Opinion
No. 05-07-00365-CR
Opinion Filed July 26, 2007.
On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F06-22655-SP.
Before Justices WHITTINGTON, BRIDGES, and LANG-MIERS.
OPINION
Eder Ivan Ibarra-Balderas waived a jury and pleaded guilty to possession with intent to deliver cocaine in an amount of more than 400 grams. See Tex. Health Safety Code Ann. § 481.112(a), (f) (Vernon 2003). The trial court assessed punishment at fifteen years' imprisonment and a $2500 fine. In two issues, appellant contends the trial court abused its discretion by not sua sponte withdrawing his guilty plea and not granting his motion for new trial. We affirm the trial court's judgment. Appellant testified at the plea hearing through a sworn interpreter. Appellant testified he understood the charges in the indictment, the punishment range for the offense, and the court's admonishments, including the deportation consequences of his guilty plea. Appellant testified he was freely and voluntarily pleading guilty to the charges in the indictment because he was guilty and for no other reason. Appellant also testified he understood that because he had no plea agreement in this case, the trial court would hear evidence and decide whether to place appellant on deferred probation or send him to prison. Appellant's signed judicial confession and stipulation of evidence was admitted without objection. During sentencing, the trial court heard testimony from Victor Rodriguez, a Dallas County Sheriff's narcotics officer. Rodriguez testified he witnessed a drug transaction between appellant and a confidential informant (CI) on May 2, 2006. The CI had been negotiating with a man named "Guerro" to purchase five kilograms of cocaine for $15,100. Guerro agreed to meet the CI at a hotel to make the exchange. When Guerro arrived at the hotel parking lot, two other men were in the vehicle with him, Carlos Villegas and appellant. Appellant was sitting in the back seat. Guerro talked with the CI for several minutes, during which time appellant showed the CI a bag containing cocaine. Rodriguez testified that after receiving a telephone call from the CI saying he saw the drugs, he and other officers arrested Guerro, Villegas, and appellant. When officers searched Guerro's vehicle, they found a bag that contained five kilograms of cocaine and a gun in the glove compartment. Officers also found a gun in Villegas's pocket. During questioning, appellant said the cocaine belonged to Villegas, and he did not know there were drugs inside the vehicle until they arrived at the hotel. Appellant testified he knew Villegas sold drugs for money because Villegas is his cousin. Appellant testified he went to Villegas's apartment to pick up a vacuum cleaner to take to his aunt. Villegas put the vacuum in his car, then asked appellant to go with him to give someone a ride. Villegas drove to another apartment complex and picked up Guerro. When Guerro got in the car, he put a gun in the glove compartment. Villegas then drove to a parking lot and got a black bag from "someone." After Guerro put the bag in the trunk, Villegas drove to the hotel. At the hotel, Guerro got out of the car and talked with a man. Appellant testified he did not know what was going on until they got to the hotel, and he did not recall touching the black bag. In his first issue, appellant argues the trial court abused its discretion by not sua sponte withdrawing his guilty plea because he denied being a party to the drug transaction. 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. We resolve appellant's first issue against him. In his second issue, appellant argues the trial court abused its discretion by not granting his motion for new trial, which contained a request to withdraw his guilty plea. We review the trial court's decision to deny a motion for new trial or allow it to be overruled by operation of law for an abuse of discretion. See Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001). The granting or denying of a motion for new trial lies within the discretion of the trial court. We may not substitute our judgment for that of the trial court, but rather we may only decide whether the trial court's decision was arbitrary or unreasonable. See Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App. 1995). In appellant's motion for new trial, he alleged he did not receive effective assistance of counsel. Appellant recited several reasons why he believed counsel was ineffective, including counsel's failure to explain the ramifications of entering an open guilty plea, not communicating with appellant, and leading appellant and his family to believe appellant would receive probation. Appellant complained that because he does not speak or understand English, his judicial confession and guilty plea should be set aside and a plea of not guilty should be entered. The record also contains a sworn affidavit from trial counsel that states counsel speaks fluent Spanish, communicated well with appellant at all times, explained the charges in the indictment and the punishment range to appellant, and recommended appellant reject a twenty-five-year prison term from the State so appellant could "go open" to the court and ask for deferred probation. Counsel's affidavit also avers he never told appellant he would receive probation, and appellant understood that only the trial court would decide the appropriate punishment. The trial court did not hold a hearing on appellant's motion, allowing it to be overruled by operation of law. We conclude the trial court did not abuse its discretion by not granting appellant's motion for new trial. See id. We resolve appellant's second issue against him. We affirm the trial court's judgment.
Appellant's brief recites a single issue that the trial court abused its discretion in not sua sponte withdrawing his guilty plea. However, he also complains the trial court abused its discretion in denying his request to withdraw his guilty plea by not granting his motion for new trial. Therefore, we will address his complaints as two separate issues.