Sommer v. State , 1978 Tex. Crim. App. LEXIS 1447 ( 1978 )

OPINION ON REHEARING EN BANC UPON COURT’S OWN MOTION

DALLY, Judge.

This is an appeal from a conviction for the offense of burglary of a building with the intent to commit theft. The punishment is imprisonment for ten years.

Our prior per curiam opinion on original submission is withdrawn and this opinion is substituted on the Motion for Rehearing En Banc on the Court’s Own Motion.

The sole ground of error raised by the appellant is that the trial court erred in not withdrawing sua sponte appellant’s plea of guilty. When the evidence fairly raised the issue of innocence in that appellant had no knowledge of entering the alleged building.

The appellant waived a jury trial and entered his plea of guilty before the court. We have recently held in Moon v. State, 572 S.W.2d 681 (No. 54,342, decided Oct. 4,1978 on State’s Motion for Rehearing) that when the plea is before the court a plea of guilty need not be withdrawn and a plea of not guilty entered when evidence is introduced that might reasonably and fairly raise an issue of fact as to the guilt of the defendant. The trial judge as the trier of the facts may without withdrawing the plea decide the issue either finding the defendant not guilty or guilty as he believes the facts require.

The judgment is affirmed.