                                 NO. 07-06-0461-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL B

                                 MAY 14, 2008
                        ______________________________

                               MICHAEL S. GRIFFIN,

                                                            Appellant

                                          v.

                              THE STATE OF TEXAS,

                                                    Appellee
                      _________________________________

           FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2006-411,521; HON. CECIL G. PURYEAR, PRESIDING
                      _______________________________

                                    Opinion
                       ________________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Michael S. Griffin challenges his conviction for aggravated assault with a deadly

weapon. The conviction arose from his plea of guilty after trial began. Though the plea

was made against the advice of counsel and after receiving the appropriate judicial

admonishments, appellant now contends that he was denied due process when the trial

court thereafter instructed the jury to find him guilty. So too does he allege that the
evidence was insufficient to find him guilty based on the charge to the jury. We overrule

the issues and affirm the judgment.

       Both of the issues raised by appellant result from the procedure used by the trial

court after appellant changed his plea. He initially pled not guilty to assaulting his wife.

However, after she testified to the assault during the guilt phase of the proceedings,

appellant informed the court that he wished to plead guilty. The State refused to waive a

jury trial though there was no longer any need to proceed with a jury.1 Given this

predicament, the court informed them that the jury would be instructed to return a verdict

of guilty. Neither party objected to the procedure or the charge, and the court so instructed

the jury. The trial court then admonished appellant as to his rights, and appellant entered

a guilty plea and judicially confessed to the allegations in the indictment in open court. As

expected, the jury found him guilty.

       Appellant now questions the procedure utilized by the trial court. It purportedly

denied him due process because the jury was denied the opportunity to independently

determine his guilt.         Aside from the fact that appellant invited that about which he

complains and then withheld objection, we note that once an appellant pleads guilty, the

proceeding becomes unitary in nature. Carroll v. State, 975 S.W.2d 630, 631-32 (Tex.

Crim. App. 1998). And, since “there remains no issue of guilt to be determined, it is proper

for the trial judge in his charge to instruct the jury to return a verdict of guilty” and then

charge only on punishment. Holland v. State, 761 S.W.2d 307, 313 (Tex. Crim. App.

1988). Under the scenario before us, there was no need to charge on punishment



       1
           Appellant had previously waived his right to have the jury decide punishm ent.

                                                      2
because appellant opted to have the trial court decide that issue. So, in effect, the trial

court did that which has been recognized as correct, i.e. instruct the jury to return a guilty

verdict.

       As for the argument that the evidence did not support the conviction, appellant

judicially confessed (in open court) to the allegations contained in the indictment. This

confession expressly encompassed not only the crime of aggravated assault but also the

fact that he used a deadly weapon during the ordeal. Thus, the verdict finds more than

ample evidentiary support.

       Appellant’s issues are overruled, and the judgment is affirmed.



                                                  Brian Quinn
                                                  Chief Justice



Publish.




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