Opinion
Nos. 05-08-00776-CR, 05-08-01724-CR
Opinion Filed April 27, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 292nd Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F07-72563-RV, F07-72603-QV.
Before Justices MORRIS, RICHTER, and LANG-MIERS.
MEMORANDUM OPINION
Joe Louis Maxie waived a jury and pleaded guilty to burglary of a habitation and aggravated robbery with a deadly weapon, a knife. See Tex. Penal Code Ann. §§ 29.03(a)(1), 30.02(a) (Vernon 2003). The trial court assessed punishment, enhanced by prior felony convictions, at ten years' and twenty-five years' imprisonment, respectively. In three issues, appellant contends his guilty plea in each case was involuntary, and the trial court abused its discretion by failing to sua sponte withdraw his guilty plea in the aggravated robbery case. We affirm the trial court's judgments. The background of these cases and the evidence adduced at trial are well known to the parties, and thus we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in these cases is well settled. Appellant contends his guilty plea in each case was involuntary because the trial court failed to properly admonish him, failed to inquire about the voluntariness of the guilty pleas, and provided inaccurate information on the availability of probation. Appellant also contends that in the aggravated robbery case, the trial court should have sua sponte withdrawn the guilty plea after he testified he never exposed the blade of the knife during the robbery. The State responds that appellant failed to preserve his complaints for appellate review and, alternatively, the guilty pleas were voluntary and the trial court had no duty to sua sponte withdraw his guilty plea. Appellant did not complain to the trial court about the voluntariness of his guilty pleas either before or after his sentencing, including in his motions for new trial. See Tex. R. App. P. 33.1(a)(1). Moreover, when the trial judge acts as the fact finder in a case, even if evidence is presented that raises an issue as to a defendant's guilt, the judge is not required to withdraw a defendant's guilty plea sua sponte and enter a plea of not guilty. See Mendez v. State, 138 S.W.3d 334, 339, 350 (Tex.Crim.App. 2004); Aldrich v. State, 53 S.W.3d 460, 468-69 (Tex.App.-Dallas 2001), aff'd, 104 S.W.3d 890 (Tex.Crim.App. 2003). Rather, the trial judge's duty is to consider all of the evidence submitted, and he may find a defendant guilty as charged, guilty of a lesser-included offense, or not guilty, as the evidence requires. See Aldrich, 53 S.W.3d at 467. Thus, the trial court had no duty to sua sponte withdraw appellant's guilty pleas and did not err in failing to do so. Further, the record shows the trial court admonished appellant in writing about the punishment range for the offenses. See Tex. Code Crim. Proc. Ann. art. 26.13(a), (c) (Vernon 2009); Kirk v. State, 949 S.W.2d 769, 771 (Tex.App.-Dallas 1997, pet. ref'd). And, appellant testified he understood the punishment ranges for the offenses, in light of the enhancement paragraphs, but wanted deferred adjudication probation and drug treatment. Nothing in the record shows appellant was unaware of the consequences of his pleas and that he was harmed or misled by the trial court's admonishments. See Aguirre-Mata v. State, 125 S.W.3d 473, 477 (Tex.Crim.App. 2003). We resolve appellant's three issues against him. In each case, we affirm the trial court's judgment.