author: McCORMICK, Judge. CLINTON, Judge, TEAGUE, Judge,

text:
    Ex parte James Alvin HOPSON.
    No. 69310.
    Court of Criminal Appeals of Texas, En Banc.
    April 17, 1985.

      John D. Reeves, Huntsville, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

McCORMICK, Judge.

This is a post conviction application for writ of habeas corpus. Article 11.07, V.A. C.C.P. Applicant alleges that he agreed to enter a plea of guilty to the offense of escape, enhanced by one prior conviction, on the condition that he would be assessed a life sentence but there would be no affirmative finding of the use of a deadly weapon during the commission of the offense and he would thus be entitled to good time credit in the determination of his eligibility for parole. Article 42.12, Section 3f(a)(2) and Section 15(b), V.A.C.C.P.

The record before us shows that applicant was indicted in pertinent part as follows:

“... did then and there after being arrested for and convicted of an offense, to-wit: Murder, a felony, did intentionally and knowingly escape from the custody of Lester Gunn, to-wit: Sheriff of Bell County, Texas and the said James Alvin Hopson did then and there to effect his escape intentionally and knowingly threaten to use and used a deadly weapon, to-wit: a razor and a razor blade....”

Thereafter followed one enhancement paragraph.

V.T.C.A., Penal Code, Section 38.07, provides as follows:

“(a) A person arrested for, charged with, or convicted of an offense commits an offense if he escapes from custody.
“(b) Except as provided in Subsections (c) and (d) of this section, an offense under this section is a Class A misdemeanor.
“(c) An offense under this section is a felony of the third degree if the actor: “(1) is under arrest for, charged with, or convicted of a felony; or
“(2) is confined in a penal institution.
“(d) An offense under this section is a felony of the second degree if the actor used or threatened to use a deadly weapon to effect his escape.”

As can be seen, the fact that applicant was charged with escape after being convicted of murder raised the offense from a Class A misdemeanor to a third-degree felony. Section 38.07(c)(1), supra. This alone, enhanced by one prior conviction, mandated that applicant be punished for a second-degree felony, that is, 2 to 20 years, and a fine not to exceed $10,000. V.T.C.A., Penal Code, Section 12.42(a) and Section 12.33.

Moreover, in the instant case, applicant was also alleged to have used a deadly weapon to effect his escape. This additional allegation raised the offense from a third-degree felony to a second-degree felony. Section 38.07(d), supra. Adding to that the paragraph alleging the enhancement for one prior conviction, we see that applicant’s potential punishment was raised to the range of a first-degree felony, this is, 5 to 99 years or life, and a fine not to exceed $10,000. V.T.C.A., Penal Code, Section 12.42(b), Section 12.32.

Applicant argues in his application that according to the terms of his plea bargain he agreed to plead only to the lesser included offense of escape, enhanced by a prior conviction. In return, he would receive a life sentence.

Our reading of the circumstances surrounding the taking of the plea, however, does not support that argument. And indeed, had the terms of the plea bargain agreement been such, the agreement would be void since the greatest punishment available for an enhanced third degree felony would be twenty years and a $10,000 fine. Sections 12.42(a) and 12.33, supra.

The record shows that at the plea hearing the prosecutor announced ready for the offense of escape with a deadly weapon, enhanced to a first-degree felony. The following occurred when the court asked applicant to enter a plea:

“[The Court]: But I have been presented here with copies of the plea bargain agreement as disclosed....
Now in Cause Number 29,355 it’s alleged that on the 30th of October, 1980 in Bell County, Texas, you then and there, after having been arrested and convicted of an offense, to-wit: murder, a felony, intentionally and knowingly escaped from custody of the sheriff, Lester Gunn, and that you did then and there, to effect your escape, intentionally and knowingly threaten to use and you did use a razor — a razorblade.
Now, to that charge, how do you plead, guilty or not guilty?
“A. Guilty.
* * * * * *
“Q. Now you understand with the pleas that you have entered here, there is a mandatory punishment with the plead — with the enhancement, there is a mandatory punishment in each case of life.
Do you understand that?
“A. Yes, sir.
“Q. And do you understand the plea bargain to be that these are going to run concurrently?
“A. Yes, sir.
“Q. These sentences; is that right?
“Mr. Leitner [the prosecutor]: That’s right. But there is not a mandatory punishment of life.
“The Court: It’s a first degree felony.
“Mr. Leitner: It’s a first degree and is supposed to be five to life, and a $10,-000 fine, up to $10,000.00 fine.
“Q. It’s mandatory first degree punishment, five to life, and a $10,000.00 fine may be imposed in addition.
But do you understand that the plea bargain is going to be that you receive life in each case?
“A. Yes, sir.
sfc sjs ⅝ * ⅜ ⅝
“Q. And have you discussed also with Mr. Holbrook [Defense Counsel] and has he explained to you that the court, in return for your plea, is not going to make an affirmative finding that there was a deadly weapon used in either one of these cases?
“A. Yes, sir.
“Q. So that you may be given the benefit of that ommission (sic) in crediting your time served in the penitentiary; do you understand that?
“A. Yes, sir.
“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.”

Thereafter, the court examined applicant’s judicial confession and then assessed life in each cause. Our review of applicant’s judicial confession shows that he confessed to using a deadly weapon, to-wit: a razor and razor blade, in effecting his escape. Furthermore, the record contains a pleading denominated “Disclosure of Plea Bargain Agreement.” This document reflects that applicant was to plead guilty to “Escape a 2nd Degree Felony Enhanced to a 1st Degree” in exchange for a life sentence. Thus, it is clear 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, escape with a deadly weapon.

We turn now to the judgment and sentence entered in this cause. Both reflect that applicant was found guilty of the offense of “escape with a deadly weapon (enhanced).” We agree with applicant that this wording in the judgment amounts to an affirmative finding of a deadly weapon and thus violates the terms of the plea bargain entered into by the parties.

In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the Supreme Court wrote that where a plea bargain agreement is entered into, it must be enforced either by specific performance or else the defendant must be allowed to withdraw his plea. Examining the current case law in this particular area, we feel that the proper remedy in the instant case is specific performance, that is, deleting the affirmative finding of a deadly weapon from the judgment and sentence, for when such a finding is included in the judgment, good conduct time served is not considered when computing the prisoner’s parole eligibility. Carrillo v. State, 634 S.W.2d 21 (Tex.App. — El Paso, 1982, no p.d.r.). Therefore, we now order that the judgment and sentence be reformed in the instant case to reflect that applicant was found guilty of the offense of “escape, a 2nd degree felony (enhanced).” See, Ex parte Nino, 659 S.W.2d 437 (Tex.Cr.App.1983). Such reformation effectively deletes any affirmative finding of a deadly weapon and this satisfies all the terms of applicant’s plea bargain. Turner v. State, 664 S.W.2d 86, 90 (Tex.Cr.App.1983). Compare: Delgado v. State, 677 S.W.2d 776 (Tex.App.— San Antonio 1984) (guilty plea case where although indictment alleged defendant committed murder by shooting with a gun, judgment contained no affirmative finding of a deadly weapon-nor did it reflect that the deadly weapon used was a firearm, and thus defendant was not ineligible for probation).

It is so ordered.

CLINTON, Judge,

concurring.

During the course of determining whether the plea of guilty by applicant was made freely, voluntarily and intelligently, the trial judge inquired of him:

“Q. And have you discussed also with [your attorney] Mr. Holbrook and has he explained to you that the court, in return for your plea, is not going to find that there was a deadly weapon used in either one of these cases?”
A. Yes, sir.
Q. So that you will be given the benefit of that ommission [sic] in crediting your time served in the penitentiary; do you understand that?
A. Yes, sir.”

