Moon v. State
Decision Date | 04 October 1978 |
Docket Number | No. 54352,54352 |
Parties | Henry Earl MOON, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Ealy A. Bennett, Moncie Rasmus, Jr., Houston, for appellant.
Carol S. Vance, Dist. Atty., Alvin M. Titus and Gerard Guerinot, Asst. Dist. Attys., Houston, for the State.
EN BANC.
OPINION ON THE STATE'S MOTION FOR REHEARING
The majority of the Court now adopts for its opinion the dissenting opinion on original submission. The "straw man" argument presented, the assumptions made, and the discussions concerning the voluntariness of the plea, in the opinion concurring in part and dissenting in part, are wholly irrelevant. The record reflects that the appellant was carefully admonished concerning his guilty plea and that his constitutional rights were fully protected, but in view of the opinion concurring in part and dissenting in part a portion of the record will be incorporated in an appendix to this opinion. This portion of the record shows the appellant was fully and completely admonished and that he was accorded due process.
The State's Motion for Rehearing is granted; the judgment is affirmed.
Judge Carl Dally, a commissioner for this Court, submitted a proposed opinion affirming this conviction. I adopt his opinion as my dissent.
"The appellant asserts that the evidence is insufficient to sustain his conviction for murder and his plea of guilty should have been withdrawn and a plea of not guilty "In a long line of authorities this Court has held that when the evidence introduced makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn, the trial court is required on its own motion to withdraw the defendant's guilty plea or nolo contendere plea and enter a not guilty plea for the defendant. E. G. Harris v. State (76 Tex.Cr.R. 126), 172 S.W. 975 (Tex.Cr.App.1915); Edwards v. State (134 Tex.Cr.R. 153), 114 S.W.2d 572 (Tex.Cr.App.1938); Navarro v. State (141 Tex.Cr.R. 196), 147 S.W.2d 1081 (Tex.Cr.App.1941); Rayson v. State (160 Tex.Cr.R. 103), 267 S.W.2d 153 (Tex.Cr.App.1954); Fite v. State (163 Tex.Cr.R. 279), 290 S.W.2d 897 (Tex.Cr.App.1956); Richardson v. State (164 Tex.Cr.R. 500), 300 S.W.2d 83 (Tex.Cr.App.1957); Edworthy v. State, 371 S.W.2d 563 (Tex.Cr.App.1963); Reyna v. State, 434 S.W.2d 362 (Tex.Cr.App.1968); Swanson v. State, 447 S.W.2d 942 (Tex.Cr.App.1969); Hays (Hayes) v. State, 484 S.W.2d 922 (Tex.Cr.App.1972); Lee v. State, 503 S.W.2d 244 (Tex.Cr.App.1974); Lewis v. State, 529 S.W.2d 550 (Tex.Cr.App.1975); Gates v. State, 543 S.W.2d 360 (Tex.Cr.App.1976); Woodberry v. State, 547 S.W.2d 629 (Tex.Cr.App.1977); Malone v. State, (548) S.W.2d (908) ((Tex.Cr.App.) No. 54065, 4/6/77). 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 (145 Tex.Cr.R. 15), 165 S.W.2d 460 (Tex.Cr.App.1942); Gonzales v. State, 480 S.W.2d 663 (Tex.Cr.App.1972); Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974); Trevino v. State, 519 S.W.2d 864 (Tex.Cr.App.1975); Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976); Sanchez v. State, 543 S.W.2d 132 (Tex.Cr.App.1976).
should have been entered for him by the trial court. Although the appellant made a judicial confession sufficient to sustain the conviction for murder, additional evidence, which was not withdrawn, clearly raises the issue of self-defense and voluntary manslaughter. Therefore, the only question presented for review is whether the appellant's plea of guilty should have been withdrawn by the court and a plea of not guilty entered.
The judgment should be affirmed.
"Against the peace and dignity of the State." Signed Foreman of the Grand Jury.
Sir, to this indictment, how do you plead? Guilty or not guilty?
What is your desire?
Do you understand the penalty for that offense?
Do you understand that?
And by Mr. Bennett, both of whom are with you today. Have they been employed by you, or were they appointed by the Court?
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Morgan v. State
...(Tex.Cr.App.1968) (original dissenting opinion); Thornton v. State, 601 S.W.2d 340 (Tex.Cr.App.1979) (on rehearing); Moon v. State, 572 S.W.2d 681, 690 (Tex.Cr.App.1978) (opinion on original submission).Under a guilty plea before either the court or judge, the court is required to exercise ......
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...guilty plea, even if evidence is brought to the judge's attention making the defendant's innocence evident. Moon v. State, 572 S.W.2d 681, 682 (Tex.Crim. App.1978); Fisher v. State, 104 S.W.3d 923, 924 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Appellant seems to implicitly suggest, how......
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