Harvey Lee Hall, Jr. v. The State of Texas--Appeal from Crim Dist Ct 3 of Dallas Co of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-128-CR

HARVEY LEE HALL, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the Criminal District Court No. 3

Dallas County, Texas

Trial Court # F94-39914-WJ

O P I N I O N

Harvey Hall entered into an "open-plea" agreement whereby he pled guilty to the offense of aggravated robbery. See Tex. Penal Code Ann. 29.03 (Vernon 1994). After a hearing, the court assessed twenty years in prison and a fine of $1,000. See id. 12.32 (Vernon 1994). Hall filed a motion for new trial, asserting that "the verdict is contrary to the law and the evidence." // The motion was overruled by operation of law, and he gave notice of appeal.

Hall's sole point of error is: "The appellant's guilty plea was not made knowingly and voluntarily." The argument under the point asserts only that the court erred in not withdrawing Hall's plea and entering a plea of not guilty on his behalf, after he testified that he did not know that a passenger in his car was going to commit the robbery, did not know that the passenger had a gun until after the robbery, and did not participate in the robbery. He relies on Norwood v. State, which states:

The rule in Texas is where a plea of guilty is entered in a felony case before a jury, and evidence is introduced which reasonably and fairly raises an issue as to the innocence of the accused, and the evidence is not withdrawn, the defendant's guilty plea must be withdrawn, and a plea of not guilty must be entered by the court on its own motion. The exculpating evidence must do more than merely tend to show a defensive issue. It must reasonably and fairly raise the issue. The totality of the circumstances of each case must be evaluated in light of its unique circumstances and the offense charged. Griffin v. State, 703 S.W.2d 193, 195-96 (Tex.Crim.App.1986).

Though the trial judge may not have believed the testimony of the defendant under the circumstances, it was not the judge's duty to pass on credibility. It has long been the rule in our State that no one will be allowed to plead guilty in a felony case when any evidence is introduced which casts doubt on the actual guilt of the accused. Lincoln v. State, 560 S.W.2d 657 (Tex.Crim.App.1978). Since the defendant's equivocating testimony was not withdrawn, the trial judge should have withdrawn the defendant's plea of guilty and entered a plea of not guilty in his behalf.

Norwood v. State, 728 S.W.2d 62, 63 (Tex. App. San Antonio 1987, pet. ref'd).

The records shows that, after the court admonished Hall about the penalty range, his right to a trial by jury, and other matters, Hall pled guilty. The State offered and the court admitted into evidence Hall's judicial confession and a stipulation of evidence. // Hall's attorney questioned him about his understanding of the law of parties, then asked:

Q. And you have decided to enter a plea of guilty to being a party to this offense, just as it's charged; is that correct?

A. Yes, sir.

After ascertaining whether the court desired to hear punishment evidence at that time, counsel asked Hall to "explain to the judge briefly your version of the facts and what happened that day and why you were in the car." Hall said that he was driving a person named Callins to pick up a paycheck. As they returned, Callins said that he wanted to stop to talk to "some old home boys from my old neighborhood." Hall stopped, let Callins out in a parking lot, and came back two or three minutes later to pick him up. He saw a gun and coat in Callins' hands. He left, but came back and picked Callins up. Although he said earlier and later in his testimony that he did not know Callins was going to commit a robbery, he also said, "Well, I knew it had occurred but I didn't know that he had shot him." The court found Hall guilty and assessed his punishment.

The State points out that Norwood applies to jury trials and not to trials before the court after a guilty plea; thus, it says Hall's reliance on Norwood is misplaced. Citing Moon v. State and Thomas v. State, the State urges that no reason exists for the court to withdraw a plea and enter a not-guilty plea because the court, after hearing the evidence, can find a defendant guilty of a lesser-included offense or find him not guilty. See Thomas v. State, 599 S.W.2d 823, 824 (Tex. Crim. App. [Panel Op.] 1980); Sommer v. State, 574 S.W.2d 548, 549 (Tex. Crim. App. 1978); Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App. 1978).

Thomas and Sommer, following Moon, hold that a trial court is no longer required to sua sponte withdraw a plea of guilty and enter a plea of not guilty in a hearing before the court, even when evidence is adduced that might reasonably and fairly raise an issue of fact as to the guilt of the defendant. Id. "The trial judge as the trier of facts may without withdrawing the plea decide the issue either finding the defendant not guilty or guilty as he believes the facts require." Thomas, 599 S.W.2d at 824. Thus, "there is a distinction between guilty pleas entered before a jury and those entered before the trial court sitting without a jury." Hernandez v. State, 885 S.W.2d 597, 602 (Tex. App. El Paso 1994, no pet.) (citing Moon).

The court was not required to withdraw Hall's plea of guilty; it could have found him not guilty or, as it did, guilty. See Thomas, 599 S.W.2d at 824. Because the court acted within its authority, we overrule Hall's point and affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed April 5, 1995

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