Thornton v. State

• Decision Date: 21 November 1979
• Docket Number: Nos. 60310,62218,No. 3,s. 60310,3
• Citation: 601 S.W.2d 340
• Parties: L. T. THORNTON, Jr., Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 340

601 S.W.2d 340

L. T. THORNTON, Jr., Appellant, v. The STATE of Texas, Appellee.

Nos. 60310, 62218.

Court of Criminal Appeals of Texas, Panel No. 3.

Nov. 21, 1979.

On Rehearing July 16, 1980.

Ralph Taite, Dallas, for appellant.

Henry M. Wade, Dist. Atty., Fred C. McDaniel and Kevin A. Byrne, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Alfred Walker, Asst. State's Atty., Austin, for the State.

Before DALLY, W. C. DAVIS and CLINTON, JJ.

OPINION

W. C. DAVIS, Judge.

This is an appeal from an order revoking probation. On December 7, 1977, appellant entered a plea of guilty to the offense of forgery. Punishment was assessed at ten years confinement, but imposition of sentence was suspended and appellant was placed on probation. On June 1, 1978, after a hearing, an order was entered revoking appellant's probation after his entry of a plea of "true" to allegations that he had violated the terms and conditions of his probation.

In his first ground of error, appellant contends that, "there was no evidence produced at appellant's plea of guilty to support the allegations in the indictment." In Ex parte Dantzler, 571 S.W.2d 536 (Tex.Cr.App.1978), we reiterated that it is well settled that the sufficiency of the evidence may not be collaterally attacked. Owens v. State, 540 S.W.2d 324 (Tex.Cr.App.1976); Gaines v. State, 501 S.W.2d 315 (Tex.Cr.App.1973). However, in Ex parte Moffett, 542 S.W.2d 184 (Tex.Cr.App.1976), we created an exception to the foregoing rule which prohibits collateral attacks on the sufficiency of the evidence. Therein, we allowed the defendant to collaterally attack an order revoking his probation where the revocation order was based upon no evidence. We held that since there was no evidence, not merely insufficient evidence, to support the order revoking probation, the defendant's right to due process had been violated and that this violation of a defendant's right to due process justified a collateral attack by habeas corpus. See also, Ex parte Dantzler, supra.

In the instant case, the indictment, in pertinent part, alleged that appellant,

"did then and there unlawfully, knowingly and intentionally with intent to defraud and harm another, forge, by passing to B. J. Epley, a writing which then and there purported to be but was not the authorized act of J. R. Oates and L. C. Bates, said writing being of the tenor following: (at which place a copy of the check was set out) said defendant knowing the same to have been forged . . ." (Emphasis added)

At the hearing on appellant's plea of guilty, the State introduced into evidence appellant's signed judicial confession, in which he stated:

"I judicially confess that on the 1st day of July, 1977, in Dallas County, Texas, I did then and there with intent to defraud and harm, knowingly and intentionally, forge, by making a writing, a true copy of which is attached to the indictment and the original of which is attached to this stipulation, as charged in the indictment." (Emphasis added)

Thus, it appears that appellant was indicted for forgery by passing a writing, and he confessed to forgery by making a writing. These are two separate offenses. V.T.C.A. Penal Code, Sec. 32.21, provides in part:

"(a) For purposes of this section:

(1) 'Forge' means:

(A) to alter, make, complete, execute or authenticate any writing . . .

(B) to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged . . .

(b) A person commits an offense if he forges a writing with intent to defraud or harm another."

In Reid v. State, 560 S.W.2d 99 (Tex.Cr.App.1978), we were confronted with a robbery indictment which alleged that the defendant committed the robbery and caused serious bodily injury to the complainant. See V.T.C.A. Penal Code, Sec. 29.02(a)(1). The only evidence admitted in support of the defendant's guilty plea was his judicial confession in which he admitted that he committed robbery and threatened and placed the complainant in fear of serious bodily injury. See V.T.C.A. Penal Code, Sec. 29.02(a)(2). We held "While this confession was sufficient to show that appellant was guilty of robbery under V.T.C.A. Penal Code, Sec. 29.02(a)(2), that offense was not alleged in the indictment. Since there was no proof that, during the robbery, appellant intentionally and knowingly caused bodily injury to the complainant, the evidence was insufficient to sustain a conviction for robbery under V.T.C.A. Penal Code, Sec. 29.02(a)(1), as alleged in the instant indictment." (Emphasis added)

Since there was no evidence to support the defendant's guilt of the offense charged in the indictment, the judgment was reversed.

