Wade v. State

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for robbery. A plea of guilty was entered before the court and punishment was assessed at life.

Appellant contends that the court’s admonishment to determine the voluntariness of the plea was not in compliance with Article 26.13, Vernon’s Ann.C.C.P.

After appellant entered a plea of guilty, the record reflects the following colloquy:

“THE COURT: Are you pleading quilty because you are guilty and for no other reason?
“THE DEFENDANT: Yes, sir.
“THE COURT: Has anyone held out any hope of pardon or promise of reward in order to get you to plead guilty ?
“THE DEFENDANT: No, sir.
“THE COURT: Now you realize that upon your plea of guilty to this charge of robbery by assault I must find you guilty and I must sentence you to the penitentiary for not less than five years, any number of years or life in the penitentiary ?
“THE DEFENDANT: Yes, sir.
“THE COURT: Be seated.”

In the recent case of Ex parte Scott, Tex.Cr.App., 505 S.W.2d 602, where petitioner sought relief in a post-conviction habeas corpus proceeding, this Court was. faced with the same defect in the trial court’s lack of compliance with Article 26.-13, supra, as confronts us in the instant case. In Scott, this Court said:

“The part of Article 26.13, supra, in question is that a plea of guilty should not be received unless that one ‘. is uninfluenced by any consideration of fear, or by persuasion. . . .’”

The Court then distinguished Mitchell v. State, Tex.Cr.App., 493 S.W.2d 174 and Espinosa v. State, Tex.Cr.App., 493 S.W.2d 172, cases relied on by the State herein and concluded, “Because the trial court did not ascertain from the applicant if he entered his plea by reason of fear or persuasion, the conviction must be set aside.”

In Cameron v. State, Tex.Cr.App., 508 S.W.2d 618, the concurring opinion stated:

“However, the second part [of Article 26.13, supra] tells us that it must plainly appear to the trial court that the defendant is . uninfluenced (by fear, persuasion, or delusive hope of pardon). No magic words need be stated by the trial court in making such determination. . It is, of course, necessary that the records before us contain sufficient language to show that such does, in fact, plainly appear.”

In the instant case the court’s admonishment does not include language from which it “plainly appears” that the plea of guilty was “uninfluenced by any consideration of fear or by persuasion.”

We conclude that the trial court’s admonishment was not in compliance with Article 26.13, V.A.C.C.P.,' and that such error requires reversal.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.