Walker v. State

• Decision Date: 25 June 1975
• Docket Number: No. 49289,49289
• Parties: Earnest WALKER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 712

524 S.W.2d 712

Earnest WALKER, Appellant, v. The STATE of Texas, Appellee.

No. 49289.

Court of Criminal Appeals of Texas.

June 25, 1975.

Rehearing Denied July 16, 1975.

Charles L. Rittenberry, Charles W. Fairweather, Amarillo (Tom Upchurch, Jr., Amarillo, Frank Maloney, Austin, on rehearing only), for appellant.

George E. Dowlen, Dist. Atty., Canyon, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION ON APPELLANT'S MOTION FOR REHEARING

ODOM, Judge.

Our prior opinion in this cause is withdrawn.

On motion for rehearing appellant urges that his conviction be reversed because the trial court wholly failed to advise him of the range of punishment at the time of his plea of guilty, as required by Article 26.13, Vernon's Ann.C.C.P. ¹

In Guster v. State, Tex.Cr.App., 522 S.W.2d 494, this Court held:

'. . . where there is no showing that a defendant was prejudiced or injured by the failure of the trial court to Fully comply with Article 26.13, supra, And where no objection is made to such failure at the time he plea is accepted or by motion for new trial, that failure to fully comply will not constitute reversible error on appeal.'

In the instant case, there was a Total failure to explain or even mention the range of punishment to appellant. It is, therefore, not within the scope of the rule stated in Guster v. State, supra. See also Williams v. State, Tex.Cr.App., 522 S.W.2d 488, and Ex parte Taylor, Tex.Cr.App., 522 S.W.2d 479.

In Tellez v. State, Tex.Cr.App., 522 S.W.2d 500, decided the same day as Guster, supra, and Williams, supra, this Court held that, if a trial court in admonishing an accused of the consequences of his plea misstates the range of possible punishment, but the accused is not misled to his prejudice by such erroneous admonishment, the error is harmless. See also Cameron v. State, Tex.Cr.App., 508 S.W.2d 618; Jorden v. State, Tex.Cr.App., 500 S.W.2d 117; Valdez v. State, Tex.Cr.App., 479 S.W.2d 927. That rule likewise does not apply in this case because the trial court gave absolutely no admonishment respecting the range of possible punishment.

Because the trial court here did not merely fall short of full compliance, but in fact totally failed to admonish appellant of the consequences of his plea, in total disregard of Article 26.13, V.A.C.C.P. (see concurring opinion in Cameron v. State, supra), the conviction is reversed.

Appellant's motion for rehearing is granted; the judgment affirming the conviction is set aside; and the judgment is reversed and remanded.

ONION, Presiding Judge (concurring in part and dissenting in part).

I concur in the result reached by the majority on appellant's contention raised on appeal for the first time on his motion for rehearing in this court, but clearly cannot agree with the reasoning of the majority.

Article 26.13, Vernon's Ann.C.C.P., provides:

'If the defendant pleads guilty, or enters a plea of nolo contendere, he shall be admonished by the court of the consequences; and neither of such pleas shall be received unless it plainly appears that he is mentally competent, and is uninfluenced by any consideration of fear, or by any persuasion, or delusive hope of pardon, prompting him to confess his guilt.'

This statute and its forerunners have been a part of every Code of Criminal Procedure ever enacted in this State and have remained the same for 118 years. See Bosworth v. State, 510 S.W.2d 334 (Tex.Cr.App.1974) (Dissenting Opinion). Over the years this court has again and again held that the statute was mandatory. See, i.e., Ex parte Chavez, 482 S.W.2d 175 (Tex.Cr.App.1972); Ex parte Battenfield, 466 S.W.2d 569 (Tex.Cr.App.1971); May v. State, 151 Tex.Cr.R. 534, 209 S.W.2d 606 (1948); Coleman v. State, 35 Tex.Cr.R. 404, 33 S.W. 1083 (1896); Saunders v. State, 10 Tex.App. 336 (1881). And following such construction, the Legislature on a number of occasions reenacted the statute virtually unchanged. See Bosworth v. State, supra (Dissenting Opinion).

Further, the 'consequences of a guilty plea or plea of nolo contendere' have long been held to be 'the punishment provided by law for the offense charged and the punishment which could be inflicted under his plea.' Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779 (1956); Ex parte Battenfield, 466 S.W.2d 569, 571 (Tex.Cr.App.1971). And where there has been a failure to comply with that portion of Article 26.13, supra, requiring admonishment as to the consequences of the plea, reversal will follow. See, i.e., Williams v. State, 415 S.W.2d 917 (Tex.Cr.App.1967); Miller v. State, 424 S.W.2d 430 (Tex.Cr.App.1968); Ex parte Humphrey, 456 S.W.2d 118 (Tex.Cr.App.1970); Ex parte Battenfield, supra; Crawford v. State, 466 S.W.2d 319 (Tex.Cr.App.1971); Vasquez v. State, 477 S.W.2d 629 (Tex.Cr.App.1972); Loudd v. State, 474 S.W.2d 200 (Tex.Cr.App.1971); Alvarez v. State, 511 S.W.2d 521 (Tex.Cr.App.1974).

