I respectfully dissent. In each of these two felony cases, the trial court accepted appellant's guilty plea and, without ever adjudicating her guilty or considering evidence that she was in fact not guilty, sentenced her to a term of imprisonment. The Fifth Court of Appeals affirmed. Aldrich v. State, 53 S.W.3d 460 (Tex.App.-Dallas 2001). Because I believe the trial court's unobjected-to errors here were fundamental and of the type that could generate public disrespect or suspicion regarding the fairness and accuracy of judicial proceedings, I would, in both cases, reverse the judgments of the courts below. I would also hold that trial counsel rendered ineffective assistance in failing to object to the trial court's errors. I would not relegate appellant to the difficult and cumbersome remedy of habeas corpus.

On November 5, 1999, a Dallas County grand jury indicted appellant on two counts of impersonating a public servant. ⁽¹⁾ In our case number 2066-01, the indictment alleged that on or about October 30, 1999, appellant "intentionally and knowingly impersonate[d] a public servant, namely: a City of Mesquite police officer, by demanding Cole Gillean to turn around and be arrested with intent to induce Cole Gillean to submit to [appellant's] pretended official authority." In our case number 2067-01, the indictment alleged that on or about October 30, 1999, appellant "intentionally and knowingly impersonate[d] a public servant, namely: a City of Mesquite police officer, by demanding Arlene Galvan open the door so that [appellant] could arrest said occupants with intent to induce Arlene Galvan to submit to [appellant's] pretended official authority." Each indictment contained a second paragraph alleging a previous felony conviction for punishment enhancement purposes. See Tex. Pen. Code § 12.42(a)(3).

On December 15, 1999, appellant appeared before Judge Keith Dean of the 265th District Court and entered, in each case, a non-negotiated guilty plea as well as a plea of "true" to the enhancement paragraph. Before accepting appellant's pleas, Judge Dean inquired as to her guilt as follows:

Judge Dean: What the police and the prosecutor claim happened is that you went over to a motel in Mesquite and claimed to be a police officer so the clerk would let you in to one of the rooms, and that's true, is that correct?

Appellant: Yes, sir. I had already been in the room.

Judge Dean: Right. But you wanted to get back in the room, and you thought if you claimed to be a police officer, they'd let you back in the room without asking a bunch of questions.

Appellant: Yes, sir.

Judge Dean also admitted in evidence State's Exhibits Numbers One and Two - appellant's signed judicial confessions ⁽²⁾ - in which she formally acknowledged her guilt. At the conclusion of the hearing, Judge Dean found the evidence sufficient to substantiate appellant's guilt, but he deferred an actual adjudication of guilt until a second hearing scheduled for the following month. ⁽³⁾

At the second hearing, held January 6, 2000, before Visiting Judge Jack Hampton, appellant offered evidence in mitigation of punishment. Appellant testified and was asked a series of leading questions by trial counsel, apparently in an attempt to lay the groundwork for probation. Trial counsel then asked appellant whether she wished to say anything else to the judge. In response, appellant, for the first time, related her version of the events that occurred on the day of the alleged offenses:

Appellant: Well, to everything that happened that day that I said I was a peace officer, I am guilty of saying that. I did say that I was a peace officer, but I did not have a badge, no gun, no uniform, nor did I tell them at any time to turn around and place their hands behind their back. From reading the indictment, that's what it said. I did not say that.

I went to the manager's office and told her to call the police, because they wanted to do something else which I didn't want to do. So when she called the police, I had left from the motel, and they arrested me at a different place that I was visiting some friends at.

So when the police officer arrested me, I asked what I was being arrested for, and they said impersonating a peace officer. And I tried to explain to them the day they arrested me that I didn't do it just to be getting anything out of it. I did it to save myself, because the guys were trying to rape me.

So, that's about all I have to say. And I guess the manager had misunderstood me because I talk fast when I get scared. I talk fast, anyway. So when I get scared, I even talk faster. So when I was trying to explain it to her, I took her out in the parking lot of the motel and pointed out the room where the guys were standing the day everything happened.

At that point, Judge Hampton interjected: "You've already pled guilty. I can't find you not guilty." Appellant responded, "No, I'm guilty of saying it." Judge Hampton then stated, "I'm just trying to decide what I should do to you." Trial counsel failed to object to Judge Hampton's refusal to consider appellant's evidence of innocence.

