COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-254-CR
GLEN SMITH NEELY, JR. APPELLANT
A/K/A GLEN NEELY SMITH, JR.
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Glen Smith Neely, Jr. a/k/a Glen Neely Smith, Jr. appeals his
conviction for aggravated robbery with a deadly weapon. In a single issue,
Neely argues that the trial court erred by accepting his guilty plea, which he
claims he entered involuntarily. We will affirm.
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… See T EX. R. A PP. P. 47.4.
On January 8, 2007, Neely entered an open plea of guilty to the charge
of aggravated robbery with a deadly weapon. He also signed written plea
admonishments, a judicial confession admitting guilt, and a written
waiver—joined by his attorney—waiving his right to a jury trial, waiving all
rights given to him by law pursuant to code of criminal procedure article 1.14,
and requesting preparation of a presentence investigation report.
At the punishment hearing on July 5, 2007, Neely testified that Denison
and Tipp, two men purporting to be friends of his ex-girlfriend, approached him
at a car wash and asked if he would take them to visit Monte Ferrell’s residence
to sell some pills. Ferrell’s son testified that his father, who was seventy-two
years old, often helped others by lending them money and that he regularly
carried at least several hundred dollars in cash on him. Neely knew Ferrell
because Ferrell had lent money to Neely’s ex-girlfriend on a number of
occasions in the past.
Neeley drove Denison and Tipp to Ferrell’s apartment, walked with them
to the front door, and knocked on the door. Ferrell answered the door just after
Neely had returned to his car, and Neely observed Denison and Tipp “r[u]n up
in the house.” Neely testified that he thought something bad was going to
happen at that point. He recounted that he wanted to leave, but “Tipp . . .
acted like he had something under his jacket” or “he had his hand in his pocket
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like he had something and I was thinking it was a gun.” Neely left Ferrell’s
residence with Denison and Tipp, and Denison gave Neely a cocaine rock and
ten dollars aftewards.
Ferrell suffered a depressed skull fracture with a subdural hematoma, a
broken scapula, and lacerations as a result of his encounter with Denison and
Tipp. Ferrell’s son opined that it looked like they had kicked his father—who
is now in a wheelchair and requires significant care—in the head, and police
thought between $1,000 and $2,500 had been taken from Ferrell. The trial
court questioned Neely about the facts surrounding his involvement in the
incident, and Neely testified in part that his only intention was for he, Denison,
and Tipp to sell Ferrell pills, that he did not knowingly participate in Ferrell’s
robbery, and that he did not know that Denison and Tipp were going to rob
Ferrell. Despite Neely’s testimony that he “couldn’t believe what happened,”
he further testified that he had never sold Ferrell pills before and that he had
spoken with others about robbing Ferrell at some point before the incident, and
he agreed that he “had some idea what might be going down by taking
[Denison and Tipp] over there.” Neely never sought to withdraw his guilty plea,
through a motion to withdraw or otherwise. The trial court found Neely guilty,
made an affirmative deadly weapon finding, and sentenced Neely to twenty-five
years’ confinement.
3
Neely argues in his only issue that his guilty plea was involuntary and that
the trial court erred by accepting it because he lacked the necessary intent to
support his conviction; because his credibility, which the trial court had
questioned at the punishment hearing, is irrelevant to a determination of the
intelligent and voluntary nature of a guilty plea; and because he denied “both
knowledge of a plan to rob Mr. Ferrell and intent.” He thus contends that “[t]he
fact that he consistently denied any prior knowledge or intent while consistently
acknowledging his guilty plea demonstrates his failure to understand that lack
of a culpable mental state would result in acquittal and that his conduct did not
constitute the charged offense.”
The court of criminal appeals has considered the issue of a trial court’s
responsibility to withdraw a defendant’s plea of guilty in light of evidence that
is inconsistent with the plea, reasoning as follows:
As we have said, a defendant’s decision to plead guilty entails the
waiver of some important, constitutional rights. . . . It is fitting
that trial courts have a duty to implement those rights, which shield
each defendant at the outset of every criminal proceeding. But
after a court has fulfilled those duties and a defendant has made a
valid waiver of those rights, it is appropriate that the defendant be
required to take some affirmative action to don the armor again.
