IN THE
TENTH COURT OF APPEALS
No. 10-98-118-CR
JESSIE COURTNEY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court # 96-747-C
O P I N I O N
Appellant Jessie Courtney pleaded guilty to aggravated sexual assault of his adopted daughter, a child under fourteen years of age, and the trial court sentenced him to five years’ imprisonment in the Texas Department of Criminal Justice—Institutional Division. Tex. Pen. Code Ann. §§ 22.021(a)(1)(B), (a)(2)(B) (Vernon 1998).
Courtney’s sole issue on appeal claims that the trial court erred when it denied him permission to withdraw his guilty plea.
We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Courtney pleaded not guilty and his case proceeded to trial on March 2, 1998. The case was submitted to the jury and deliberations began on March 4, 1998. Deliberations continued the next day, during which the jury sent a note stating that they were “unable to reach a decision.” While the jury was deliberating, the State approached Courtney and informed him that it had knowledge of other allegations against him. Courtney subsequently decided to enter into a plea bargain with the State in which he agreed to waive his right to a trial by jury and pleaded guilty before the trial court. Before the trial court accepted his guilty plea, it informed him on the record that the jury had been deliberating for approximately one day and that they had sent a note indicating that they were unable to reach a decision. The trial court further questioned Courtney concerning his decision to plead guilty. After the trial court again informed Courtney that the jury was still deliberating, Courtney pleaded guilty. The trial court found sufficient evidence to establish Courtney’s guilt and ordered a presentence investigation.
Prior to sentencing on April 29, 1998, Courtney requested that the trial court grant him permission to withdraw his plea of guilty and enter a plea of not guilty. The trial court asked Courtney why he wanted to withdraw his plea and the following ensued:
COURTNEY:Because at the time I was informed of some other things that was going to be brought against me, and I had not made preparations to defend myself against them, which I had no knowledge that they were going to be brought against me, and I don’t think my Attorney had knowledge of them to represent me with a proper defense that would be effective enough to prove my innocence. However, since that time I have obtained information and justification pertaining to these other charges that I was informed was going to be brought against me that would prove these other charges to be wrong also.
COURT:Mr. Hunt?
COUNSEL:Your Honor, just for the record, after the jury was out deliberating, before Mr. Courney (sic) entered his plea the State did explain to me that they did come up with additional information. I approached Mr. Courtney with that information, and told him that I had not been aware of that before. I did not know if it was true or not true, but that if the case was going to be tried again that was the information that would most likely be brought up. Again I explained to Mr. Courtney that I had no idea whether it was true or not true, and did not know about, and the State didn’t know about it until shortly before they told me about it. It was Mr. Courtney’s decision to plead guilty rather than take it to another trial, if it was a hung jury.
The trial court did not grant Courtney permission to withdraw his plea but did give him permission to appeal.
WITHDRAWAL OF GUILTY PLEA
Courtney argues that his plea was not voluntary and the trial court abused its discretion when it denied him permission to withdraw his guilty plea because:
• the evidence, absent his guilty plea, was insufficient to support his conviction;
• the jury’s note to the trial court that stated that they were unable to reach a decision and their other notes that stated that they were in considerable disagreement over the victim’s testimony indicate that there was a question of his guilt and that the evidence was insufficient to support his conviction;
• he has always maintained his innocence and he pleaded guilty because he was afraid that his trial counsel could not defend him against the State’s new allegations; and
• his plea of guilty was not voluntary considering the factors that surrounded his decision to plead guilty, such as the fact that the State informed his attorney during the jury’s deliberations that it had new allegations against him and it would likely use those allegations if his current trial ended in a hung jury–thus, no one in his situation would have been able to make a rational choice.
