NO. 07-11-00505-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 4, 2012
GILL R. DELEON, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2009-422,272; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Gill R. Deleon appeals from the judgment convicting him of robbery
and the resulting enhanced sentence of ninety-nine years of imprisonment. Through
one point of error, he contends the trial court erred in failing to withdraw appellant’s
guilty plea, sua sponte, because appellant’s testimony reasonably and fairly raised an
issue regarding his innocence. We will affirm the judgment of the trial court.
Background
Appellant was charged by indictment with the offense of robbery. 1 He plead
guilty and opted to have a jury determine his punishment. Appellant also plead true to
the two enhancement paragraphs in the indictment. Following the sentencing hearing,
the jury assessed punishment at ninety-nine years of imprisonment.
Evidence showed the victim of the robbery, Marquez, was assaulted at a
Lubbock bar as its patrons left at closing time. Witnesses gave varying accounts of the
events surrounding the robbery. Marquez testified he remembered walking to the door
to leave the bar, but had no idea who hit him. During his punishment testimony,
appellant said he went to the bar that evening with two women, Gorostiza and Montoya.
Marquez sat with their group for a time, and appellant, the two women and Marquez left
the bar at the same time. Another man of appellant’s acquaintance, Falcon, was
present. Testimony from other witnesses indicated Falcon hit Marquez. Appellant said
he did not see Falcon hit Marquez, but heard Marquez fall to the floor.
Appellant, Gorostiza and Montoya left the bar in appellant’s red pickup truck and
stopped at a convenience store. A 9-1-1 call from a bar patron had identified a red
pickup in connection with the robbery, and a responding officer quickly saw appellant
and the women at the convenience store. Testimony from officers described the
eventual search of Montoya, revealing in her pockets Marquez’s credit cards, cell phone
and keys along with some cash. Gorostiza’s testimony included statements that,
outside the bar, appellant had possession of Marquez’s wallet and keys. Appellant
1
Tex. Penal Code Ann. § 29.02 (West 2011).
2
acknowledged during his testimony that “you all” took the items, although he denied
taking or handling any of Marquez’s belongings and denied participating in the assault
against him. He told the jury Falcon threw Marquez’s wallet and keys into his truck. He
admitted lying to police when he was initially detained.
During appellant’s testimony, he was questioned concerning the law of parties.
As he continued to deny direct involvement in Marquez’s assault, and deny handling the
items taken from Marquez, appellant responded affirmatively to the prosecutor’s
question asking if he was pleading guilty because he was a party. Asked why he was a
party, appellant responded, “Because I was there.”
Analysis
In his sole point of error on appeal, appellant characterizes his punishment
testimony as exculpatory, and asserts it affirmatively illustrated his misunderstanding of
the law of parties. He argues his testimony showed he had no criminal responsibility for
the robbery, and that he was pleading guilty only under the misconception that his
presence was sufficient to demonstrate guilt. He asserts the trial court should have sua
sponte withdrawn his plea of guilty.
Appellant recognizes current law is contrary to his contention on appeal. The
right of the defendant in a criminal case to plead not guilty is a “waivable-only” right, a
right that “must be implemented by the trial court unless expressly waived.” Mendez v.
State, 138 S.W.3d 334, 343-44 (Tex.Crim.App. 2004) (quoting Marin v. State, 851
S.W.2d 275, 279 (Tex.Crim.App. 1993)). Moreover, Texas law permits the defendant to
change his plea from guilty to not guilty, if done timely, which in a trial before a jury
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means at any time before the jury retires to deliberate. McWherter v. State, 571 S.W.2d
312, 313 (Tex.Crim.App. 1978); see Mendez, 138 S.W.3d at 345 (citing McWherter).
But in Mendez, the Court of Criminal Appeals rejected its prior case law finding such a
duty and held that the trial court has no duty to change the defendant’s plea of guilty to
one of not guilty on the court’s own motion when evidence inconsistent with guilt is
heard in a jury trial. Mendez, 138 S.W.3d at 336. As the court explained, once a
defendant makes a valid waiver of his right to plead not guilty, “it is appropriate that the
defendant be required to take some affirmative action to don the armor again.” Mendez,
138 S.W.3d at 350. Thus, when a defendant has knowingly waived his right to plead
not guilty and entered a guilty plea, it is his obligation to timely seek withdrawal of his
plea, and absent a timely request to withdraw his plea of guilty, he cannot complain on
appeal that the trial court failed to do it for him. Id.; Tex. R. App. P. 33.1(a).
Appellant contends Mendez was wrongly decided, and “makes a good-faith plea
that it be reevaluated, reconsidered, and reversed on point.” He argues the trial court’s
duty to withdraw his plea and enter a not-guilty plea for him, sua sponte, derives from
article 1.15 or article 26.13 of the Code of Criminal Procedure, Tex. Code Crim. Proc.
Ann. arts 1.15, 26.13 (West 2012), and should be treated like the trial court’s duty
properly to admonish defendants with regard to pleas of guilty as set forth in article
26.13. See Bessey v. State, 239 S.W.3d 809 (Tex.Crim.App. 2007) (holding
defendant’s right to be properly admonished is waivable-only right, and defendant could
raise for first time on appeal court’s failure to admonish him of requirement he register
as sex offender).
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We must decline appellant’s invitation to reconsider the Court of Criminal
Appeals’ decision in Mendez. See Perez v. State, No. 07-10-0390-CR, 2012 Tex.App.
LEXIS 3218, at *3-4 (Tex.App.—Amarillo April 24, 2012, no pet.) (mem. op., not
designated for publication) (following Mendez); Purchase v. State, 84 S.W.3d 696, 701
(Tex. App.--Houston [1st Dist.] 2002, pet. ref'd) (intermediate courts of appeals are
bound to follow the precedent of the court of criminal appeals).
Because the trial court had no duty to withdraw appellant’s plea of guilty on its
own motion, and because appellant did not complain or otherwise raise the point in the
trial court, his point of error is not preserved for our review. Tex. R. App. P. 33.1(a)(1).
Accordingly, we resolve appellant’s sole point of error against him and affirm the
judgment of the trial court.
James T. Campbell
Justice
Do not publish.
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