And this court has for many years held that a failure to comply with the mandatory provisions of the statute may be raised any time. May v. State, 151 Tex.Cr.R. 534, 209 S.W.2d 606 (1948); Alexander v. State, supra; Ex parte Battenfield, supra; Ex parte Chavez, supra; Wilson v. State, 456 S.W.2d 941 (Tex.Cr.App.1970) (Concurring Opinion).

It is on the basis of these authorities that I would reverse this conviction for failure to admonish the appellant as to the consequences of his plea even though the contention was first raised by the appellant in this court by his motion for rehearing.

Now, as to why I cannot agree with the majority's reasoning:

The majority's opinion could easily be labeled as 'Retreat from Guster,' and it is a retreat in confusion that adds to the uncertainty concerning Article 26.13, supra, visited upon the bench and bar by the majority since Espinosa v. State, 493 S.W.2d 172 (Tex.Cr.App.1973), and Mitchell v. State, 493 S.W.2d 174 (Tex.Cr.App.1973), when the majority began to seriously erode the legislative intent expressed in Article 26.13, supra. Espinosa and Mitchell held that in a felony case the trial court no longer needed to inquire as to whether a plea of guilty or nolo contendere was prompted by a 'delusive hope of pardon' or any similar inquiry. See also Higginbotham v. State, 497 S.W.2d 299, 300 (Tex.Cr.App.1973). The majority in Espinosa and Mitchell did not explain just how they could give less weight or no weight to 'delusive hope of pardon' than 'any consideration of fear' or 'any persuasion' found in the same sentence of the mandatory statute, but the majority apparently for some time, at least, looked upon an inquiry as to 'fear' or 'persuasion' as essential to satisfy the 'minimal requirements' of the statute. For example, in Harris v. State, 500 S.W.2d 126 (Tex.Cr.App.1973), the majority, speaking through Judge Morrison, held that mere inquiry as to whether the plea was voluntary was insufficient, but that the 'minimal requirements' of Article 26.13, supra, as to consideration of Fear or Persuasion 'must be inquired into and appear of record.' See also Martinez v. State, 494 S.W.2d 545 (Tex.Cr.App.1973); Heathcock v. State, 494 S.W.2d 570 (Tex.Cr.App.1973). In Mayse and Ross v. State, 494 S.W.2d 914 (Tex.Cr.App.1973), the majority, speaking through Judge Odom, began inching away from even the so-called 'minimal requirements' established by the majority. The opinion there held that an inquiry as to whether the guilty plea was prompted by force or coercion or promise was sufficient to comply with the statute.

It became clear from these cases that the majority had added 'force' or 'promise' to the statute while eliminating 'delusive hope of pardon.' Nevertheless, it appeared that on some occasions the majority was still requiring inquiry as to 'fear' and 'persuasion.' See, i.e., Johnson v. State, 500 S.W.2d 115 (Tex.Cr.App.1973); Ex parte Scott, 505 S.W.2d 602 (Tex.Cr.App.1974) (an opinion by Judge Douglas); Ex parte Dickerson, 508 S.W.2d 387 (Tex.Cr.App.1974).

In Bosworth v. State, 510 S.W.2d 334 (Tex.Cr.App.1974), the necessity of an inquiry as to 'persuasion' was eliminated despite the earlier decisions. In a dissenting opinion, this writer wrote, 'One is left to wonder if any inquiry as to 'fear' is still required or whether it is also gone with the wind.'

In Wade v. State, 511 S.W.2d 7 (Tex.Cr.App.1974), the majority held that the inquiry was fatally defective because of a failure to inquire if the guilty plea was due to 'fear' or 'persuasion.' The concurring opinion by Judge Odom, joined in by Judge Morrison, agreed to the result since there was inquiry as to 'fear.' Apparently the statutory requirement as to an inquiry as to 'fear' was still alive and well. See also Ex parte Watson, 508 S.W.2d 399 (Tex.Cr.App.1974); Pigg v. State, 508 S.W.2d 652 (Tex.Cr.App.1974); Cevilla v. State, 515 S.W.2d 676 (Tex.Cr.App.1974).

In Guster v. State, supra, the court was confronted with an admonishment which did not include any inquiry as to 'fear.' Before discussing the majority's approach in Guster, I think it important to also observe what the majority was also doing to that portion of the statute requiring the trial court to admonish the defendant as to the consequences of his plea. As observed earlier in this opinion, that portion of the statute has been upheld as mandatory. However, the majority began to even erode that portion of the statute. In Jorden v. State, 500 S.W.2d 117 (Tex.Cr.App.1973), and again in Cameron v. State, 508 S.W.2d 618 (Tex.Cr.App.1974), the court upheld admonishments in which the trial court inaccurately informed the defendant of the consequences of his plea. See also Valdez v. State, 479 S.W.2d 927 (Tex.Cr.App.1972). And in Tellez v. State, 522 S.W.2d 500 (Tex.Cr.App.1975), the majority upheld an admonishment where the trial court incorrectly advised the defendant as to the range of punishment on Both cases to which he was pleading guilty, overruling Alvarez v. State, 511...