The 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
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plead guilty after weighing the advantage of such a plea against the
chance of acquittal.
In this case the appellant . . . wavie[d] his right to a plea of
not guilty. . . . His attention was specifically called to the
inconsistency between his plea of guilty and his testimony about
lack of intent or knowledge. . . . The appellant did not ask to
withdraw his plea. If it had been in his interest to do so, he would
have known it.
It is reasonable to put on such a defendant the requirement
of timely seeking, in one way or another, to withdraw the plea of
guilty. The appellant not having done so, he may not complain for
the first time on appeal that the trial court did not do it for him.
Mendez v. State, 138 S.W.3d 334, 350 (Tex. Crim. App. 2004). Accordingly,
although a defendant has the right to withdraw his guilty plea in a timely
fashion, the trial court has no duty to sua sponte withdraw the plea in the
absence of such a request. Id.; Martinez v. State, No. 02-04-00019-CR, 2004
WL 1798091, at *2 (Tex. App.—Fort Worth Aug. 12, 2004, no pet.) (mem op.)
(not designated for publication).
Here, Neely pleaded guilty to the alleged offense, signed written plea
admonishments and a judicial confession admitting guilt, and waived all rights
given to him by law pursuant to code of criminal procedure article 1.14. He
had the right to timely withdraw his guilty plea or attempt to withdraw his
guilty plea after the trial court took the case under advisement or pronounced
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judgment. 2 But at no point during the proceeding below did Neely ask to
withdraw his plea, even in light of numerous questions propounded by the trial
court upon him inquiring into the circumstances surrounding the offense, which
essentially called his attention to the alleged inconsistency between his plea of
guilty and his testimony about lack of knowledge or intent. In fact, Neely
expressly indicated his desire that the case go forward on his plea of guilty and
that he would object to the trial court returning the case to a jury for trial. The
following exchange occurred:
The Court: And you were specifically asking me to go forward,
proceed with the sentencing on the entire record and not return this
case for trial; is that an accurate statement?
[Neely]: Yes.
[Defense counsel]: Yes, Your Honor.
The Court: In fact, you object to me returning it to a jury for trial if
I wanted to do that; is that still your position?
[Defense counsel]: Your Honor, he’s indicated he just wished to go
forward.
2
… See Gonzalez v. State, No. 02-07-00241-CR, 2008 WL 755514, at
*1 (Tex. App.—Fort Worth Mar. 20, 2008, no pet. h.) (mem op.) (not
designated for publication) (stating that defendant may withdraw guilty plea as
a matter of right without assigning reason at any time before judgment has
been pronounced or the case has been taken under advisement, but that the
withdrawal of the plea is within the sound discretion of the trial court if
defendant decides to withdraw guilty plea after the trial court takes the case
under advisement or pronounces judgment).
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....
The Court: Knowing everything you know about the law, the facts
and everything that happened and discussing that in private with
your attorney and listening to everything that’s been said today and
the questions and everything else, as you sit there today, you still
persist in your guilty plea because you believe yourself to be legally
responsible as an accomplice to the actions of the other two
gentlemen that you’ve described here today; is that correct?
[Neely]: That’s correct.
Because Neely did not ask to withdraw his guilty plea in one way or another,
he may not complain for the first time on appeal that the trial court erred by
accepting his alleged involuntary plea. See Mendez, 138 S.W.3d at 350.
Consequently, Neely has forfeited his complaint on appeal. See id.; Emmett v.
State, Nos. 05-06-01098-CR, 05-06-01099-CR, 05-06-01100-CR, 05-06-
01101-CR, 05-06-01102-CR, 2007 WL 1366044, at *2 (Tex. App.— Dallas
May 9, 2007, no pet.) (not designated for publication); Martinez, 2004 WL
1798091, at *2; see also Alrdrich v. State, 104 S.W.3d 890, 894–96 (Tex.
Crim. App. 2003) (holding that, when defendant has waived jury trial and
pleaded guilty, trial court has no duty to conduct special proceeding inquiring
into voluntary nature of plea when evidence inconsistent with guilt is
introduced).
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We overrule Neely’s sole issue and affirm the trial court’s judgment.
DIXON W. HOLMAN
JUSTICE
PANEL B: LIVINGSTON, HOLMAN, and GARDNER, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: May 1, 2008
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