Opinion
No. 08-02-00518-CR
May 27, 2004. DO NOT PUBLISH.
Appeal from 243rd District Court of El Paso County, Texas, (Tc# 20000D02927).
Before Panel No. 1, LARSEN, McCLURE, and CHEW, JJ.
MEMORANDUM OPINION
Sheadrick Hannah appeals from the denial of his application for writ of habeas corpus. We affirm.
FACTUAL SUMMARY
Detective Silvio Karisch interviewed Appellant during his investigation of a burglary of the Dairy Queen where Appellant worked. Karisch suspected that one or more of the employees had committed the burglary. When Karisch discovered that Appellant had an outstanding warrant, he arrested him and interviewed him at the police station about the burglary. Appellant gave a written statement admitting that he had acted as a lookout for the persons who committed the Dairy Queen burglary. One of the co-actors gave Appellant approximately $3,000 taken in the burglary and asked him to hide the money until the co-actor could return for it. Appellant was to receive a portion of the money in exchange for hiding it until the co-actor retrieved it. Appellant also told Detective Karisch that he had hidden cocaine beneath a "mattress" outside of his apartment. Appellant signed a written consent to search his apartment. Officers who searched Appellant's apartment found $2,629 inside of the apartment and 2.5 grams of cocaine beneath a cushion on a couch located on Appellant's patio. Both items of evidence were found exactly where Appellant stated they would be located. A grand jury indicted Appellant for possession of cocaine and burglary of a building. On June 4, 2001, Appellant waived his right to a jury trial and entered a negotiated guilty plea to both offenses. The trial court admonished Appellant as required by Article 26.13 of the Code of Criminal Procedure and Appellant voluntarily signed the waiver of his constitutional rights and made a judicial confession. Appellant informed the trial court that he was pleading guilty because he was guilty and for no other reason. In accordance with the plea bargain, the trial court found Appellant guilty of possession of cocaine and assessed punishment at a fine of $1,000 and imprisonment for ten years, probated for five years. The court also found that the evidence substantiated Appellant's guilt of burglary of a building, but in accordance with the plea bargain agreement, the court deferred adjudicating Appellant's guilt and placed him on deferred adjudication community supervision for five years. Following sentencing, the trial judge admonished Appellant that he would have to change his attitude in order to successfully complete probation. The following exchange then occurred:[Appellant]: I, in my heart, know that I ain't guilty, and I'm sitting here taking this, and there ain't nothing that I can tell Your Honor to make it no different.
[The Court]: You can have your trial. I don't have any problems giving you —
[Appellant]: No, I'm satisfied with the way it is. I'm just telling you, I have to say that. I didn't do it.Appellant's counsel interrupted and explained that Appellant wanted to transfer his community supervision to his home state, Georgia. After the trial court approved the transfer of Appellant's community supervision to Georgia, Appellant objected to the court's order that the money seized from Appellant's apartment as evidence be returned to the owner of the Dairy Queen. Appellant claimed that the money was not taken in the burglary but was his wife's income tax refund. The trial court offered to set the dispute for a restitution hearing in order to provide Appellant with the opportunity to prove that the money belonged to his wife. Appellant responded that they could just keep the money because he did not care. Approximately seventeen months after the guilty plea, Appellant filed an application for a writ of habeas corpus in the trial court. He requested that the trial court set aside his guilty plea on the ground that it was involuntary. Following an evidentiary hearing, the trial court denied the requested relief. Appellant filed a timely notice of appeal.
WITHDRAWAL OF GUILTY PLEA
In his sole issue on appeal, Appellant argues that the trial court should not have accepted his guilty plea but should have sua sponte entered a plea of not guilty when Appellant protested his innocence. In support of his argument, Appellant cites Odom v. State, 852 S.W.2d 685 (Tex.App. Houston [14th Dist.] 1993, pet. ref'd) and Griffin v. State, 703 S.W.2d 193, 195 (Tex.Crim.App. 1986). Appellant is correct that Griffin and Odom hold that when evidence is introduced which reasonably and fairly raises an issue as to the innocence of the accused, and is not withdrawn, the defendant's guilty plea must be withdrawn and a plea of not guilty must be sua sponte entered by the court. See Griffin, 703 S.W.2d at 195; Odom, 852 S.W.2d at 686. However, this rule applies only where the defendant enters a guilty plea before a jury. A different rule applies where the defendant waives his right to a jury trial and enters a guilty plea before the court. In Moon v. State, 572 S.W.2d 681, 682 (Tex.Crim.App. 1978) (op. on reh'g), the Court of Criminal Appeals held that when the defendant waives his right to a jury trial and enters a guilty plea, the trial judge is not required to withdraw the defendant's guilty plea if evidence inconsistent with guilt is introduced. Prior to the decision in Moon, the trial court would have been required to withdraw the defendant's guilty plea and enter a plea of not guilty if evidence inconsistent with guilt were introduced. Prior to January 1, 1966, the Code of Criminal Procedure did not permit a defendant to waive a jury and enter a plea of not guilty before the trial court. Moon, 572 S.W.2d at 682. Thus, a trial court's authority in felony cases was restricted to resolving legal questions and only a jury could decide factual issues. Consequently, if the defendant waived a jury trial and entered a plea of guilty before the court and the court was presented with evidence inconsistent with guilt thereby raising a fact issue, the court was not authorized to find the defendant guilty of a lesser included offense or not guilty because it did not have fact-finding authority. In those circumstances, the trial court was required to withdraw the defendant's guilty plea, enter a plea of not guilty, and impanel a jury to hear the not guilty plea. Aldrich v. State, 104 S.W.3d 890, 893 (Tex.Crim.App. 2003); Moon, 572 S.W.2d at 682. The 1965 amendments to the Code of Criminal Procedure made a significant change by providing that the defendant could waive a jury trial and enter a plea of not guilty before the court in all cases except capital cases. Moon, 572 S.W.2d at 682, citing Articles 1.13 and 1.14 of the Code of Criminal Procedure. These statutory changes authorized the trial court to resolve factual questions in felony cases. As the trier of fact, the trial court may now find that the evidence did not create a reasonable doubt as to guilt, find the defendant guilty of a lesser offense and assess the appropriate punishment, or find the defendant not guilty just as a jury would have done under the pre-1966 procedure. See Aldrich, 104 S.W.3d at 893; Moon, 572 S.W.2d at 682. It would serve no purpose to withdraw the guilty plea and enter a not guilty plea. Id. Moon continues to be valid law. See Aldrich, 104 S.W.3d at 892-94. But see Martin v. State, 08-02-00144-CR, 2004 WL 67248 (Tex.App.-El Paso January 15, 2004) (not designated for publication). Applying Moon to the instant case, we conclude that the trial court was not obligated to withdraw Appellant's guilty plea. Further, Appellant should not be heard to complain where he expressly rejected the trial court's offer to have a trial in his cases. Accordingly, the trial court properly denied the relief requested in his application for writ of habeas corpus. Appellant's sole point of error is overruled and the order of the trial court denying habeas corpus relief is affirmed.CONCURRING OPINION
For the reasons set out in my concurrence to cause number 08-02-00517-CR, companion to this case, I concur.