A defendant pleads no contest to a misdemeanor offense. Counsel was waived. The judge hears evidence from the state (I know, not required, but that the way it is done in that court.) Judge finds defendant not guilty.

I had case law that said this was within the discretion of the court and the state was out of luck. But cannot find it now. Any ideas?

Certainly a court is entitled to find the evidence of guilt is insufficient, but since the law requires no evidence in support of a guilty plea, there is nothing to find "insufficient". A no contest plea is the equivalent of a guilty plea. Art. 27.02(5). Furthermore, the cases say "a plea of guilty or a plea of nolo contendere, having been voluntarily, freely and understandingly made, entered and accepted, is conclusive as to ... guilt" E.g., Gillard, 662 S.W.2d at 37. One then has to wonder how a court has any discretion to "unaccept" the effect of the plea. The plea itself is equivalent to a conviction after a trial and has the same effect in law as a verdict of guilty. "It is not necessary or within the province of the court that the court should adjudge that accused was guilty, for that follows by necessary legal inference from the implied confession". 22 C.J.S. Criminal Law sec. 399 at 470.

It would be my conclusion that the court has no authority to make a finding of not guilty after accepting a plea of no contest. It might, however, have authority to permit withdrawal of the plea. Certainly there may be a case which says otherwise and how you attack the erroneous judgment is another issue.

Such a creature exists. It is called a "no contest TBC." It is a tool used to move a weak case where the defendant is not eligible for court-ordered regular probation but holds out hope for deferred or an acquittal because of a weak State's case.

If you see one you should kill it immediately. They only serve to give a judge the opportunity to commit reversible error.

The two cases I have are Hinkle v. State, 934 SW2d 146 (San Antonio) and Moon v. State, 572 SW2d 681 (Court of Criminal Appeals).

Naturally, I don't like either result because they are against prosecution.