Opinion
No. 05-02-00079-CR.
Opinion Filed January 7, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-73357-RM. AFFIRM.
Before Justices MORRIS, JAMES, and FITZGERALD.
OPINION
Dwayne Matthew Hooper appeals his conviction for theft of property valued at $20,000 or more but less than $100,000. See Tex. Pen. Code Ann. § 31.03(a), (e)(5) (Vernon Supp. 2003). Appellant waived a jury trial, entered a non-negotiated guilty plea, and pleaded true to two enhancement paragraphs. The trial court found the enhancement paragraphs true and sentenced appellant to twenty-five years' confinement. In four points of error, appellant contends the trial court erred in (1) not allowing appellant to withdraw his plea of true to the second enhancement paragraph, (2) denying appellant's motion to withdraw his guilty plea, (3) entering judgment of guilt against appellant without written approval of appellant's waivers and consents, and (4) refusing to consider appellant's application for community supervision. Appellant also asserts the evidence is insufficient to support the conviction. We affirm the trial court's judgment. In his first point of error, appellant contends the trial court erred in refusing to allow him to withdraw his plea of true to the second enhancement paragraph before the judgment was entered or the case was taken under advisement. Appellant argues that, although he entered pleas of true to both enhancement paragraphs in open court and signed papers affirming those pleas, there is no indication in the record the trial court accepted the pleas of true before appellant sought to withdraw his plea of true to the second enhancement paragraph. The State argues appellant failed to object at trial, and appellant never told the trial court he wanted to withdraw his plea of true to the second enhancement paragraph. We agree with the State. Appellant did not complain about his plea of true to the second enhancement paragraph at trial or in his motion for new trial. Even constitutional complaints may be waived by the failure to raise a timely objection in the trial court. See Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995). By failing to object in the trial court, appellant has waived his complaint. See Tex. R. App. P. 33.1. Moreover, there is nothing in the record that shows appellant wanted to withdraw his plea of true to the second paragraph. During the plea hearing, appellant pleaded true to having a 1998 felony conviction for aggravated assault and a 1990 felony conviction for possession with intent to deliver a controlled substance. After appellant testified and both sides announced they had nothing further, the trial judge stated he would pass the case for a presentence investigation report (PSI). At that point, appellant told the judge he was not guilty of the "drug case." Appellant did not deny he had been convicted of the prior conviction alleged; he only sought to disclaim his guilt for the offense. Appellant never indicated he wanted to withdraw his plea of true to either of the enhancement paragraphs. We overrule appellant's first point of error. In his second point of error, appellant contends the trial court erred when it denied his motion to withdraw his guilty plea. Appellant argues he did not understand the consequences of his guilty plea, he was led to believe he had a plea bargain agreement in which the State recommended probation, and the trial court failed to properly take the case under advisement or pronounce judgment until after appellant's motion to withdraw his guilty plea had been presented to the trial court. The State argues the trial court had discretion in determining whether to withdraw appellant's guilty plea. We agree with the State. Generally, a defendant may withdraw his plea any time before judgment is pronounced or the case is taken under advisement by the court. See Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim. App. [Panel Op.] 1979); Scott v. State, 860 S.W.2d 645, 646 (Tex.App.-Dallas 1993, no pet.). When a plea agreement exists, the trial court must either follow the prosecutor's punishment recommendation or allow the defendant to withdraw his plea. Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2003). However, when a defendant pleads guilty without a plea agreement and judgment has been pronounced or the case has been taken under advisement, the trial court's decision whether to allow a defendant to withdraw his plea is discretionary. See Jackson, 590 S.W.2d at 515; Thompson v. State, 852 S.W.2d 268, 270 (Tex.App.-Dallas 1993, no pet.). A trial court abuses that discretion only when the trial court's ruling lies outside the "zone of reasonable disagreement." See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g). At the December 3, 2001 plea hearing, appellant entered an open guilty plea to the indictment. After carefully admonishing appellant and taking evidence, the trial judge passed the case for a PSI. Appellant filed a pro se motion to withdraw his guilty plea on December 12, 2001, after the case had been taken under advisement. At the December 19, 2001 sentencing hearing, the trial judge heard argument on appellant's motion to withdraw the plea, and heard testimony from the prosecutor and appellant's counsel that there was no plea bargain agreement in this case because appellant had turned down a previous offer by the State. The trial judge clearly denied appellant's motion when he sentenced appellant to twenty-five years' confinement. We conclude appellant has failed to show the trial