Nevertheless, as the opinion of the Court points out, the judgment does describe the offense as “escape with a deadly weapon (enhanced),” seeming contrary to assurances by the judge that such an “affirmative finding” would not be made. Now, this Court proposes to remedy the situation by deleting what it says is an affirmative finding.

In all of that I am concerned over whether the Judicial Department may be unwittingly thwarting the will and determination of the Legislative Department in enacting § 15(b) of Article 41.12, V.A.C.C.P.

In my judgment it is incumbent on this Court to notice and address the practice now being routinely followed in the trial courts of this State in respect to plea bargaining and negotiated pleas in certain kinds of criminal actions — when all participants well know the prosecution can, and usually does, prove the accused did indeed use or exhibit a deadly weapon during the commission of a felony offense or during immediate flight therefrom, within the meaning of Article 42.12, § 3f.(a)(2), V.A.C. C.P., but still undertake to prevent the consequences prescribed by id., § 15(b). This being just such a case, I now turn to deal with the principle implicated by that practice.

“The Legislative power of this State shall be vested in ... ‘The Legislature of the State of Texas.’ ” Article III, § 1, Constitution of the State of Texas. The Court has held that this section delegates to the Legislature lawmaking power and authority including the right to define offenses and prescribe penalties therefor. McNew v. State, 608 S.W.2d 166, 176 (Tex.Cr.App. 1980); see State ex rel. Smith v. Blackwell, Judge, 500 S.W.2d 97, 104 (Tex.Cr. App.1973). And it is axiomatic that the Judicial Department has no concern with the policy underlying or wisdom of a legislative enactment, for such belongs exclusively to the Legislative Department. Harwell v. State, 147 Tex.Cr.R. 505, 182 S.W.2d 713, 714 (1944); Gay v. State, 79 Tex.Cr.R. 305, 184 S.W. 200, 202 (1916); Ex parte Francis, 72 Tex.Cr.R. 304, 165 S.W. 147, 154 (1914); see also a host of decisions annotated at notes 16 and 17 under id., § 1. Indeed, the maxim is that, having ascertained legislative intent and valid meaning of statutory provisions, courts have a duty to take the law as they find it and then follow it.

On the other hand, district and county attorneys are constitutional officers charged with representing The State of Texas in all cases in the district court and “inferior courts” — in certain situations, however, subject to regulation of their respective duties by the Legislature. Article V, § 21, Constitution of the State of Texas. Their basic duties have been assigned by the Legislature in Articles 2.01 and 2.02, V.A.C.C.P. See generally Garcia v. Laughlin, 155 Tex. 261, 285 S.W.2d 191 (1955) and Shepperd v. Alaniz, 303 S.W.2d 846 (Tex.Civ.App. — San Antonio 1957), no writ history. As the Interpretive Commentary following § 21 correctly points out, the “overwhelming importance” of those officers flows from their inherent discretionary power to determine “whether prosecution in any given case shall be inaugurated, or, if inaugurated, pushed to a successful conclusion” — the measure of the latter being also determined initially by the prosecuting attorney. (However, since their “primary duty [is] not to convict, but to see that justice is done,” Article 2.01, V.A.C.C.P., respective electoral constituencies of each is the ultimate arbiter of whether prosecutions are “successful.”)

One manner of prosecuting a criminal action to a successful conclusion contemplated by the Legislature is through a plea bargain agreement followed and implemented by the trial court. See Articles 26.13 and 44.02, V.A.C.C.P. “The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining,’ is an essential component of the administration of justice.” Santabello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971); see Brady v. United States, 397 U.S. 742, 751-752, 90 S.Ct. 1463, 1470-1471, 25 L.Ed.2d 162 (1970). “There is, of course, no absolute right to have a guilty plea accepted [and a] court may reject a plea in exercise of sound judicial discretion.” Santabello, supra, 404 U.S. at 262, 92 S.Ct. at 498. However, once agreed to by the parties and accepted by the court, the bargain must be specifically performed or the accused will be given an opportunity to withdraw the plea. Santa-bello, 404 U.S. at 263, 92 S.Ct. at 499.

In the instant case there is such a plea bargain; though perhaps “it is shown that the [appellant] used ... a deadly weapon,” § 3f(a)(2), supra, part of the bargain was that the trial judge would not make an affirmative finding to that effect and enter it in the judgment, ibid. The notion has been expressed, however, that the trial court was “obligated as a matter of law to make a finding that applicant used a deadly weapon in the course of committing the offense of escape,” and there is support for that proposition in, e.g., Delgado v. State, 677 S.W.2d 776 (Tex.App. — San Antonio 1984), no PDR history (Cadena, C.J., dissenting).

Both the Delgado majority and the dissent examined an opinion by a panel of this Court in Jones v. State, 596 S.W.2d 910 (Tex.Cr.App.1980), each coming to a different conclusion about its meaning and impact. Section 3f(a)(2) came under scrutiny in the Jones case when it was contended that the trial court erred in failing to make a full admonishment as to consequences of his guilty plea in that although he was applying for probation the judge did not warn him that he was not eligible on account of having used a deadly weapon in committing the felony offense of murder then on trial. The panel rejected the contention, reasoning that “this provision is only applicable when the trial court makes an affirmative finding and enters such finding in the judgment of conviction,” and since the record did not reflect any such finding there was no showing that Jones was “ineligible for probation.” The Delgado majority followed that reasoning, whereas Chief Justice Cadena believed the Jones panel assumed that the judgment did not contain an affirmative finding because its attention had not been directed to “the rules concerning the findings required to be made following a plea of guilty or to the rules for construction of judgments,” and he opined that under such rules “the trial court in finding defendant guilty, was required to find that the murder was accomplished by use of a deadly weapon, since in the absence of such a finding the adjudication of guilt would have been impossible.” Delgado, supra, at 779.

Although a showing that the defendant used or exhibited a “deadly weapon” seems to trigger the remaining provisions of § 3f(a)(2), implicit in the reasoning employed by the Jones panel is that making an affirmative finding of that fact and entering it in the judgment of conviction are discretionary rather than mandatory acts on the part of the trial judge, so that when such acts are not done an otherwise eligible accused retains his eligibility for probation from the court notwithstanding the fact that he did indeed use or exhibit a deadly weapon. With deference, extending that reasoning leads to the conclusion that by the simple expedient of not making and entering an affirmative finding a trial judge could remove the bar against the court’s granting probation to any accused similarly situated.

What Jones overlooked is that under § 3f(a)(2) and (b) it is not so much a matter of eligibility of the accused as it is authority of trial court or jury to grant probation to a defendant “when it is shown that defendant used or exhibited a deadly weapon.” Rivas v. State, 627 S.W.2d 494 (Tex. App. — San Antonio 1981), PDR refused, opined that neither judge nor jury is authorized to grant probation in those circumstances; May v. State, 660 S.W.2d 888 (Tex.App. — Austin 1983), disagreed with Rivas and correctly held that while the trial judge alone is “expressly forbidden to do so,” when the jury recommends probation the court is required by § 3a to grant probation and is authorized by § 3f(b) to order a defendant found guilty of a felony of the second degree or higher to be confined in the Texas Department of Corrections for not more than 120 days. In May v. State, (Tex.Cr.App., No. 113-84, delivered December 5, 1984), this Court found with the Austin Court of Appeals that “the Rivas rationale is erroneous,” and affirmed the judgment. See also Ex parte Thomas, 638 S.W.2d 905, 907-908 (Tex.Cr.App.1982).

