Opinion
No. 05-11-00297-CR No. 05-11-00298-CR No. 05-11-00299-CR No. 05-11-01554-CR
06-21-2012
JOHN RICHARD PEREZ, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed June 21, 2012.
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F09-40455-R, F09-40456-R, F09-40457-R, and F09-40997-R
OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice FitzGerald
Appellant John Richard Perez pleaded guilty to four charges of aggravated sexual assault of a child. During the reception of evidence relating to punishment, appellant moved to withdraw his guilty plea. The trial judge denied the motion and ultimately sentenced appellant to 50 years' imprisonment on each charge. Appellant appeals the denial of his motion to withdraw his guilty plea. We affirm.
I. Background
Because appellant contends he moved to withdraw his guilty plea before the trial judge took the case under advisement, we review the sequence of events in some detail. The State indicted appellant on four counts of aggravated sexual assault of a child under the age of 14. He waived his right to a jury trial and pleaded guilty without a plea agreement in each of the four cases. Proceedings in his case took place on November 30, December 1, and December 29, 2010.
On November 30, 2010, appellant appeared in court. In response to questions from the trial judge, appellant confirmed that he was freely and voluntarily waiving his right to a jury trial and pleading guilty. Then the trial judge explained how the case would proceed:
What we're going to do is I'm going to take what we call your plea of guilty today. I will find that the evidence proves that you're guilty. I will then pass the case until tomorrow. Tomorrow we will hear evidence.Appellant answered, "Yes, Your Honor." After some further admonishments by the judge, appellant waived further reading of the indictments and pleaded guilty. The trial judge admitted into evidence appellant's signed judicial confession and stipulation of evidence. Both sides rested. Appellant and the State put on the record their agreement that no other cases would be filed against appellant in relation to five specific children and their agreement that appellant's sentences would run concurrently. After that, the judge said:
After I hear the evidence, whether it be tomorrow or if it takes into the next day or two, once all the evidence is finished, then I'll make a decision.
I can either defer a finding of guilt and place you on probation for up to 10 years or I could find you guilty and send you to prison for life. Do you understand that there is no agreement on what I'm going to do?
Court's in recess. I will see y'all tomorrow morning at 9:30. We'll start testimony shortly thereafter. Court's in recess until tomorrow morning when we'll hear testimony.That was the end of proceedings on November 30.
At the beginning of proceedings on December 1, the trial judge said the following:
Let's get on the record in Cause Nos. F09-40455, -40456, -40457 and -40997.After some additional remarks by the judge and a brief discussion with appellant's counsel confirming that appellant understood all the admonishments, the State called its first witness. The first witness was one of appellant's child victims. About five pages into her testimony, the witness testified that she knew John Perez. A few questions later, the State asked the witness, "And do you see him [John Perez] in the courtroom today? Can you look around the courtroom and see if you see him?" The witness answered, "No." After several more questions and answers, appellant's counsel requested a bench conference, which was granted. The conference was not recorded, but when the parties went back on the record the judge said, "Make a note that we had a bench conference and we'll put the results on the record at a later date."
Before we begin, I notice we have a lot of people in the audience and I'm sure some of you are here on behalf of the Defendant and some on behalf of the Complainant in these four cases.
Mr. Perez has entered a plea of guilty. We're not concerned today with whether he is or is not guilty. We're only concerned with what happened and the effect it had on the witnesses that will be testifying.
My function is not to decide the guilt of Mr. Perez, but to decide the punishment.
After the State finished its examination of the witness, the judge held a conference with the attorneys in his chambers. The conference was recorded. Appellant moved to withdraw his guilty plea in all four cases. The judge denied the motion and added, "I will allow you to reassert your motion at the end of the punishment hearing." Then proceedings resumed in the courtroom. Eight more witnesses testified for the State. The State rested, and appellant called one witness. At the end of the day's proceedings, the following colloquy took place between the judge and appellant's counsel: The Court:
. . . I want to clear up the record. Earlier today there was a bench conference concerning identification. I told the reporter to mark the record and she'd supplement it at a later date.Ms. Fox:
Is there anything you'd like to place on the record, Ms. Fox, concerning that bench conference?
