Orlando Robert Wells v. State ( 2003 )

NO. 07-01-0491-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

JANUARY 28, 2003

______________________________



ORLANDO ROBERT WELLS AKA ORLANDO ROBERT WELK, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 108^TH DISTRICT COURT OF POTTER COUNTY;

NO. 43,924-E; HONORABLE WELDON KIRK, JUDGE

_______________________________

Before JOHNSON, C.J., REAVIS, J., and BOYD, S.J. ⁽¹⁾  

MEMORANDUM OPINION

Presenting two issues for our determination, appellant Orlando Robert Wells aka Orlando Robert Welk challenges his conviction after a guilty plea for the offense of burglary of a building, enhanced because of two prior convictions, and the resulting court-assessed punishment of 20 years confinement in the Institutional Division of the Department of Criminal Justice. There was no plea bargained recommendation as to punishment. In his issues, he queries: 1) whether his guilty plea was voluntarily given, and 2) whether the trial court erred in accepting his plea because evidence was produced regarding his innocence. We affirm the trial court judgment.

Appellant argues his two issues together, and we will likewise discuss them together. The indictment alleged that appellant did "with intent to commit theft, intentionally and knowingly enter a building and a portion of a building not then open to the public, without the effective consent of Daryl Gene Wright, the owner thereof." In entering his guilty plea, appellant waived his right to a jury, acknowledged in writing receiving the usual admonishments, and in writing, judicially confessed to the offense charged. In open court, he pled guilty to the charge against him and pled true to the enhancement paragraphs. In response to questions by the careful trial judge, he represented that he was not entering the plea as a result of any threat or promise, but because he had in fact committed the offense. After receiving these representations, the trial court accepted appellant's plea.

Appellant points to certain statements he made during the hearing which, he says, support the issue of his innocence. In particular, those statements are:

* * *

Q: . . . And this time - Mr. Wright, how do you think he felt when his business was broken into?

A: He probably felt like I felt. He probably wouldn't feel - I don't remember - to the best of my knowledge and - and I've been under oath. I don't remember taking anything. I've went over this - I don't know if my other counsel or my other counsel here spoke to you about it. I didn't break in that garage. I was in that garage.

Q: And items from the garage were found in your pocket. Correct?

A: They said some stickers, yes, sir.

Q: That's not your property. Right?

A: That's right.

Q: Mr. Wells, if the victim of that crime, Mr. Wright, was here, what do you think he would expect? A man who's been convicted three times before for burglary breaks into his business, what does he have a right to expect?

A: What he would expect? He would expect - I don't know. It's kind of like I felt when that guy run [sic] over my dad and killed him.

Q: You weren't happy, were you? You wanted justice, didn't you?

A: But it was an accident. And if I - if I could speak to Mr. Wright today, I would sit him and tell him, I did not pry open your door and break into your garage.

* * *

Additionally, after the court had found appellant guilty, the following colloquy took place:

THE COURT: Do you have any legal reason why sentence should not be pronounced? Do you have anything to say?

The DEFENDANT: Well, I - I'd like to say - I'd like to - you know, the - they've tried to go over it with them and tell them what happened on this, that I didn't break into that building.

THE COURT: Anything further to say?

THE DEFENDANT: I'm not guilty of breaking in that building. The witness that said - they said that seen me was a totally different person than me.

THE COURT: You entered a plea of guilty and confessed your guilt and now you're saying you're not guilty?

THE DEFENDANT: I was guilty of being there - of the burglary, but I wasn't guilty of prying open the doors. A witness had said - from the Toot-N-Totum that the person was not me.

* * *

Then, after appellant's sentence was announced, he made the following statement to the court:

THE DEFENDANT: You know, in this case I have come forth to try to work with the State on what - who the person was. I've made to the officer that - the description of the guy that was there. I was at the - I didn't break in that building. The person - indictment, which is increasing the punishment on me, like I mentioned, was a trailer house that I was living in and I refused to pay the landlord with some marijuana. He put a hasp on the door. I went back in to get my belongings. I was living at that residence. I spent a total of eight days in TDC and was discharged on that whole sentence after I completed the five years' probation on that crime, which is being used against enhancement punishment.

