No. 14-08-00929-CR
Opinion filed April 14, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 248th District Court, Harris County, Texas, Trial Court Cause No. 1169492.
Panel consists of Justices ANDERSON, GUZMAN, and BOYCE.
JOHN S. ANDERSON, Justice.
Appellant Kenneth Andrew Robert Hyatt was charged with aggravated sexual assault of a child. He entered a plea of guilty without an agreed recommendation, and the trial court ordered preparation of a presentence investigation (PSI) report. After hearing the PSI report, the court assessed punishment at 50 years' confinement in the Institutional Division of the Texas Department of Criminal Justice. In two issues, appellant contends the trial court erred in (1) permitting him to plead guilty to an information without waiver of indictment, and (2) denying the motion to withdraw his guilty plea. We affirm.
FACTUAL AND PROCEDURAL HISTORY
According to the PSI, the complainant was hospitalized in March, 2007 for pain in her abdomen. Surgeons removed a crayon from her abdomen, but were puzzled as to how it became lodged there. Four months later, the complainant was hospitalized again for pain in her abdomen. Two physicians noticed bruises in varying stages of healing and requested Child Protective Services (CPS) to evaluate the complainant. A CPS caseworker interviewed appellant who told her that the complainant was accident prone and complained that her relatives in Indiana had sexually abused her. On July 31, 2007, physicians conducted a vaginogram to rule out potential causes of the complainant's abdominal pain. The tests revealed normal vaginal contour. One month later, on August 12, 2007, appellant's sister was changing the complainant's diaper and noticed blood. She reported that the complainant told her, "Daddy sat on my tummy and made my vagina hurt." Appellant's sister called a nurse to whom the complainant repeated her statement. A physician conducted a sexual assault examination and found a portion of the complainant's hymen missing. CPS was contacted again and appellant was ordered to have no more contact with the complainant. The physician who conducted the sexual assault examination consulted with the physician who conducted the earlier vaginogram. The doctors concurred that the trauma to the hymen occurred after the initial examination was conducted, sometime between July 31, 2007 and August 12, 2007 when she was living with appellant. From August 2007 to December 2007, the complainant stayed in Texas Children's Hospital receiving treatment and healing. She was discharged to the care of her maternal grandmother. Appellant was indicted for aggravated sexual assault of a child on October 4, 2007. The first indictment was dismissed, and on June 3, 2008, appellant was re-indicted for the same offense. On July 21, 2008, appellant entered a plea of guilty, and the trial court took the case under advisement pending preparation of the PSI report. On July 23, 2008, appellant filed a pro se motion to withdraw his guilty plea on the grounds that his plea was not voluntary because he was under duress and "was scared into the plea by his lawyer." On July 25, 2008, appellant's trial counsel filed a motion to withdraw appellant's guilty plea, which the trial court denied. On October 2, 2008, the trial court held a sentencing hearing at which the PSI report was presented. Appellant also re-urged his motion to withdraw his plea. When asked why he did not ask for a jury trial, appellant said that he was "really terrified and scared" and "was under the impression that with the doctors and everything else, with everything was overwhelming." Appellant testified that he panicked and decided to plead guilty. INDICTMENT
In his first issue, appellant argues the trial court erred in accepting his guilty plea to an information without waiver of an indictment. Without the personal, intelligent, voluntary and knowing waiver of indictment by an accused, the trial court does not have jurisdiction to try an accused by information in a felony case. Ex parte Smith, 650 S.W.2d 68, 69 (Tex.Crim.App. 1981). In this case, however, appellant pleaded guilty to a valid indictment. Appellant bases his argument on an incorrect recitation in the judgment. The judgment reflects that appellant pleaded guilty in cause number 1169492. The judgment incorrectly states that appellant pleaded guilty to an information. Appellant was initially indicted on October 4, 2007. He was re-indicted on June 3, 2008. On July 21, 2008, the first indictment was dismissed because the case was re-filed in cause number 1169492. Our record contains a valid indictment in cause number 1169492 to which appellant pleaded guilty. Because the recitation in the judgment is incorrect, we reform the judgment to reflect that appellant pleaded guilty to an indictment. Appellant's first issue is overruled. WITHDRAWAL OF PLEA
A. Standard of Review
An accused may withdraw his plea any time before judgment is pronounced or the case has been taken under advisement. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App. 1979). The decision to permit the defendant to withdraw his plea after the judge has taken the case under advisement is within the sound discretion of the trial court. Id. Because appellant sought to withdraw his guilty plea after the trial court passed the case for preparation of the PSI, we review the court's decision under an abuse of discretion standard. Id. To establish an abuse of discretion, an appellant must show that the trial court's ruling lies outside the "zone of reasonable disagreement." Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). B. Analysis
A guilty plea must be made knowingly and voluntarily before the trial court can accept it. Fuller v. State, 253 S.W.3d 220, 229 (Tex.Crim.App. 2008). The record must affirmatively disclose that a defendant who pleaded guilty entered his plea knowingly and voluntarily. Id. In his brief, appellant argues that a trial judge taking a case under advisement is the equivalent of a jury beginning its deliberations; therefore, "[r]esetting a case for time to prepare a PSI report does not rise to the level of taking a case under advisement." Appellant's argument is contrary to the well-settled law of this state. Once the judge has admonished the accused, received his plea, and received evidence, passing the case for a pre-sentence investigation constitutes "taking the case under advisement." Jackson, 590 S.W.2d at 515; Jagaroo v. State, 180 S.W.3d 793, 802 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). Appellant did not seek to withdraw his plea until the case had been taken under advisement; therefore, he could not withdraw it as a matter of right. See Jagaroo, 180 S.W.3d at 802. No plea of guilty may be accepted by the court unless it appears the plea is free and voluntary. See TEX. CODE CRIM. PROC. ANN. art. 26.13(b). Proper admonishments by the trial court create a prima facie showing that the guilty plea was knowing and voluntary. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998). The appellant then has the burden to show that he did not understand the consequences of his plea. TEX. CODE CRIM. PROC. ANN. art. 26.13(c). Our record contains no recording of the plea proceeding, but it does contain appellant's guilty plea and admonishments, which appellant signed stating he understood the consequences of his plea and the range of punishment he faced if convicted. At the hearing on sentencing, appellant stated he failed to request a jury trial because he was afraid and panicked. Appellant's explanation for his plea does not reflect a lack of understanding regarding the consequences of his plea. There is nothing in the record to show that the trial court abused its discretion in denying appellant's motion to withdraw his plea. Appellant's second issue is overruled. The judgment is reformed to reflect that appellant pleaded guilty to an indictment. In all other respects, the judgment of the trial court is affirmed.