Previously, the question was once the children who were complaining witnesses, slash, potential witnesses to these offenses, were unable to identify my client, we discussed the issue of withdrawing my client's pleas of guilty.The Court:
At that time I believe that that request was overruled, but after the testimony, I believe you stated that we could re-urge that.
I will allow you to re-urge that.Ms. Fox:
I think that's it, Your Honor.The judge then reminded all the witnesses not to discuss the case, and the hearing was recessed.
Proceedings resumed on December 29. Appellant called four witnesses. Then both sides rested, closed, and presented closing argument. The record does not reflect that appellant re-urged his motion to withdraw his guilty plea. After closing arguments, the judge found appellant guilty as charged in all four cases, and set punishment in each case at fifty years' imprisonment and a $3,000 fine.
Appellant timely perfected this appeal.
II. Analysis
Appellant raises two issues on appeal. In his first issue, he argues that the trial judge erred by denying appellant's motion to withdraw his guilty plea. In his second issue, he argues that his guilty plea became involuntary after the trial judge denied his motion to withdraw his plea.
A. Motion to withdraw guilty plea
A defendant may withdraw his guilty plea as a matter of right until judgment has been pronounced or the case has been taken under advisement. Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. [Panel Op.] 1979); Thompson v. State, 852 S.W.2d 268, 269-70 (Tex. App.-Dallas 1993, no pet.). If the defendant seeks to withdraw his guilty plea after the trial judge takes the case under advisement or pronounces judgment, the withdrawal of the plea is within the sound discretion of the trial judge. Jackson, 590 S.W.2d at 515; Thompson, 852 S.W.2d at 270. A case is taken under advisement when each side has concluded its presentation of evidence on the subject of guilt, the defendant's guilt has been established, and the only issue remaining to be decided is the appropriate punishment. Scott v. State, 860 S.W.2d 645, 646 (Tex. App.-Dallas 1993, no pet.). A trial judge abuses his discretion only when his ruling lies outside the zone of reasonable disagreement. Aldrich v. State, 53 S.W.3d 460, 467 n.3 (Tex. App.-Dallas 2001), aff'd, 104 S.W.3d 890 (Tex. Crim. App. 2003).
Appellant argues that he made a "timely request to withdraw his plea of guilty," which we construe to mean that he moved to withdraw his guilty plea before the trial judge took the case under advisement. We disagree. The record establishes that the trial judge took the case under advisement at the conclusion of the first day's proceedings. During those proceedings, the trial judge made the necessary admonishments, and appellant pleaded guilty. Appellant's signed confession was admitted into evidence, thereby establishing his guilt. Both sides concluded their presentations on the question of guilt and rested, and the trial court then recessed. When court reconvened the next day, the judge announced that the only issue then before him was punishment, not guilt. Thus, the record establishes that the case was taken under advisement when the court recessed the hearing on the first day. See Thompson, 852 S.W.2d at 270 (holding that case was taken under advisement once "[t]he only issue remaining to be decided was the appropriate punishment"). Appellant did not move to withdraw his guilty plea until the second day of the proceedings, during the first witness's testimony.
Because the case was already under advisement when appellant moved to withdraw his guilty plea, the question is whether the trial judge abused his discretion in denying appellant's motion to withdraw his plea. See Jackson, 590 S.W.2d at 515. We conclude that trial judge did not abuse his discretion. The judge had admonished appellant on the punishment ranges and ascertained that appellant made his plea freely and voluntarily. Appellant signed a written confession as to the charged offenses. The only apparent ground for the motion to withdraw was that the first complaining witness to testify, a ten-year-old girl, testified that she did not see her father's friend John Perez in the courtroom. We conclude the trial judge's decision to deny appellant's motion was within the zone of reasonable disagreement.