Appellant's employer, Harold Helm, then testified on her behalf. Toward the end of his testimony, the following transpired:

The Court: You understand what she pled guilty to was impersonating a police officer?

Helm: Yes. When I asked her why she did that -

The Court: Yeah.

Helm: - she told me about what she tried to explain to you. I think she had some communication skill problems in communicating. But she told me that some guys were trying to do something she didn't want done.

I asked her, "Why did you do this? My gosh." And she explained that to me. And I said, well, it sounded like something she did out of necessity, you know, on the thing.

But she went ahead and pled the way she did, so she understands how the law works, and she didn't have a trial, but she did tell me that or related that. And I said, "You shouldn't get yourself in those situations no more." She thought she was doing the right thing at that time.

The Court: Did she tell you why she was at that motel?

Helm: They were supposed to have a party there. She was invited to a party. She found out she was the only party. She asked where the other girls were. They weren't there, so she just wanted to go. They wouldn't let her go. That's when she said that.

Then she went down and asked the manager to call the police, and she took her outside and pointed out the room. That's what she explained to me. And I said, "Oh, my gosh almighty, what a mess you got into."

But she was doing real well up to that time. She had completed her probation, done everything she was supposed to do, and everything's been fine.

The Court: Thank you for coming down.

Any further testimony?

Defense Counsel: Nothing further, Your Honor.

The State: Nothing from the State.

The Court: I'll be glad to listen to any comments or recommendations you all have.

Defense Counsel: Judge, we're just asking that you consider the testimony that you've heard and that Ms. Aldrich, she does have her work, a job, and a family that's depending on her, and we ask that you consider placing her on probation.

The Court: State?

The State: We request that she not get probation. She's been in trouble in the past, and it sounds like the story is a little different now.

The Court: Well, Judge Dean, I guess, gave her five years deferred, and she didn't make it in '97. She got her probation revoked, and there were apparently two new cases that she was on. After she got out on parole, she committed these two offenses. I just don't think she is a very good candidate for probation. So I'm going to sentence her to five years. It's not a twenty year case. But I am going to sentence you to five years.^{[ (4)]}

Appellant: Sir, please.

The Court: Yeah.

Appellant: Please, I will not, I will not mess up. Back then I had a real bad drug habit. I don't have a drug problem now. My family is depending on me to get out and help them. I promise to fulfill anything that I need to, but I don't deserve to go back to [prison] because I just said those words.

The Court: Well, your credibility is just not very good, you know, when you go around telling people you're a police officer and you are not.

Appellant: Sir, I didn't know what else to say, sir, at the time. Please. I don't have a drug problem. I have a job. I did do something with my life when I got out of prison. I didn't go back and mess up on the streets like I was in '97.

The Court: I certainly hope that you do well when you get out this time.

Later that day, Judge Hampton signed a pre-printed form judgment in each case that recited that appellant was "adjudged guilty of the offense."

On direct appeal, appellant, citing Moon v. State, 572 S.W.2d 681 (Tex.Crim.App. 1978), argued, for the first time, that Judge Hampton erred in accepting her guilty pleas and sentencing her to terms of imprisonment without actually adjudicating her guilty in either case and without considering evidence - her testimony and Helm's testimony - that "raised a reasonable doubt about her guilt." In particular, appellant argued that Judge Hampton's comment, "You've already pled guilty. I can't find you not guilty," showed that he erroneously believed that Judge Dean had already adjudicated her guilty in each case. She argued further that if Judge Hampton had actually considered her evidence, he might have found her not guilty because the evidence showed that "she impersonated a police officer [out of necessity] to extricate herself ... from a sexual assault situation." ⁽⁵⁾ Finally, appellant argued that trial counsel rendered ineffective assistance in failing to object to Judge Hampton's errors.

The Fifth Court of Appeals, with one justice dissenting, rejected appellant's argument and affirmed the judgments of the trial court. Aldrich v. State, 53 S.W.3d 460. The court of appeals acknowledged that "the rule applicable in [these] case[s] is expressed in Moon v. State," id. at 467, but the court held that (1) appellant's evidence did not raise an issue as to her guilt in either case and (2) appellant "waived error, if any," because she "did not request permission to change or withdraw her plea of guilty, move the court to find her not guilty, suggest she should be convicted of a lesser included offense, or lodge any objection whatever to the proceedings." Id. at 468-469. See Tex. R. App. Proc. 33.1(a). The Fifth Court also rejected appellant's ineffective assistance claim. Id. at 471. Justice Richter, in dissent, argued:

"The evidence reasonably and fairly raised issues as to appellant's guilt and [Judge Hampton] should have determined whether appellant was guilty before sentencing her. He erred in failing to do so.

