McClintick v. State

This is an appeal from a conviction for the offense of possession of marihuana. The court assessed punishment at five years. w

Appellant contends that the trial court erred in accepting his plea of guilty on the ground that Article -26.13, Vernon’s Ann. C.C.P., was not complied with when the court failed to inquire if he so pled because of “any persuasion or delusive hope of pardon.”

The admonishment correctly gave the range of punishment. The trial court ascertained that appellant was pleading guilty because he was guilty and not from fear and not because he had been promised anything.

Appellant apparently recognizes that sufficient compliance with the statute was made under this Court’s holdings in Espi-nosa v. State, Tex.Cr.App., 493 S.W.2d 172, and Mitchell v. State, Tex.Cr.App., 493 S.W.2d 174, as he urges that we overrule our decisions there and adopt the dissenting view in each of those cases. This we decline to do.

It appears that in the present case the court was in a better position to determine that appellant was not pleading guilty because of “ . . . persuasion or delusive hope of pardon” by ascertaining that he had not been promised anything, nor was he doing it out of fear. Williams v. State, Tex.Cr.App., 497 S.W.2d 306; Mitchell v. State, supra.

As in Williams, supra, the appellant also contends that it was error for the trial court not to question him about his sanity. Article 26.13, supra, provides that a plea of guilty shall not be received unless it plainly appears that the defendant is sane.

The record reflects that the trial court asked appellant’s counsel if he had an opinion as to the appellant’s sanity, to which counsel replied that in his opinion the appellant was of sound mind. The court was able to observe appellant and converse with him. No issue of appellant’s sanity was raised. Absent a showing that an issue of sanity was made at the time the guilty plea was entered, the appellant cannot complain on appeal of the trial court’s failure to ask questions or adduce evidence as to his sanity. Williams v. State, supra; Kane v. State, Tex.Cr.App., 481 S.W.2d 808.

We hold as we did in Espinosa v. State, supra, and Kane v. State, supra, and as we do here, that while the exact language of Article 26.13, supra, should be used in admonishing defendants, the admonishment in question reflects sufficient compliance with the statute.

The judgment is affirmed.

ONION, P. J., and ROBERTS, J., dissent.