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Davis v. State

Court of Appeals of Texas, Fifth District, Dallas
Jul 31, 2007
No. 05-07-00089-CR (Tex. App. Jul. 31, 2007)

Opinion

No. 05-07-00089-CR

Opinion issued July 31, 2007. DO NOT PUBLISH Tex. R. App. P. 47

On Appeal from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause No. F06-69616-QK.

Before Justices Whittington, Bridges, and Lang-Miers.


OPINION


Rodney Dwayne Davis waived a jury, pleaded guilty to aggravated robbery with a deadly weapon, a firearm, and pleaded true to two enhancement paragraphs. After finding the enhancement paragraphs true, the trial court assessed punishment at life imprisonment. In five points of error, appellant contends the trial court abused its discretion in assessing an unreasonable sentence, not withdrawing appellant's guilty plea, failing to inquire about the voluntariness of appellant's guilty plea, and the sentence imposed constitutes cruel and unusual punishment. We affirm. During the plea hearing, appellant testified he understood the charges in the indictment and the punishment range in light of two enhancement paragraphs. Appellant testified he was freely and voluntarily pleading guilty to the charges in the indictment and true to the enhancement paragraphs. Appellant's signed judicial confession and plea of true and stipulation of evidence were admitted without objection. The complainant testified that as she washed her vehicle at a car wash around 4:00 p.m. on August 20, 2006, appellant pointed a gun at her. Appellant threatened to shoot her, saying, "[d]on't do nothing stupid or I will shoot you or take you back there and hurt you." Appellant took her cell phone, broke it in half, threw one half on the ground, then drove off in her car. After hearing all the evidence, the trial judge found appellant guilty and passed the case for sentencing. At the sentencing hearing, appellant testified he was high on drugs when he committed the robbery, and that he had a lighter in his hand at the time and not a gun. After the trial judge questioned appellant about why he pleaded guilty, appellant testified he was guilty of the aggravated robbery and that there was a gun "involved in the robbery." In his first three points of error, appellant argues the trial court assessed an unreasonable sentence, and the sentence constitutes cruel and unusual punishment, in violation of the United States and Texas Constitution. See U.S. Const. Amend. VIII, XIV; Tex. Const. art. 1, § 13. Appellant argues that because he needed drug treatment, the life sentence is grossly disproportionate to the offense. The State responds that appellant did not preserve his complaint for appellate review and, alternatively, the sentence does not violate the United States or Texas Constitution. Appellant did not complain about the sentence either at the time it was imposed or in his motion for new trial. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Castaneda, 135 S.W.3d at 723. Moreover, there is no evidence the sentence is cruel or unusual, and it is within the statutory punishment range for the offense. See Tex. Pen. Code Ann. § 12.32; Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.-Dallas 1997, pet. ref'd). We overrule appellant's first three points of error. In his fourth and fifth points of error, appellant argues the trial court abused its discretion by not sua sponte withdrawing his guilty plea or inquiring about the voluntariness of the guilty plea. Specifically, appellant asserts that because he testified he was holding a lighter and not a gun when he robbed the complainant, the trial court should have withdrawn his guilty plea. The State responds that appellant has not preserved the issue for review and, alternatively, the trial court did not abuse its discretion in failing to sua sponte withdraw appellant's guilty plea. Appellant did not complain about the trial court's alleged failure to withdraw his guilty plea during the proceedings or in his motion for new trial. See Tex. R. App. P. 33.1. Moreover, when the trial court acts as the fact finder, it is not required to withdraw a defendant's guilty plea sua sponte and enter a plea of not guilty because no purpose would be served by doing so. See Aldrich v. State, 53 S.W.3d 460, 467 (Tex.App.-Dallas 2001), aff'd, 104 S.W.3d 890 (Tex.Crim.App. 2003). When a defendant waives his right to a jury trial and enters a guilty plea, the trial court's duty is to consider all the evidence submitted. The trial court may find the defendant guilty as charged, guilty of a lesser-included offense, or not guilty, as the evidence requires. See id. Thus, the trial court had no duty to withdraw appellant's guilty plea and did not abuse its discretion in not doing so. Further, the record shows the trial court properly admonished appellant, and appellant understood the admonishments and the charges against him. See Tex. Code Crim. Proc. Ann. art. 26.13(a), (c) (Vernon Supp. 2006); Kirk, 949 S.W.2d at 771. There is nothing in the record showing appellant was misled by the trial court's admonishments or did not understand the consequences of his guilty plea. Appellant testified he was freely and voluntarily pleading guilty to the charges in the indictment, and admitted there was a gun involved in the robbery. Having reviewed the records, we conclude appellant's guilty plea was voluntary. See Kirk, 949 S.W.2d at 771. We overrule appellant's fourth and fifth points of error. We affirm the trial court's judgment.


Summaries of

Davis v. State

Court of Appeals of Texas, Fifth District, Dallas
Jul 31, 2007
No. 05-07-00089-CR (Tex. App. Jul. 31, 2007)
Case details for

Davis v. State

Case Details

Full title:RODNEY DWAYNE DAVIS, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 31, 2007

Citations

No. 05-07-00089-CR (Tex. App. Jul. 31, 2007)