In Texas, a liberal practice prevails concerning a defendant’s right to withdraw his plea of guilty. Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. [Panel Op.] 1979); State v. Ellis, 976 S.W.2d 789, 792 (Tex. App.—Houston [1st Dist.] 1998, no pet.). A defendant may withdraw his plea of guilty as a matter of right at any time before judgment is pronounced or the case has been taken under advisement. Jackson, 590 S.W.2d at 515; Coronado v. State, 996 S.W.2d 283, 285 (Tex. App.—Waco 1999, no pet. h.). Once the trial court has admonished the defendant, received his plea, and received evidence, passing the case for a presentence investigation constitutes taking the case under advisement. Watson v. State, 974 S.W.2d 763, 765 (Tex. App.—San Antonio 1998, pet. ref’d); Garcia v. State, 960 S.W.2d 151, 157 (Tex. App.—Corpus Christi 1997, no pet.). Once the trial court takes the case under advisement, the decision to allow the defendant to withdraw his plea rests within the sound discretion of the trial court. Jackson, 590 S.W.2d at 515; Coronado, 996 S.W.2d at 285; Rivera v. State, 952 S.W.2d 34, 35 (Tex. App.—San Antonio 1997, no pet.).
When a defendant pleads guilty, his plea alone is insufficient to support his felony conviction and the State must introduce sufficient evidence to establish his guilt. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 1998). A defendant’s judicial confession is sufficient to sustain his conviction upon his guilty plea even if he does nothing more than affirm that the allegations in the indictment are true and correct. Dinnery v. State, 592 S.W.2d 343, 352-53 (Tex. Crim. App. [Panel Op.] 1979) (op. on reh’g); Watson v. State, 974 S.W.2d 763, 765 (Tex. App.—San Antonio 1998, pet. ref’d); Lemons v. State, 953 S.W.2d 825, 828 (Tex. App.—Corpus Christi 1997, no pet.).
When Courtney pleaded guilty, the trial court asked him if he signed an agreement and stipulation that stated that he was guilty of the offense of intentionally and knowingly causing the penetration by his male sexual organ of the female sexual organ of L.S., a child younger than fourteen years of age who was not his spouse. Courtney responded, “Yes, sir.” Because Courtney signed an agreement affirming that the allegations in the indictment were true and correct, there was sufficient evidence to support his conviction.
Courtney next claims that his guilty plea was not voluntary and thus, the trial court abused its discretion when it refused him permission to withdraw his plea. A defendant’s guilty plea must be freely and voluntarily entered. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon 2000); Ex parte Morrow, 952 S.W.2d 530, 534 (Tex. Crim. App. 1997). When the record shows that the trial court properly admonished the defendant, as in this case, it presents a prima facie showing that the defendant’s plea was knowing and voluntary. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); see Valle v. State, 963 S.W.2d 904, 909 (Tex. App.—Texarkana 1998, pet. ref’d) (defendant’s attestation that his plea of guilty was voluntary creates a heavy burden to show that his plea was involuntary at a subsequent hearing). The burden then shifts to the defendant to establish that he did not fully understand the consequences of his plea such that he suffered harm. Martinez, 981 S.W.2d at 197. When considering the voluntariness of a defendant’s guilty plea, we examine the record as a whole. Martinez, 981 S.W.2d at 197.
Courtney does not complain on appeal, nor does the record indicate that the trial court’s admonishments were deficient or improper. See Tex. R. App. P. 38.1(e). Since the trial court properly admonished Courtney, it is his burden to establish that he did not fully understand the consequences of his plea. See Martinez, 981 S.W.2d at 197. After examining the record as a whole, we find that there is no evidence to support Courtney’s contention that he did not voluntarily and freely enter his guilty plea. The record indicates that the trial court asked Courtney whether his plea of guilty was of his own free will and choice, whether he knew the consequences of his plea, and whether he knew that a jury was still currently out deciding his guilt or innocence. To each of these questions Courtney replied, “Yes, sir.” There is nothing in the record to suggest that Courtney’s plea was anything other than free and voluntary.
Based upon the reasons above, we overrule Courtney’s issue and affirm the trial court’s judgment.
REX D. DAVIS
Chief Justice
Before Chief Justice Davis
Justice Vance
Justice Gray
Affirmed
Opinion delivered and filed November 17, 1999
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