Accordingly, the results are that a trial court alone may not grant probation to an accused who is otherwise eligible for probation yet is shown to have used or exhibited a deadly weapon, but upon a recommendation by the jury a court is required to place the defendant on probation and in certain cases may impose a period of confinement to be served at the outset.

While the Court does not deal with a matter of probation in the instant case, in that context the lesson taught by the Legislature is that an accused shown to have used or exhibited a deadly weapon in committing or fleeing from commission of a felony offense may not avoid suffering the consequences confined in the Texas Department of Corrections — unless a jury makes such affirmative finding, and notwithstanding its own finding, recommends probation be granted. But should the jury refuse to recommend probation, the trial court still “shall enter the finding in the judgment of the court,” and consequences are those provided by law, including constraints in § 15(b), V.A.C.C.P.

In a trial before the court when it is shown that defendant used or exhibited a deadly weapon in circumstances prescribed ‘ by § 3f(a)(2), the question yet remaining is whether the trial judge must make an affirmative finding to that effect and enter that finding in the judgment of the court.

Given a clear legislative intent and purpose in enacting § 3f(a) and (b), and its affirmatively providing that only upon recommendation of a jury may a defendant shown and found to have used or exhibited a deadly weapon be placed on probation in lieu of confinement, that a plea bargain agreement will justify a trial judge in circumventing the certainty of extended confinement is not supported by any previously espoused rationale other than in an exercise of discretion, as in Jones, supra. And if Chief Justice Cadena in Delgado, supra, accurately perceived the shortcomings in Jones and correctly concluded the trial court had to find that a deadly weapon was used and perforce had “a mandatory duty to enter such finding in its judgment,” a refusal to do so surely constitutes an abuse of discretion.

Thus we are brought back to the matter of prosecutorial discretion inherently vested in district and county attorneys representing the State in a criminal action. See ante. In the premises being considered the tension between that power constitutionally granted the Legislature to prescribe penalties for defined penal offenses and that inherent power to exercise prosecutorial discretion becomes at once apparent and stressful. The problem is how to resolve, or at least ease, the tension.

Nolle prosequi in a criminal action is a declaration of record by a prosecuting attorney that he will “no further prosecute” the case either in whole or in part as to some counts or some defendants. Black’s Law Dictionary (Rev. Fourth Ed.). A.t common law the prosecuting attorney alone had the power to enter a nolle prosequi, but in Texas the Legislature saw fit to change the common law rule to the extent leave of the trial court is required upon reasons given and stated in the judgment. Wallace v. State, 145 Tex.Cr.R. 625,170 S.W.2d 762, 764 (1943).

The legislatively crafted rule is now embodied in Article 32.02, V.A.C.C.P., viz:

“The attorney representing the State may, by permission of the court, dismiss a criminal action at any time upon filing a written statement with the papers in the case setting out his reasons for such dismissal, which shall be incorporated in the judgment of dismissal. No ease shall be dismissed without the consent of the presiding judge.”

Under the authority of that statute the Court has held the State may obtain dismissal of a higher offense and try an accused for any lesser included offense embraced within a charging instrument. Clay v. State, 70 Tex.Cr.R. 451, 157 S.W. 164 (1913); Gentry v. State, 68 Tex.Cr.R. 567, 152 S.W. 635, 636 (1913). Since it has long been held that part of the statute providing for a written statement is “merely directory not mandatory, and an oral motion ... is sufficient,” Wallace v. State, supra, 170 S.W.2d at 764, with approval of the trial court verbal dismissal of allegations in aggravation or of a higher grade of offense is a commonly accepted practice, and it has been found that a prosecuting attorney may elect or abandon, and thereby dismiss, one of two paragraphs of a count — with permission of the trial court. Foster v. State, 661 S.W.2d 205, 208 (Tex.App.— Houston [1st] 1983), PDR refused.

Presumed to be fully cognizant of the common law and related findings and holdings of the Court with respect to nolle prosequi, by enacting its predecessor and reenacting Article 32.02, the Legislature has given its approval and sanction to exercise of prosecutorial discretion in every criminal action, subject to approval of the trial court in a given case, well aware that punishment actually assessed may be less than, and related consequences other than, that which was initially contemplated by the charging instrument.

The offense of escape is a felony of the second degree if the accused “used or threatened to use a deadly weapon to effect his escape” — “exhibited a deadly weapon” is not a prescribed element. In the case at bar the indictment alleged that appellant did “threaten to use and used a deadly weapon ...” That one “threatened to use” does not necessarily mean that one “used or exhibited” within the meaning of § 3f(a)(2). Thus, what the judgment and sentence and the majority opinion denominate “escape with a deadly weapon (enhanced)” is ambiguously broad enough to include “threatened to use a deadly weapon.” Since the prosecutor’s entering into the plea bargaining agreement effectively elected “threatened to use” and abandoned “used,” and the judge of the trial court approved the agreement, the latter allegation in the indictment was thereby dismissed. In these circumstances the trial court was not required to make an affirmative finding that appellant “used” a deadly weapon nor enter such finding in the judgment of the court, and the judgment and sentence does not necessarily mean the trial court did.

Therefore, what was done in the instant criminal action does not thwart or offend the will and determination of the Legislature in enacting § 3f(a)(2). However, since the description of the offense of which applicant was adjudged to be guilty may be read to mean that he “used” a deadly weapon, I agree that the judgment and sentence should be reformed to describe the offense as “escape, a 2nd degree felony (enhanced).”

Accordingly, I join the judgment and order of the Court.

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, escape 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 carries 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.

      . Applicant was also pleading to a robbery case at the same time he entered a plea in the instant case.

      . Both the judicial confession and the "Disclosure of Plea Bargain Agreement” were signed, dated and filed on January 23, 1981, the same date applicant’s plea was entered.

      . All emphasis is mine unless otherwise indicated.

      . “[T]he district attorney shall represent the State in the prosecution of all criminal cases in the district court of his district except where he is disqualified. When the district attorney is disqualified the county attorney is given the right to represent the State. Also the county attorney is required to represent the State in all criminal cases in courts other than the district courts, and to appear in district courts as representing the State when the district attorney is absent from district court, and, further, the county attorney may assist the district attorney in cases in the district court.” Id., 285 S.W.2d at 195.

      . "It has always been the principal duty of the district and county attorneys to investigate and prosecute the violation of all criminal laws ... and these duties cannot be taken away from them by the Legislature and given to others.” Id., at 850.

      . "Since, in order to find appellant guilty of murder ‘as charged in the indictment,’ the trial court had to find that a deadly weapon was used, it was under a mandatory duty to enter such finding in its judgment. Its failure to do so violated the clear statutory mandate ...” Id., at 780.

      . Emphasis is added in the panel opinion.

      . My own view is that the finding alluded to by Chief Justice Cadena is at best an "inferred finding” from allegations in the charging instrument, the evidence and a finding of guilt; it is not an “affirmative finding” within the meaning of § 3f(a)(2) and (b).


source: Caselaw Access Project

author: CLINTON, Judge. TEAGUE, Judge, dissenting.

license: Public Domain

text:
    Ex parte Tyrant Anthony GREEN.
    No. 69396.
    Court of Criminal Appeals of Texas, En Banc.
    April 17, 1985.
    Nancy B. DeLong, Huntsville, for appellant.
    Henry Wade, Dist. Atty. & Ruth E. Pla-genhoef, Asst. Dist. Atty., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

CLINTON, Judge.

This is a postconviction writ of habeas corpus brought before the Court pursuant to Article 11.07, V.A.C.C.P.

