CONROY v. STATE

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Docket Number

No. 01-92-00097-CR.

Attorney(S)

Kirk Oncken, Houston, for appellant. John B. Holmes, Houston, for appellee.

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Smart Summary

Factual and Procedural Background

A jury found appellant Dwight Conroy guilty of unauthorized use of a motor vehicle, with one enhancement paragraph found true. Punishment was assessed at 20 years confinement and a $5,000 fine. The appellant challenged the trial court's refusal to allow him to change his plea from not guilty (entered outside the jury's presence) to guilty (requested in front of the jury). The trial court denied the plea change and proceeded with the trial on the plea of not guilty. This appeal challenges that ruling.

Legal Issues Presented

Whether the trial court erred by entering a plea of not guilty on behalf of appellant when appellant insisted on entering a plea of guilty before the jury, thereby allegedly failing to join issue with the State in the presence of the jury as required by Texas statutory provisions and caselaw.

Arguments of the Parties

Appellant's Arguments

The trial court erred by not allowing appellant to change his plea from not guilty (entered outside the jury's presence) to guilty (entered before the jury).
This error resulted in failure to join issue with the State in front of the jury, violating statutory requirements and established caselaw.
Appellant relied on Peltier v. State and Essary v. State to support the contention that the plea and indictment must be presented to the jury to join issue properly.
Because the plea of guilty was not accepted in front of the jury, appellant argued that the case was improperly treated as a bifurcated trial, and the jury was not instructed accordingly.

Appellee's Arguments

The opinion does not contain a detailed account of the appellee's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Peltier v. State, 626 S.W.2d 30 (Tex.Crim.App. 1981)	Until the indictment is read and a plea is entered before the jury, issue is not joined between the State and accused.	The court distinguished the case by noting the indictment was read before the jury here and held that a plea of not guilty was effectively entered in front of the jury, thus issue was joined.
Essary v. State, 111 S.W. 927 (Tex.Crim.App. 1908)	Supports the principle that issue must be joined in the presence of the jury after indictment is read.	Used to reinforce the requirement that a plea must be entered before the jury to join issue; the court found this requirement met in this case.

Court's Reasoning and Analysis

The court analyzed the procedural sequence and statutory requirements under Texas Code of Criminal Procedure article 36.01, which mandates that the indictment be read to the jury and that pleas, including a plea of not guilty, be stated before the jury. Although appellant initially pled not guilty outside the jury's presence, the indictment was read to the jury, and the court informed the jury that appellant had entered a plea of not guilty. When appellant attempted to change his plea to guilty in front of the jury, the court refused, citing concerns over voluntariness and mental competence under article 26.13(b). The court reasoned that the refusal to accept the guilty plea indicated judicial skepticism about the plea's propriety and did not prejudice appellant. Consequently, the court held that issue was properly joined before the jury and the statutory procedure was satisfied.

Holding and Implications

The court affirmed the trial court's judgment.

The direct effect of this decision is to uphold the conviction and punishment assessed against appellant. The court found no reversible error in the trial court's refusal to allow a plea change before the jury. No new legal precedent was established; rather, the court clarified the application of article 36.01 and confirmed that a plea of not guilty entered outside the jury's presence, when properly communicated and confirmed before the jury, satisfies the requirement to join issue.

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Dwight CONROY, Appellant, v. The STATE of Texas, Appellee.

OPINION

MIRABEL, Justice.

A jury found appellant guilty of the offense of unauthorized use of a motor vehicle. The jury found the allegations in one enhancement paragraph true, and assessed punishment at 20-years confinement and a $5,000 fine. We affirm.

In his sole point of error, appellant asserts:

The trial court erred by entering a plea of not guilty on behalf of appellant when appellant insisted upon entering a plea of guilty before the jury because this procedure resulted in the failure of appellant to join issue with the state in the presence of the jury.

(Emphasis added.) The relevant facts follow.

The court asked the prosecutor to arraign appellant outside the presence of the jury. The prosecutor then read the indictment outside the presence of the jury, and the court asked appellant for his plea. Appellant answered "not guilty" and both sides announced ready for trial.

Three minutes later, the jury was brought to the courtroom and sworn. The following then occurred:

The court (to the prosecutor): Will you please present the indictment to the jury?

The prosecutor: Certainly, Your Honor. (indictment read).

The court: To which indictment —

Appellant's counsel: Judge, at this time the defendant wishes to change his plea. Defendant wishes to plead guilty, judge.

The court: All right. Members of the jury, please go with my bailiff. Step back in the jury room for a few minutes.

