ODOM, Judge, dissenting.
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asserts that the evidence is insufficient to sustain his conviction for murder and his plea of guilty should have been withdrawn and a plea of not guilty
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made a judicial confession sufficient to sustain the conviction for murder, additional evidence, which was not withdrawn, clearly raises the issue of self-defense and voluntary manslaughter. Therefore, the only question presented for review is whether the appellant's plea of guilty should have been withdrawn by the court and a plea of not guilty entered
"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the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn, the trial court is required on its own motion to withdraw the defendant's guilty plea or nolo contendere plea and enter a not guilty plea for the defendant.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).
"Prior to January 1, 1966, the effective date of the 1965 Code of Criminal Procedure, the rule was properly applied when the jury had been waived and a plea of guilty entered before the court as well as when a plea of guilty had been entered before a jury. Prior to the effective date of the 1965 Code of Criminal Procedure, a defendant could not waive a jury and enter a plea of not guilty before the court. Article 11, V.A.C.C.P. 1925. If the defendant waived a jury trial and entered a plea of guilty before the court and it became necessary for the court to withdraw the defendant's plea of guilty, the court was required to impanel a jury to hear the not guilty plea. This is explained in the opinion in Burks v. State (145 Tex.Cr.R. 15), 165 S.W.2d 460 (Tex.Cr.App.1942).
"The 1965 Code of Criminal Procedure provides that a defendant may waive a jury trial and enter a plea of not guilty before the court in all except capital cases. Articles 1.13 and 1.14, V.A.C.C.P. There now seems to be no valid reason for the court to withdraw the guilty plea and enter a plea of not guilty for the defendant when the defendant enters a plea of guilty before the court after waiving a jury. It is the duty of the trial court to consider the evidence submitted and as the trier of the facts the court may find the appellant guilty of a lesser offense and assess the appropriate punishment or it may find the defendant not guilty. It would serve no purpose to withdraw the plea of guilty and enter a not guilty plea. Those cases in which this Court has reached a different result are overruled to the extent they conflict with the opinion in this case."
The judgment should be affirmed.
DOUGLAS, J., joins this dissent.
APPENDIX
THE COURT: All right, sir, you are Henry Earl Moon?
THE DEFENDANT: Yes, sir.
THE COURT: Mr. Moon, in Cause No. 230,232 it is alleged by an indictment that reads: "In the name and by authority of the State of Texas, the Grand Jury of Harris County, State of Texas, duly organized at the May term, 1975, of the 176th District Court of said county, in said court, at said term, do present in the County of Harris and the State of Texas, one Henry Earl Moon, hereafter referred to as the Defendant, heretofore on or about June the 15th, 1975, did then and there intentionally and knowingly cause the death of Theodore Thomas Kelly, Jr. by stabbing and cutting him with a knife.
"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?
THE DEFENDANT: Guilty.
THE COURT: Sir, let me ask you this: As to all of these offenses, the indictment that the Court read, as well as the other two, are you pleading guilty, because you are guilty and not because of any promises, not because of any fear, not because of any persuasion on the part of your attorney, the district attorney, your friends or relatives, or any delusive hope or idea that you would have a better chance of getting a pardon or parole? But are you pleading guilty, strictly because you are guilty; for none of the reasons enumerated or outlined or any other reason, except the fact that you are guilty?
THE DEFENDANT: Yes, sir.
THE COURT: Sir?
THE DEFENDANT: Yes, sir.
THE COURT: You are pleading guilty, because you are guilty?
THE DEFENDANT: Yes, sir.
THE COURT: Not because of any other reason?
THE DEFENDANT: Yes, sir.
THE COURT: Sir, do you understand your right of a trial by jury?
THE DEFENDANT: Yes, sir.
THE COURT: Do you want a trial by jury in any one of these three cases?
THE DEFENDANT: Yes, sir.
THE COURT: You do want a trial by jury?
THE DEFENDANT: No, sir.
THE COURT: Well, now, you said yes, sir, and now you say no, sir. You understand you can have a trial by jury, or you can waive the trial by jury and proceed before the Court without the benefit of a jury.
What is your desire?
THE DEFENDANT: No, sir.
THE COURT: No, sir, what?
THE DEFENDANT: No jury.
THE COURT: No jury. You want to proceed and waive the jury and proceed before the Court; is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: All right, sir. You understand that the penalty for the offense of murder, as you have pled guilty to, may be incarceration that's locked up in the Texas Department of Corrections that's the penitentiary for a period of not less than five years nor more than ninety-nine, or for life.
Do you understand the penalty for that offense?
THE DEFENDANT: Yes, sir.
THE COURT: You understand that, in this case, the district attorney is not making any recommendation. The Court is going to as I understand from your attorneys, they want the Court to secure a presentence investigation, to hear evidence concerning the alleged murder and take into consideration the offense reports and stipulations there will be in this case, and from that evidence, for the Court to make its determination as to the penalty to be assessed.
Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Is that your agreement and your understanding?
THE DEFENDANT: Yes, sir.
THE COURT: Now, you are represented by Mr. Rasmus?
THE DEFENDANT: Yes, sir.
THE COURT: And what is your name?
MR. BENNETT: Ealy Bennett, Your Honor.
THE COURT: Bennett, that's right.
And by Mr. Bennett, both of whom are with you today. Have they been employed by you, or were they appointed by the Court?
THE DEFENDANT: Employed.
THE COURT: Are you satisfied with both of them as your attorney?
THE DEFENDANT: Yes, sir.
THE COURT: Have you had ample opportunity to counsel with them and to advise with them, so that they are familiar with the circumstances concerning the alleged offenses and the incidents leading up to and that transpired in the commission of the offense, as well as your arrest?
THE DEFENDANT: Yes, sir.
THE COURT: Have they had ample opportunity to counsel with you and to find out everything that you knew about the case?
THE DEFENDANT: Yes, sir.
THE COURT: And do you have good sense?
THE DEFENDANT: Yes, sir.
THE COURT: Nobody ever said you were crazy, except in jest? Nobody ever said you were crazy; did they?
THE DEFENDANT: No, sir.
THE COURT: You feel that you are competent to stand trial at this time?
THE DEFENDANT: Yes, sir.
THE COURT: Now, you have filed with...