To three separate indictments alleging aggravated robbery applicant plead guilty; thereupon he was convicted and sentenced to concurrent ten year sentences. Applicant here contends that he should be given credit on his sentences for time spent in a juvenile detention center between his having been taken into custody upon committing the robberies and his being sentenced in the causes.

At the time of the commission of these offenses applicant was sixteen years old. On the night of January 14, 1983 police officers observed applicant and an accomplice in the act of robbing and sexually molesting three young women in Dallas. Applicant was taken into custody and referred to the Dallas County Juvenile Department’s detention center. See V.T.C.A. Family Code, §§ 52.01(a)(2), 52.02(a)(3). On January 17, presumably as a result of a detention hearing pursuant to Family Code, § 54.01, applicant was detained further on the order of the juvenile court. Applicant was released on March 21, 1983. Subsequently, on August 23, 1983 he was “re-arrested.” The instant indictments were filed August 31. The judgment in each of the three robbery convictions grants applicant credit for time served in jail beginning August 23.

Applicant now contends that by operation of Article 42.03, § 2(a) he is entitled to credit for the 67 days, from January 14 until March 21, that he was confined in the juvenile detention center. He asserts that his detention under the court order “effectively held him in constructive custody. Ex parte Newell, 582 S.W.2d 835 (Tex.Cr.App. 1979) [,]” and that “[w]hen the applicant does not have a choice of custodian and is held on a particular cause, he is entitled to credit for time served. Ex parte Williams, 551 S.W.2d 416 (Tex.Cr.App.1977). See also, Ex parte Pizzalota, 610 S.W.2d 486 (Tex.Cr.App.l981)[.]”

The question is thus presented whether time spent by a juvenile in a detention center, where he was confined as a result of behavior which, if committed by an adult would constitute a penal offense, may be credited to a sentence he subsequently receives in a court of criminal jurisdiction to which the case has been transferred.

The district court recommended that relief be denied. In its conclusions of law the court reasoned that, because the policy considerations in detaining juveniles are not comparable to those which underly the incarceration of adult offenders, detention of a juvenile pursuant to V.T.C.A. Family Code, Chapters 52 and 53 should not be treated as “constructive custody” for purposes of implementing penal sanctions. The court concluded that “[bjecause juvenile confinement is not considered punishment, see Schall v. Martin, [— U.S.—, —, 104 S.Ct. 2403, 2412, 81 L.Ed.2d 207, 220 (1984) ], the legislature [in enacting Article 42.03, § 2(a), supra] could not have intended for that time to be applied towards a person’s sentence.”

We disagree.

To compare the respective policies behind juvenile confinement and adult incarceration in this context is to miss the point. More illuminating for purposes of construing Article 42.03, § 2(a), supra, is the comparison between pretrial detention of adults and the detention of a juvenile prior to his delinquency adjudication hearing, see V.T.C.A. Family Code, § 54.03, and his disposition hearing, if any, see V.T.C.A. Family Code, § 54.04.

That juvenile detention is not considered punishment is of no moment; adult confinement prior to trial is not for punishment either. As the Supreme Court pointed out in Schall:

“It is axiomatic that ‘[d]ue process requires that a pretrial detainee not be punished.’ Bell v. Wolfish, 441 US [520] at 535 n 16, 60 L Ed 2d 447, 99 S Ct 1861 [at 1872 n. 16 (1979)].”

— U.S. at -, 104 S.Ct. at 2412, 8Í L.Ed.2d at 220. In Bell, supra, it was observed:

“A person lawfully committed to pretrial detention has not been adjudged guilty of any crime. He has had only a ‘judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest.’ Gerstein v. Pugh, supra, 420 U.S. [103], at 114, 95 S.Ct. [854], at 863 [43 L.Ed.2d 54 (1975) ]; see Virginia v. Paul, 148 U.S. 107, 119, 13 S.Ct. 536, 540, 37 L.Ed. 386 (1893). [...] Under such circumstances, the Government concedely may detain him to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution.”

441 U.S. at 536, 99 S.Ct. at 1872, 60 L.Ed.2d at 466. Schall supports the proposition that neither adults nor. juveniles may be constitutionally detained pretrial for purposes of punishment. Hence, the court’s reliance on Schall proves inapposite, and its invocation of policy differences as a justification for denying relief, insubstantial.

Though it has been held that generally there is no Federal constitutional right to credit for time served prior to sentence, see Caraway v. State, 550 S.W.2d 699 (Tex. Cr.App.1977); Ex parte Eden, 583 S.W.2d 632 (Tex.Cr.App.1979), the Legislature has amended Article 42.03, § 2, supra, to make it mandatory that the trial court award such credit. Acts 1973, 63rd Leg., p. 205, ch. 91, § i, eff. August 27, 1973. In so doing the Legislature recognized that pretrial confinement, though not instigated for purposes of punishment, nevertheless has an incidental punitive effect in that it deprives the detainee of his liberty. To compensate for this deprivation the Legislature provided that whenever that detainee is ultimately assessed a term of imprisonment the convicting court shall grant credit to his sentence for time spent in pretrial detention, even though the .detention was not imposed at the time for purposes of punishment.

Once a juvenile is “certified” as an adult under V.T.C.A. Family code, § 54.02, it makes no difference that “said cause” began as a civil proceeding, see T.R.S. v. State, 663 S.W.2d 920 (Tex.App — Ft. Worth 1984, no writ), since “[o]n transfer of the child for criminal proceedings, he shall be dealt with as an adult and in accordance with the Texas Code of Criminal Procedure, 1965.” Section 54.02(h), supra. We do not think that in enacting Article 42.03, § 2(a) the Legislature intended that an individual initially detained as a juvenile and later certified an adult, then prosecuted and sentenced accordingly, should be treated any differently than one who is initially detained as an adult.

We therefore hold applicant is entitled to the flat time credit he seeks, from January 14, 1983 to March 21, 1983. A copy of this opinion will be forwarded to the Texas Department of Corrections.

It is so ordered.

TEAGUE, Judge, dissenting.

Because I believe that the majority misinterprets and misconstrues Art. 42.03, Section 2(a), V.A.C.C.P., erroneously applies to this cause the equal protection clauses of the respective constitutions, and fails to discuss certain subjects that will surely confront this overworked Court in the near future, I am compelled to dissent.

The question that is before this Court is whether Art. 42.03, Section 2, V.A.C.C.P., or some other law, can be invoked and applied in order to give jail credit to Tyrant Anthony Green, applicant, for the period of time that he spent in a Dallas County juvenile detention center before he was transferred to a criminal district court to stand trial as an adult.

The record reflects that Green has received jail credit for all of the time when he was confined in the Dallas County Jail awaiting trial as an adult. The record further reflects that Green was confined in a Dallas County juvenile detention center from January 14, 1983, until March 21, 1983, before he was ordered by the Juvenile Court of Dallas County to be transferred to a criminal district court of Dallas County to stand trial as an adult.

Art. 42.03, Sec. 2, supra, expressly provides:

In all criminal cases the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, from the time of his arrest and confinement until his sentence by the trial court. [Emphasis Added.]

It should be obvious to anyone that Art. 42.03, Section 2(a), supra, is clearly worded. Under the statute, a defendant is to be given jail credit only for each day he spends in jail solely on account of a charge or charges pending against him in a particular cause. A juvenile who is detained in a juvenile detention facility, however, does not stand accused or charged with anything until a petition to adjudicate him a delinquent or to transfer him to district court to stand trial as an adult is filed, and it is only in the instance of transfer that a formal criminal charge or accusation is later filed against him.

