concurring.
Appellant relies upon the rule that where a defendant has entered a guilty or nolo contendere plea in a felony case, whether before judge or jury, and the evidence introduced makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn, the trial court is required to sua sponte enter a not guilty plea for the defendant. See e.g., Harris v. State, 76 Tex.Cr.R. 126, 172 S.W. 975 (1915); Yantis v. State, 95 Tex.Cr.R. 541, 255 S.W. 180 (1923); Fite v. State, 163 Tex.Cr.R. 279, 290 S.W.2d 897 (1956); Edworthy v. State, 371 S.W.2d 563 (Tex.Cr.App.1963); Lee v. State, 503 S.W.2d 244 (Tex.Cr.App.1973); Woodberry v. State, 547 S.W.2d 629 (Tex. Cr.App.1977). See also Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460 (1942); Gonzales v. State, 480 S.W.2d 663 (Tex.Cr.App.1972); Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974); Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976); Sanchez v. State, 543 S.W.2d 132 (Tex.Cr.App.1976); Alien v. State, 559 S.W.2d 656 (Tex.Cr.App.1977).
After a careful examination of the record, I cannot conclude that the evidence made evident the innocence of the appellant or reasonably and fairly raised an issue of such fact. For this reason, I concur in the result reached.
I dissent to the disposition of this case on the basis of the decision in Moon v. State, 572 S.W.2d 681 (Tex.Cr.App. # 54,352, June 29,1977 — rehearing Oct. 4,1978.) (On State’s Motion for Rehearing). There the court held that the above discussed rule no longer has application to pleas of guilty or nolo contendere in a bench trial yet was still applicable to jury trials. Thus, a well established rule is split in two, despite the fact that it has been applied consistently to both types of trials before and after the 1965 Code of Criminal Procedure. The better view is set forth in the opinion on original submission in Moon. I dissent to the disposition of this case on the basis of the opinion in Moon on State’s motion for rehearing.