We reject appellant's first issue on appeal.
B. Voluntariness of appellants' plea
In his second issue on appeal, appellant asserts that his guilty plea became "constitutionally involuntary" in violation of his due process rights after the trial judge denied his motion to withdraw his plea. His entire argument relevant to this issue, however, consists only of the legal propositions that a guilty plea must be voluntary and that a plea is involuntary if it is coerced by threat or force, plus a conclusion that appellant's plea was rendered involuntary by the denial of his motion to withdraw guilty plea. Under the rules of appellate procedure, an appellant must present a clear and concise argument for the contentions made, supported with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(i). Contentions not supported with analysis of the authorities and application of the authorities to the facts of the case are not adequately briefed. See Fuqua v. State, No. 05-02-00980-CR, 2003 WL 21436496, at *1 (Tex. App.-Dallas June 23, 2003, pet. ref'd) (mem. op., not designated for publication) ("Because appellant develops no analysis supported by legal authority for these contentions, we conclude the issues are inadequately briefed."); see also Ripkowski v. State, 61 S.W.3d 378, 381 (Tex. Crim. App. 2001) (refusing to consider assertions unsupported by argument or authority); Wood v. State, 18 S.W.3d 642, 650-51 (Tex. Crim. App. 2000) (rejecting issue in which appellant did not develop an argument and cited no authority). Because appellant does not support his second issue with any analysis of the authorities, factual explanation, or citations to the record, we reject his second issue as inadequately briefed.
Moreover, a complaint regarding the voluntariness of a guilty plea must be preserved in the trial court. Mendez v. State, 138 S.W.3d 334, 339 n.5 (Tex. Crim. App. 2004); Ridgway v. State, No. 05-08-00493-CR, 2009 WL 1929460, at *1 (Tex. App.-Dallas July 7, 2009, no pet.) (not designated for publication). Appellant does not refer us to any part of the record that might show error preservation, and we have found none. We also reject appellant's second issue for failure to preserve error in the trial court.
Even if we were to consider appellant's second issue on the merits, we would reject it. Proper admonishment by the trial judge creates a prima facie showing that the defendant's plea was knowing and voluntary. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); McGill v. State, 200 S.W.3d 325, 333 (Tex. App.-Dallas 2006, no pet.). Appellant does not contend that the trial judge failed to properly admonish appellant before receiving his plea. The record shows that the trial judge verified that appellant was pleading guilty freely and voluntarily. Appellant cites nothing in the record to support the position that his plea resulted from coercion, threat, or force, and we see nothing in the record that would support such a claim. And finally, we have already held that the trial judge did not abuse his discretion by denying appellant's motion to withdraw his plea. Accordingly, to the extent appellant's second issue is premised on the trial court's denial of that motion, the issue is without merit.
We reject appellant's second issue on appeal.
III. Disposition
For the foregoing reasons, we affirm the trial court's judgments.
KERRY P. FITZGERALD
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110297F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JOHN RICHARD PEREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00297-CR
Appeal from the 265th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 40455-R).
Opinion delivered by Justice FitzGerald, Justices Murphy and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered June 21, 2012.
KERRY P. FITZGERALD
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JOHN RICHARD PEREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00298-CR
Appeal from the 265th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 40456-R).
Opinion delivered by Justice FitzGerald, Justices Murphy and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered June 21, 2012.
KERRY P. FITZGERALD
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JOHN RICHARD PEREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00299-CR
Appeal from the 265th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 40997-R).
Opinion delivered by Justice FitzGerald, Justices Murphy and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered June 21, 2012.
KERRY P. FITZGERALD
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JOHN RICHARD PEREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-01554-CR
Appeal from the 265th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 40457-R).
Opinion delivered by Justice FitzGerald, Justices Murphy and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered June 21, 2012.
KERRY P. FITZGERALD
JUSTICE