On the other one, I was a passenger in a vehicle. The indictment would read - we can get the police reports on it. I was made an offer of four years, and I would be right home is why I took that four years. The party that done the burglary admitted to the burglary. And I feel at this time that the punishment of what's been assessed to me is fairly excessive to what crime - of the magnitude that this really is of.

Citing all of the above, appellant argues that the evidence of his innocence was raised prior to the close of the evidence. He then reasons that a plea is involuntary and should be withdrawn "whenever the evidence fairly raises an issue as to the defendant's innocence."

Even though appellant never sought to withdraw his guilty plea, he argues that the above testimony and statements are sufficient to show that his plea was involuntary.

Even though not all of the testimony relied upon by appellant was offered prior to the time the court found him guilty, for the purpose of our discussion, we will assume that it was sufficient to raise a question of his innocence prior to the close of evidence. When a guilty plea is entered in a felony case being tried before a jury and never withdrawn, and evidence is introduced which reasonably and fairly raises an issue as to the defendant's innocence and is not withdrawn, the trial court sua sponte must withdraw the guilty plea and enter a not guilty plea. Griffin v. State, 703 S.W.2d 193, 195 (Tex. Crim. App. 1986); Hinkle v. State, 934 S.W.2d 146, 148 (Tex. App.--San Antonio 1996, pet. ref'd).

However, in Moon v. State, 572 S.W.2d 681 (Tex. Crim. App. 1978), the court held that requirement no longer applied to instances in which the plea was made before the court itself. In doing so, the court stated:

There now seems to be no valid reason for the court to withdraw the guilty plea and enter a plea of not guilty for the defendant when the defendant enters a plea of guilty before the court after waiving a jury. It is the duty of the trial court to consider the evidence submitted and as the trier of the facts the court may find the appellant guilty of a lesser offense and assess the appropriate punishment or it may find the defendant not guilty. It would serve no purpose to withdraw the plea of guilty and enter a not guilty plea. Those cases in which the court has reached a different result are overruled to the extent they conflict with the opinion in this case.

Id. at 682 (quoting Burks v. State, 165 S.W.2d 460 (Tex. Crim. App. 1942)).

The Moon rule appears to continue in force. See, e.g., Beasley v. State, 634 S.W.2d 320, 321 n.1 (Tex. Crim. App. 1982); Brown v. State, 11 S.W.3d 360, 362-63 (Tex. App.--Houston [1^st Dist.] 2000, pet. ref'd); Solis v. State, 945 S.W.2d 300, 302-03 (Tex. App.--Houston [1^st Dist.] 1997, pet. ref'd); Hinkle v. State, 934 S.W.2d 146, 148-49 (Tex. App.--San Antonio 1996, pet. ref'd); Graves v. State, 803 S.W.2d 342, 346 (Tex. App.--Houston [14^th Dist.] 1990, pet. ref'd).

Although Moon does not apply in cases in which the defendant presents a motion to withdraw the plea, Coronado v. State, 25 S.W.3d 806, 809 (Tex. App.--Waco 2000, pet. ref'd), or in cases where the voluntariness of a plea is questioned for some reason other than evidence raised as to the defendant's innocence, Owens v. State, 836 S.W.2d 341, 344 (Tex. App.--Fort Worth 1992, no pet.), neither of those situations is presented here.

Additionally, appellant's testimony only raises an issue whether he "pried" open the door or "broke" into the building. To commit the offense of burglary of a building, one need only enter a building not then open to the public with intent to commit a felony, theft, or an assault. Tex. Pen. Code Ann. § 30.02(a)(1) (Vernon Supp. 2003). Therefore, it was not necessary for appellant to break into or pry open a door. It was sufficient if he entered by walking through an open door without the owner's consent. See Johnson v. State, 664 S.W.2d 420, 422 (Tex. App.--Amarillo 1983, pet. ref'd, untimely filed).

