Rojas v. State, 39635
| Decision Date | 08 June 1966 |
| Docket Number | No. 39635,39635 |
| Citation | 404 S.W.2d 30 |
| Parties | Frank R. ROJAS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Emmett Colvin, Jr. (appointed counsel), Dallas, for appellant.
Henry Wade, Dist. Atty., Robert H. Stinson, Jr., Scott Bradley and W. John Allison, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
Appellant was convicted, upon a plea of guilty, of the felony offense of driving while intoxicated, and his punishment was assessed at five months confinement in jail.
The trial was on February 3, 1966, and governed by the provisions of the Code of Criminal Procedure of 1965, which became effective January 1, 1966. Appellant, being arraigned (Article 26.01, Vernon's Ann.C.C.P.) for the purpose of fixing his identity and hearing his plea (Article 26.02, V.A.C.C.P.) and having been admonished by the court (Article 26.13, V.A.C.C.P.), persisted in pleading guilty (Article 26.14, V.A.C.C.P.). A jury was duly selected, impaneled and sworn in the case. Appellant's having entered a plea of guilty to the indictment, evidence was presented, and the jury was then instructed by the court to find appellant guilty.
Appellant objected to the court's charge on the ground that it failed to authorize the jury to assess punishment. The objection was overruled.
We need go no further than this point in order to properly dispose of this case. In overruling the objection, the court was proceeding under Article 37.07, V.A.C.C.P. It is appellant's contention that he should have proceeded under Article 26.14, V.A.C.C.P.
Article 37.07, supra, by its terms applies to pleas of not guilty alone.
Article 26.14, supra, provides:
'Where a defendant in a case of felony persists in pleading guilty or in entering a plea of nolo contendere, if the punishment is not absolutely fixed by law, a jury shall be impaneled to assess the punishment, and evidence may be heard to enable them to decide thereupon, unless the defendant in accordance with Articles 1.13 or 37.07 shall have waived his right to trial by jury.'
When the time came for the judge to charge the jury in accordance with the terms of Article 26.14, supra, the defendant had not waived the right to trial by jury in accordance with Article 1.13, supra, and nothing had occurred during the trial to cause the plea of guilty to be withdrawn.
In cases where Article 37.07, supra, is applicable the time for waiving the right to have the jury assess the punishment does not arrive until such jury has found the defendant guilty, hence it cannot be said that appellant had waived such right 'in accordance with Article 37.07.'
To the contrary, he objected to the court's charge because the question of punishment was not submitted to the jury.
A former draft of the Code had made provisions for election prior to the selection of the jury. This, and the possibility that the plea of guilty may be withdrawn during the trial, may explain the reference to Article 37.07 in Article 26.14.
It therefore follows that the trial court reversibly erred when he did not submit the question of punishment to the jury in accordance with the terms of Article 26.14, supra, as requested by the appellant.
The judgment is reversed, and the cause is remanded.
The majority opinion correctly recites the sequence of events in this cause, and I shall not restate them other than to mention that the jury retired to consider their verdict, after appellant's objection was overruled, and returned a verdict into court finding appellant guilty as charged.
After the return of the verdict, the court inquired: 'Does the defendant elect for the Court or for the Jury to assess the punishment?' Counsel for appellant responded with the following statement:
The jury was discharged and the court proceeded to hear evidence on the question of the punishment to be assessed in the case. Appellant objected on the ground that the court was erroneously proceeding under Art. 37.07 of the Code of Criminal Procedure, which is 'inapplicable to all cases except those cases involving capital offenses or wherein the accused had plead not guilty.'
At the hearing before the court it was shown by stipulation of the parties that appellant had been previously convicted of a misdemeanor offense of drunken driving (not alleged in the indictment) and also of a felony offense of drunken driving. Appellant, by such stipulation, did not waive his objection to the admissibility of the evidence but again renewed his objection, on the ground that Art. 37.07 'has no application to this cause, in that the defendant has plead guilty,' and made further objection to the evidence of the misdemeanor conviction on the ground that it was for 'a crime not involving moral turpitude' and 'not encompassed even within Art. 37.07.'
After hearing the evidence, the court fixed appellant's punishment at five months in jail and pronounced sentence in the cause.
Two grounds of error are presented by appellant in his brief filed in the trial court in support of his motion for a new trial.
The first ground urged is, in substance, that the court erred in utilizing the alternate procedure provided by Art. 37.07 of the code in determining appellant's guilt and the punishment to be assessed, for the reason that such article has no application to a felony case where the plea is 'Guilty.'
The second ground is that, for the same reason, the court erred in permitting evidence to be offered of appellant's prior criminal record. It is also urged that if Art. 37.07, supra, were applicable to the case the court erred in admitting evidence of the prior misdemeanor conviction for driving while intoxicated, which is an offense not involving moral turpitude. It is insisted that the phrase, 'prior criminal record,' used in Art 37.07 does not encompass misdemeanor offenses not involving moral turpitude.
To pass upon the errors urged by appellant it is necessary to consider certain articles of the Code of Criminal Procedure.
Art. 37.07 of the code reads, in part, as follows:
'Verdict must be general; separate hearing on proper punishment
'(2) Alternate procedure.
'(a) In felony cases less than capital and in capital cases where the State has made it known that it will not seek the death penalty, And where the plea is not guilty, the judge shall, before the argument begins, first submit to the jury the issue as to the guilt or innocence of the defendant of the offense or offenses charged, without authorizing the jury to pass upon the punishment to be imposed; provided, however, that in the charge which submits the issue of guilt or innocence there shall be included instructions showing the jury the punishment provided by law for each offense submitted.
'Regardless of whether the punishment be assessed by the judge or the jury, evidence may be offered by the State and the defendant as to the prior criminal record of the defendant, his general reputation and his character.'
Art. 26.14 of the code reads as follows:
'Jury on plea of guilty
'Where a defendant in a case of felony persists in pleading guilty or in entering a plea of nolo contendere, if the punishment is not absolutely fixed by law, a jury shall be impaneled to assess the punishment and evidence may be heard to enable them to decide thereupon, unless the defendant in accordance with Articles 1.13 and 37.07 shall have waived his right to trial by jury.'
Art. 1.13 of the code reads, in part, as follows:
'Waiver of trial by jury
'The defendant in a criminal prosecution for any offense classified as a felony less than capital shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State. * * *'
It is apparent to the writer, from reading the above statutes, that it was the intention of the legislature to provide for an alternate procedure, in certain felony cases, whereby there would be a separate determination of the guilt of an accused and the punishment to be assessed.
Upon a finding of 'Guilty,' it becomes the responsibility of the judge to assess the punishment except where the defendant requests that the punishment be assessed by the same jury.
Regardless of whether the punishment be assessed by the judge or by the jury, evidence may be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation, and his character.
While Art. 37.07 refers only to certain felony cases where the plea is 'Not guilty,' I think that such article--when read in connection with Art. 26.14 of the code--is also applicable to cases...
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