"[Judge Hampton's] choice of words and the sequence of events that transpired can be logically explained only by concluding [he] erroneously believed appellant already had been adjudicated guilty and he had no power to decide otherwise."

Id. at 473 and 478.

We subsequently granted appellant's petitions for discretionary review to determine whether the court of appeals erred. See Tex. R. App. Proc. 66.3(e).

In her briefs to this Court, appellant reiterates the argument she made in the court of appeals. In response, the State argues that (1) appellant waived any error when she "failed to raise [the] issue [of her innocence] in the trial court"; (2) Judge Hampton's statement, "Well, your credibility is just not very good," showed that he did not believe appellant's evidence; and (3) appellant's evidence was, in any event, "implausible" and did "not raise the issue of innocence or the defense of necessity."

Our law plainly requires that a defendant may be sentenced to a term of imprisonment only after being found guilty of a crime. See, e.g., Tex. Code Crim. Proc. arts. 37.07, § 2(c) & 42.01, § 1(8). ⁽⁶⁾ Certainly, due process of law requires no less. However, as appellant argues, and as Justice Richter argued below, the record clearly reflects that neither Judge Dean nor Judge Hampton ever adjudicated appellant guilty. Judge Dean heard evidence at the first hearing and concluded that it substantiated appellant's guilt, but he deferred an actual adjudication of her guilt until a second hearing could be held. At that second hearing, Judge Hampton heard evidence that arguably raised a reasonable doubt as to appellant's guilt under both indictments, but he refused to consider that evidence and the possibility of finding appellant not guilty, though he had the authority to do so. Apparently, Judge Hampton believed, incorrectly, that Judge Dean had already adjudicated appellant guilty. Although Judge Hampton signed a pre-printed judgment in each case purporting to adjudicate appellant's guilt, it is apparent that he did so only because he believed that Judge Dean had already adjudicated her guilty.

In my view, appellant's failure to object in the trial court did not forfeit her right to complain, on appeal, about the trial court's sentencing her without first adjudicating her guilty. Usually, of course, a defendant procedurally defaults a claim of error when he fails to raise it in the trial court. Saldano v. State, 70 S.W.3d 873, 886-887 (Tex.Crim.App. 2002). However, certain fundamental errors may be raised for the first time on appeal. Marin v. State, 851 S.W.2d 275, 279-280 (Tex.Crim.App. 1993). Because the trial court's error in sentencing appellant without first finding her guilty is the type of error that could generate public disrespect or suspicion regarding the fairness and accuracy of judicial proceedings, I would hold it fundamental and raisable for the first time on appeal. See G. Dix & R. Dawson, Texas Criminal Practice and Procedure § 42.252 at 377 (2d ed. 2001) (discussing nature of fundamental error).

I turn next to Judge Hampton's failure to consider appellant's evidence of innocence. We have held that if a defendant waives a jury and pleads guilty before the trial court, and evidence is presented, and not later withdrawn, that makes evident the innocence of the defendant or that reasonably and fairly raises an issue as to the defendant's guilt, then "[i]t is the duty of the trial court to consider the evidence submitted," and the trial court, as the trier of fact, may find the defendant guilty, not guilty, or guilty of a lesser included offense, as the evidence may warrant. Moon v. State, 572 S.W.2d at 682. The purpose of the Moon rule is to prevent unjust convictions and the burdens they place on both innocent defendants and society. The rule exists because of our recognition that unwitting or coerced, and yet innocent, defendants require the protective intervention of the trial court. See G. Dix & R. Dawson, Texas Criminal Practice and Procedure §§ 34.81-34.83 (2d ed. & Supp. 2002) (discussing Moon and related cases); W. LaFave, et al., Criminal Procedure § 21.4(f) at 181 (reported cases show that occasionally defendants plead guilty without realizing their conduct does not actually fall within the charged offenses). As the dissent below acknowledged, "A trial judge is possessed of no greater trust than ensuring that the innocent are not imprisoned." Aldrich v. State, 53 S.W.3d at 479 (Richter, J., dissenting).

