Browning, Donta Tremaine ( 2015 )


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  •                                                                                 PD-0415-15
    PD-0415-15                            COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    Transmitted 4/14/2015 2:45:21 PM
    Accepted 4/15/2015 5:36:36 PM
    PDR No.                                                     ABEL ACOSTA
    CLERK
    In The Court of Criminal Appeals of Texas
    DONTA TREMAINE BROWNING, Appellant
    V.
    THE STATE OF TEXAS, Appellee.
    On Appellant's Petition for Discretionary Review
    From the Fourteenth Court of Appeals,
    Appeal No. 01-14-00052-CR
    On Appeal from the 240th District Court
    of Fort Bend County Texas,
    Cause No. 11-DCR-058541.
    PETITION FOR DISCRETIONARY REVIEW
    FOR APPELLANT, DONTA TREMAINE BROWNING
    Oral Argument Requested
    Cary M. Faden
    77 Sugar Creek Center Blvd., Suite 230
    Sugar Land, Texas 77478                               April 15, 2015
    Telephone: (281) 491-6182
    Texas Bar No. 06768725
    E-MAIL: caryfaden@aot.com
    Attorney for Appellant
    IDENTITY OF PARTIES AND COUNSEL
    Pursuant to TEX. R. APP. P., Rule 38.1(a) and Rule 68.4(a), appellant certifies
    that the following is a complete list of the parties to the final judgment and the names
    and addresses of counsel in the trial and on appeal:
    Appellant:
    Donta Tremaine Browning
    Counsel for Appellant:
    Tommy James Stickler, Jr. (at trial)
    235 West Sealy Street
    Alvin, TX 77511
    Cary M. Faden (on appeal)
    77 Sugar Creek Center Blvd., Suite 230
    Sugar Land, Texas 77478
    Counsel for the State of Texas:
    John F. Healey, Jr.
    Stuti Trehan Patel
    Fort Bend County, Texas
    District Attorney
    301 Jackson Street, Room 101
    Richmond, Texas 77469
    Trial Judge:
    The Honorable Thomas R. Culver, III
    ii
    Table of Contents
    Index of Authorities
    Statement Regarding Oral Argument                                               vi
    Statement ofthe Case                                                            vii
    Procedural History of the Case                                                  vii
    Ground for Discretionary Review                                                  2
    GROUND ONE
    THE FIRST COURT OF APPEALS ERRED IN REFUSING TO
    CONDUCT A HARM ANALYSIS AND TO APPLY THE LAW IN
    FINDING THE TRIAL COURT DID NOT COMMIT ERROR IN
    NOT ALLOWING APPELLANT TO WITHDRAW HIS PLEA OF
    GUILTY.
    Reasons to Grant Review in Support of Ground for Review                          2
    Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court
    Of Appeals has rendered a decision, which is in conflict with the
    decisions of another court of appeals on the same matter, namely:
    Ground One: Cain v. State, 
    947 S.W.2d 262
    , 264 (Tex. Crim.
    App.1997); Childs v. Reunion Bank, 
    587 S.W.2d 466
    , 471 (Tex. Civ.
    App. - Dallas 1979, writ refd n.r.e.); Downer v. Aquamarine Operators,
    Inc., 
    701 S.W.2d 238
    , 241-42 (Tex. 1985); Guillett v. State, 
    677 S.W.2d 46
    , 49 (Tex. Crim. App.1984); Henderson v. Youngblood, 
    512 S.W.2d 35
    , 37 (Tex. Civ. App.—El Paso 1974, no writ) (superseded by statute
    on other grounds); Higginbotham v. Collateral Protection Inc., 
    859 S.W.2d 487
    , 491 (Tex. App. - Houston [1st Dist.] 1993, writ denied);
    Jackson v. State, 
    590 S.W.2d 514
    , 515 (Tex. Crim. App. 1979);
    Lenamond v. N Shore Supply Co., 
    667 S.W.2d 283
    , 285 (Tex. App. -
    Houston [14th Dist.] 1984, no writ); Lowery v. State, 
    974 S.W.2d 936
    ,
    iii
    942 (Tex. App. - Dallas 1998, no pet.); Lyles v. State, 
    850 S.W.2d 497
    ,
    502 (Tex. Crim. App. 1993); Marquez v. State, 
    921 S.W.2d 217
    , 223
    (Tex. Crim. App.1996); Montgomery v. State, 
    810 S.W.2d 372
    , 380
    (Tex. Crim. App. 1990); Ferny v. State, 
    903 S.W.2d 715
    , 728 (Tex.
