Number 13-02-147-CR.
Opinion Delivered and Filed January 9, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 107th District Court of Cameron County, Texas.
Before Justices YAÑEZ, CASTILLO, and DORSEY.
Retired Justice J. Bonner Dorsey assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).
Opinion By Justice ERRLINDA CASTILLO
Victor Manuel Luna pled nolo contendere, without a plea bargain, to an indictment charging him with the offense of indecency with a child and was sentenced to six years incarceration. From this conviction he appeals, alleging in one issue that the trial court erred in denying his request to withdraw his plea and his motion for new trial. We affirm.
RELEVANT FACTS
Appellant pled nolo contendere to the indictment on December 5, 2001. The trial judge accepted the plea and the evidence submitted and found that the waivers, plea, and stipulations were made freely, knowingly, and voluntarily. At appellant's request, however, the judge deferred any finding on guilt until after a pre-sentence investigation report could be made and reviewed by appellant and set the case for sentencing at a later date. At the beginning of the sentencing hearing, held on February 8, 2002, the following exchange took place: DEFENSE COUNSEL: Good morning, Your Honor. May it please the Court, Your Honor, Mr. Luna is here in the courtroom and —
TRIAL JUDGE: Come forward.
DEFENSE COUNSEL: — and he has requested that I ask of the Court leave to withdraw his plea of no contest and allow him to proceed to a jury trial.
STATE'S ATTORNEY: Your Honor, the State would request that we proceed with the sentencing. The defendant was fully aware of what rights he had, what rights he was waiving by pleading no contest. And it was a cold plea, so there's not — it's not that there was an agreement that we're now asking to withdraw from. We had a jury panel ready. We had our witnesses ready to go to trial, and he chose at that time to plead to [sic] no contest instead. We would ask that the Court hold him to that plea.
TRIAL JUDGE: That'll be denied. Do you have anything else to say before I assess punishment in this case, Mr. Luna?
Appellant answered the judge in the affirmative and referred the judge to his family, school, and work situation and his lack of a prior criminal history. The rest of the hearing related to the appropriate punishment to be assessed. At no time during the hearing was any reason offered to the trial judge for appellant's request to withdraw his plea. The trial court sentenced appellant to six years incarceration. On February 14, 2002, appellant filed a motion for new trial, asserting that after his plea, but prior to sentencing, he "discovered new evidence regarding the veracity of the witnesses' statement [sic]," which triggered his request to withdraw his plea. At the hearing on the motion for new trial, defense counsel reiterated the claim made in the motion, stating "Mr. Luna discovered other evidence that — and he tells me that if he had known that evidence was available, that he would never have entered a plea of no contest to this indictment." No testimony or other evidence was offered at the hearing. The trial court denied the motion for new trial. DENIAL OF REQUEST TO WITHDRAW PLEA
On appeal, appellant argues that a trial court should withdraw a defendant's plea of nolo contendere if a colorable claim of innocence is raised, citing Griffin v. State, 703 S.W.2d 193, 195 (Tex.Crim.App. 1986) (op. on reh'g) (en banc). Griffin requires that a trial judge sua sponte withdraw a defendant's plea of guilty or no contest made to a jury when evidence is introduced that makes the innocence of the defendant evident or reasonably and fairly raises an issue as to a defendant's innocence. Id. Here, however, appellant's plea was before the trial court, not a jury, and therefore is not governed by Griffin. A trial court has no obligation to sua sponte withdraw a plea of guilt or no contest made before it, even if evidence is presented that makes the innocence of the defendant evident or reasonably and fairly raises an issue as to such innocence. Thomas v. State, 599 S.W.2d 823, 824 (Tex.Crim. App. [Panel Op.] 1980); Moon v. State, 572 S.W.2d 681, 682 (Tex.Crim.App. 1978) (op. on reh'g)(en banc); Soliz v. State, 945 S.W.2d 300, 302-03 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). In such circumstances, it is the trial court's duty, as the trier of fact, to consider the evidence submitted and, based on the evidence, find the defendant guilty, guilty of a lesser offense, or not guilty. Moon, 572 S.W.2d at 682. This case is controlled by Jackson v. State, which holds that where a defendant requests to withdraw a plea of guilty or no contest after the trial court takes the case under advisement, such request is left to the sound discretion of the trial court. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim. App. [Panel Op.] 1979). "It is well settled that passage of the case for pre-sentence investigation constitutes `taking a case under advisement.'" Stone v. State, 951 S.W.2d 205, 207 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (op. on remand). Thus, we will not reverse unless we find that the trial court abused its discretion. Jackson, 590 S.W.2d at 515. Review of the record in this case reveals that at the time appellant asked to withdraw his plea, he gave no explanation to the trial judge for the request. Defense counsel did not apprise the trial judge of any unusual circumstances or suggest any purpose for the request other than appellant merely changing his mind. With only appellant's bare request before it, we cannot find that the trial court abused its discretion, that is, that it "acted without reference to any guiding rules and principles or acted arbitrarily or unreasonably" in denying appellant's request to withdraw his plea. Stone, 951 S.W.2d at 207. DENIAL OF MOTION FOR NEW TRIAL
Appellant also argues that the trial court erred in denying his motion for new trial. We review the denial of a motion for new trial under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001). We first note, apart from defense counsel's brief, vague statement that "Mr. Luna discovered other evidence," that no information was given to the trial court at the hearing on the motion for new trial about the alleged new evidence discovered, what it consisted of, how it was significant, how it had been discovered and why appellant had not known of it at the time of the plea. The specific claim that appellant makes on appeal that he had "heard" that the witnesses "lied to the police" was never brought to the trial court's attention. More critical, however, is the fact that appellant offered no evidence of any sort to the trial court in support of his motion. The only items before the trial court at the hearing on the motion for new trial were the statements of counsel and the verified motion itself. Neither was competent evidence. See Collier Servs. Corp. v. Salinas, 812 S.W.2d 372, 377 (Tex.App.-Corpus Christi 1991, orig. proceeding) (noting that assertions of trial counsel are not evidence unless the attorney is actually testifying); see also George v. State, 20 S.W.3d 130, 135 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (observing that motions for new trial are not self-proving, even if verified); accord Martins v. State, 52 S.W.3d 459, 468 (Tex.App.-Corpus Christi 2001, no pet.) (holding that even affidavits attached to a motion for new trial are only pleadings and are not evidence in a case unless introduced into evidence). A trial court does not err in denying a motion for new trial based on matters outside of the record when no evidence of those matters is admitted at the motion for new trial hearing. Rios v. State, 510 S.W.2d 326, 328-29 (Tex.Crim. App. 1974) (op. on reh'g). Appellant's complaint of the denial of his motion for new trial is without merit. CONCLUSION
We overrule appellant's sole issue and affirm the conviction of the trial court.