In support of his argument, appellant cites and relies upon Payne v. State, 790 S.W.2d 649 (Tex. Crim. App. 1990). However, the facts before the Payne court are different from those here. In Payne, the defendant had pled guilty to aggravated robbery, but at the hearing averred that the gun used was a toy one, testimony previously unknown to his lawyer. His attorney then sought to withdraw the plea, but the trial court refused to let him do so. In an unpublished opinion, the court of appeals held that the trial court should have let the defendant withdraw his plea, but found the error was harmless. The Court of Criminal Appeals disagreed with that analysis and held the error could not be harmless because the testimony raised a significant issue as to the defendant's guilt of aggravated robbery by undermining the factual basis of his signed confession and that testimony raised an issue as to the voluntariness of his confession. Id. at 652. In the case before us, appellant never sought to withdraw his plea which, in light of Moon and its progeny, is a significant difference.

Appellant also relies upon Burke v. State, 80 S.W.3d 82 (Tex. App.--Fort Worth 2000, no pet.). That appeal resulted from a guilty plea before a jury. After he had been found guilty, the appellant and his lawyer filed a motion seeking a new trial. As relevant here, in the motions, they averred that they had not understood that the State had to actually prove reckless conduct in order to establish guilt. The Burke court held that the defendant's plea was not voluntarily and knowingly entered because the defendant would not have pled guilty if he had been properly advised of the requisite mental culpability that must have been proved by the State. Id. at 94. However, that case is distinguishable because it not only involved a plea before the jury, but also because it involved testimony produced at a hearing on the motion for new trial.

In this case, being a bench trial, the trial court did not reversibly err in not sua sponte withdrawing the guilty plea. We further hold that the trial court was entitled to determine the guilt or innocence of appellant under the testimony produced. The portions of testimony upon which appellant relies were only part of the evidence and, when considered with the other evidence in the case, including appellant's admission that he was present in the building in question, was sufficient to sustain the trial court's guilt finding.

Appellant's issues are overruled and the judgment of the trial court is affirmed.

John T. Boyd

Senior Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. § 75.002(a)(1) (Vernon Supp. 2003).

thern Railway Company (KCS), alleging on-the-job injuries. The suit was settled before trial, but during preparation of the settlement documents the parties disagreed over whether KCS was entitled to set off $8177.81 in benefits paid Nussbeck under a Supplemental Sickness Benefits Plan. After a hearing on that issue, the trial court entered judgment in accordance with the settlement and denying KCS the setoff. The appeal thus presents the single issue whether the trial court erred in denying KCS its requested setoff. We will affirm the trial court.

The facts are not in dispute. Nussbeck was a carman foreman for KCS and a member of the American Railway and Airway Supervisor Association (ARASA). In 1997, ARASA negotiated a new compensation agreement for its members with KCS. Among other provisions, the agreement made the supervisors represented by ARASA eligible to participate in an existing benefit plan established by KCS and other railroads for their railroad shop craft employees under a 1979 agreement, the Supplemental Sickness Benefit Agreement. The benefit plan was implemented through an insurance policy issued by Provident Life and Accident Insurance Company, and was further described in a Supplemental Sickness Benefit Plan Document and a Plan Summary. 

Under the 1979 agreement with craft employees, KCS and the other railroad employers paid the premiums for their employees= participation in the Supplemental Sickness Benefit Plan. The 1997 agreement between ARASA and KCS provided, though, that the supervisors would pay the premium for their participation in the plan through monthly payroll deduction.^[1]

Applicable federal law, Section 5 of FELA, 45 U.S.C. ' 55, renders void any contract by which a common carrier exempts itself from liability under the Act, but provides that, in any action brought against a carrier under the Act, the carrier may set off against amounts for which it may be liable sums the carrier has contributed or paid to insurance or similar benefits paid to the injured employee on account of the injury.

Citing cases in which employers were allowed setoff, under 45 U.S.C. ' 55, of payments made to plaintiff-employees under benefit plans created by the employer, KCS contends that case law applying 45 U.S.C. ' 55 to plans like the Supplemental Sickness Benefit Plan mandates the conclusion that it is entitled to set off Nussbeck=s benefits against its FELA liability to him. Nussbeck responds that his payment of the premium cost for his coverage under the plan distinguishes this case from those cited by KCS and requires that the benefits be ignored in calculating his recovery against his employer, under the general rule applicable to compensation received from a collateral source. Nussbeck cites Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525 (9^th Cir. 1962), a Jones Act case which treated a state-created unemployment disability fund, supported primarily by employee contributions and to which the employer had made no contribution, as a collateral source. Id. at 535.