    Crim. App.1995); People v. Abrams, 
    211 Cal. App. 2d 773
    , 776, 27 Cal.
    Rptr. 639, 641 (1963); Samudio v. State, 
    648 S.W.2d 312
    , 314 (Tex.
    Crim. App.1983); Staten v. Maryland, 
    13 Md. App. 425
    , 430, 
    283 A.2d 644
    , 647 (1971); Stevenson v. Indiana, 
    163 Ind. App. 399
    , 404, 
    324 N.E.2d 509
    , 512 (1975); Trimble v. Tex. Dept. of Protective & Reg.
    Serv., 
    981 S.W.2d 211
    , 214-15 (Tex. App. - Houston [14th Dist.] 1998,
    no pet.); Wheatfall v. State, 
    882 S.W.2d 829
    (Tex. Crim. App.1994);
    Wissinger v. State, 
    702 S.W.2d 261
    , 262 (Tex. App. Houston [1st
    Dist.] 1985, pet. ref d).
    Review is proper, under Tex. R. App. P. 66.3 (b), because the Court Of
    Appeals has rendered a decision, which encompasses an important
    question of state law, which has not been, but should be, settled by this
    Court.
    Review is important, under Tex. R. App. P. 66.3(1), because the Court
    Of Appeals has so far departed from the accepted and usual course of
    judicial proceedings, as to call for an exercise of this Court's power of
    supervision.
    Argument And Authorities In Support Of Ground For Review
    One                                                    3
    Prayer for Relief                                                                 12
    Certificate of Service                                                            13
    Appendix-First Court Of Appeals Judgment & Opinion
    iv
    INDEX OF AUTHORITIES
    CASES:
    Cain v. State, 
    947 S.W.2d 262
    , 264 (Tex. Crim. App.1997)                      iii,2,11
    Childs v. Reunion Bank, 
    587 S.W.2d 466
    , 471 (Tex. Civ. App. - Dallas 1979, writ
    refdn.r.e.)                                                              iii,2,9
    Downer v. Aquamarine Operators, Inc., 
    701 S.W.2d 238
    , 241-42 (Tex.1985)        iii,2,6
    Guinea v. State, 
    677 S.W.2d 46
    , 49 (Tex. Crim. App.1984)                       iii,2,8
    Henderson v. Youngblood, 
    512 S.W.2d 35
    , 37 (Tex. Civ. App.—El Paso 1974, no
    writ) (superseded by statute on other grounds)                        iii,2,9
    Higginbotham v. Collateral Protection Inc., 
    859 S.W.2d 487
    , 491 (Tex. App. -
    Houston [1st Dist.] 1993, writ denied)                                 iii,2,9
    Jackson v. State, 
    590 S.W.2d 514
    , 515 (Tex. Crim. App. 1979)                   iii,2,5
    Lenamond v. N. Shore Supply Co., 
    667 S.W.2d 283
    , 285 (Tex. App. - Houston [14th
    Dist.] 1984, no writ)                                                    iii,2,9
    Lower); v. State, 
    974 S.W.2d 936
    , 942 (Tex. App. - Dallas 1998, no pet.)     iii,2,11
    Lyles v. State, 
    850 S.W.2d 497
    , 502 (Tex. Crim. App. 1993)                     iv,2,6
    Marquez v. State, 
    921 S.W.2d 217
    , 223 (Tex. Crim. App.1996)            iv,2,6,8,10,12
    Montgomery v. State, 
    810 S.W.2d 372
    , 380 (Tex. Crim. App. 1990)                iv,2,6
    Penry v. State, 
    903 S.W.2d 715
    , 728 (Tex. Crim. App.1995)                      iv,2,6
    People v. Abrams ,
    211 Cal. App. 2d 773
    , 776, 
    27 Cal. Rptr. 639
    , 641 (1963)    iv,2,10
    Samudio v. State, 
    648 S.W.2d 312
    , 314 (Tex. Crim. App.1983)                    iv,2,8
    Staten v. Maryland, 
    13 Md. App. 425
    , 430, 
    283 A.2d 644
    , 647 (1971)            iv,2,11
    Stevenson v. Indiana, 
    163 Ind. App. 399
    , 404, 
    324 N.E.2d 509
    , 512 (1975)     iv,3,10
    Trimble v. Tex. Dep't. of Protective & Reg. Serv., 
    981 S.W.2d 211
    , 214-15 (Tex. App.
