Opinion
No. 04-17-00126-CR
04-11-2018
Terrell BUSH, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 14-01-00046-CRW
Honorable Stella Saxon, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice AFFIRMED
Terrell Bush pled guilty to two counts of sexual assault pursuant to an open plea and was sentenced by the trial court to twenty years' imprisonment for each offense with the sentences to run concurrently. Bush presents two issues on appeal asserting the trial court abused its discretion in denying his motion to withdraw his plea by: (1) accepting the prosecutor's unsworn assertions over the statements made in his sworn, written motion to withdraw; and (2) applying the collateral-consequence rule which has been rejected by the United States Supreme Court in Padilla v. Kentucky, 559 U.S. 356 (2010). We affirm the trial court's judgment.
BACKGROUND
Bush was charged with five counts of aggravated sexual assault of a child; however, pursuant to an agreement with the State, Bush pled guilty to two counts of sexual assault. At a hearing on September 22, 2014, after admonishing Bush and hearing his plea, the trial court found Bush's plea was made freely, intelligently, knowingly, and voluntarily. Based on the evidence introduced during the plea proceedings, the trial court further found the evidence substantiated Bush's guilt. The trial court then ordered the preparation of a presentence investigation report and set a sentencing hearing for November 18, 2014.
In 2017, Bush was granted an out-of-time appeal by the Texas Court of Criminal Appeals.
On November 17, 2014, Bush filed a sworn motion to withdraw his plea. The motion states that after Bush entered his plea he "was informed by his Child Protective Services caseworker that a conviction for the offense of Sexual Assault and the required registration in the Sex Offender Registration Program would likely result in the termination of Bush's parental rights with regards to his two children." The motion further states that Bush wished to withdraw his plea "because at the time of his plea he was not aware of a collateral consequence of his plea, namely, the termination of his parental rights."
Bush's children were not the victims of the offenses.
On November 18, 2014, before proceeding with sentencing, the trial court called Bush's motion for hearing. After hearing the basis for Bush's motion, the following exchange occurred:
THE COURT: I would like a little bit of the procedural history of this case, please, if you would.
[Prosecutor]: Your Honor, prior to the plea on September 22nd the case was originally set back in February, reset to March and reset to May with a June 23rd trial date. From June it was reset to July and August for a trial date. And when we were into July and August trial dates, the defense counsel and State conferring, was that the matter was going to be resolved by a plea.
There is a confession in this case by the defendant. However, that — there were Child Protective Services matters that needed to be addressed prior to entering
a plea. And so it was based on those representations that the case was continued until the defendant pled on September 22nd, 2014. And he pled to Count I and IV.
THE COURT: And, Mr. Barrera [defense counsel], you agree this accurately states the procedural history?
MR. BARRERA: I do, Your Honor. And I would explain to the court that the ramifications of the CPS case were at the forefront of my client's consideration and how we handled this case. And it was after his plea that he was informed that this would definitely cause the State to seek to terminate his rights. So that's why we're in court today, Judge.
[Prosecutor]: And, Your Honor, I don't think the defense is trying to contest the voluntariness or any of that of the plea, is that right?
MR. BARRERA: No, Your Honor.
THE COURT: Well, it is a matter of discretion. What CPS may be seeking to do is something that Mr. Bush should have been aware of early on. What CPS may or may not be able to do as a result of whatever happens here is a whole other matter. And the motion to withdraw the guilty plea is denied by the court.
After this ruling, the trial court conducted a sentencing hearing and pronounced sentence. Bush appeals, challenging the trial court's denial of his motion to withdraw his plea.
APPLICABLE LAW AND STANDARD OF REVIEW
A defendant may withdraw his guilty plea as a matter of right without assigning a reason at any time before judgment is pronounced or the trial court takes the plea under advisement. Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979); Crumpton v. State, 179 S.W.3d 722, 724 (Tex. App.—Fort Worth 2005, pet. ref'd); Harling v. State, 899 S.W.2d 9, 11 (Tex. App.—San Antonio 1995, pet. ref'd). After the trial court has admonished the defendant and received the plea and evidence, the passage of the case for a presentence investigation constitutes taking the case under advisement. See Jackson, 590 S.W.2d at 514-15; Saldana v. State, 150 S.W.3d 486, 490 (Tex. App.—Austin 2004, no pet.) (quoting Harling, 899 S.W.2d at 12). After the trial court takes the case under advisement, a request to withdraw the plea is untimely, and the withdrawal of the plea is within the sound discretion of the trial court. Jackson, 590 S.W.2d at 515; Saldana, 150 S.W.3d at 490; Harling, 899 S.W.2d at 11-12. Because Bush did not request that his guilty plea be withdrawn until after the trial court had taken his case under advisement, we review the trial court's denial of his motion to withdraw his plea for an abuse of discretion. See Jackson, 590 S.W.2d at 515; Crumpton, 179 S.W.3d at 724; Harling, 899 S.W.2d at 12.