Proceedings were then held off the record. Before the jury was brought back into the courtroom, the following occurred on the record:

Appellant's counsel: On the record please. Am I correct in paraphrasing the judge's ruling, you're not going to allow him to change his plea from not guilty when he was arraigned outside the presence of the jury to guilty when he was arraigned in front of the jury?

The court: That's correct.

Appellant's counsel: Well, for the record, we indicated in front of the jury, after we were arraigned, that we intended to enter a plea of guilty, and we did enter a plea of guilty. I mean it doesn't have any effect on what happens.

The court: It does. I am not going to instruct the jury to find him guilty. I am going to instruct the jury he entered a plea of not guilty and that they can do whatever they want to, either find him not guilty or guilty, but I am not going to allow him to change his plea now from not guilty to guilty.

. . . . .

Appellant's counsel: On the record at this time the Defense asks the court, according to the defendant's plea of guilty in front of the jury, to charge the jury that the defendant has entered a plea of guilty to the primary offense of unauthorized use of a motor vehicle and to find him guilty of that offense. The Defense submits that because of his plea of guilty in front of the jury the case is no longer a bifurcated case, it is a case of punishment, and that the case should now proceed to punishment stage of the

trial after the jury has been instructed to return a verdict of guilty at the guilt/innocence stage. That's what we request the court to do.

The court: Denied.

The jury was then brought back into the courtroom. The following then occurred:

The court: Members of the jury, I asked [the prosecutor] to present the indictment to you. To that indictment, the defendant has already entered a plea of not guilty.

Appellant's counsel: Judge, at this time the defendant wishes to enter another plea.

Appellant: Of guilty to the offense.

The court: I am not going to allow you to change your plea from not guilty to guilty.

The court then allowed the prosecutor to proceed with his opening statement.

Appellant asserts that "issue was never joined between the State and appellant in front of the jury as required by the statutory provisions and caselaw of this State," and therefore that "automatic reversible error" exists. Appellant relies upon Peltier v. State, 626 S.W.2d 30 (Tex.Crim.App. [Panel Op.] 1981), and Essary v. State, 53 Tex.Cr. 596, 111 S.W. 927 (Tex.Crim.App. 1908), to support his contention.

In Peltier, the indictment was not read to the jury, and the court held that "until the indictment is read and a plea is entered the issue is not joined between the State and the accused before the jury." 626 S.W.2d at 31. See also Essary, 111 S.W. at 930. Appellant does not contend that the indictment was not read before the jury, and the record clearly demonstrates that it was. Rather, appellant argues that, since he never entered a plea of not guilty in front of the jury, then issue was not joined. We hold, however, that appellant did enter a plea in front of the jury — a plea of not guilty which fixed upon the State the burden of proving appellant's guilty beyond a reasonable doubt.

The proper procedure is set out in article 36.01 of the Code of Criminal Procedure:

(a) A jury being impaneled in any criminal action . . . the cause shall proceed in the following order:

1. The indictment or information shall be read to the jury by the attorney prosecuting. . . .

2. The special pleas, if any, shall be read by the defendant's counsel, and if the plea of not guilty is also relied upon, it shall also be stated.

TEX.CODE CRIM.P.ANN. art. 36.01(a)(1), (2) (Vernon Supp. 1993).

Here, appellant originally relied upon a plea of not guilty. This was stated to the jury, as required by article 36.01, on several occasions. First, appellant's counsel told the court in front of the jury that "the defendant wishes to change his plea. Defendant wishes to plead guilty, judge." Because these statements informed the jury that appellant wanted to change his plea to guilty, it could hardly be said that they did not also inform the jury that appellant had already pled not guilty.

The court also conveyed this message to the jury when it told the jury that, "To that indictment, the defendant has already entered a plea of not guilty." The court also told appellant, in front of the jury, "I am not going to allow you to change your plea from not guilty to guilty."

A trial court is not to accept a plea of guilty unless it appears the plea is free and voluntary and the defendant is mentally competent. TEX.CODE CRIM.P.ANN. art. 26.13(b) (Vernon 1989). The trial court's refusal to allow the plea to be changed to "guilty" within minutes after appellant had pled "not guilty" indicates the trial court had doubts about the plea. Rather than harming appellant, the trial court's refusal to allow the plea to be changed may well have conveyed to the jury the message that the court believed a proper plea was one of "not guilty" because the court doubted appellant's guilt.

We conclude that article 36.01 was complied with here, and "issue was joined."

We overrule appellant's point of error and affirm the judgment of the trial court.