The record reflects that appellant waived a jury and entered a non-negotiated guilty plea before Judge Dean to two counts of impersonating a public servant. Later, before Judge Hampton, appellant presented evidence, and did not later withdraw that evidence, to the effect that, on the day in question, she impersonated a police office in order to prevent being raped and that she did not impersonate a police officer when she spoke with the motel clerk. Without doubt, this evidence reasonably and fairly raised an issue as to appellant's guilt in both cases. As the record reflects, however, Judge Hampton failed to consider this evidence though he had the authority and duty to do so, apparently believing, incorrectly, that Judge Dean had already adjudicated appellant guilty. ⁽⁷⁾ Judge Hampton's failure to consider appellant's evidence was in contravention of the rule of Moon and was error.

In my view, appellant's failure to object in the trial court did forfeit her right to complain, on appeal, about the trial court's failure to follow Moon. The rule of Moon exists, as I noted previously, because of our recognition that unwitting or coerced, and yet innocent, defendants require the protective intervention of the trial court. Given that fact, it would be perverse to hold that those same defendants lose the benefit of the rule if they fail to invoke it in the trial court.

I also reject the notion that Judge Hampton's statement, "Well, your credibility is just not very good," can be interpreted to mean that he disbelieved appellant's evidence. In context, it is apparent that Judge Hampton's statement was intended to mean he disbelieved appellant's claim that, if given probation, she would "not mess up."

Finally, I turn to trial counsel's failure to object to either of Judge Hampton's errors. In my view, trial counsel clearly rendered ineffective assistance.

The Sixth Amendment guarantees the right to the reasonably effective assistance of counsel in state criminal prosecutions. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). In general, to obtain a reversal of a conviction on the ground of ineffective assistance, an appellant must demonstrate that (1) counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). In the absence of evidence of counsel's reasons for the challenged conduct, an appellate court will assume a reasonable strategic motivation if any can possibly be imagined and will not conclude that the challenged conduct constituted deficient performance "unless the conduct was so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001).

In my view, trial counsel in this case could have had no reasonable strategic motivation for failing to object to Judge Hampton's errors. I also believe that there is at least a reasonable probability that had trial counsel objected, Judge Hampton would have considered appellant's evidence of innocence and found her not guilty.

I would reverse the judgments of the court of appeals and remand the cases to the trial court for further proceedings consistent with this opinion.

FILED MAY 14, 2003

PUBLISH

1. Texas Penal Code § 37.11(a) provides, in relevant part, that a person commits a felony offense "if he impersonates a public servant with intent to induce another to submit to his pretended official authority."

2. Each confession consisted of a pre-printed form with a check mark in a blank beside the phrase, "I am guilty of the offense of," with the phrase, "impersonating an officer," handwritten below. The Clerk's Record contains two additional confessions, but they merely track the language in the indictments.

3. In its opinion, the court of appeals states that Judge Dean "entered findings of guilt in each case." Aldrich v. State, 53 S.W.3d at 467. However, Judge Dean's docket sheet plainly states that the cases were "continued to 1-6-00 for adjudication of guilt and assessment of punishment."

4. Thus, Judge Hampton sentenced appellant to imprisonment for five years in each case without first adjudicating her guilty. Apparently, he believed, incorrectly, that Judge Dean had already adjudicated appellant guilty. Trial counsel failed to object to Judge Hampton's error.

5. Texas Penal Code § 9.22 provides that it is a defense to prosecution for otherwise criminal conduct if:

(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and

(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

6. Article 37.07, § 2(c), relating to jury trials, states that "[p]unishment shall be assessed on each count on which a finding of guilt has been returned." Article 42.01, § 1(8), states that a judgment should reflect that "[i]n the event of a conviction that the defendant is adjudged guilty of the offense as found by the verdict of the jury or the finding of the court, and that the defendant be punished in accordance with the jury's verdict or the court's finding as to the proper punishment."

7. Judge Hampton's comment, "You've already pled guilty. I can't find you not guilty," cannot reasonably be read "to mean anything other than he mistakenly believed he lacked the power to find appellant not guilty." Aldrich v. State, 53 S.W.3d at 478 (Richter, J., dissenting).