A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). In determining whether the trial court abused its discretion, we must uphold the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Willover v. State, 70 S.W.2d 841, 845 (Tex. Crim. App. 2002); Crumpton, 179 S.W.3d at 724. We must also review the trial court's ruling in light of what was before the trial court at the time the ruling was made. Willover, 70 S.W.3d at 845; Crumpton, 179 S.W.3d at 724. Under an abuse of discretion standard, the trial court will not be overturned as long as its ruling was within the zone of reasonable disagreement. Wolfe v. State, 509 S.W.3d 325, 335 (Tex. Crim. App. 2017); Crumpton, 179 S.W.3d at 724.
DISCUSSION
In his first issue, Bush asserts the trial court abused its discretion because the statements made in his motion to withdraw were the only sworn statements before the trial court. Bush further asserts the trial court could not consider the prosecutor's unsworn statements at the hearing to controvert the statements in his sworn motion.
As previously noted, however, this court must review the trial court's ruling in light of what was before the trial court at the time the ruling was made. Willover, 70 S.W.3d at 845; Crumpton, 179 S.W.3d at 724. In this case, the record reflects the trial court asked the attorneys to provide a procedural history of the case. After the prosecutor informed the trial court that the case had been reset on multiple occasions to allow Bush to address the pending CPS case, defense counsel affirmed that the prosecutor's description of the procedural history was accurate.
Bush cites this court's opinion in Mendoza v. State, 61 S.W.3d 498, 502 n.3 (Tex. App.—San Antonio 2001), aff'd, 88 S.W.3d 236 (Tex. Crim. App. 2002), to contend unsworn statements by an attorney are not evidence. However, in Mendoza, this court noted there are exceptions to that rule. Id. In the case cited by this court in support of the rule, the court noted "if 'non-evidence' is 'introduced' and considered by the court without objection, it then becomes 'evidence.'" Lott v. City of Fort Worth, 840 S.W.2d 146, 150 (Tex. App.—Fort Worth 1992, no pet.); see also Peterson v. State, 961 S.W.2d 308, 311 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd) (same).
In this case, not only was the procedural history of the case introduced without objection in response to a direct request by the trial court for that procedural history, defense counsel expressly affirmed the information was accurate. Accordingly, we hold the statements made regarding the procedural history were evidence the trial court could consider.
In making this request, the trial court was relying on the attorneys providing accurate information because they are officers of the court. See Holloway v. Arkansas, 435 U.S. 475, 486 (1978) ("[A]ttorneys are officers of the court, and when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.") (internal quotation omitted).
Pending before the court is Bush's motion to strike a finding of fact made by the trial court at a hearing held on December 8, 2017, to determine whether the presentence investigation report should be included in a supplemental clerk's record. Because we do not consider the trial court's finding in our analysis, Bush's motion is moot.
Based on the procedural history, the trial court could have disbelieved that Bush was not aware that his plea "would likely result in the termination of Bush's parental rights with regard to his two children." And, the trial court expressed its disbelief on the record commenting, "What CPS may be seeking to do is something that Mr. Bush should have been aware of early on." Therefore, reviewing the trial court's ruling in light of what was before the trial court at the time the ruling was made, we hold the trial court's denial of Bush's motion was not an abuse of discretion. Willover, 70 S.W.3d at 845; Crumpton, 179 S.W.3d at 724.
Bush also contends the trial court erred in denying his motion by applying the collateral-consequence rule which has been rejected by the United States Supreme Court in Padilla v. Kentucky, 559 U.S. 356 (2010). In Padilla, the United States Supreme Court "reject[ed] the Kentucky Supreme Court's holding that a defendant's Sixth Amendment right to effective assistance of counsel does not extend to the collateral consequences of a defendant's guilty plea" and held "defense attorneys must advise non-citizen clients about the deportation risks of a guilty plea" when those risks are clear. Ex parte De Los Reyes, 392 S.W.3d 675, 677 (Tex. Crim. App. 2013). Presumably, Bush believes the trial court's reference to the parental termination case as being a "whole other matter" meant that the trial court considered the parental termination case to be a collateral consequence that had no impact on Bush's plea. We disagree the trial court's comment should be interpreted in that manner. Instead, the trial court appeared to be recognizing Bush's conviction did not automatically mean his parental rights would be terminated because the parental termination case had its own separate elements the Texas Department of Family and Protective Services would be required to prove. See TEX. FAM. CODE ANN. §§ 161.001, 161.206(a) (West Supp. 2017) (requiring Department to prove by clear and convincing evidence: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child). Therefore, we overrule Bush's second issue and conclude the trial court did not abuse its discretion in denying Bush's motion to withdraw his plea.
CONCLUSION
The trial court's judgment is affirmed.
Sandee Bryan Marion, Chief Justice DO NOT PUBLISH