The language of the statute which is important here is the phrase, “... for the time that the defendant has spent in jail in said cause.” Because of the express wording of Art. 42.03, Section 2(a), supra, I am unable to agree with the majority opinion that “the cause” for which Green was detained in the juvenile detention center is one and the same “causes” for which he is presently confined in the Department of Corrections. See and compare Ex parte Crossley, 586 S.W.2d 545 (Tex.Cr.App. 1979), for a further discussion of the meaning of the phrase “in the cause.”

It is obvious to me that when Green was detained in the juvenile detention center he was only detained in order fqr the Juvenile Court of Dallas County to make the determination of what disposition should be made of him. Thus, “the cause” for which Green was being detained by the juvenile authorities is not “the same causes” for which he was prosecuted and convicted.

If Art. 42.03, Section 2(a), supra, did not expressly limit itself to the granting of jail credit for the time a defendant has spent “in jail in said cause” I might agree with the majority opinion. However, the great State of Texas, contrary to some of our sister States, has not seen fit to statutorily grant a defendant credit for the period of time that he might have spent in a juvenile detention center. See and compare Escobedo v. Oleisky, 339 N.W.2d 263 (Minn.Sup. Ct.1983), where the Minnesota Supreme Court discussed its state’s statute that provides that a defendant is entitled to jail credit “for all the time spent in custody in connection with the offense or behavioral incident for which sentence is imposed.” Unquestionably, now that the Legislature is in session, it should amend Art. 42.03, Section 2(a), supra, to read as the Minnesota statute does. Then, but only then, will it be permissible and lawful for this Court to grant juveniles who are tried as adults credit for the period of time that they might have spent in a juvenile detention center.

The majority opinion states: “We do not think that in enacting Article 42.03, § 2(a) the Legislature intended that an individual initially detained as a juvenile and later certified an adult, then prosecuted and sentenced accordingly, should be treated any differently than one who is initially detained as an adult.” In light of the express wording of Article 42.03, Section 2(a), supra, how one can implicitly state that Green is being deprived of equal protection under our laws by being denied credit on his sentences for the period of time he spent in a juvenile detention center is beyond my comprehension. To make the analogy that the majority opinion does causes me to exclaim, “Color me amazed.”

It should be clear as crystal to anyone that all juveniles who are tried as adults in our criminal justice system are treated equally, and from the moment of transfer they are guaranteed all of the rights that an adult is entitled to receive.

I also observe that the majority opinion does not state whether what it holds today in Green’s case is to be applied retroactively or whether it will have only prospective application to inmates similarly situated.

I predict that if the majority opinion is to be applied retroactively this overworked Court will soon be blessed with a torrent of applications for post-conviction relief from juveniles who were tried as adults seeking recomputation of their time. I also believe that it will be virtually impossible for the authorities to make such recomputations. Therefore, I strongly urge the majority of this Court to consider making its opinion only applicable from this day forward to those persons who have been confined in juvenile detention centers prior to their trials as adults, rather than to implicitly hold that its decision is to be applied retroactively. See and compare Pruett v. Texas, 468 F.2d 51 (5th Cir.1972), and Pruett v. Texas, 470 F.2d 1182 (5th Cir.1973), where the mighty Fifth Circuit Court of Appeals refused to apply its decision awarding jail credit to prisoners who had their cases on appeal retroactively.

I also observe that the majority opinion fails to take into consideration, in granting Green credit on his sentence, the aspect of “good time” credit. This is simply another reason why the majority opinion should not be approved by the members of this Court.

For all of the above reasons, I respectfully dissent.

WHITE, J., joins.

      . Apparently, though it is not indicated in the record, jurisdiction of the matter was transferred to the criminal district court pursuant to V.T.C.A. Family Code, § 54.02.

      . Article 42.03, § 2(a) reads:
      “In all criminal cases the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, from the time of his arrest and confinement until his sentence by the trial court.”

      . Applicant does not raise, nor do we decide his eligibility for "good time” credit under Article 42.03, § 4, V.A.C.C.P.


author: WHITE, Judge.

text:
    Ex parte Marvin McKINNEY.
    No. 69406.
    Court of Criminal Appeals of Texas, En Banc.
    April 17, 1985.
    Melinda Hoyle Bozarth, Huntsville, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

WHITE, Judge.

Applicant is before this Court seeking habeas corpus relief in accordance with Art. 11.07, V.A.C.C.P., alleging that he waived his right to a jury trial in a capital case, which is impermissible under Art. 1.14, V.A.C.C.P., and applicant further contends that the state cannot waive or dismiss the death penalty portion of his indictment.

The applicant’s contentions are entirely correct and meritorious.

On June 27, 1977, the Grand Jury of Bowie County returned a two count indictment against Marvin T. McKinney for the offense of capital murder. Counsel was appointed to represent the applicant. On March 13, 1978, applicant appeared in court with counsel and signed a written waiver of his right to a jury trial. The court accepted applicant’s plea of guilty to the offense of capital murder on this date. The court sentenced applicant to life in the Texas Department of Corrections.

Article 1.14, V.A.C.C.P. states in relevant part:

“The defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of trial by jury in a capital felony case.”

This Court has firmly established in Ex parte Dowden, 580 S.W.2d 364 (Tex.Cr. App.1979), that:

“It is clear from what has been said that the state cannot waive the death penalty in capital murder cases, and that the petitioner could not validly waive the right to trial by jury.” Ex parte Denu-den, supra, at 366.

This is a statutory mandate which the Legislature has enacted and its intent is clear. This position was confirmed in no uncertain terms in Ex parte Jackson, 606 S.W.2d 934 (Tex.Cr.App.1980); Ex parte McClelland, 588 S.W.2d 957, 959 (Tex.Cr. App.1979); and Ex parte Bailey, 626 S.W.2d 741 (Tex.Cr.App.1981). In Ex parte Bailey, we stated that:

“It is now well established that a defendant in a capital murder case cannot validly waive trial by jury.” (Emphasis added).

Therefore, for the reasons stated, the relief prayed for is granted and applicant is remanded to the custody of the Sheriff of Bowie County to answer the indictment in cause no. 77-F-127 in the 102nd District Court.

It is so ordered.


author: PER CURIAM. TEAGUE, Judge, ONION, Presiding Judge,

text:
    Arthur H. JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 357-82.
    Court of Criminal Appeals of Texas, En Banc.
    April 24, 1985.
    Ken J. McLean (court appointed on appeal & PDR only) Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., & Timothy G. Taft & Norman Davenport, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

A jury convicted appellant of attempted rape and assessed punishment at seven years’ confinement and a $5,000 fine. The court of appeals for the first supreme judicial district affirmed the conviction. We granted appellant’s petition for discretionary review to address alleged fundamental error in the charge.

In accord with our decision in Almanza v. State, 686 S.W.2d 157 (opinion on rehearing — delivered February 27, 1985), we remand this case to the court of appeals for further proceedings consistent with our opinion in Almanza.

ONION, P.J., and W.C. DAVIS, J., dissent to the remand.

TEAGUE, Judge,

dissenting.

It now appears that “Almanza the Terrible,” see Kucha v. State, 686 S.W.2d 154 (Tex.Cr.App.1985), (Teague, J., Concurring Opinion), which figure of speech is a shorthand rendition for this Court’s decision of Almanza v. State, 686 S.W.2d 157 (Tex.Cr. App.1985), gets his second victim, Arthur H. Johnson, appellant, in this cause. His first victim may be found in Bonfanti v. State, 686 S.W.2d 149 (Tex.Cr.App.1985).