    - Houston [14th Dist.] 1998, no pet.)                                          iv,3,6
    Wheatfall v. State, 
    882 S.W.2d 829
    (Tex. Crim. App.1994)                       iv,3,6
    Wissinger v. State, 
    702 S.W.2d 261
    , 262 (Tex. App.—Houston [1st Dist.] 1985, pet.
    ref d)                                                                    iv,3,5
    STATUES, CODES, AND RULES:
    Tex. Code Crim. Proc. Ann. art. 1.12 (Vernon 1977)                                7,8
    Tex. Code Crim. Proc. Ann. art. 1.13 (Vernon Supp.2000)                           8.9
    TEX. CONST. art. I, § 15                                                          7.9
    Tex. R. App. P. 33.1(a)                                                             5
    Tex. R. App. P. 44.2(a)                                                            13
    Tex. R. App. P. 66.3(a)                                                        iii,2,3
    Tex. R. App. P. 66.3(b)                                                          iv,3
    Tex. R. App. P. 66.3(f)                                                        iv,3,4
    Tex. R. App. P. 68.2                                                             viii
    Tex. R. App. P. 68.4(c)                                                           vii
    U.S. CONST. amend. VI                                                             7,8
    Vi
    STATEMENT REGARDING ORAL ARGUMENT
    Pursuant to Tex. R. App. P. 68.4(c), counsel respectfully requests oral
    argument. Oral argument would be helpful in the event this petition for discretionary
    review is granted. This appeal involves questions of law, questions of fact, public
    policy and procedure which cannot be adequately addressed, analyzed and evaluated
    through written communication alone. Oral argument is essential to emphasize the
    unique characteristics of these questions and to address the unforeseeable exigencies
    arising during the Court's consideration of this appeal.
    STATEMENT OF THE CASE
    On October 31, 2011, Donta Tremaine Browning, Appellant, was indicted for
    the second degree felony offense of aggravated assault with a deadly weapon. (1 CR
    at 6). The offense was alleged to have occurred on or about September 23, 2011. (1
    CR at 6). On October 15, 2013, Appellant pleaded guilty to the indictment. (1 CR at
    3-4). After Appellant's plea of guilty, on December 10, 2013, at a sentencing hearing,
    the trial court assessed Appellant's punishment at ten (10) years of deferred
    adjudication community supervision, with a $1,000.00 fine. (2 CR at 93). On January
    6, 2013, Appellant timely filed his notice of appeal. (1 CR at 128).
    PROCEDURAL HISTORY OF THE CASE
    On February 26, 2015, the First Court of Appeals affirmed Appellant's
    vii
    conviction. Browning v. State, Nos. 01-14-00052-CR, slip op. at 1-4 (Tex. App.—
    Houston [1st Dist.], February 26, 2015, pet. pending). On March 9, 2015, Appellant
    timely filed his motion for rehearing. The First Court Of Appeals overruled and
    denied Appellant's Motion For Rehearing on March 26, 2015. On April 14, 2015,
    Appellant timely filed this Petition For Discretionary Review with the Clerk of the
    Court Of Criminal Appeals. TEX. R. APP. P. 4.1 and 68.2.
    viii
    PDR No.