There is a third category of cases, in which the courts have found that benefits funded with payments made by the employer were nonetheless to be treated as from independent, collateral sources, and thus not subject to setoff, because the court concluded that the benefits were part of the employee=s compensation.^[2] See Hall v. Minnesota Transfer Ry. Co., 322 F.Supp. 92, 96 (D.Minn.1971); Southern Pac. Transp. Co. v. Allen, 525 S.W.2d 300, 306 (Tex.Civ.App.--Houston [14^th Dist.] 1975, no writ).

As noted, the Supplemental Sickness Benefit Plan was established by the railroads pursuant to a collective bargaining agreement. The plan does not bear the earmarks of those 45 U.S.C. ' 55 was designed to prohibit. See Folkestad  v. Burlington N., Inc., 813 F.2d 1377, 1379-80 (9^th Cir. 1987) (noting the legislative history of 45 U.S.C. ' 55 indicates it was enacted to bar devices used by railroads to exempt themselves from full liability for employee injuries). Further, although benefits are payable without regard to fault or the employer=s liability,^[3] the terms of the plan evidence the railroads= intent that benefits paid under the plan be credited against any obligation the employer owes under FELA with respect to the injury and not give rise to double liability.^[4]  We conclude, though, that Nussbeck=s payment of premiums disentitles KCS to set off the benefits he received against its FELA liability to him, even under the cases cited by KCS.

KCS relies on Clark v. Burlington N., Inc., 726 F.2d 448 (8^th Cir. 1984); Folkestad, 813 F.2d 1377; and Burlington N. R.R. Co. v. Strong, 907 F.2d 707 (7^th Cir. 1990). KCS urges that this appeal should be governed by the holdings of those cases that the source of premiums is not the determinative factor in deciding whether benefits should be regarded as emanating from the employer or from a collateral source, and that courts instead focus on the purpose and nature of the fund and the benefit payments.^[5]  Since the nature of this benefit plan is such as to permit setoff,^[6] and the language of the plan expressly provides for setoff,^[7] KCS contends, it is entitled to setoff. But the contention takes the holdings of those cases out of their contexts. Although, as noted, each opinion concludes that setoff of the benefits in question was appropriate, none of them reasonably can be read to say that 45 U.S.C. ' 55 permits an employer to set off benefits for which it has not paid.

The Folkestad court=s discussion of the issue clearly is premised on the requirement that to be eligible for setoff, benefits must be paid for by the employer. There the court referred to Gypsum Carrier, in which, as noted, the same circuit held that benefits a seaman received from a state disability fund supported primarily by employee contributions^[8] would not reduce his Jones Act recovery against his employer, and stated, AThus if employee contributions pay for the insurance, benefits are regarded as collateral to the employer and setoff is prohibited.@ Folkestad, 813 F.2d at 1380.

The Clark opinion is similarly premised, stating:

A problem arises in distinguishing a fringe benefit from a benefit meant to indemnify an employer against future liability. A benefit may be exempt from setoff under the collateral source rule even though the employer is the sole source of the fund. The important consideration is the character of the benefits received, rather than whether the source is actually independent of the employer.

726 F.2d at 450.

In Strong, the employee plaintiff was covered by a 1973 version of the Supplemental Sickness Benefit Agreement. The agreement contained language identical to that in the 1979 agreement at issue here.^[9] Strong argued that the benefit payments were intended as a fringe benefit of his employment and not subject to setoff. 907 F.2d at 713. The court noted that Burlington paid the entire cost of funding the benefit program and pointed to the plan language indicating the railroad=s intent that payments made under the plan not duplicate amounts received for loss of wages from the employer. Id. at 714. The court relied on the Clark and Folkestad opinions in rejecting Strong=s contention that setoff of the benefits would violate 45 U.S.C. ' 55, and holding that setoff was appropriate. Id. at 713-14. The Strong opinion must be seen as founded on the fact Burlington paid for the coverage.

