Arthur Harold Langston v. The State of Texas--Appeal from 265th District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Arthur Harold Langston

Appellant

Vs. No. 11-03-00010-CR B Appeal from Dallas County

State of Texas

Appellee

Arthur Harold Langston waived his right to a jury and entered an open plea of guilty to the offense of robbery. Appellant also entered a plea of true to the enhancement allegation. A plea bargain agreement was not entered. The trial court convicted appellant and assessed his punishment at confinement for 11 years. We affirm.

In his sole point of error, appellant complains that the trial court erred when it did not sua sponte withdraw his plea of guilty. Appellant contends that, at both the guilt/innocence phase and the subsequent punishment phase, his testimony shows that he did not intend to hurt the clerk at the store when he stole some lottery tickets. Therefore, he could not be guilty of robbery; and the trial court abused its discretion.

At the guilt/innocence phase, appellant entered a plea of guilty to robbery; and his judicial confession was admitted into evidence. The following occurred when the trial court questioned appellant:

THE COURT: And no one=s forced you, threatened you or promised you anything, done anything to you to get you to plead guilty or to plead true; is that right?

[APPELLANT]: No, sir.

THE COURT: Okay. And what the police and the prosecutor claim happened in this case is that they claim you were taking some items that didn=t belong to you and that when someone-somewhere in there that somebody got injured in some way, not seriously, badly injured, but just something that caused them a certain amount of pain, and that you were responsible for that. And by pleading guilty you=re saying that that=s true, that that did happen; is that right?

[APPELLANT]: I did not hurt him, but I plead[ed] guilty because that - -

THE COURT: You had struggled with him and he kind of got hurt in the struggle?

[APPELLANT[: Yeah, he quoted that I had hit him, so I did do that.

THE COURT: So that=s how he got hurt in the struggle?

[APPELLANT]: Yeah.

THE COURT: Okay.

[APPELLANT]: I am responsible for it.

At the punishment phase of the trial, appellant testified that he was pulling on a box of lottery tickets the same time that the clerk was pulling on it, that he hurt the clerk, and that [i]t wasn t like [he] intentionally tried to...hurt him. Appellant also stated that he was aware that this case was a robbery because he had caused the clerk physical pain. Appellant admitted that, during the offense, he brandished a plastic gun like it was a real gun and threatened to shoot the clerk. The clerk did not know that the gun was a toy, and appellant told the clerk that he was going to kill him. At the time of the offense, appellant was on parole for aggravated robbery with a deadly weapon. Appellant also stated that the clerk hit him with a baseball bat which [the clerk] had a right to do.

A trial court is not required to sua sponte withdraw a guilty plea and enter a plea of not guilty when the accused enters the guilty plea before the court after waiving a jury. Thomas v. State, 599 S.W.2d 823 (Tex.Cr.App.1980); Moon v. State, 572 S.W.2d 681 (Tex.Cr.App.1978). This rule applies even if evidence is presented which raises an issue of fact as to the guilt of the accused. The trial court, as the trier of fact, may decide the issue of the accused=s guilt without withdrawing the plea. Thomas v. State, supra; Moon v. State, supra. Accordingly, the trial court did not err in failing to sua sponte withdraw appellant=s guilty plea. The point of error is overruled.

Furthermore, we note that the evidence supports appellant=s conviction. Appellant admitted that he hurt the clerk, that he caused the clerk physical pain, and that the clerk had a right to hit him with a baseball bat.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

July 31, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.