    In The Court of Criminal Appeals of Texas
    DONTA TREMAINE BROWNING, Appellant
    v.
    THE STATE OF TEXAS, Appellee.
    On Appellant's Petition for Discretionary Review
    From the First Court of Appeals,
    Appeal No. 01-14-00052-CR,
    On Appeal from the 240th District Court
    of Fort Bend County Texas,
    Cause No. 11-DCR-058541.
    PETITION FOR DISCRETIONARY REVIEW
    FOR APPELLANT, DONTA TREMAINE BROWNING
    TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
    COMES NOW Appellant, Donta Tremaine Browning, by and through his
    attorney of record, Cary M. Faden, and files this petition for discretionary review of
    the February 26, 2015, decision of the First Court of Appeals of Texas in Browning
    1
    v. State, No. 01-14-00052-CR, slip op. at 1-4 (Tex. App. – Houston [1st Dist.],
    February 26, 2015, pet. pending); and would respectfully show the Court following:
    GROUNDS FOR REVIEW
    GROUND ONE
    THE FIRST COURT OF APPEALS ERRED IN REFUSING TO
    CONDUCT A HARM ANALYSIS AND TO APPLY THE LAW IN
    FINDING THE TRIAL COURT DID NOT COMMIT ERROR IN
    NOT ALLOWING APPELLANT TO WITHDRAW HIS PLEA OF
    GUILTY.
    REASONS 10 GRANT REVIEW IN SUPPORT OF GROUNDS FOR REVIEW
    Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court
    Of Appeals has rendered a decision, which is in conflict with the
    decisions of another court of appeals on the same matter, namely:
    Ground One: Cain v. State, 
    947 S.W.2d 262
    , 264 (Tex. Crim.
    App.1997); Childs v. Reunion Bank, 
    587 S.W.2d 466
    , 471 (Tex. Civ.
    App. - Dallas 1979, writ rcfd n.r.e.); Downer v. Aquamarine Operators,
    Inc., 
    701 S.W.2d 238
    , 241-42 (Tex. 1985); Guillett v. State, 
    677 S.W.2d 46
    , 49 (Tex. Crim. App.1984); Henderson v. Youngblood, 
    512 S.W.2d 35
    , 37 (Tex. Civ. App.—El Paso 1974, no writ) (superseded by statute
    on other grounds); Higginbotham v. Collateral Protection Inc., 
    859 S.W.2d 487
    , 491 (Tex. App. - Houston [1st Dist.] 1993, writ denied);
    Jackson v. State, 
    590 S.W.2d 514
    , 515 (Tex. Crim. App. 1979);
    Lenamond v. N. Shore Supply Co., 
    667 S.W.2d 283
    , 285 (Tex. App. -
    Houston [14th Dist.] 1984, no writ); Lowery v. State, 
    974 S.W.2d 936
    ,
    942 (Tex. App. - Dallas 1998, no pet.); Lyles v. State, 
    850 S.W.2d 497
    ,
    502 (Tex. Crim. App. 1993); Marquez v. State, 
    921 S.W.2d 217
    , 223
    (Tex. Crim. App.1996); Montgomery v. State, 
    810 S.W.2d 372
    , 380
    (Tex. Crim. App. 1990); Penry v. State, 
    903 S.W.2d 715
    , 728 (Tex.
    Crim. App.1995); People v. Abrams, 
    211 Cal. App. 2d 773
    , 776, 27 Cal.
    Rptr. 639, 641 (1963); Samudio v. State, 
    648 S.W.2d 312
    , 314 (Tex.
    Crim. App.1983); Staten v. Maryland, 
    13 Md. App. 425
    , 430, 
    283 A.2d 2
          644, 647 (1971); Stevenson v. Indiana, 
    163 Ind. App. 399
    , 404, 
    324 N.E.2d 509
    , 512 (1975); Trimble v. Tex. Dept. of Protective & Reg.
