Charlene L. Davenport a/k/a Francis C. Golston v. State of Texas--Appeal from 188th District Court of Gregg County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-01-00030-CR
______________________________
CHARLENE LEE DAVENPORT,

A/K/A FRANCIS CHARLENE GOLSTON, Appellant

 
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th Judicial District Court
Gregg County, Texas
Trial Court No. 27800-A
Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Justice Grant
O P I N I O N

Charlene Davenport, a/k/a Francis Charlene Golston, appeals her conviction for theft by check in an amount over $1,500. The trial court sentenced her to two years' confinement in a state jail facility. The record reflects that Davenport pleaded guilty before the court without a plea bargaining agreement. Davenport was represented by appointed counsel.

Davenport contends on appeal that the trial court erred by accepting her plea of guilty in the face of uncontroverted evidence of necessity. She testified at the plea hearing that her common-law husband was threatening to kill her if she did not obtain money for him, but our review of her testimony also shows that she used bad checks to pay bills.

Tex. Pen. Code Ann. 9.02 (Vernon 1994) states "[i]t is a defense to prosecution that the conduct in question is justified under this chapter." Tex. Pen. Code Ann. 9.22 (Vernon 1994) defines the defense of justification by necessity as follows:

Conduct is justified if:

 

(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

 

(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and

 

(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

 

Davenport could have withdrawn her plea as a matter of right until the case was taken under advisement or the judgment announced. Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. [Panel Op.] 1979). She argues on appeal that the trial court violated its duty to direct the withdrawal of her plea in the face of uncontroverted evidence that she had a viable defense to the charges.

The rule is well established in this state that in any case where evidence is introduced that reasonably and fairly raises an issue as to the innocence of the accused and such evidence is not withdrawn, the defendant's guilty plea before a jury must be withdrawn and a plea of not guilty must be sua sponte entered by the trial court. Griffin v. State, 703 S.W.2d 193, 195 (Tex. Crim. App. 1986). The rule applies even though the defendant makes no effort during the trial to withdraw her plea of guilty, makes no objection to the court's charge instructing the jury to render a verdict of guilty, and even though the defendant's testimony shows she is guilty of the offense. Montalvo v. State, 572 S.W.2d 714, 715-16 (Tex. Crim. App. [Panel Op.] 1978); Steele v. State, 22 S.W.3d 550, 553 (Tex. App.-Fort Worth 2000, pet. ref'd). We have reviewed Davenport's testimony, and we are not convinced that she sufficiently raised the issue as to the defense of necessity to require the trial court to take sua sponte action withdrawing her plea.

Even if we believed that her testimony about one portion of the criminal charges against her reasonably and fairly raised the issue, the rule as set out above applies only in cases in which the guilty plea is before a jury. The rule which controls this case is set out in Moon v. State, 572 S.W.2d 681 (Tex. Crim. App. 1978). That case holds that a trial court is not required to withdraw a defendant's plea of guilty sua sponte and enter a plea of not guilty when a defendant enters a plea of guilty before the trial court after waiving a jury, even if evidence is presented that either makes the defendant's innocence evident or reasonably and fairly raises an issue as to his or her guilt. See id. at 682.

The Moon opinion states that it is the trial court's duty to consider the evidence submitted and, as the trier of fact, the court may find the defendant guilty of the crime charged or a lesser offense, or it may acquit the defendant. Thus, the court concluded, no valid purpose would be served by requiring a trial court to withdraw a guilty plea. See id.; Aldrich v. State, 53 S.W.3d 460, 467 (Tex. App.-Dallas 2001, no pet. h.); Coronado v. State, 25 S.W.3d 806 (Tex. App.-Waco 2000, pet. ref'd); Solis v. State, 945 S.W.2d 300, 303 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd); Hinkle v. State, 934 S.W.2d 146, 148-49 (Tex. App.-San Antonio 1996, pet. ref'd); Graves v. State, 803 S.W.2d 342, 346 (Tex. App.-Houston [14th Dist.] 1990, pet. ref'd).

Accordingly, even if she had adequately raised the defense, because in this case she pleaded guilty to the court rather than before a jury, the trial court had no duty to withdraw a guilty plea. Error has not been shown.

 

The judgment is affirmed.

 

Ben Z. Grant

Justice

 

Date Submitted: January 11, 2002

Date Decided: January 30, 2002

 

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