The First Court of Appeals, because of the law then in existence, erreoneously overruled appellant’s assertion that the trial court’s charge to the jury was fundamentally defective. Appellant relied upon, inter alia, this Court’s decision of Stidham v. State, 590 S.W.2d 502 (Tex.Cr.App.1979), which appears to be an almost “white horse case” for appellant’s assertion.

Stidham v. State, supra, held that in a prosecution for attempted aggravated rape, failure of the trial court to include in the application paragraph of the charge the culpable mental state of either “intentionally” or “knowingly” rendered the charge fundamentally defective. And that is exactly what happened in this cause. The court of appeals, however, held that because the trial court had defined in the abstract portion of the charge the offense of criminal attempt the error was harmless.

The majority sustains the judgment of the court of appeals by holding that under Almanza v. State, supra, the error in the charge did not deprive appellant of a fair and impartial trial. I must ask: How can it be said that the appellant received a fair and impartial trial when the State was not required to prove beyond a reasonable doubt what it had alleged against him, but is still able to have appellant’s conviction affirmed?

It is true that under Almanza v. State, supra, error in the court’s charge will now be reversible error “only if the error is [found to be] so egregious and created such harm that [the defendant] ‘has not had a fair and impartial trial’ — in short ‘egregious harm.’ ”

Almanza v. State, supra, also adopted a second test, which is to be used if the trial court’s charge is first found to be egregious. This second test is used in determining whether the defective jury charge caused the defendant harm. It provides: “[T]he actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.”

What should be obvious to anyone is the fact that Almanza v. State, supra, has established an appellate test that I do not believe that any defendant will ever pass. Perhaps this is the “no pass-penitentiary” test of this Court. Compare, however, the “No Pass-No Play” rule that was recently enacted by the Legislature. I am firmly convinced that the amount of attention that the members of the bench and bar of this State should give to this Court’s decision of Almanza v. State, supra, should at least equal the amount of attention the Legislatively enacted “No Pass — No Play" has received from parents and students of this State. Perhaps if that occurs, Almanza v. State, supra, will have a short judicial life.

However, but because of Almanza v. State, supra, trial judges of this State no longer have the legal duty and responsibility, as they once did, see Art. 36.14, V.A.C. C.P., to prepare for a jury a proper and correct charge on the law, and the law as may be applied to the facts adduced. It is now permissible for trial courts to give to jurors pieces of what may appear to them to be a jigsaw puzzle, for them to figure out what they must find in order to convict a defendant, or what they must not find in order to acquit a defendant. Jurors will now be able to convict defendants on elements which are not stated in the charging instrument. There will no longer be a division of responsibility which formerly existed between the trial court and the jury, which formerly was the backbone of our jury system. The application paragraph in the charge no longer has any meaning. Abstract definitions in the court’s charge, which definitions are much like words found in a dictionary in that they are useless until correctly used in a sentence, will now govern. After Almanza v. State, supra, jurors will often be given the opportunity to second-guess the trial court as to what the law is by assuming the trial court inadvertently omitted a required element of the offense, just because an abstract definition in the charge includes the omitted element. No longer will it be required that the charge to the jury should resemble a gem that has been cut and polished by the hard edge of legal experience obtained from both within and without our criminal justice system. It will now be permissible to serve jurors with a flawed jewel. The office of the jury will no longer be to simply adjudge what the facts of the case might be; they will now be required to carry out a function that they have not enjoyed for over four hundred years, namely, to decide what the law might be in a given case. Cases of this Court such as Doyle v. State, 631 S.W.2d 732 (Tex.Cr. App.1982) (On State’s Motion for Rehearing), and the cases cited in Doyle, supra, are no more. They can presently be found in Davy Jones’s foot locker which is located at the bottom of the Gulf of Mexico, where the majority of this Court has ordered that they be sent.

Almanza v. State, supra, should be expressly overruled by this Court. To the failure of the majority to expressly overrule Almanza v. State, supra, I must and will continue to respectfully dissent each time it is invoked and applied in a decision by this Court.

ONION, Presiding Judge,

dissenting.

Appellant was convicted of attempted rape. The jury assessed punishment at seven (7) years’ imprisonment and at a fine of $5,000.00.

On appeal in his sole ground of error appellant contended the “main charge applying the law to the facts is fundamentally defective for failing to include the required culpable mental state of ‘knowingly’ or ‘intentionally.’ ” There was no objection to the charge so the appellant necessarily relied upon a claim of fundamental error.

The Houston (1st) Court of Appeals affirmed the conviction. Johnson v. State, (Tex.App. — Houston [1st], No. 01-81-0407-CR, March 18, 1982). The panel opinion distinguished Stidham v. State, 590 S.W.2d 502 (Tex.Cr.App.1979), cited by appellant, and called attention to the jury charge as a whole. The court noted that the trial court had abstractly charged the jury after charging on the law of rape that:

“A person attempts to commit an offense if, with specific intent to commit an offense, he does more than mere preparation that tends, but fails to effect the commission of the offense intended.”

The Court of Appeals acknowledged the “charging paragraph” did not include “intentionally” or “intent” but noted the earlier instruction on specific intent, and that in Dovalina v. State, 564 S.W.2d 378 (Tex.Cr. App.1978), it was held that “attempt” may be substituted for “intent,” and “attempted” had been used in the paragraph applying the law to the facts.

Thereafter the Court of Appeals wrote:
“The record in our case reveals the following:
“(1) Appellant was adequately represented by counsel at trial;
“(2) The conviction was supported by overwhelming evidence of appellant’s guilty;
“(3) There was no objection made to the court’s omission of the words ‘knowingly’ or ‘intentionally’ from the charge;
“(4) There was no allegation or suggestion that the omission of the words ‘knowingly’ or ‘intentionally’ caused any harm to appellant, nor is it conceivable that it could have caused or even contributed to his conviction; and
“(5) The prosecutor in his closing argument told the jury that they must find that appellant had the intent to rape before they could convict him.
“We hold that if there was error, it was not calculated to injure the rights of appellant and that from the record it is clear that appellant received a fair and impartial trial.
“Under these circumstances, to say that the omission of these words is fundamental or even error, would be illogical because there is no relation between due process and the failure of the court to specifically use the word ‘intent’ or ‘intentionally’ in the charging paragraph. This is especially true when considered in the light of Tex. Code Crim.Pro.Ann. art. 36.19.” (Emphasis supplied.)

On June 23, 1982, this Court granted appellant’s petition for discretionary review to determine the correctness of the holding of the Court of Appeals.

On February 27, 1985, this Court handed down Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), establishing the test for fundamental error in the court’s charge. This Court wrote:

“After researching Texas statutory and decisional law from 1857 forward, we have concluded that Article 36.19 actually separately contains the standards for both fundamental error and ordinary reversible error. If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is ‘calculated to injure the rights of defendant/ which means no more than that there must be some harm to the accused from the error. In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless.
“On the other hand, if no proper objection was made at trial and the accused must claim that the error was ‘fundamental/ he will obtain a reversal only if the error is so egregious and created such harm that he ‘has not had a fair and impartial trial’ — in short ‘egregious harm.’
“In both situations the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.”

It is surprising how close the Court of Appeals followed the test required by our recent decision in Almanza. In effect the Court of Appeals has already applied the Almanza test. And yet today the majority remands this case to the Court of Appeals for reconsideration in light of Almanza, something which has in effect already been done.

Still further, a judge of this Court (other than this writer) has already considered appellant’s petition and I adopt what he has written:

“V.T.C.A., Penal Code, Section 15.01(a), states:

A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.

