Opinion
NO. 01-17-00023-CV
02-01-2018
R.L., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 315th District Court Harris County, Texas
Trial Court Case No. 2014-04593J
MEMORANDUM OPINION
R.L., a juvenile, was charged with aggravated assault with a deadly weapon. Appellant stipulated that "if the witnesses were called to testify under oath they would testify" that he "did then and there unlawfully, recklessly cause serious bodily injury to [the complainant] by shooting the complainant with a weapon, namely a firearm." The trial court admonished appellant in accordance with Section 54.03(b) of the Family Code, accepted the stipulated evidence and appellant's "no contest" plea, and adjudicated appellant delinquent. After a determinate sentencing hearing, the trial court assessed punishment at 10 years in the Texas Juvenile Justice Department with a possible transfer to the Texas Department of Criminal Justice. In his sole issue on appeal, appellant contends that his plea was involuntary and that the trial court erred by not withdrawing his no contest plea. We affirm.
See TEX. PENAL CODE ANN. § 22.02(a)(2), (b) (West 2011).
BACKGROUND
After accepting the stipulation of evidence and appellant's no contest plea, the trial court held a non-jury, determinate sentencing hearing. During the hearing, the complainant testified that appellant approached her while she was talking with friends, put a gun to her face, and asked her, "Bitch, do you want to see how my gun and bullets feel?" The complainant was about to say, "Get the gun out of my face" and push it aside, when it went off, shooting her in the cheek. As a result of her injury, she was in the hospital for three months before being transferred to a rehabilitation facility for another three months. The bullet tip was lodged in her spine and she had to relearn how to walk, talk, and eat.
Appellant testified on his own behalf at the hearing. He denied putting the gun to the complainant's face and called the shooting "just a tragic accident." He testified as follows:
There was no gun to no one's face. It was a group of people and the gun fell and shot off and then everything was white. It was in the gazebo. And it was, like, shocking and I couldn't see anything. And then when I finally saw, everyone was running. I did not point the gun at her cheek and shoot her.
The trial court disbelieved appellant's version of the shooting, noting that "although admonished, [that he] did not have to testify, [he] did, and apparently lied to the Court suggesting that he just simply does not get it." Thereafter, the trial court assessed appellant's punishment at 10 years' confinement in the Texas Juvenile Justice Department, with a possible of transfer to the Texas Department of Criminal Justice.
WITHDRAWAL OF PLEA
On appeal, appellant contends that the trial court erred by:
[F]ailing to withdraw appellant's plea of true to the offense of aggravated assault because it was not voluntarily, knowingly or intelligently entered as shown at the disposition hearing where he denied committing the offense and failed to understand the culpable mental state of recklessness.
Essentially, appellant claims that when he testified at the determinate sentencing hearing that he did not point a gun at the complainant, and that his shooting of her was a "tragic accident," his testimony evidenced that he did not understand what "reckless" meant and the trial court should have withdrawn his plea.
Standard of Review and Juvenile Pleas
To satisfy due process, a guilty plea "must be entered knowingly, intelligently, and voluntarily." Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); see also TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (West Supp. 2017) (requiring that guilty plea be free and voluntary). In examining the voluntariness of a guilty plea, we examine the record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). When the record reflects that a defendant was duly admonished by the trial court before entering a guilty plea, it constitutes a prima facie showing that the plea was both knowing and voluntary. Id. Section 54.03(b) of the Family Code sets forth the admonishments required in juvenile proceedings:
(1) the allegations made against the child;TEX. FAM. CODE ANN. § 54.03(b) (West 2014). When the record demonstrates that the defendant was properly admonished, the burden then shifts to the defendant to show that he entered the plea without understanding the consequences of his actions and was harmed as a result. Martinez, 981 S.W.2d at 197. "The trial court is not required to withdraw a plea of guilty sua sponte and enter a plea of not guilty for a defendant when the defendant enters a plea of guilty before the court after waiving a jury, even if evidence is adduced that reasonably and fairly raises an issue as to his guilt." Rivera v. State, 123 S.W.3d 21, 32-33 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd) (citing Thomas v. State, 599 S.W.2d 823, 824 (Tex. Crim. App. 1980)).
(2) the nature and possible consequences of the proceedings, including the law relating to the admissibility of the record of a juvenile court adjudication in a criminal proceeding;
(3) the child's privilege against self-incrimination;
(4) the child's right to trial and to confrontation of witnesses;
(5) the child's right to representation by an attorney if he is not already represented; and
(6) the child's right to trial by jury.
Analysis
Appellant concedes that he stipulated that the witnesses would testify that he "recklessly" caused bodily injury to the complainant, but argues that his subsequent testimony about the shooting being a "tragic accident" shows that he did not understand the legal definition of "reckless." As a result, appellant contends that his plea should have been withdrawn because it was not knowingly, intelligently, and voluntarily made.
This Court considered a similar claim in In re J.B., No. 01-13-00844-CV, 2014 WL 6998068 (Tex. App.—Houston [1st Dist.] Dec. 11, 2014, no pet.) (mem. op.). In that case, the juvenile defendant stipulated to the evidence of his guilt and pleaded "true" to the State's charge alleging aggravated robbery with a deadly weapon. Id. at *1. The trial court properly admonished the juvenile, accepted the stipulated evidence, and adjudicated the juvenile delinquent. Id. At the disposition hearing, the juvenile testified that he used a toy gun when committing the offense. Id. On appeal, the juvenile contended that his plea was not voluntary, knowing, or intelligent because it was based on his erroneous belief that aggravated robbery could be committed with a toy gun. Id. This Court noted that the evidence the juvenile relied on was presented during the disposition hearing, after he was adjudicated delinquent. Id. at *2. Thus, the question presented was whether the trial court had a duty to sua sponte withdraw the juvenile's plea. Id. Because the juvenile had not requested that he be allowed to withdraw his plea, the trial court was not required to sua sponte withdraw the plea, even if there was evidence at the disposition hearing that reasonably and fairly raised an issue as to his guilt. Id. at *3 (citing Rivera, 123 S.W.3d at 32-33).
The same is true in this case. The record shows that the trial court admonished appellant, who was represented by counsel, regarding the allegations against him, the consequences of the proceeding, including the admissibility of his juvenile record in criminal proceedings, his right to remain silent, his right to a trial or a trial by jury, and his right to confront witnesses. See TEX. FAM. CODE ANN. § 54.03(b). Thus, appellant bears the burden to show that he entered his plea without understanding its consequences and was harmed as a result. Martinez, 981 S.W.2d at 197; J.B., 2014 WL 6998068, at *2.
The trial court accepted appellant's stipulation and adjudicated him delinquent before appellant presented evidence that he claims evidences his misunderstanding of the culpable mental state required to prove the charged offense. Appellant did not file a timely motion for new trial asking the court to withdraw his plea. Therefore, the trial court was under no duty to sua sponte withdraw appellant's plea. See Rivera, 123 S.W.3d at 32-33; J.B., 2014 WL 6998068, at *3.
Nevertheless, appellant argues that J.B. is distinguishable, claiming that he did, in fact, ask the trial court to withdraw his guilty plea in his First Supplemental Motion for New Trial or, Alternatively, to Modify Judgment. However, at a post-trial hearing, appellant's counsel admitted that this amended motion for new trial was filed on February 10, 2017, more than 30 days after the disposition order was signed on December 2, 2016. The Juvenile Justice Code provides that "[a] motion for new trial seeking to vacate an adjudication is . . . timely if the motion is filed not later than the 30th day after the date which the disposition order is signed; and . . . governed by Rule 21, Texas Rules of Appellate Procedure." TEX. FAM. CODE. ANN. § 56.01(b-1)(1) (West Supp. 2017). Rule 21 of the Texas Rule of Appellate Procedure provides that:
Within 30 days after the date when the court imposes or suspends sentence in open court but before the court overrules any preceding
motion for new trial, a defendant may, without leave of court, file one or more amended motions for new trial.TEX. R. APP. P. 21.4(b). A motion for new trial must be filed within thirty days after sentence is imposed or suspended in open court. State v. Arizmendi, 519 S.W.3d 143, 150 (Tex. Crim. App. 2017) (citing TEX. R. APP. 21). The motion can be amended at any time during that thirty-day period, but the trial court is barred from considering a ground raised outside the thirty-day period if the State properly objects. Id.
Because appellant's First Supplemental Motion for New Trial, in which he claims to have asked the trial court to withdraw his plea, was filed more than 30 days after the December 2, 2016 disposition order, it was untimely. And, indeed, appellant's original motion for new trial was overruled by operation of law on February 15, 2017.
Because appellant did not timely request that his plea be withdrawn, the holding in J.B. applies, and the trial court was under no duty to sua sponte withdraw appellant's plea. See Rivera, 123 S.W.3d at 32-33; J.B., 2014 WL 6998068, at *3.
We overrule appellant's sole issue.
CONCLUSION
We affirm the trial court's judgment.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Higley and Bland.