    Serv., 
    981 S.W.2d 211
    , 214-15 (Tex. App. - Houston [14th Dist.] 1998,
    no pet.); Wheatfall v. State, 
    882 S.W.2d 829
    (Tex. Crim. App.1994);
    Wissinger v. State, 
    702 S.W.2d 261
    , 262 (Tex. App.—Houston [1st
    Dist.] 1985, pet. ref d).
    Review is proper, under Tex. R. App. P. 66.3 (b), because the Court Of
    Appeals has rendered a decision, which encompasses an important
    question of state law, which has not been, but should be, settled by this
    Court.
    Review is important, under TEX. R. APP. P. 66.3(f), because the Court
    Of Appeals has so far departed from the accepted and usual course of
    judicial proceedings, as to call for an exercise of this Court's power of
    supervision.
    ARGUMENT AND AUTHORITIES IN SUPPORT OF
    GROUND FOR REVIEW ONE
    In its February 26, 2015, opinion, the First Court Of Appeals affirmed
    Appellant's convictions in finding the trial court did not commit error abuse its
    discretion by not allowing Appellant to withdraw his plea of guilty and refused to
    conduct a harm analysis.
    This Court should review this issue, and review is appropriate, under Tex. R.
    App. P. 66.3(a), because the Court Of Appeals has rendered a decision, which is in
    conflict with the decisions of another court of appeals on the same matter; and review
    is appropriate, under Tex. R. App. P. 66.3 (d), because the Court Of Appeals appears
    to have misconstrued a statute, rule, regulation, or ordinance; and review is important,
    3
    under Tex. R. App. P. 66.3(f), because the Court Of Appeals has so far departed from
    the accepted and usual course of judicial proceedings, as to call for an exercise of this
    Court's power of supervision.
    The First Court Of Appeals stated in its opinion: Browning was indicted for
    felony aggravated assault with a deadly weapon after he was accused of using his car
    to run over the friend of his girlfriend's aunt during a dispute in the aunt's front yard.
    Browning pleaded guilty. The State did not recommend sentence. Instead, the case
    was reset to allow a pre-sentence investigation (PSI).
    At the sentencing hearing two months later, both the State and Browning
    announced ready and gave their opening statements. After the first witness was sworn
    in and ready to begin testifying, Browning interrupted to inform the trial court, "I
    want to change my plea today to not guilty." His attorney responded, "Right now, it's
    the first time he told me he intends to change his plea." The trial court denied the
    request, and the sentencing hearing continued. After the State's two witnesses
    testified and Browning testified against his attorney's advice, the trial court deferred
    a finding of guilty and placed Browning on community supervision for ten years. The
    trial court also ordered Browning to perform 400 hours of community service and pay
    a $1,000 fine. Browning timely appealed.
    Browning Did Not Preserve Issue of Jury-Waiver
    Browning contends that the trial court erred by denying his request "to
    4
    that Browning did attempt to withdraw his guilty plea; however, nowhere in
    the record do we find any indication that Browning attempted to withdraw his jury
    waiver. Browning does not point to any document or transcript where such a
    statement was made either. Because the jury-waiver withdrawal issue was not
    presented to the trial court for its consideration, it is waived on appeal. TEX. R. APP.
    P. 33.1(a) (requiring that complaint be made to trial court through timely request,
    objection or motion to preserve issue for appellate review). Thus, the only issue to be
    resolved is whether the trial court erred by denying Browning's request to withdraw
    his guilty plea.
    Withdrawal of Guilty Plea
    A defendant may withdraw his guilty plea at any time before judgment
    is pronounced or the trial court takes the plea under advisement. Jackson v.
    State, 
    590 S.W.2d 514
    , 515 (Tex. Crim. App. 1979); Wissinger v. State, 
    702 S.W.2d 261
    , 262 (Tex. App.—Houston [1st Dist.] 1985, pet. ref d). A case is considered to
    be "under advisement" when the trial court has admonished the defendant, received
    the plea and evidence, and reset the case to allow a pre-sentencing investigation.
    
    Jackson, 590 S.W.2d at 515
    ; 
    Wissinger, 702 S.W.2d at 262
    . Once a plea has been
    taken under advisement, a request to withdraw a plea is untimely and the decision to
    allow or deny the request is within the sound discretion of the trial court. 
