Opinion
No. 05-04-01582-CR
Opinion Filed November 14, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-56929-NU. Affirm.
Before Justices MOSELEY, O'NEILL, and RICHTER.
OPINION
After an initial plea of not guilty and the examination of four of the State's witnesses, Fidel Angel Quintanilla, a Mexican national, pleaded guilty before a jury to the aggravated assault of Fidel Torres. Pursuant to that plea, the jury convicted Quintanilla of aggravated assault, and eight days later the trial judge assessed punishment at eighteen years' confinement. On appeal, Quintanilla asserts in three issues that his plea was involuntary and the trial judge erred in not sua sponte withdrawing it. In an additional issue, he asserts the jury, not the judge, should have assessed punishment. We affirm. Quintanilla's first two issues are based on his testimony during punishment that he shot Torres only after Torres "grabbed [him] by the shirt collar . . . and started to hit him on the face." Quintanilla maintains this testimony fairly raised an issue regarding his guilt and the trial judge should have sua sponte withdrawn his guilty plea. Quintanilla's issues are based on the long-standing tenet that a trial judge commits reversible error if he does not sua sponte withdraw a guilty plea in any case where evidence is introduced which reasonably and fairly raises an issue as to the defendant's innocence. See Griffin v. State, 703 S.W.2d 193, 195 (Tex.Crim.App. 1986); Montalvo v. State, 572 S.W.2d 714, 715 (Tex.Crim.App. 1978); Gates v. State, 543 S.W.2d 360, 362 (Tex.Crim.App. 1976). Recently, however, the Texas Court of Criminal Appeals determined that while a defendant has a right on timely request to change his plea of guilty to not guilty, the court has no duty to change the pleas on it's own motion. Mendez v. State, 138 S.W.3d 334, 336 (Tex.Crim.App. 2004). In a jury trial, when evidence inconsistent with guilt is presented, the defendant must seek to withdraw his plea of guilty "in one way or another" before the jury retires to deliberate its verdict. Id. at 345, 350. A defendant's failure to request to change his plea in a timely manner waives any complaint on appeal that the trial court erred in not withdrawing his plea. Id. at 350. Here, nothing in the record reflects Quintanilla moved to withdraw his plea before the jury deliberated. In fact, the testimony upon which Quintanilla relies as being inconsistent with guilt and warranting withdrawal of his plea was not elicited until punishment, eight days after the jury had returned its verdict. Quintanilla did not seek to withdraw his plea then either and even if he had, his request would have been untimely. See id. at 345. Because Quintanilla did not timely seek to withdraw his plea, he cannot complain now that the judge erred in not doing it for him. See id. at 350. We resolve Quintanilla's first two issues against him. In his third issue, Quintanilla complains his plea was involuntary because the trial judge, aware of Quintanilla's nationality, failed to admonish him of the immigration consequences of his plea as required under article 26.13 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (Vernon Supp. 2005). Quintanilla is correct that a guilty plea may be rendered involuntary when the defendant is not admonished in accordance with article 26.13, but that principle applies only to consequences which are direct, not consequences such as deportation consequences which are imposed within the trial judge's discretion or by an agency operating beyond the authority of the judge. See State v. Jimenez, 987 S.W.2d 886, 888-89 n. 6 (Tex.Crim.App. 1999). Failure of a trial judge to admonish a defendant regarding such collateral consequences is statutory error subject to a harm analysis. Carranza v. State, 980 S.W.2d 653, 656, 658 (Tex.Crim.App. 1998); Hwang v. State, 130 S.W.3d 496, 499 (Tex.App.-Dallas 2004, pet. ref'd). Such error is harmful where the record supports an inference that the defendant did not know the consequences of his plea and the defendant was misled or harmed by the court's admonishment. Carranza, 980 S.W.2d at 658; Hwang, 130 S.W.3d at 499-500. Here, the record reflects the judge did not properly admonish Quintanilla concerning the immigration consequences of his plea. Accordingly, error occurred. Carranza, 980 S.W.2d at 656; Hwang, 130 S.W.3d at 499. However, we conclude Quintanilla was not harmed because the record reflects he had previously been deported for committing a crime, he reentered the country illegally and has since been convicted of at least one other crime for which he was properly admonished about the consequences of his plea, and had, nine months prior to the trial in this case, signed a written plea agreement in which he acknowledged he could be deported, excluded from admission into the United States, or denied naturalization. From this, we can infer Quintanilla was aware of the deportation consequences of his plea and nothing in the record shows otherwise. We resolve this issue against him. In his final issue, Quintanilla asserts the jury, not the trial judge, should have assessed punishment. Relevant to this issue, the record reflects that prior to trial Quintanilla made a written election for the jury to assess punishment. However, after he changed his not guilty plea to guilty, he elected that sentencing be before the judge. This change is allowed under section 2(b) of article 37.07 of the Texas Code of Criminal Procedure provided that the attorney for the State consents. Id. art. 37.07, § 2(b). The record here, though, does not specifically reflect the prosecutor consented. As such, Quintanilla maintains, the jury should have assessed punishment. Quintanilla's complaint assumes, without any supporting authority, that consent must specifically be reflected in the record. As the State points out, however, the record fails to show the prosecutor objected to the change in election at any point in the trial despite ample opportunity to do so. From this, we presume the prosecutor consented. See Prudhomme v. State, 47 S.W.3d 683, 690 (Tex.App.-Texarkana 2001, pet. ref'd) ("[w]here a defendant elects at the beginning of trial to have the jury assess punishment, it is presumed such defendant agreed at the end of trial for the court to assess punishment where, as here, the court did so and no objection by either party appears in the record."). We resolve Quintanilla's fourth issue against him. We affirm the trial court's judgment.