Against the advice of his attorney, a defendant charged with several first degree sex offenses stood up and plead no contest after the reading of the indictment. We are proceeding just as if he had plead not guilty and presenting our evidence. However, the next question is how to charge the jury. Anyone ever encountered this? Any help is greatly appreciated.

This from Allen v. State, 474 S.W.2d 480 (Tex. Crim. App. 1972):

The appellant's plea of nolo contendere has the same effect as a plea of guilty insofar as the criminal prosecution is concerned. Art. 27.02, Sec. 6, Verson's Ann.C.C.P.; Killebrew v. State, supra; Chavarria v. State, supra; Martinez v. State, 170 Tex.Cr.R. 266, 340 S.W.2d 56. See also Rodriguez v. State, Tex.Cr.App., 442 S.W.2d 376; Fierro v. State, Tex.Cr.App., 437 S.W.2d 833; Bomar v. State, 172 Tex.Cr.R. 307, 356 S.W.2d 931; Aguillar v. State, 170 Tex.Cr.R. 189, 339 S.W.2d 898. Such a plea before a jury admits the existence of all facts necessary to establish guilt and constitutes a waiver of the appellant's complaint that the evidence was illegally obtained. See Andrade v. State, Tex.Cr.App., 470 S.W.2d 194; Durham v. State, Tex.Cr.App., 466 S.W.2d 758; Graham v. State, Tex.Cr.App., 466 S.W.2d 587; Griggs v. State, Tex.Cr.App., 451 S.W.2d 481 and Fierro v. State, Tex.Cr.App., 437 S.W.2d 833.

So, presumably, the jury should be instructed to find him guilty and move on to jury punishment.

The Court concluded by saying:

The holding of a bifurcated trial in this case was unusual. It is not necessary to have a two-stage proceeding when a defendant enters a plea of guilty or nolo contendere before a jury. If such pleas are entered before a jury, their function is to determine punishment only.


There are, however, more recent cases from lower courts that suggest you need to introduce evidence of the elements to survive a sufficiency review. See Young v. State, 993 S.W.2d 390 (Tex.App.--Eastland,1999)

Thanks Dan!

Be sure to fully admonish your defendant on the record as if in a regular guilty plea or you could be subject to reversal.

Seems like every month there is a case reversed because a prosecutor and judge were caught unaware of the procedures connected to a trial wherein the defendant pleads guilty or no contest.

A plea of guilty or no contest bypasses any need for evidence or deliberation by a jury on the issue of guilt. As suggested above, the jury charge should instruct the jury to find the defendant guilty. There is no constitutional requirement that the record contain any evidence of guilt, although the better practice is to present such evidence, especially given the other role being handled by the jury: punishment.

In addition, as suggested above, the trial becomes a unitary proceeding (does anyone remember back when all trials in Texas were unitary?). That means the jury should be hearing punishment evidence and then receive a jury instruction on the punishment range.

But, the biggest mistake that is likely to occur with the guilty or no contest plea before a jury is the absence of admonitions. For a guilty plea to a judge, we all have a form that contains the admonitions required by law (range of punishment, etc.). But, every office should have a similar form for a plea of guilty or no contest to a jury. Not all of the admonitions are the same for both types of trials. There are fewer for the jury trial because some simply don't apply (e.g., limitations on the right to appeal, right to withdraw a guilty plea).

For a sample, create a form that includes:

1. The range of punishment attached to the offense to which the Defendant is pleading, including enhancements, if any, is:

_____. (Capital Felony - death penalty waived) confinement in the Institutional Division for life.
_____. (Habitual Offender) confinement in the Institutional Division for life or a term of not more than 99 years or less than 25 years.

_____. (First Degree Felony + Repeat Offender) confinement in the Institutional Division for life or a term of not more than 99 years or less than 15 years; in addition, a fine not to exceed $10,000 may be imposed.

_____. (First Degree Felony) confinement in the Institutional Division for life or a term of not more than 99 years or less than 5 years; in addition, a fine not to exceed $10,000 may be imposed.

_____. (Second Degree Felony) confinement in the Institutional Division for a term of not more than 20 years or less than 2 years; in addition, a fine not to exceed $10,000 may be imposed.

_____ (Third Degree Felony) confinement in the Institutional Division for a term of not more than 10 years or less than 2 years; in addition, a fine not to exceed $10,000 may be imposed.

_____. (State Jail Felony) confinement in state jail for not more than 2 years or less than 180 days; in addition, a fine not to exceed $10,000 may be imposed. If the offense is possession of a controlled substance (Penalty Group 1 or 2), LSD (5 abuse units or less), marihuana (1 lb. or less) or fraud (by prescription for schedule II or III drugs), and the Defendant has no prior felony conviction, the judge shall suspend the sentence and place the Defendant on probation.

_____. (Special punishment range) __________________________________________________________________.

2. If the Defendant is not a citizen of the United States of America, a plea of guilty or no contest for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law.

3. If the Defendant is convicted of or placed on deferred adjudication for an offense triggering the Sex Offender Registration Program, Defendant will be required to meet the registration requirements of that law. For a list of offenses triggering sex offender registration and the details of that law, see Chapter 62, CCP. Defendant understands that the sex offender registration laws include many details other than those listed in these admonitions, are subject to change, and may be applied retroactively. Failure to comply with the registration law is a felony criminal offense.

Defendant has received and understands the above admonitions from the Court and is aware of the consequences of the plea. In addition, Defendant�s attorney has explained these admonitions to the Defendant.

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