    Jackson, 590 S.W.2d at 515
    ; 
    Wissinger, 702 S.W.2d at 262
    . A trial court abuses its discretion
    when it acts arbitrarily, unreasonably, or without reference to any guiding rules or
    5
    principles. Lyles v. State, 
    850 S.W.2d 497
    , 502 (Tex. Crim. App. 1993); Montgomery
    v. State, 
    810 S.W.2d 372
    , 380 (Tex. Crim. App. 1990). Browning did not raise the
    issue of changing his plea until the sentencing hearing had already begun. He had
    pleaded guilty, the PSI report had been completed and distributed, both sides had
    announced ready and given their opening statements, and the first witness was on the
    stand. We conclude that the record contains no evidence that the trial court abused its
    discretion by denying appellant's untimely request.
    Appellant contended the grant or denial of a request to withdraw a jury waiver
    falls within the trial court's discretion in controlling the business of the court.
    Marquez v. State, 
    921 S.W.2d 217
    , 223 (Tex. Crim. App.1996) (citing Wheatfall v.
    State, 
    882 S.W.2d 829
    (Tex. Crim. App.1994)). This Court will not reverse the trial
    court's denial of a request to withdraw a waiver of jury trial unless there is a finding
    of an abuse of discretion. 
    Id. at 221-22;
    Trimble v. Tex. Dep't. of Protective & Reg.
    Serv., 
    981 S.W.2d 211
    , 214-15 (Tex. App. - Houston [14th Dist.] 1998, no pet.). A
    trial court abuses its discretion when it acts without reference to guiding rules and
    principles. Montgomery v. State, 
    810 S.W.2d 372
    , 380 (Tex. Crim. App.1990) (citing
    Downer v. Aquamarine Operators, Inc., 
    701 S.W.2d 238
    , 241-42 (Tex.1985)). Stated
    differently, a trial court abuses its discretion if it acts arbitrarily or unreasonably. Id.;
    
    Trimble, 981 S.W.2d at 214-15
    . To determine whether the trial court abused its
    discretion, we consider the record as a whole. Penry v. State, 
    903 S.W.2d 715
    , 728
    6
    (Tex. Crim. App.1995).
    WITHDRAWAL OF WAIVER OF RIGHT TO JURY
    The right to trial by jury is protected by both the United States and Texas
    Constitutions. The United States Constitution provides: U.S. CONST. amend. VI.,
    TEX. CONST. art. I, § 15.
    This right is reiterated in the Texas Code of Criminal Procedure, which
    provides "[t]he right of trial by jury shall remain inviolate." TEX. CODE CRIM.
    PROC. ANN. art. 1.12 (Vernon 1977). U.S. CONST. amend. VI; TEX. CONST. art.
    I, § 15; TEX. CODE CRIM. PROC. ANN. art. 1.12 (Vernon 1977). To be valid, a
    waiver of this valuable right must be made in person, in writing, and in open court.
    TEX. CODE CRIM. PROC. ANN. art. 1.13 (Vernon Supp.2000). Although the
    method for waiving the right to a jury trial is prescribed in article 1.13 of the Texas
    Code of Criminal Procedure, the manner for withdrawing such waiver is not.
    To protect the inviolate nature of the right to jury trial, Texas follows the
    prevailing trend allowing a defendant to withdraw his waiver where the request is
    made "in good faith and there are no adverse consequences." 
    Id. at 221-22.
    "Authorities adhering to this view hold that a defendant should be permitted to
    withdraw his jury waiver unless granting the request would prejudice the state, delay
    the trial, impede justice, or inconvenience the witnesses, or, in some cases, unless the
    defendant's request was made in bad faith." 
    Id. at 221.
    Thus, the "substantive
    7
    standard" for allowing a withdrawal of jury waiver is "the absence of adverse
    consequences to granting the withdrawal." 
    Id. at 223.
          A defendant has an absolute right to a jury trial. " In all criminal prosecutions,
    the accused shall enjoy the right to a speedy and public trial, by an impartial jury{.]"
