Opinion issued February 14, 2008
In The
Court of Appeals
For The
First District of Texas
NOS. 01-06-01166-CR; 01-06-01167-CR;
01-06-01168-CR; & 01-06-01169-CR
HARVEY BERNARD SMITH, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause Nos. 1022096, 1022097, 1078990, & 1078991
MEMORANDUM OPINION
After Harvey Bernard Smith, without an agreed recommendation from the State, pleaded guilty to two separate charges of aggregate theft and two separate charges of making a false statement to obtain credit, the trial court sentenced Smith to thirty-five years’ imprisonment for the aggregate theft offenses and ten years’ imprisonment for the false statement to obtain credit offenses, to run concurrently. In his sole issue on appeal, Smith contends that the trial court erred in failing to withdraw his guilty pleas sua sponte. Finding no error, we affirm.
Background
Smith’s involvement in a series of mortgage and car loan fraud schemes led to his arrest. At the time of his pleas, the trial court found that sufficient evidence supported his guilt, but withheld a finding of guilt in each count and ordered a presentence investigation (PSI) report.
Four months later, when the PSI report was ready, and after the State amended two of the indictments to comport with amendments to Smith’s judicial confessions, Smith re-entered guilty pleas and waived his right to trial by jury. The court fully admonished Smith pursuant to Code of Criminal Procedure article 26.13(d) regarding his rights and the effects of the guilty pleas. After Smith acknowledged that he understood those admonishments, the trial court again found evidence to substantiate guilt, but declined to make any findings of guilt until after the punishment hearing.
In the punishment hearing, the State called witnesses to testify to Smith’s involvement in the schemes that led to his criminal charges. In cross-examining the State’s witnesses, Smith consistently reiterated that the schemes were merely risk-prone investments that went bad. The trial court announced its findings of guilt. Before sentencing Smith, the trial court asked defense counsel if there was any legal reason that the court should not do so. Both times, counsel responded that there was not. Smith did not move for new trial, but timely filed this appeal.
Discussion
In his sole point of error, Smith asserts that the trial court abused its discretion in not withdrawing his guilty pleas sua sponte because he made an affirmative showing that he was not guilty of the charged offenses.[2] Smith contends that he made such a showing in: (1) a letter from defense counsel to the court; (2) defense counsel’s sentencing memorandum; and (3) his own written statement included in the PSI report. These documents contain statements denying Smith’s involvement in certain activities that led to the indictments, as well as denying that he had criminal intent.
A defendant may withdraw his plea as a matter of right until the trial court either pronounces judgment or takes the case under advisement. Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979); Labib v. State, 239 S.W.3d 322, 331 (Tex. App.—[1st Dist.] 2007, no pet.). After either point, however, a defendant’s withdrawal of his guilty plea is subject to the sound discretion of the court. Jackson, 590 S.W.2d at 515. A trial court abuses its discretion only when its ruling lies outside the “zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g).
After a trial court has admonished the defendant, received the plea and evidence, and passed the case for a pre-sentence investigation, the case has been taken under advisement. Houston v. State, 201 S.W.3d 212, 218 (Tex. App.—Houston [14th Dist.] 2006, no pet.). The three documents relied on by Smith were all filed after his case was taken under advisement. Therefore, Smith could not have withdrawn his pleas as a matter of right, even if he had specifically requested to do so—which, as Smith concedes, he did not.
The documents contain statements that, to some extent, conflict with Smith’s guilty pleas. As Smith recognizes, the Court of Criminal Appeals eliminated any judicial duty to change a defendant’s plea from guilty to not guilty in the absence of an affirmative request from the defendant. See Mendez v. State, 138 S.W.3d 334, 336 (Tex. Crim. App. 2004) (“We hold that a defendant has a right on timely request to change the plea, but that a court has no duty to do it on the court’s own motion.”). Smith nevertheless points to language in Mendez that requires a defendant who has waived his constitutional right to plead innocent “to take some affirmative action to don the armor [of constitutional rights] again,” see id. at 350, and asks that we construe his written protestations as an affirmative request to withdraw his guilty pleas. We decline this request.
In clarifying the law in this area, the Court of Criminal Appeals in Mendez sought to eliminate any uncertainty concerning the extent of the trial court’s responsibility by placing squarely on the defendant “the requirement of timely seeking, in one way or another, to withdraw the plea of guilty.” Id. The Court observed that this requirement properly places the duty to withdraw a guilty plea on the defendant alone because:
[t]he number of cases in which defendants want to “unwaive” their right to plead not guilty is small, the appearance of evidence that is inconsistent with guilt is unpredictable, the significance of such evidence should be more apparent to the defense than to the trial court, and cases are common in which there is some evidence in the defendant’s favor, but the defendant . . . had validly chosen to plead guilty after weighing the advantage of such a plea against the chance of acquittal.
Id. In Mendez, as here, the defendant was cognizant of the inconsistency between his guilty plea and his own statements, and we likewise are aware of the inconsistencies between Smith’s statements and other evidence adduced at the punishment hearing. See id. Like the defendant in Mendez, Smith “did not ask to withdraw his plea. If it had been in his interest to do so, he would have known it.” Id. Smith’s counsel instead informed the trial court that he knew of no legal reason why Smith should not be sentenced. In accordance with Mendez, we conclude that, by failing to raise this issue in the trial court, Smith waived his right to complain about it on appeal. See id. at 338–39 (citing Tex. R. App. P. 33.1).
We also observe that, unlike the defendant in Mendez, Smith waived his right to have a jury decide his punishment. Compare id. at 350. Consequently, the trial court had the discretion to evaluate any evidence that might reasonably and fairly have raised an issue as to his guilt without withdrawing Smith’s pleas. See Aldrich v. State, 104 S.W.3d 890, 893 (Tex. Crim. App. 2003) (holding that court had authority to consider fact and decide that evidence did not create reasonable doubt as to guilt or find defendant guilty of lesser offense); Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App. 1978);[3] Rivera v. State, 123 S.W.3d 21, 32–33 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (“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.”). Nothing in the record suggests that the trial court did not properly exercise its discretion in this case.
Conclusion
Finding no error, we affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
Do not publish. See Tex. R. App. P. 47.2(b).
[2] Smith does not contest the voluntary nature of his pleas or question the effectiveness of trial counsel.
[3] In Moon v. State, the Court of Criminal Appeals removed the requirement of a sua sponte withdrawal of guilty plea in a bench trial, explaining that:
The 1965 Code of Criminal Procedure provides that a defendant may waive a jury trial and enter a plea of not guilty before the court in all except capital cases. . . . There now seems to be no valid reason for the court to withdraw the guilty plea and enter a plea of not guilty for the defendant when the defendant enters a plea of guilty before the court after waiving a jury. It is the duty of the trial court to consider the evidence submitted and as the trier of the facts the court may find the appellant guilty of a lesser offense and assess the appropriate punishment or it may find the defendant not guilty. It would serve no purpose to withdraw the plea of guilty and enter a not guilty plea.
572 S.W.2d 681, 682 (Tex. Crim. App. 1978).