We disagree. Gent cites the court to Parker v. State, 626 S.W.2d 738 (Tex.Crim.App. 1982), which held that the adjudication of guilt for the lesser included offense of robbery operated as an acquittal of the greater offense of aggravated robbery, so that Article 37.14 precluded conviction for aggravated robbery after the trial court allowed the defendant to withdraw his plea prior to sentencing. The Court of Criminal Appeals later disavowed as misleading dicta the pronouncement in Parker that permitting withdrawal of a guilty plea was in effect the granting of a new trial.
Both the Court of Criminal Appeals and this Court have held that this factual difference does not make a legal difference; an appellant acquitted as a result of a plea bargain is nevertheless protected from reprosecution. Parker v. State, 626 S.W.2d 738, 740-41 (Tex.Crim.App. 1981) (op. on reh'g); Boulos v. State, 775 S.W.2d 8, 10-11 (Tex.App. — Houston [1st Dist.] 1989, pet. ref'd). The Court of Criminal Appeals in Parker pointedly refused to hold, unlike the Beaumont Court of Appeals later in Gent, that no bar to reprosecution results when a charge is reduced as part of a plea bargain that is later set aside by the granting of a new trial.
Appellant then waived the reading of the indictment and evidence was heard by the trial court and he was found guilty. In reversing appellant's conviction, the Court of Appeals relied on Parker v. State, 626 S.W.2d 738 (Tex.Cr.App. 1981), and Fairfield v. State, 610 S.W.2d 771 (Tex.Cr.App. 1981). The Court of Appeals held that a change of a plea to not guilty revoked the prior jury waiver.
We review the trial court's denial of a motion to withdraw a plea for an abuse of discretion. Parker v. State, 626 S.W.2d 738, 739-40 (Tex. Crim. App. [Panel Op.] 1982); Watson v. State, 974 S.W.2d 763, 765 (Tex. App.—San Antonio 1998, pet. ref'd). A decision by the trial court is arbitrary only if it lies outside the "zone of reasonable disagreement."
A guilty plea constitutes a trial within the meaning of Article 37.14. See Parker v. State, 626 S.W.2d 738, 740 (Tex.Crim.App. [Panel Op.] 1981). The question is whether his prior conviction has any significance under these facts.
At the very moment the allegation was stricken, Lowery was under sentence for murdering Morris Patterson during the Cities Service robbery by shooting him with a gun.Parker v. State, 626 S.W.2d 738 (Tex.Cr.App. 1981) is not to the contrary. Parker, decided by the Texas Court of Criminal Appeals after Lowery's petition was denied, held that the former jeopardy provisions of the Texas Code of Criminal Procedure, Vernon's Ann.C. C.P. art. 37.14, deems an adjudication of guilt on the lesser offense of robbery, in that case through acceptance of a guilty plea, to operate as an acquittal for the higher grade of offense, aggravated robbery.
I. The Court of Appeals relied on Parker v. State, 626 S.W.2d 738 (Tex.Cr.App. 1981) (Op. on Reh'g), to hold art. 37.14 barred reprosecution for the greater offense of aggravated robbery. In Parker, the trial judge had granted the State's motion to reduce the charge from aggravated robbery to robbery "prior to trial."
We could assume that when the record states "(indicating)," the State made a cutting gesture, but we cannot add this information to the record on our own supposition. See Parker v. State, 626 S.W.2d 738, 741 (Tex. Crim. App. 1982) (op. on reh'g) (stating factual assumption improper because appellate court bound by the record). --------
The Fifth Amendment Double Jeopardy Clause protects a defendant from more than one prosecution for the same offense after acquittal. U.S. CONST. amend. V. A defendant cannot be tried again for an offense after having been either explicitly or impliedly acquitted of that offense. Parker v. State, 626 S.W.2d 738, 740 (Tex.Cr.App. 1981). "If a defendant, prosecuted for an offense which includes within it lesser offenses, be convicted of an offense lower than that for which he is indicted, and a new trial be granted him, . . . the verdict upon the first trial shall be considered an acquittal of the higher offense.
We distinguish the court's action on Evans's motion, which came after sentence was imposed, from cases where defendants were allowed to withdraw pleas after the judgment was entered but before sentence was pronounced. See Wilson v. State, 698 S.W.2d 145 (Tex.Crim.App. 1985); Parker v. State, 626 S.W.2d 738 (Tex.Crim.App. [Panel Op.] 1981). Evans cites the provisions of article 42.12, section 23, as authority for the proposition that "the legislature has not intended to terminate a trial court's authority to grant a defendant's motion to withdraw a plea immediately after sentencing."