The elements of Sec. 15.01(a) are: (1) a person; (2) with specific intent to commit an offense; (3) does an act amounting to more than mere preparation; (4) that tends but fails to effect the commission of the offense intended. Torres v. State, 618 S.W.2d 549 (Tex.Cr.App.1981); McCravy v. State, 642 S.W.2d 450, 455 (Tex.Cr.App. 1980).

“The indictment correctly alleged all the requisite elements of the offense:

having intent to commit rape, attempt by force and threats to have sexual intercourse with A_ C_, a female not his wife and hereafter styled the Complainant, without the consent of the Complainant, by hitting, striking and choking the Complainant with his hands and fists.

“The charge to the jury set out the statutory definition of the offense of rape and the statutory definition of attempt. The paragraph applying the law to the facts stated:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 5th day of December, 1980, in Harris County, Texas, the defendant, ..., did, without the consent of (Complainant), a female, and by the use of force or threats attempt to have sexual intercourse with the said (Complainant) by hitting, striking and choking the said (Complainant), and that the said (Complainant) was not then and there the wife of said defendant, then you will find the defendant guilty of attempted rape, as charged in the indictment.

“Prior to this Court’s opinion in Almanza v. State, No. 242-83 [686 S.W.2d 157] (opinion on rehearing, delivered February 27,1985), such a charge required automatic reversal. Sears v. State, 651 S.W.2d 262 (Tex.Cr.App.1982); Stidham v. State, 590 S.W.2d 502 (Tex.Cr.App.1979). In accord with Almanza, we now determine if the error is ‘so egregious and created such harm that [appellant] “has not had a fair and impartial trial.” ’ Almanza, p. 23 [171]. We review the case by examining the entire jury charge, the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information in the record. Almanza, supra, p. 23 [171].

“The complainant testified that on December 5, 1980, at about 1:00 a.m., her friend Rose Richards drove her to her apartment. The complainant noticed a man wearing a blue and white Houston Oiler warm-up standing on the sidewalk of the apartments. She walked to her apartment and unlocked the door. The man wearing the blue and white warm-up, identified as appellant, walked up behind her, pushed her inside the apartment, and told her he wanted to use her phone because his car had been towed away.

“Appellant apparently telephoned his grandmother in an attempt to locate his brother. He told the complainant that he had to wait until he could contact his brother because his brother was not at home. Then complainant told appellant to leave and use a pay phone. She also told him that her boyfriend was coming over. After some discussion, appellant said, ‘You are lying and nobody is coming over here.’ He told the complainant to take off her clothes and began choking her, forcing her to the floor. She struggled with him but he knocked her down and pulled off her clothes. He pulled his pants down to his ankles and attempted to have sexual intercourse. The complainant testified that appellant had an erection and told her to ‘stick it in,’ and tried to do so himself. The complainant continued to struggle and eventually got away from appellant. She grabbed a glass vase from the table and hit him across the neck, breaking the vase. She hit him again with another small vase and struggled with him. Finally, she pushed her portable television into his face. Appellant was bleeding profusely. The complainant was screaming and yelling, and appellant said, ‘I’ll leave,’ and ran out the door.

“The complainant positively identified appellant in a photograph from among a group of photographs shown to her by the Houston police. She also identified him in a lineup at the police station.

“Rose Richards testified that she recognized appellant as the man in the blue and white warm-up jacket who was standing on the sidewalk at the complainant's apartments on December 5, 1980. She also identified appellant in a photograph and a lineup.

“Kenneth Tyler testified that he owned a car storage lot in Houston. He said appellant claimed a car that had been towed from the Deer Creek apartments on December 4, 1980. The complainant lived in the Deer Creek apartments.

“The defense rested without presenting any witnesses or any evidence. The State’s witnesses’ testimony was uncontradicted and unimpeached.

“During argument to the jury at the guilt-innocence stage, defense counsel stated the definition of criminal attempt under Y.T.C.A. Penal Code, Sec. 15.01. He stated that specific intent was required along with ‘an act that would make a person culpable.’ The gist of his argument was that appellant’s acts had not gone far enough to ‘justify this criminal label.’ He emphasized that appellant’s acts did not go beyond mere preparation and that the jury had to remember that the whole episode was based upon the complainant’s story.

“Specific intent was not made a contested issue in the case, either during argument or during presentation of the case. The evidence presented does not reflect that it was either a close issue or an issue at all.

“The court’s charge informed the jury that appellant was charged with aggravated rape, to which appellant had pleaded not guilty. It contained statutory definitions of rape and criminal attempt, including the specific intent requirement. Then the charge stated:

In this case, the indictment having charged that the Defendant attempted to have sexual intercourse with [the Complainant] by force or threats, before you would be warranted in finding Defendant guilty, you must be satisfied from the evidence beyond a reasonable doubt that the attempted sexual intercourse, if any, by the Defendant with [the Complainant], was attempted by the use of actual force or threats and without the consent of the said [complainant].

“The application paragraph appeared next, omitting the culpable mental state.

“After reviewing all of the foregoing information and noting the absence of any contradictory or impeaching testimony about the events, the absence of evidence showing lack of intent, the fact that no one and no evidence raised an issue as to the specific intent, and the inclusion of the statutory definition of criminal attempt, we hold that the error in the charge did not deprive appellant of a fair and impartial trial.

In light of the evidence, the argument explaining (to some extent) criminal attempt, and the entire charge, we hold that appellant was given a fair and impartial trial.

“The judgments of the court of appeals and of the trial court are affirmed.”

What purpose can be served by now remanding this case to the Court of Appeals to do what it has already done, and after much consideration has already been given here on the sole ground of error in light of Almanza. At some point this case must come to an end. The mania for remanding any matter relating to a jury charge to the Courts of Appeals for reconsideration in light of Almanza must cease. The constant orbiting of cases in appellate courts only serves to unduly delay the finality of criminal cases and defeat judicial economy.

Upon remand the Court of Appeals will repeat what it has already done, particularly in light of Almanza, and then appellant may again file a petition for discretionary review for this Court to consider. The administration of justice is not well served by the majority’s remand.

I vigorously dissent.

W.C. DAVIS, J., joins this opinion.

      . Emphasis added.

      . Emphasis added.


author: W.C. DAVIS, Judge.

text:
    Ex parte Patricia EDWARDS.
    No. 69284.
    Court of Criminal Appeals of Texas, En Banc.
    April 24, 1985.
    Robert T. Baskett, Dallas, for appellant.
    Henry Wade, Dist. Atty., and Gregg Long, Asst. Dist. Atty., Dallas, Robert Hut-tash, State’s Atty., Austin, for the State.
   OPINION

W.C. DAVIS, Judge.

Applicant filed this post conviction application for a writ of habeas corpus pursuant to Art. 11.07, V.A.C.C.P. She contends that she has been denied her right to appeal the revocation of her probation, due to the ineffective assistance of her counsel. She seeks an out-of-time appeal.

On February 13, 1981, the trial court revoked applicant’s probation in nine cases, including forgery, felony theft, and credit card abuse. Counsel had previously represented applicant on her pleas of guilty for the nine offenses, at which time applicant had been granted probation in each case. The same counsel represented applicant at the revocation hearings and gave timely notice of appeal from the revocations. From this point on, the case becomes a bit more muddled.

Applicant’s counsel told the court he would be handling the appeals. He obtained a setting on appeal bonds for all nine cases. He told applicant that if he represented her on appeal she would have to pay him. There was continuing discussion about payment between counsel and applicant and her boyfriend. Applicant’s boyfriend, Larry Grady, had paid counsel for his prior representation of applicant.