KCS refers also to the statement in the Fifth Circuit opinion in Haughton v. Blackships, Inc., 462 F.2d 788, 790 (5^th Cir. 1972), that the mere fact an employer has contributed to the fund from which an employee receives benefits does not necessarily mean that the fund is not a collateral source. KCS posits that the opposite must also be true, and that the mere contribution by employees to the fund from which benefits derive does not establish the benefits as a collateral source. KCS cites no authority for its assertion, which seems to us generally contrary to the language of 45 U.S.C. ' 55 and cases applying it. See, e.g., Folkestad, 813 F.2d at 1380.

KCS also points out that the Benefit Plan is Aoverwhelmingly funded@ by the employer, and asserts that Nussbeck=s premium for participation in the plan was lower because of the large size of the insured group, a factor that KCS sees as a subsidy to Nussbeck and other ARASA members. Such an unquantified benefit to Nussbeck does not render the payments made to him sums contributed or paid by his employer, for purposes of 45 U.S.C. ' 55.    

Concluding that the trial court did not err in denying KCS setoff of amounts paid Nussbeck under the Supplemental Sickness Benefit Plan, we overrule appellant=s issue and affirm the trial court=s judgment.

James T. Campbell

        Justice

---

^[1]The relevant language from the 1997 ARASA agreement with KCS reads as follows:

ARTICLE VI - PROVIDENT INSURANCE

Effective January 1, 1997, the Carrier [KCS] will place employees [ARASA members] within the Provident Life and Accident Insurance Company Policy No. R-5000 Supplemental Sickness Benefit Plan for railroad shop craft employees (hereinafter AProvident@) under the conditions specified hereinafter:

(1) Provident is an insurance policy and, as such, the stipulations therein are subject to change; therefore, employees covered by Provident are subject to the conditions set forth in its policy (and subsequent revision [sic] thereto).

(2) The monthly premium (cost per employee) will be paid by each employee through payroll deduction in the first period of each month.

^[2]This Afringe benefit@ argument can thus be seen simply as another way of stating that the benefit has been paid for by the employee. Cf. Hall, 322 F.Supp. at 96.

^[3]See Hall, 322 F.Supp. at 96-97, distinguishing insurance coverage obtained by an employer and limited to injuries on the job for which the employer might be liable.

^[4]The courts have construed 45 U.S.C. ' 55 to recognize employers= legitimate interests in avoiding double liability for the same injury. See Folkestad, 813 F.2d at 1380; Clark v. Burlington N., Inc., 726 F.2d 448, 451 (8th Cir. 1984). KCS does not directly argue that disallowance of setoff causes it double liability to Nussbeck.

^[5]Clark, 726 F.2d at 450-51; Folkestad, 813 F.2d at 1381; Strong, 907 F.2d at 713.

^[6]Indeed, as KCS points out, Strong dealt with an earlier version of the same benefit plan involved here, but with respect to a claimant for whom his employer paid the premiums. 907 F.2d at 714.

^[7]The Plan Summary contains the following language: Aif benefits are paid under this Plan, the benefit payments will be deducted from any payment for loss of wages in any case in which the employer or a third party is liable for the injury.@

Nussbeck contends that the plan language providing for setoff does not apply to supervisors because there is no language in KCS=s 1997 collective bargaining agreement with ARASA comparable to language in the 1979 agreement. KCS points out that the Plan Summary is expressly made a part of the plan under the terms of the Plan Document, and the Summary restates the employer=s right of setoff clearly. For purposes of this opinion, we accept KCS=s position that the terms of the plan expressly made applicable to ARASA members include the provision for setoff of benefits against any liability of KCS for lost wages under FELA.

^[8]The court quoted from Gypsum Carrier: AThe tortfeasor should not be required to compensate twice for the same injury, but he should not have the benefit of payments to the injured person which he did not make.@ Folkestad, 813 F.2d at 1380, quoting Gypsum Carrier, 307 F.2d at 534.

^[9]The 1979 Supplemental Sickness Benefit Agreement contained a paragraph stating that the parties did not intend benefits under the plan to duplicate any amount recovered for loss of wages, but instead intended that benefits under the plan would satisfy any right of recovery for loss of wages against the employing railroad to the extent of benefits paid and would be offset against any such right of recovery. The corresponding paragraph from the 1973 agreement is quoted in Strong, 907 F.2d at 709.