Clearly, here, as in Reid v. State, supra, the admissions of the appellant in his judicial confession will not support a conviction based upon the offense charged in the indictment. We have carefully reviewed a complete transcript of the court reporter's notes from the trial on appellant's plea of guilty contained in the record. Cf. Wolfe v. State, 560 S.W.2d 686 (Tex.Cr.App.1978). There is no other evidence contained therein to support appellant's guilt of forgery by passing. ¹ Since there is no evidence in the record to support appellant's conviction for forgery by passing, as alleged in the indictment, the judgment is reversed and the trial court is ordered to enter a judgment of acquittal.

Before the Court en banc.

OPINION ON MOTIONS FOR REHEARING

CLINTON, Judge.

This case has a somewhat unique history. In cause number 60,310, currently before us on the State's motion for rehearing, a panel of this Court on original submission of an appeal from an order revoking probation reversed the primary conviction and ordered a judgment of acquittal. The panel held that where the indictment for the primary offense alleged the offense of forgery by passing and appellant "judicially confessed" to the offense of forgery by making, and there was no evidence tending to support appellant's conviction for the former offense, appellant could successfully collaterally attack the validity of his conviction. See Ex parte Moffett, 542 S.W.2d 184 (Tex.Cr.App.1976); Ex parte Dantzler, 571 S.W.2d 536 (Tex.Cr.App.1978). This Court's decision was delivered on November 21, 1979 as was the panel decision in cause number 62,218, currently before us on the appellant's motion for rehearing.

Cause Number 62,218 similarly involved an appeal taken from a second order revoking probation after appellant had been admitted to bail pending our disposition of cause number 60,310. The unpublished panel opinion, 589 S.W.2d 721, in cause number 62,218, which is now withdrawn, declined to decide his "no evidence" contention (successfully advanced by appellant in cause number 60,310) because a record of the evidence adduced at the guilty plea hearing on the primary offense had not been included in that appellate record. Wolfe v. State, 560 S.W.2d 686, 688 (Tex.Cr.App.1978); see Traylor v. State, 561 S.W.2d 492, 494-95 (Tex.Cr.App.1978).

We granted appellant leave to file a motion for rehearing in cause number 62,218 in view of his vigorous contention that the reversal and reformation of the judgment in cause number 60,310 to show an acquittal mandates that the panel opinion in cause number 62,218 be similarly reformed. Additionally, we granted the State leave to file a motion for rehearing in cause number 60,310 to consider its stoutly urged position that the dictates of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) do not apply to pleas of guilty. For reasons that follow, we find with appellant in both causes.

Turning first to cause number 60,310, the finding of "no evidence" by the panel is not contested by the State, and is correct. Any further discussion of that matter would not be at all edifying.

As to the State's contention that Burks v. United States, and Greene v. Massey, both supra, do not apply in situations where the accused pleads guilty, we believe that a reading of those cases clearly shows it is without merit.

Burks v. United States, supra, at 11, 98 S.Ct. at 2147, teaches that the Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. In distinguishing between those instances where an accused is afforded a new trial on the basis of "trial error" (i. e., incorrect receipt or rejection of evidence, incorrect instructions, prosecutorial misconduct) and those cases where the basis for appellate reversal is evidentiary insufficiency, the Court pointed out:

"In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. . . . When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.

"The same cannot be said when a defendant's conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble." ¹

Id. at 16, 98 S.Ct. at 2149 (footnote omitted).

The State would have us accept the notion that society would seemingly have no interest in denying the State that "second bite at the apple" where the record "contains not one scratch of a pen to indicate innocence." Yet to adopt this rationale is to blink at the jeopardy lessons of Burks. The principle at work is failure to prove guilt, not indications of innocence. All sorts of considerations may motivate a guilty plea. ² And while it is true that an accused is not entitled to have his...