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Click here for the full text of this decision FACTS:It is undisputed that the appellant shot and killed the victim. He was indicted for the offense of murder. The court impaneled a jury. The prosecutor read to the jury only one paragraph of the indictment, which required the state to prove that the appellant intentionally or knowingly caused the victim’s death. The defendant pleaded guilty. The state and the appellant introduced evidence for several days. The fifty-four-year-old appellant was the last witness to be called in his defense. He testified about his sexual relationship with the sixteen-year-old victim, which ended when she “left” him. The appellant said that for three or four days he “stayed drunk most of the time” and used methamphetamine. He said that after the victim made taunting telephone calls to him, he put a handgun in his pants and went to the victim’s place of work. When the victim locked the doors, he shot the lock to get in and “just went crazy.” He shot the victim in the head. The defendant appealed, complaining that the trial court should have sua sponte withdrawn his guilty plea after the testimony raised an issue as to his guilt. The court held appellant did not preserve his complaint in accordance with Rule 33.1 regarding the trial court’s failure to sua sponte withdraw his guilty plea. As a result of that failure, any error is waived. HOLDING:Affirmed. A mistake made in Ibarra v. State, 11 S.W.3d 189 (Tex. Cr. App. 1999), was saying that noncompliance with Rule 33.1(a) results in complaints being “waived.” In Marin v. State, 851 S.W.2d 275 (Tex. Cr. App. 1993), the court carefully distinguished waiver, which requires the intentional relinquishment or abandonment of a known right or privilege, from the forfeiture that is the consequence of not complying with Rule 33.1(a). “A statement that is correct, and perhaps less susceptible of being misread, would be, ‘Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only, which are not involved here, all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a).’ “ In this case, the court of appeals said, “Even if we assume that, under the record in this case, the trial court should have withdrawn appellant’s guilty plea on its own motion, the inquiry does not end.” The court held “that, under the current state of the law, appellant has waived any error by failing to call it to the trial court’s attention” as Rule of Appellate Procedure 33.1(a) requires. The holding is inconsistent with Marin, the court states. The rule was better stated in Taylor v. State, 88 Tex. Crim. 470, 227 S.W. 679 (1921), when the court spoke in terms of the familiar rule that a defendant has the right to withdraw a plea of guilty (or nolo contendere) in a timely fashion, whether the trial be with or without a jury. The procedures involved are different. A defendant’s decision to plead guilty entails the waiver of some important constitutional rights. These are “waivable-only” rights, in Marin’s taxonomy. It is fitting that trial courts have a duty to implement those rights, which shield each defendant at the outset of every criminal proceeding. But after a court has fulfilled those duties and a defendant has made a valid waiver of those rights, it is appropriate that the defendant be required to take some affirmative action to don the armor again. The number of cases in which defendants want to “unwaive” their right to plead not guilty is small, the appearance of evidence that is inconsistent with guilt is unpredictable, the significance of such evidence should be more apparent to the defense than to the trial court, and cases are common in which there is some evidence in the defendant’s favor but the defendant had validly chosen to plead guilty after weighing the advantage of such a plea against the chance of acquittal. In this case the appellant did not waive his right to trial by jury, but he did waive his right to a plea of not guilty. It is not suggested that there was any error in the proceedings leading up to, and including, his plea of guilty. His strategies were to seek a verdict of second-degree murder by proving that he acted under the immediate influence of sudden passion arising from an adequate cause, and to prove that his punishment should be mitigated by voluntary intoxication that amounted to insanity. His attention was specifically called to the inconsistency between his plea of guilty and his testimony about lack of intent or knowledge. The appellant did not ask to withdraw his plea. If it had been in his interest to do so, he would have known it. It is reasonable to put on such a defendant the requirement of timely seeking, in one way or another, to withdraw the plea of guilty. The appellant not having done so, he may not complain for the first time on appeal that the trial court did not do it for him. OPINION:Womack, J., delivered the court’s opinion.

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