Martin v. State, No. 08-02-00144-CR (Tex. App. 1/15/2004)

Decision Date15 January 2004
Docket NumberNo. 08-02-00144-CR,08-02-00144-CR
PartiesRUTH ANN MARTIN, Appellant, v. THE STATE OF TEXAS, Appellee.
CourtTexas Court of Appeals

Appeal from Criminal District Court No. 5 of Dallas County, Texas, (TC# F-0175501-PL).

Panel No. 5; Before LARSEN, McCLURE, and WITTIG, JJ. (WITTIG, J., sitting by assignment)


DON WITTIG, Senior Justice.

Ruth Ann Martin appeals her conviction and twenty-year sentence for the offense of injury to a child. By three issues, she contends the trial court abused its discretion by not rejecting her plea of guilty, that the indictment is fundamentally defective, and ineffective assistance of counsel. We reverse and remand.


Martin awoke to find her pre-teen daughter Heather had died in bed during the night. Appellant was charged with injury to a child, a second-degree felony. After appropriate admonishments by the trial court, appellant pled guilty to the indictment with an open plea agreement. The indictment alleged appellant recklessly caused serious bodily injury to Heather Podloger, a child 14 years or younger, by leaving the child (her daughter), unsupervised by an adult and leaving morphine within access to the child. The indictment also alleged appellant caused serious bodily injury to the child in that she failed to provide adequate medical care, knowing the child was vomiting and crying, at a time appellant had the legal duty to act, to-wit: "the defendant was the parent of the complainant, and the defendant had assumed care, custody and control of the complaint . . . ." Appellant made a judicial confession tracking the indictment, verbatim.

Appellant testified she was thirty-three years old at the trial. She had been on probation for nine years after 1993 convictions for four drug offenses. She also had two 1991 obscenity charges resulting from the sale of a video at an adult bookstore where she worked. She was never charged with a probation violation. She considered herself a recovering drug addict. She also admitted to once trying the morphine in question, and that it made her sick. Her husband acquired the morphine from his sister after his mother died of cancer. The sister-in-law wanted appellant's husband to sell the drug to raise money to help pay for the cremation of the mother-in-law. The morphine was left in the original container, on the high shelf of the medicine cabinet in the bathroom. The container was brown and looked like an aspirin bottle. The container had a screw top, thought to be childproof by appellant. Appellant told her husband to get rid of illegal drugs after Heather's death, when CPS was coming. However, it was only later that the couple learned that Heather had ingested morphine.

Appellant and her husband left her daughter with her twelve, nearly thirteen, year-old son, Michael. The youngest child, Raymond, age five, was taken to a sitter. When appellant and her husband left to go to a sports bar/restaurant to watch a Mavericks basketball game, Heather had a headache. The couple had a cell phone and spoke with the children once. When they returned, Heather was asleep in the couple's bed. When awakened, Heather whimpered that she had a headache, perhaps a migraine, commonly suffered in her family. Heather was put in her own bed and she covered her head with a pillow to block the light. The couple discussed keeping Heather home the next day because she might have the flu. They went to sleep believing the child was alright. The next morning Heather was cold. Vomit came from her mouth. It was later determined that five undigested morphine pills were in Heather's stomach.

Jennifer Hood testified appellant was a perfect mother who always cared for her children. Appellant's husband, who was no-billed by the grand jury, said he brought the morphine into the house. He indicated they were gone about four hours and he was the one who brought the morphine into the home. Appellant's mother also testified appellant was a good mother and that she was depressed and remorseful over her daughter's death. She described appellant as protective of her children "like a mother bear."


In her first issue, appellant argues that the evidence did not show reckless conduct but instead showed innocent or, at worst, negligent conduct. She also argues the penal code provides a defense to prosecution if there is no evidence on the date prior to the offense that the defendant was aware of injury to the child. See TEX.PEN.CODE ANN. § 22.04(k)(2)(A)(Vernon 2003).1

Appellant argues the standard for withdrawal of a plea is one of discretion. She cites Aldrich v. State, 53 S.W.3d 460, 467 (Tex.App.-Dallas 2001), aff'd, Aldrich v. State, 104 S.W.3d 890 (Tex.Crim.App. 2003). Appellant argues that after a case is taken under advisement, the decision to permit withdrawal of the plea rests in the trial court's sound discretion. Abuse of discretion is shown only when the trial court's ruling lies outside the zone of reasonable disagreement. See id. The State responds that the trial court did not abuse its discretion and counters with Moon v. State, 572 S.W.2d 681 (Tex.Crim.App. 1978). Aldrich actually relies on Moon. Aldrich, 53 S.W.3d at 467. The State also argues the trial court had no jurisdiction to withdraw a guilty plea on its own motion after approving a plea bargain agreement. See Perkins v. Court of Appeals, 738 S.W.2d 276, 281 (Tex.Crim.App. 1987). We will address the latter argument below.

