
    FLORES v. STATE.
    (No. 4226.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.
    Dissenting Opinion Nov. 22, 1916.)
    1. Criminal Law <$=k>980(2) — Plea of Guilty —Introduction of Evidence-Waiver.
    Introduction of evidence, under Code Or. Proc. 1911, art. 566, providing that on plea of guilty, where the punishment is not unvarying, a jury shall be impaneled to assess it, and evidence submitted to enable them to decide thereon, may be waived under article 22, providing that defendant may waive any right secured to him by law, except right of jury trial in a felony case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2494, 2495; Dec. Dig. <©=> 980(2).]
    2. Criminal Law <®=»980(2) — Plea of Guilty —Introduction of Evidence — Withdrawal of Waiver.
    Express waiver of introduction of evidence under Code Cr. Proc. 1911, art. 566, to enable the jury to assess the punishment on a plea of guilty, cannot be withdrawn after verdict, though the jury do not suspend sentence, as prayed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2494, 2495; Dec. Dig. <§=» 980(2).]
    Davidson, J., dissenting.
    Appeal from District Court, Kleberg County; W. B. Hopkins, Judge.
    Clemente Flores was convicted, and appeals.
    Affirmed.
    Pope & Sutherland, of Corpus Christi, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted, charged with violating the prohibition law. When the case was called for trial he entered a plea of guilty, but filed a prayer, asking a suspension of sentence during good behavior. The jury refused to suspend the sentence, and returned a verdict, assessing the penalty at one year’s confinement in the penitentiary. On the next day he employed the attorneys who prosecute this appeal, and they filed a motion, asking that the judgment be set aside because no evidence had been adduced on the trial tending to show him guilty of the offense; and when the motion for new trial was overruled, a bill of exceptions was reserved to the action of the court in overruling the motion. In approving the bill, the court approves it with the following qualification:

“That when the indictment was read to the jury, the defendant, in person, pleaded guilty, after being admonished by the court, and, in open court and before the jury, expressly waived the introduction of affirmative proof by the state.”

The motion for a new trial, alleging such grounds, was not sworn to by appellant nor any other person; consequently it would not have properly raised the question that no evidence was adduced on the trial, that not being a matter shown by the record, the judgment record evidencing that evidence was heard;, it reciting:

“A jury was duly impaneled and sworn, who, having heard the indictment read, the defendant’s .plea of guilty thereto, and having heard the evidence submitted,” etc., returned into open court a verdict finding appellant guilty.

But when appellant reserves a bill of exception to the action of the court in over-, ruling his motion for a new trial, the trial judge certifies, over his signature, that no evidence was heard, saying the appellant in open court in person waived the introduction of evidence. So the sole question presented is, Could a person who is on trial, being sane, waive the introduction of proof? It has often been held that an admission by the person on trial in open court of a fact renders it unnecessary to prove that fact. Kearse v. State, 68 Tex. Cr. R. 639, 151 S. W. 827.

Appellant relies on article 566 of the Code of Criminal Procedure, which provides that when a plea of guilty is entered and the punishment is not absolutely fixed by law and beyond the discretion of the jury to graduate, a jury shall be impaneled to assess the punishment, and evidence submitted to enable them to decide thereon. It is true there are many cases holding that the provisions of this article are mandatory; that it is not intended solely for the benefit of the defendant, but is also intenued to protect the interests of the state by preventing aggravated cases from .being covered up by a plea of guilty, and so allow the criminal to escape with the minimum punishment. Josef v. State, 33 Tex. Cr. R. 251, 26 S. W. 213, and cases cited in Yernon’s Procedure under this article on page 289. But in none of those cases is the question of “waiver” raised, discussed, or decided.

While article 566 reads as above stated, yet we have another article of the Code (article 22), which provides:-

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

—and the provisions of this article of the procedure are as binding upon courts as is article 566. They were both enacted as a part of the original Code of this state, and brought forward in each codification.

If the appellant could waive the introduction of evidence, the record discloses he did so in person specifically when his attention was called to the matter, for the court says in the same paragraph where he certifies no evidence was introduced:

“The defendant in person in open court expressly waived the introduction of affirmative proof by the state.”

