Martinez v. State, 46362
Citation | 494 S.W.2d 545 |
Decision Date | 16 May 1973 |
Docket Number | No. 46362,46362 |
Parties | Lorenzo Ovalie MARTINEZ, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Dell Barber and Dan L. Barber, Colorado City, for appellant.
Lealand W. Greene, Dist. Atty., Snyder, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
This is an appeal from a revocation of probation proceeding.
Appellant's appeal was abated in Martinez v. State, Tex.Cr.App., 488 S.W.2d 77.
The record is now properly before us. The appeal will be considered on its merits.
Appellant plead guilty to the felony offense of driving a motor vehicle upon a public highway while intoxicated. His punishment was assessed at two (2) years imprisonment. Imposition of the sentence was suspended and the appellant placed on probation. One of the conditions of probation was that he not violate the law.
Subsequently, the State filed a motion alleging appellant violated the above stated condition of his probation and after a hearing, the court revoked probation.
Appellant contends, by supplemental brief, that the admonishment upon his plea of guilty at the original trial was insufficient under Article 26.13, Vernon's Ann.C.C.P. This will be considered under Section 13 of Article 40.09, V.A.C.C.P.
Alleged errors at appellant's original trial may not ordinarily be raised at his revocation of probation. Taylor v. State, Tex.Cr.App., 482 S.W.2d 246, and the cases cited therein.
However, in Ramirez v. State, Tex.Cr.App., 486 S.W.2d 373, a revocation of probation, appellant contended he was not represented by counsel at the trial upon which the revocation was based. Reversing the cause we concluded:
This Court has held that a failure to comply with the requirements of Article 26.13, supra, is subject to attack via a petition for habeas corpus. Ex parte Chavez, Tex.Cr.App., 482 S.W.2d 175. Therefore, appellant's claim will be considered.
The record reflects appellant entered a plea of guilty to the felony offense of driving while intoxicated, second offense on September 15, 1972, before the 132nd District Court of Scurry County. After the court called for appellant's plea to the indictment, the following transpired:
Now, I have before me your application for a probation.
(Here follows Court's admonition as to probation.)
(REPORTER'S NOTE--Discussion off the Record between the Defendant and Mr. Rosson.)
All right.
You may be seated. The Court will accept your plea.
The purpose of the admonishment is to determine the voluntariness of the plea. While we have repeatedly prevailed on trial judges to follow the exact wording of Article 26.13, V.A.C.C.P., in making that determination, reversal is not required where the trial court's inquiry, taken as a whole, is sufficient to establish the voluntary nature of the plea.
In our recent opinions in Mitchell v. State, 493 S.W.2d 174 (1973), and Espinosa v. State, 493 S.W.2d 172 (1973), the...
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Ex parte Taylor
...Ex parte Jordan, 490 S.W.2d 585 (Tex.Cr.App.1973); Ex parte Robinson, 494 S.W.2d 538 (Tex.Cr.App.1973); Martinez v. State, 494 S.W.2d 545 (Tex.Cr.App.1973); Heathcock v. State, 494 S.W.2d 570 (Tex.Cr.App.1973); Ex parte Harvey, 495 S.W.2d 229 (Tex.Cr.App.1973); Ex parte Williams, 499 S.W.2d......
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Walker v. State
...Article 26.13, supra, as to consideration of Fear or Persuasion 'must be inquired into and appear of record.' See also Martinez v. State, 494 S.W.2d 545 (Tex.Cr.App.1973); Heathcock v. State, 494 S.W.2d 570 (Tex.Cr.App.1973). In Mayse and Ross v. State, 494 S.W.2d 914 (Tex.Cr.App.1973), the......
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Bosworth v. State
...See also Ex parte Harvey, 495 S.W.2d 229 (Tex.Cr.App.1973); Ex parte Robinson, 494 S.W.2d 538 (Tex.Cr.App.1973); Martinez v. State, 494 S.W.2d 545 (Tex.Cr.App.1973). Where the recitals in the judgment reflect that the mandatory prerequisites of the statute have been complied with and these ......
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Ex parte Sanders
...collateral attacks on the original conviction are not permitted, Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972), Martinez v. State, 494 S.W.2d 545 (Tex.Cr.App.1973) and Taylor v. State, 482 S.W.2d 246 (Tex.Cr.App.1972).7 One whose training and experience bring one within the range of co......