Morales v. State

• Decision Date: 31 May 1967
• Docket Number: No. 40379,40379
• Citation: 416 S.W.2d 403
• Parties: Carlos MORALES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 403

416 S.W.2d 403

Carlos MORALES, Appellant, v. The STATE of Texas, Appellee.

No. 40379.

Court of Criminal Appeals of Texas.

May 31, 1967.

Rehearing Denied July 19, 1967.

J. Ray Martin, Amarillo, for appellant.

Gene Compton, Dist. Atty., Bob D. Slough, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is burglary with intent to commit theft; the punishment, twelve (12) years confinement in the Texas Department of Corrections.

In imposing sentence, the trial court specified that such sentence shall be cumulative with a twenty-five (25) years sentence for the offense of robbery by assault with firearms entered on the same day in the same court again this appellant.

It appears from the record that appellant was separately indicted for the offenses of armed robbery and burglary growing out of the same series of events on July 16, 1966, in Potter County, Texas.

On September 13, 1966, after the State had waived the death penalty, appellant entered a plea of 'not guilty' before a jury to the indictment charging him with robbery by assault with firearms. After the State rested its case in chief, and appellant's motion for an instructed verdict was overruled, appellant changed his plea to 'guilty' and waived trial by jury. Such procedure is permissible in an otherwise capital case where the State has waived the death penalty in accordance with Article 1.14, Vernon's Ann.C.C.P. The punishment assessed by the Court was twenty-five years. The appeal from this conviction was disposed of in Morales v. State, Tex.Cr.App., 416 S.W.2d 436, this day reported.

Following the proceedings in the robbery case and on the same day the state waived and abandoned the prior convictions alleged in the burglary indictment for the purpose of enhancement. After being duly admonished by the Court as to the consequences of his plea, including a statement as to the maximum and minimum punishment that could be assessed for burglary, appellant entered his plea of 'guilty' to the instant offense of burglary, waiving his right to trial by jury. Further, appellant and counsel of his own choice executed a written waiver of the appearance, confrontation, and cross-examination of the witnesses against him and consented to the stipulation of evidence in accordance with Article 1.15, V.A.C.C.P.

Such stipulated evidence, being that offered by the State before the jury in the robbery prosecution, appears in the record before us in the form of an agreed statement of facts as authority by Article 40.09, Section 14, V.A.C.C.P.

We do not deem it necessary to set out all the facts and details of the offenses. Briefly, the agreed statement of facts reveals that the appellant, with the assistance, before and after the offenses, of a female employee of the Ship's Lounge No. 2, in Amarillo, Texas, entered that business establishment after it was closed and locked at approximately midnight on July 16, 1966. Said employee had informed the appellant there would be money in the said lounge that night. At 2 A.M., the owner of the Ship's Lounge No. 2, Antonio Espinosa, upon observing lights burning in the building, returned unexpectedly to the premises. Upon entering the building, he was assaulted and robbed by appellant whom be discovered inside the business establishment. The agreed statement of facts includes the assertion that the evidence offered was sufficient to support both convictions.

In his first ground of error, if we understand it, appellant contends that the trial court erred in fixing his punishment for burglary in excess of the minimum of two years as he was denied a separate hearing on punishment as contemplated by Article 37.07, Section 2(b), V.A.C.C.P. We overrule such contention.

Appellant obviously overlooks the fact that Article 37.07, Section 2(b), supra, is applicable only to pleas of not guilty before a jury. Rojas v. State, Tex.Cr.App., 404 S.W.2d 30. It has no application where a defendant waives trial by jury and enters a plea of guilty before the Court in a felony less than capital case. Articles 1.13, 1.14, and 1.15, V.A.C.C.P. Further, Article 37.07, Section 2(b), supra, has no application to a plea of guilty before a jury in such cases. Article 26.14, V.A.C.C.P.; Rojas v. State, supra.

In his second ground of error, appellant contends that the trial court abused his discretion in cumulating the burglary sentence with the sentence previously imposed in the robbery case since the offenses grew out of the...