The rule had long been that in any case where evidence is introduced that reasonably and fairly raises an issue as to the innocence of the accused and such evidence is not withdrawn, the defendant's guilty plea must be withdrawn and a plea of not guilty must be sua sponte entered by the trial court. Griffin v. State, 703 S.W.2d 193, 195 (Tex.Crim.App. 1986); see also Harris v. State, 172 S.W. 975 (Tex.Crim.App. 1915); Edwards v. State 114 S.W.2d 572 (Tex.Crim.App. 1938); Navarro v. State, 147 S.W.2d 1081 (Tex.Crim.App. 1941); Rayson v. State, 267 S.W.2d 153 (Tex.Crim.App. 1954); Fite v. State, 290 S.W.2d 897 (Tex.Crim.App. 1956); Richardson v. State, 300 S.W.2d 83 (Tex.Crim.App. 1957); Edworthy v. State, 371 S.W.2d 563 (Tex.Crim.App. 1963); Reyna v. State, 434 S.W.2d 362 (Tex.Crim.App. 1968); Swanson v. State, 447 S.W.2d 942 (Tex.Crim.App. 1969); Hayes v. State, 484 S.W.2d 922 (Tex.Crim.App. 1972); Lee v. State, 503 S.W.2d 244 (Tex.Crim.App. 1974); Lewis v. State, 529 S.W.2d 550 (Tex.Crim.App. 1975); Gates v. State, 543 S.W.2d 360 (Tex.Crim.App. 1976); Woodberry v. State, 547 S.W.2d 629 (Tex.Crim.App. 1977); Malone v. State, 548 S.W.2d 908 (Tex.Crim.App. 1977).

This rule has been recognized and applied even when a jury has been waived and the plea is before the court without a jury. Burks v. State, 165 S.W.2d 460 (Tex.Crim.App. 1942); Gonzales v. State, 480 S.W.2d 663 (Tex.Crim.App. 1972); Faz v. State, 510 S.W.2d 922 (Tex.Crim.App. 1974); Trevino v. State, 519 S.W.2d 864 (Tex.Crim.App. 1975); Cooper v. State, 537 S.W.2d 940 (Tex.Crim.App. 1976); Sanchez v. State, 543 S.W.2d 132 (Tex.Crim.App. 1976).

The rule required the trial court to sua sponte withdraw a plea of guilty when evidence of innocence is fairly raised applies even though a defendant makes no effort during the trial to withdraw his plea of guilty, makes no objection to the court's charge instructing the jury to render a verdict of guilty, and even though the defendant's testimony shows him to be guilty of the offense. Montalvo v. State, 572 S.W.2d 714, 715-16 (Tex.Crim.App. 1978); Steele v. State, 22 S.W.3d 550, 553 (Tex.App.-Fort Worth 2000, pet. ref'd). The Griffin court observed:

This rule is a vital safeguard which operates to protect the accused from any outside pressure which could result in an innocent party being convicted, upon his own plea of guilty, of a crime he did not commit. Since a person cannot at any time involuntarily plead guilty to a crime for which he is accused, the totality of the circumstances of each case is assessed to assure the voluntary nature of the plea. Gates v. State, 543 S.W.2d 360 (Tex.Crim.App.1976). However, the rule is clear in our case law that when the exculpatory evidence is produced by the defendant himself, that it may be withdrawn by him and a plea of guilty may still be taken upon his own volition. See e.g., Lincoln v. State, supra; Montalvo v. State, 572 S.W.2d 714, 715 (Tex.Crim.App. 1978); Varela v. State, 553 S.W.2d 111 (Tex.Crim.App. 1977).

Griffin, 703 S.W.2d at 195.

The cardinal principle of criminal jurisprudence seeks to convict only the guilty and not the innocent. Thus due process requires proof of every contested fact beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). Notwithstanding, when the Court of Criminal Appeals was expanded from five to seven members, many of the precedents and principles cited above were abolished sua sponte by the new court in Moon. See Moon, 572 S.W.2d at 690 (Onion, PJ, dissenting). As correctly argued by the State, Moon held that a trial court is not required to withdraw a guilty plea sua sponte and enter a plea of not guilty for a defendant when the defendant enters a plea of guilty before the court after waiving a jury, even if evidence is adduced that either makes the defendant's innocence evident or reasonably and fairly raises an issue as to guilt. Id. at 682. The new high court, in the plurality opinion, reasoned it was the trial court's duty to consider the evidence submitted, and, as the trier of fact, the court may find appellant guilty of a lesser offense or it may find the defendant not guilty. Id. Therefore, it would serve no valid purpose for the court to withdraw the guilty plea and enter a not guilty plea when the defendant enters a plea of guilty before the court after waiving a jury. Id.

Moon has progeny: Beasley v. State, 634 S.W.2d 320, 321 n.1 (Tex.Crim.App. 1982); Solis v. State, 945 S.W.2d 300, 302-03 (Tex.App.-Hou...

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