Spivey v. State

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation143 S.W.2d 386
Docket NumberNo. 21106.,21106.
PartiesSPIVEY v. STATE.
Decision Date05 June 1940

Appeal from Criminal District Court, Harris County; Whit Boyd, Judge.

Antone Spivey was convicted of receiving and concealing stolen property, and he appeals.

Reversed and remanded for new trial.

J. A. Collier and Charles Murphy, both of Houston, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

It appears from the record that on the 24th day of October, 1939, appellant was tried on three separate and distinct indictments, styled State of Texas v. Antone Spivey, Nos. 47,483, 47,485, and 48,487, in the District Court of Harris County, on a charge of receiving and concealing stolen property.

It seems that appellant entered a plea of guilty before the court in each of the three cases and was assessed a punishment of two years in the state penitentiary in each case. Thereafter, on the 4th day of November, appellant filed a motion denominated a motion in arrest of judgment and for leave to withdraw his plea of guilty. In the conclusion of his motion he prays that sentence be not passed upon him; that he be permitted to withdraw his plea of guilty, and for such other and further relief as he may be justly entitled to.

It may be true that appellant did not denominate the document as a motion for new trial. Nevertheless, the entire context of the motion shows that he desired a new trial. The grounds specified in said motion, if true, would entitle him to a new trial. Therefore, it occurs to us that it does not make any difference what he denominated his plea. Whether it be a motion in arrest of judgment or a motion for new trial, it is nevertheless a motion for a new trial. The court heard, considered and overruled the same, to which action the defendant then and there excepted and gave notice to the Court of Criminal Appeals of Texas. This brought the entire case before this court for review.

Article 12, C.C.P., as amended by Acts 1931, 42d Leg. p. 65, ch. 43, sec. 3, Vernon's Ann.C.C.P. art. 12, reads as follows: "No person can be convicted of a felony except upon the verdict of a Jury duly rendered and recorded, unless in felony cases less than capital, the defendant upon entering a plea of guilty has in open Court in person and with the approval and consent of the Court and the State's Attorney, as provided in Section 1 of this Act, (Article 10a of Code of Criminal Procedure of the State of Texas), waived his right of a trial by Jury. Provided, however, that it shall be necessary for the State to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the Court as the basis for its verdict, and in no event shall a person charged be convicted upon his plea of guilty without sufficient evidence to support the same."

It is apparent from the foregoing article of the statute that in every case where the defendant enters a plea of guilty to the court that the State is required to introduce evidence showing the guilt of the defendant, and if the State fails in this respect the defendant is entitled to a new trial. Therefore, upon an appeal...

To continue reading

Request your trial
12 cases
  • Moon v. State, 54352
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 4, 1978
    ...... Spivey v. State, 140 Tex.Cr.R. 107, 143 S.W.2d 386 (1940); Franklin v. State, 140 Tex.Cr.R. 251, 144 S.W.2d 581 (1940); Howell v. State, 140 Tex.Cr.R. 627, 146 S.W.2d 747 (1941); Wilson v. State, 154 Tex.Cr.R. 39, 224 S.W.2d 234 (1949). Thus, while a plea of guilty constitutes an admission of guilt, it ......
  • Dinnery v. State, 61650
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 10, 1979
    ......State, 123 Tex.Cr.R. 543, 59 S.W.2d 833, 834 (1933); Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460, 462-463 (1942); Spivey......
  • Sterling v. State, 13-89-291-CR
    • United States
    • Court of Appeals of Texas
    • May 24, 1990
    ......Page 276.         When a motion states grounds that would entitle an accused to a new trial, it is to be considered a motion for new trial, regardless of its title. Spivey v. State, 140 Tex.Cr.R. 107, 143 S.W.2d 386, 387 (1940); Balderas Cortez v. State, 735 S.W.2d 294, 301 (Tex.App.--Dallas 1987, no pet.). Whether to grant a new trial is a matter within the trial court's discretion. State v. Daniels, 761 S.W.2d 42, 44 (Tex.App.--Austin 1988, pet. ref'd). ......
  • Burks v. State, 22201.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 4, 1942
    ......In such. Page 463. cases, the State is under the burden of introducing evidence sufficient to show the guilt of the accused as charged. Art. 12, C. C.P., as amended by Chapter 43, Acts 42nd Leg., 1931, Vernon's Ann.C.C.P. art. 12; Spivey v. State, 140 Tex.Cr.R. 107, 143 S.W.2d 386; Franklin v. State, 140 Tex.Cr. R. 251, 144 S.W.2d 581. The plea of guilty in such cases, while constituting an admission of guilt, does not authorize a conviction.         It is also well settled by the decisions of this court that, where a plea ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT