Opinion
No. 05-09-01486-CR
Opinion issued November 16, 2010. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-13257-IU.
Before Justices BRIDGES, FRANCIS, and LANG.
MEMORANDUM OPINION
Robert Sarabia waived a jury and pleaded guilty to aggravated robbery of an elderly person. See Tex. Penal Code Ann. §§ 29.02(a)(1), 29.03(a)(3)(A) (West 2003). After finding appellant guilty, the trial court assessed punishment at thirty years' imprisonment. In a single point of error, appellant contends the trial court erred in failing to sua sponte withdraw his guilty plea. We affirm the trial court's judgment. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled. At the sentencing hearing, appellant testified that as he and Gilbert Flores were walking to a friend's house, Flores said, "Let's hit a lick." When Flores said he needed to use a telephone, appellant directed him to the home of eighty-two-year-old Janice Garrison. Appellant had known Garrison for several years because his father did yard work for her. Appellant said he stayed outside in the yard while Flores forced his way inside Garrison's home, tied her limbs with a telephone cord, covered her face and head with a towel, and demanded money. Appellant said he never hit Garrison in the head and face with a board or vase, and that he only went inside the house because he heard her screaming. Appellant told the trial court he got Garrison's car keys and drove her car from the house, and that he was "just as culpable for this" as Flores. When appellant was questioned by the police a few hours later, he initially lied, "minimized" his involvement, and implicated someone else. At the hearing, however, appellant said he was taking responsibility for his actions. In his sole point of error, appellant contends his guilty plea was involuntary because the trial court should have sua sponte withdrawn the guilty plea after his testimony raised a legitimate concern about the factual basis for the plea. Appellant asserts that because he denied his guilt during the proceedings and in a presentence report, and because he was directed to take the complainant's car keys by a co-defendant, the trial court should have withdrawn his guilty plea. The State responds that appellant failed to preserve his complaint for appellate review and, alternatively, the trial court did not err in not sua sponte withdrawing appellant's guilty plea. Appellant did not complain to the trial court about the voluntariness of his guilty plea either before or after his sentencing, including in his motion for new trial. See Tex. R. App. P. 33.1(a)(1). Moreover, when the trial judge acts as the fact finder in a case, even if evidence is presented that raises an issue as to a defendant's guilt, the judge is not required to withdraw a defendant's guilty plea sua sponte and enter a plea of not guilty. See Mendez v. State, 138 S.W.3d 334, 339, 350 (Tex. Crim. App. 2004); Aldrich v. State, 53 S.W.3d 460, 468-69 (Tex. App.-Dallas 2001), aff'd, 104 S.W.3d 890 (Tex. Crim. App. 2003). Rather, the trial judge's duty is to consider all of the evidence submitted, and he may find a defendant guilty as charged, guilty of a lesser-included offense, or not guilty, as the evidence requires. See Aldrich, 53 S.W.3d at 467. Thus, the trial court had no duty to sua sponte withdraw appellant's guilty plea and did not err in failing to do so. Further, the record shows the trial court admonished appellant in writing about the punishment range for the offense. See Tex. Code Crim. Proc. Ann. art. 26.13(a), (c) (West Supp. 2010); Kirk v. State, 949 S.W.2d 769, 771 (Tex. App.-Dallas 1997, pet. ref'd). And, appellant testified he understood the punishment range for the offense, but wanted probation. Nothing in the record shows appellant was unaware of the consequences of his plea and that he was harmed or misled by the trial court's admonishments. See Aguirre-Mata v. State, 125 S.W.3d 473, 477 (Tex. Crim. App. 2003). We overrule appellant's sole point of error. We affirm the trial court's judgment.