court abused its discretion in denying appellant's pro se motion to withdraw his guilty plea. See Jackson, 590 S.W.2d at 515; Thompson, 852 S.W.2d at 268. Accordingly, we overrule appellant's second point of error. In his third and fourth points of error, appellant contends the evidence was insufficient to support the conviction because a judicial confession offered by the State was never admitted into evidence or signed by the trial judge, and the trial court violated article 1.15 when it entered a judgment of guilt without written approval of appellant's waivers and consents. Appellant argues that although there seems to be a judicial confession, stipulation of evidence, and jury waiver in the record, none of them bears written approval of the trial court. The State argues the judicial confession contained in the record is sufficient evidence to support the conviction, and the trial court complied with the mandatory provisions of article 1.15. We agree with the State. When a defendant pleads guilty, the State must introduce sufficient evidence into the record to support the plea and show the defendant is guilty, and said evidence shall be accepted by the court as the basis for its judgment. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2003); see also Ex parte Martin, 747 S.W.2d 789, 792-93 (Tex.Crim.App. 1988). The evidence may be stipulated if the defendant, in writing, waives the appearance, confrontation, and cross-examination of witnesses and consents to the introduction of documentary evidence in support of the judgment. Tex. Code Crim. Proc. Ann. art. 1.15. When a defendant voluntarily enters a plea of guilty, we do not apply the Jackson "rationality" test in reviewing the sufficiency of the evidence. See Ex parte Martin, 747 S.W.2d at 791. Rather, we affirm the trial court's judgment if the evidence introduced embraces every essential element of the offense charged and is sufficient to establish a defendant's guilt. Stone v. State, 919 S.W.2d 424, 427 (Tex.Crim.App. 1996). Here, the record contains appellant's signed judicial confession that tracks the indictment. At the plea hearing, the State offered the judicial confession into evidence without objection by appellant. A judicial confession admitted into evidence and contained in the transcript is sufficient to prove appellant's guilt. Pitts v. State, 916 S.W.2d 507, 510 (Tex.Crim. App. 1996); Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim. App. 1980) (op. on reh'g). Appellant did not object when the trial court treated his confession as if it had been admitted. Killion v. State, 503 S.W.2d 765, 766 (Tex.Crim. App. 1973). Moreover, the trial court's judgment states the judge approved appellant's waivers. We conclude the evidence is sufficient to support the conviction and that the trial court complied with the article 1.15 provisions. We overrule appellant's third and fourth points of error. In his fifth point of error, appellant contends the trial court erred in refusing to consider his application for community supervision. The trial court's refusal to consider the full range of punishment, appellant argues, denied him due process. The State argues there is nothing in the record that shows the trial court did not consider the full range of punishment, and appellant did not object at trial to the denial of deferred adjudication probation. It is a denial of due process for the trial court to arbitrarily refuse to consider the entire range of punishment for an offense, or to refuse to consider the evidence and impose a predetermined sentence. See Jefferson v. State, 803 S.W.2d 470, 471 (Tex.App.-Dallas 1991, pet. ref'd). Appellant argues he made it clear he sought deferred adjudication community supervision and not regular probation, but the trial court mistakenly thought he was seeking regular probation, for which appellant was not eligible. Thus, appellant argues, he was denied due process. Initially, we agree appellant did not complain about the sentence during the trial proceedings or in his motion for new trial, and, thus, has waived his complaint. See Tex. R. App. P. 33.1; Cole v. State, 931 S.W.2d 578, 580 (Tex.App.-Dallas 1995, pet. ref'd). Moreover, we conclude the record does not support appellant's complaint. The trial judge told appellant that even if a different prosecutor testified on appellant's behalf that appellant should get probation because appellant testified for the State in another case, the decision whether to grant probation still rested with the trial judge. Appellant testified he understood the judge would decide whether he received "probation," never specifying deferred adjudication or regular probation, and stated he wanted Cenikor drug treatment. After sentencing, the judge stated he would have sentenced appellant to between forty-five to sixty years but for appellant's helpful testimony on behalf of the State in a different case. Nothing in the record shows the trial court refused to consider appellant's request for community supervision or the full range of punishment. We overrule appellant's fifth point of error. We affirm the trial court's judgment.
The State also argues (1) appellant was not entitled to a pro se motion to withdraw his guilty plea when he was represented at trial by counsel, and (2) appellant failed to preserve error and did not obtain a ruling on his motion at trial. We will assume appellant has preserved error by filing his motion to withdraw his guilty plea in the trial court, and will address the merits of appellant's claim.