Opinion
No. 05-03-01061-CR
Opinion issued August 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F03-50780-WL.
Affirmed.
OPINION
Following appellant Victor Flores's non-negotiated guilty plea to the second-degree felony offense of robbery, the trial court accepted appellant's plea and assessed his punishment at fifteen years' imprisonment and a $2500 fine. See Tex. Pen. Code Ann. §§ 12.33, 29.02 (Vernon 2003). In his appeal of that robbery conviction, appellant claims only that the trial court abused its discretion in not rejecting his plea of guilty. Concluding no reversible error is shown, we affirm.
Immediately following a probation revocation hearing in another of appellant's cases, appellant waived reading of the indictment in this case and pleaded guilty before the trial court to the offense of robbery. The State offered into evidence appellant's voluntary Judicial confession and stipulation of evidence which admitted the allegations contained in the indictment. Appellant also testified at the plea hearing. Appellant's contention on appeal that the trial court abused its discretion in not rejecting his guilty plea is based on his live testimony denying he intentionally caused bodily injury to the complainant by forcing her to the floor. Alternatively, based on his denial, appellant argues the trial court should have found him guilty only of theft.
Unpreserved Error
To preserve error in the trial court for later review on appeal, the record must show that
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context . . . and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
Tex.R.App.P. 33.1(a).
Because appellant made no such request, objection, or motion in the trial court, error has not been preserved for our review. See id.
The Merits
Even if error had been preserved for review, we would resolve appellant's issue against him. Case law is clear the trial court was not required to withdraw appellant's guilty plea. See Aldrich v. State, 104 S.W.3d 890, 892-896 (Tex.Crim.App. 2003). Since January 1, 1966, the effective date of the 1965 Code of Criminal Procedure when trial courts gained fact-finding authority, it has not been necessary for a trial court to withdraw a defendant's guilty plea entered before a trial court sitting as the trier-of-fact. Id. at 893. In such a circumstance, under current law, if evidence is presented that fairly raises an issue of that defendant's guilt or makes his innocence evident, the trial court's duty is only to consider the evidence submitted before deciding to either find the defendant guilty, not guilty, or guilty of a lesser offense. Id.
Theft
In relevant part, the record reflects the following exchange between the prosecutor and appellant during his live testimony:
Q. You broke into their house —
A. Yes, I did.
Q. — to take their stuff.
A. Yes, I did.
Q. And when the lady came home and confronted you, you assaulted her. You knocked her down, right?
A. I did not knock her down. She grabbed my shirt, and — well, I did, sir.
* * *
Q. So if the police saw visible cuts to her left elbow, injury to her right leg and hip and blood coming from her left elbow, that wasn't because you knocked her down?
A. She grabbed me by my shirt, and I turned like this (indicating). She tore my shirt. She tore my shirt, and she fell to the ground, sir.
Q. Oh, so that was her fault?
A. No. It was my fault.
(Emphasis added). We conclude the trial court was not required, based on the above evidence, to find appellant guilty of the lesser offense of theft. First, as factfinder, the trial court was not required to believe appellant's testimony. Second, even if the trial court did believe the testimony set out above, it would support the trial court's finding appellant guilty of robbery.
Error having been waived, nothing is presented for our review. And even if error had been preserved, there has been no showing that the trial court abused its discretion in this case. We, therefore, resolve appellant's sole issue against him and affirm the trial court's judgment.