Ex Parte Hopson

TEAGUE, Judge,

dissenting.

Because I am unable to agree with the ■majority that the record of appeal clearly reflects that applicant “was not pleading to third-degree escape, but was knowingly and voluntarily pleading guilty to the offense of second-degree escape, that is, *553escape with a deadly weapon,” I am compelled to dissent. I would vote to set aside the conviction James Alvin Hopson, applicant, attacks and would remand the cause to the convicting court so that Hopson can replead to the indictment in that cause — because of the way the trial judge read the indictment to him and to what he actually pled guilty to committing. This appears to be a case of first impression.

The conviction that applicant attacks in this cause appears to be what many prosecutors, defense attorneys, and trial judges would call a “wash out case,” as it appears to represent nothing more and nothing less than an effort by all to get the case removed from the trial court’s docket in a manner satisfactory to all concerned. See post. The question before us, however, is not whether it was improper to quickly dispose of the case, but, instead, is whether the manner in which the case was disposed of by the trial judge was done in accordance with the law. I am unable to agree that the trial judge correctly and legally disposed of this case.

At the present time, applicant is serving a forty (40) year sentence for a murder conviction, life imprisonment for a robbery conviction, enhanced with one prior felony conviction, and another life imprisonment for an escape conviction, which is the conviction that applicant attacks in this cause. The sentences are running concurrently.

The record reflects that applicant and his attorney entered into a plea bargain with the prosecuting attorney to dispose of, inter alia, the cause that is before us. Applicant was charged by indictment with the offense of escape with a deadly weapon, which is by law a second degree felony. See Y.T.C.A., Penal Code, Section 38.07. A prior felony conviction was alleged in the indictment for enhancement of punishment purposes. These allegations made the possible punishment the same as that provided for a first degree felony, which carries a maximum punishment of life imprisonment and a $10,000 fine. See V.T.C.A., Penal Code, Section 12.32.

The plea bargain agreement, which applicant approved, was that he would plead guilty to the primary offense and “true” to the enhancement paragraph. In return, the trial judge would not make an affirmative finding that a deadly weapon had been used when applicant committed the offense of escape, applicant’s punishment would be assessed at life imprisonment, and no fine would be assessed. The trial judge approved the plea bargain agreement and assessed punishment at life imprisonment in the penitentiary.

At this juncture, one might ask, “What’s legally wrong with applicant’s conviction?”

First off, the trial judge, contrary to the plea bargain agreement, after he found applicant guilty, entered in the judgment of conviction a finding that applicant had been found “guilty of the offense of ESCAPE WITH A DEADLY WEAPON (ENHANCED).” Under our law, see Art. 42.-12, Section 15B, V.A.C.C.P., this finding would have a grave effect upon when applicant could become eligible for parole on this conviction. This finding also caused a breach of the plea bargain agreement.

The trial judge, upon learning or discovering that his finding was contrary to the plea bargain agreement, which he had approved, attempted to make things right by entering a judgment nunc pro tunc, which new judgment reflected that applicant had been found guilty of “ESCAPE, A LESSER OFFENSE THAN THE INDICTMENT (ENHANCED).”

However, the trial judge soon learned that the judgment nunc pro tunc would not make things legally right. He soon rescinded that judgment, and reinstated the original judgment of conviction.

It appears that the problem that is before this Court lies in the fact that under the escape statute, see Section 38.07, supra, where a deadly weapon is not alleged in the charging instrument, the maximum possible punishment for that offense is that as provided for a third degree felony, which, if enhanced with one prior felony conviction, raises the punishment from that provided for a third degree felony, which *554carries a maximum punishment of ten (10) years’ confinement in the penitentiary and a maximum fine of $5,000, see V.T.C.A., Penal Code, Section 12.34, to that provided for a second degree felony, which carries a maximum punishment of twenty (20) years’ confinement in the penitentiary and a fine of $10,000. See V.T.C.A., Penal Code, Section 12.33. But, everyone agreed that applicant would receive a life sentence, and that there would not be a finding of a deadly weapon, didn’t they?

Well, it seems that life imprisonment for the offense of escape is only possible when the State alleges and proves that a deadly weapon was used or threatened to be used during the commission of the escape and the State also alleges and proves that in the past the defendant had sustained at least one prior felony conviction.

In this instance, without motion from the prosecuting attorney, see Chapter 32, V.A. C.C.P., but as reflected on page 547 of the majority opinion, when the trial judge read the indictment to the applicant, which Art. 26.11, V.A.C.C.P., requires must be done, he omitted from the indictment the allegation that the instrument that was used in the commission of the escape was “a deadly weapon.” In Essary v. State, 53 Tex. Cr.R. 596, 11 S.W. 927, 930-931 (Tex.Cr. App.1908), this Court stated, inter alia, that “one of the purposes of the requirement that [the indictment] shall be read to the jury is to inform them in precise terms of the particular charge laid against the defendant on trial.” Is this not applicable where the indictment is read to a defendant?

Therefore, we must ask, what effect, if any, did the trial judge’s omitting from the indictment the allegation “a deadly weapon” have on applicant’s conviction?

It is or should be undisputed that applicant’s plea of guilty did not go to all of the elements that are contained in his indictment. The record clearly reflects that when the trial judge read from the indictment he omitted from the indictment the words “a deadly weapon.” See page 547 of the majority opinion.

Notwithstanding that it was applicant’s intention to plead guilty to the indictment as it was drawn, I believe that when the trial judge omitted from the indictment the words “a deadly weapon” he effectively reduced the accusation against the applicant to the lesser offense of escape. In fact, the trial judge asked the applicant at the conclusion of the plea proceeding, “Q: Now, and knowing all that, do you still insist on your pleas of guilty and true as made, for the record? A: Yes, sir.” (Emphasis Added). However, the law provides that before the charged offense might be reduced to a lesser offense, it must be done upon motion of the prosecuting attorney. See Chapter 32, V.A.C.C.P.

The majority, however, without citation of authority, says that as applicant knew what he intended to plead guilty to, the fact that he pled guilty to a different and another offense makes no difference. I must ask: Is this another form of harmless error that this Court has manufactured? Compare Almanza v. State, (Tex.Cr.App. 1985). If so, is this Court not duty bound to so inform the bench and bar of this State?

Because I am unable to agree with the majority that there is no legal difference between what a person intends to plead guilty to and what he actually pled guilty to, and because I further believe that what occurred caused applicant’s plea of guilty not to have been done knowingly, which in turn renders his plea involuntary, I must respectfully dissent. I would vote to set aside the conviction and remand the cause back to Bell County so that applicant can replead to the indictment in this cause.