On May 23, 1981, applicant escaped from the Woodlawn Minimum Security Facility in Dallas County. On June 2, 1981, applicant’s counsel was notified that the record and the statement of facts was completed. He did not obtain the statement of facts or file a brief in the case. On July 23, 1981, the State filed a waiver of the statutory time (40.09[9]) in which to file a reply brief and noted that applicant had not filed a brief. The case was subsequently affirmed in a per curiam opinion by a panel of this Court.

Applicant’s counsel testified at the hearing on the application for writ of habeas corpus that he learned that the applicant had escaped a few days after the escape had occurred. He thought the escape terminated the appeal process. He testified that he did not file a brief or statement of facts because he had never been retained since he had never been paid any money. Once he found out applicant had escaped, he thought that ended the appeal. He never offered to withdraw or notified the court that he was not the applicant’s lawyer on appeal. All notices pertaining to the appeal were sent to counsel.

Grady testified that he paid counsel in full, in several payments over time, to represent applicant on her pleas of guilty and at the revocation hearings. He said that he also paid counsel for representing applicant on appeal.

Applicant testified that counsel represented her on her nine pleas of guilty and on the probation revocation in those same nine cases. She said she gave notice of appeal and arranged for counsel to represent her on appeal. Applicant claimed that she attempted to contact counsel several times about her appeal, but was unsuccessful. She said that despite her escape, she never wished to give up her appeal.

The trial court stated that the court would judicially note that applicant gave notice of appeal and that counsel was retained to represent applicant on appeal.

In its findings of fact and conclusions of law, the trial court found that counsel’s lack of representation on appeal was due to non-payment of fees and not due to neglect. The court further found that applicant’s escape demonstrated a desire to “abandon legal processes available to her,” and that applicant “waived and abandoned her right to effective assistance of counsel on appeal.” We disagree with these conclusions.

Art. 44.09, Y.A.C.C.P., concerns the disposition of a case when the defendant escapes while the case is pending appeal:

If the defendant, after giving notice of appeal, makes his escape from custody, the jurisdiction of the court of appeals or the Court of Criminal Appeals shall no longer attach in the case. Upon the fact of such escape being made to appear, the appropriate court shall, on motion of the attorney representing the state, dismiss the appeal and withdraw any prior opinion; but the order dismissing the appeal shall be set aside if it is made to appear that the defendant has voluntarily returned within ten days to the custody of the officer from whom he escaped; and in cases where the punishment inflicted by the jury or the court is confinement in an institution operated by the Department of Corrections for life, the court may in its discretion reinstate the appeal if the defendant is recaptured or voluntarily surrenders within thirty days after such escape. No appeal shall be dismissed as to any defendant to whom the death penalty has been assessed, (emphasis added).

In the instant case, Arts. 44.09 and 44.10 do not apply at all because the State has never moved to dismiss the appeal, and did not do so when applicant was an escapee. The prior escape does not bar her contentions. Since applicant is now in custody, the appeal could not now be dismissed. Austell v. State, 638 S.W.2d 888 (Tex.Cr. App.1982). We will address applicant’s contention that she was rendered ineffective assistance of counsel on appeal.

Applicant’s counsel informed the court that he was representing applicant on appeal. He gave notice of appeal and obtained settings on appeal bonds. Thereafter, he took no action to further the appeal. All of the notices concerning the record on appeal were sent to counsel. Counsel never attempted to withdraw from the case or notify the court that he was no longer representing applicant. As far as the court records showed, counsel was representing applicant on appeal.

The trial court found that neither applicant nor Grady had paid counsel for the appeal and that counsel’s lack of representation was due to non-payment of fees. This finding, even if we accept it as true, does not excuse counsel’s total inaction in the appeal of the case. There is no motion or request by counsel for leave to withdraw from the case. No brief or motion on applicant’s behalf has been filed in the case.

Applicant’s escape, by itself, did not relieve counsel of his duty to effectively represent applicant. Under Art. 44.09, an appeal is not dismissed unless the State moves to dismiss the appeal. Thus, defense counsel if not relieved of a duty to represent an accused on appeal simply because the accused has escaped.

In Steel v. State, 453 S.W.2d 486 487 (Tex.Cr.App.1970):

... [rjetained counsel, even one who has not been fully compensated for past services or compensated for further service, cannot wait until a critical stage of the proceedings is reached and bow out without notice to the court and the accused and ‘frustrate forever accused’s right to protect his vital interests.’ Atilus v. United States, (5th Cir.) 406 F.2d 694.

See also Banks v. State, 580 S.W.2d 348 (Tex.Cr.App.1979).

We find that applicant was denied effective assistance of counsel on appeal. We grant relief in the form of an out-of-time appeal and return the case to the point at which notice of appeal was given. Banks, supra.


author: DIES, Chief Justice.

text:
    Damon Earl WALLACE, Appellant, v. The STATE of Texas, Appellee.
    No. 09 83 153 CR.
    Court of Appeals of Texas, Beaumont.
    June 20, 1984.
    Paul Buchanan, Beaumont, for appellant. John R. DeWitt, Asst. Criminal Dist. Atty., Beaumont, for appellee.
   DIES, Chief Justice.

OPINION

Appellant was charged by indictment with aggravated sexual abuse pursuant to TEX.PENAL CODE ANN. sec. 2}. 05. Appellant pled guilty and the court sentenced him to sixty years in the Texas Department of Corrections, from which appellant brings this appeal.

Appellant’s sole ground of error is:
“Section 21.05(a)(5) Texas Penal Code is unconstitutional and therefore void because it is unintelligible.”
The statute in question reads:
“(a) A person commits an offense if he commits sexual abuse as defined in Section 21.04 of this code or sexual abuse of a child as defined in Section 21.10 of this code and he:
“(5) the victim is younger than 14 years.”

Appellant argues, “As one can easily see, the statute, as drafted, is totally unintelligible. In fact, in the middle of the sentence, the statute goes from talking about the perpetrator of the crime to the victim without any words in between to smooth the transition and explain what is meant by ‘he: the victim’.” Appellant has provided us with a very able brief and we agree with him that the courts require a very high and strict standard of construction regarding criminal statutes, and that it is not the business of the court to supply through judicial opinion what the legislature failed to provide.

While the statute under consideration is certainly not grammatically correct, it is clear that if the victim of sexual abuse, as defined in Section 21.04 or Section 21.-10 of the Code, is younger than fourteen years of age, the offense becomes aggravated sexual abuse. This ground of error is overruled.

The judgment of the trial court is affirmed.

Affirmed.

      . Section 21.05 has been repealed by Acts 1983, 68th Leg., Reg.Sess., p. 5321, ch. 977, sec. 12, Tex.Gen.Laws, effective Sept. 1, 1983. However, sec. 13 of this act continues Section 21.05
        in effect as to an offense committed before the effective date of the act. The provisions of Section 21.05 can now be found in other sections of the Penal Code by virtue of this same act.

      . See United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971); McBoyle v. United States, 283 U.S. 25, 51 S.Ct. 340, 75 L.Ed. 816 (1931); United States v. Rojas, 671 F.2d 159, 163 (5th Cir.1982); Ex parte Halsted, 147 Tex.Cr.R. 453, 182 S.W.2d 479 (1944); Ratcliff v. State, 106 Tex.Cr.R. 37, 289 S.W. 1072 (1926); Ex parte Leslie, 87 Tex.Cr.R. 476, 223 S.W. 227 (1920); Griffin v. State, 86 Tex.Cr.R. 498, 218 S.W. 494 (1920); Ex parte Massey, 49 Tex.Cr.R. 60, 92 S.W. 1086 (1905); 18 TEX.JUR.3d, Criminal Law, sec. 9, at 37 (1982).