while the court advised him as to the consequences of his pleas (the range of punishment), it failed to inquire whether he understood and appreciated the range of punishment. The contention is without merit. In each case, after advising the appellant what penalty could be inflicted, the court inquired whether the appellant persisted in his plea 'understanding the range of punishment provided by law . . ..' The answer in each case was in the affirmative.
Appellant also contends the indictment in the assault with intent to commit robbery is fatally defective in that the word 'attempt' is used instead of 'intent.' No motion to quash was filed...
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