He is now in no position to complain, for the jury assessed the lowest penalty authorized by law, and the state’s attorney must be held to have also waived the rights of the state in this proceeding. We might question the propriety of the trial court accepting such waivers, but when the court has done so and the record discloses that the appellant waived his rights under Article 566, as he was specifically authorized to do by article 22 of the Code, he cannot thereafter, after verdict is rendered, because the jury did not suspend his sentence, withdraw a waiver he solemnly entered into in open court. In Hancock v. State, 14 Tex. App. 401, Judge White says:

“Defendant agreed to the admission of the testimony, and but for his agreement, doubtless it would never have been offered in this shape. He cannot be heard to complain where he was a party to, and where his own action brought about, the very matter of which he complains. He could waive the presence of the witnesses if he so desired, and agree that if present they would swear as they had previously done. In fact, he could waive any right guaranteed him by the Constitution and laws, except the right of trial by jury.”

The facts in the Antonio Diaz Case, 190 S. W. 498, are the same as in this case, the record being in "the same condition, and for the reasons here stated it should also be affirmed.

DAVIDSON, J.

(dissenting). In this as in the Antonio Diaz Case the condition of the record is substantially, if not exactly, the same. My Brethren put their affirmance on the ground that appellant expressly waived the introduction of testimony on the merits of the case, and cites the Kearse Case, 68 Tex. Cr. R. 639, 151 S. W. 827, as authority. The Kearse Case is not in point and has no bearing on the question here involved, nor does the case cited by Judge Harper in 14 Tex. App. 401, opinion by Judge White. I do not care to review those cases.

It will be noticed that in the ease of Diaz v. State I wrote the opinion reversing it, following the statute and decisions in regard to pleas of guilty and the introduction of testimony in felony cases. This rule has been heretofore held mandatory, and the reasons are assigned in the authorities there cited. My Brethren wrote the opinion in the Fiores’ Case directly contradictory to what I wrote in the Diaz Case. I let the opinion as I had written it stand in the Diaz Case, but put at the bottom a short statement there found that I could not agree to the affirmance, but followed the decision in Flores’ Case in the affirmance. The statute Judge Harper cites, that defendant may waive any matters guaranteed him by the Constitution except the right of trial by jury, is but an act of the Legislature. It ought not to be questioned that the Legislature cannot set aside any constitutional guaranties accorded the defendant, unless the Constitution expressly authorizes that body so to do. That the accused cannot waive other rights accorded him besides the trial by jury has been so long settled that it is not the subject of debate. I shall make only one suggestion: The Constitution guarantees in a felony case no man shall be tried for his life or liberty without an indictment having been previously presented by a grand jury. No court has held that a citizen of Texas can be tried without presentment of indictment by a grand jury in a felony case. Not only so, but it has been universally held that citizens convicted of crime have been released from the penitentiary because there was no indictment preferred; that is, the indictment presented was by a grand jury composed of more or less than 12 men; and it has also been held that such is not an indictment. It is also the law that an indictment is not a valid one unless it concludes “against the peace and dignity of the state.” This, too, where the question was not raised until it reached the appellate court. The eases supporting this proposition are well understood, and have been in Texas, and everywhere, so far as the writer is aware, where the constitutional provision in regard to that matter is the same as it is in our Constitution. This came for thorough adjudication in Cox v. State, 8 Tex. App. 254, 84 Am. Rep. 746. The statutes with reference to pleas of guilty in felony cases have been closely adhered to and strictly enforced. These statutes change several rules under our procedure with reference to ordinary cases. The general rule is that every citizen of Texas is presumed to be sane until appellant proves by a preponderance of evidence that he is insane. Under the statute pleas of guilty in felony cases the rule is reversed, and all the authorities hold that, where the statute so provides, the presumption shifts, and the accused is presumed insane, the state must show his sanity in order to sustain the plea of guilty. This statute travels upon the idea that no rational man would deliberately admit that he was guilty of a felony. Under such circumstances the law assumes he would be insane. Not only is this so, but the judgment must show his sanity as an adjudicated fact, and that he has not been induced to make this confession of guilt by any hope of pardon or other matters that would look to an infamous punishment. These statutes with reference to pleas of guilty under such circumstances do not stop here. They most solemnly provide that in all cases under such plea the evidence shall be introduced, unless it is one of those instances where the punishment is fixed absolutely without graduation or gradation. The majority admit this has always been held mandatory, but because the defendant may waive any right accorded him except trial by jury, therefore the waiver of his right covered .everything, except trial by jury; therefore he can be sent to the penitentiary under graduated punishment by waiving the introduction of testimony. I cannot agree with this proposition. It is not only in the face of the jurisprudence and adjudicated cases, but contrary to the statute. I do not care to follow this matter further. I have said this much in addition to what I wrote in the Diaz Case. The judgment ought to be reversed and remanded.

For these reasons I respectfully enter my dissent in this case and apply it as well to the Diaz Case. 
      <S=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     