    U.S. CONST. amend. 6. " The right of trial by jury shall remain inviolate." TEX.
    CONST. art. I, § 15 & TEX. CODE CRIM. PROC. art. 1.12. As a matter of federal
    constitutional law, the State must establish, on the record, a defendant's express,
    knowing, and intelligent waiver of jury trial. Guillett v. State, 
    677 S.W.2d 46
    , 49
    (Tex. Crim. App.1984); Sarnudio v. State, 
    648 S.W.2d 312
    , 314 (Tex. Crim.
    App.1983). Article 1.13 of the Code of Criminal Procedure sets out the required
    formalities of a jury-trial waiver in Texas. TEX. CODE CRIM. PROC. art. I .13(a) ("
    The defendant in a criminal prosecution shall have the right, upon entering a plea, to
    waive the right of trial by jury, conditioned, however, that such waiver must be made
    in person by the defendant in writing in open court with the consent and approval of
    the court, and the attorney representing the State." ). But once the defendant validly
    waives his right to a jury trial, he does not have an unfettered right to reassert that
    right. Should the defendant who wants to withdraw his prior written waiver-and is
    seeking to change the status quo-have the burden to show an " absence of adverse
    consequences" from granting the withdrawal? See Marquez v. State, 
    921 S.W.2d 217
    ,
    223 (Tex. Crim. App.1996) (plurality op.). He must establish, on the record, that his
    request to withdraw his jury waiver has been made sufficiently in advance of trial
    such that granting his request will not: (1) interfere with the orderly administration
    8
    of the business of the court, (2) result in unnecessary delay or inconvenience to
    witnesses, or (3) prejudice the State. 
    Id. A request
    to withdraw a jury waiver is
    addressed to the discretion ofthe trial court. 
    Id. 1fthe defendant's
    claims are rebutted
    by the State, the trial court, or the record itself, the trial judge does not abuse his
    discretion in refusing to allow the withdrawal of the waiver. 
    Id. Where a
    defendant seeks to re-assert his right to a jury trial after waiver, he has
    the initial burden to establish on the record that his request to withdraw the waiver
    is made sufficiently in advance of trial "such that granting his request will not (1)
    interfere with the orderly administration of the business of the court, (2) result in
    unnecessary delay or inconvenience to witnesses, or (3) prejudice the State." 
    Id. It is
    well-settled that a trial court should grant a motion for continuance only if:
    (1) postponement of the trial would not cause injury to the adverse party; and (2) it
    would not disrupt the court's docket or interfere with the administration of the court's
    business. See Higginbotham v. Collateral Protection Inc., 
    859 S.W.2d 487
    , 491 (Tex.
    App. - Houston [1st Dist.] 1993, writ denied) (citing Lenamond v. N. Shore Supply
    Co., 
    667 S.W.2d 283
    , 285 (Tex. App. - Houston [14th Dist.] 1984, no writ); Childs
    v. Reunion Bank, 
    587 S.W.2d 466
    , 471 (Tex. Civ. App. - Dallas 1979, writ refd
    n.r.e.); Henderson v. Youngblood, 
    512 S.W.2d 35
    , 37 (Tex. Civ. App.—El Paso 1974,
    no writ) (superseded by statute on other grounds)). Thus, in granting the continuance,
    the trial court implicitly found that a delay of trial would not injure the State or
    disrupt the court's business.
    Appellate courts have found an abuse of discretion where the trial court grants
    9
    a continuance but then refuses to permit withdrawal of the defendant's waiver of jury
    trial. See, e.g., Stevenson v. Indiana, 
    163 Ind. App. 399
    , 404, 
    324 N.E.2d 509
    , 512
    (1975); People v. Abrams, 
    211 Cal. App. 2d 773
    , 776, 
    27 Cal. Rptr. 639
    , 641 (1963)
    (holding that the trial court abused its discretion in not allowing defendant to
    withdraw his waiver of jury trial, where a lengthy continuance already had been
    granted).
    Here, granting appellant's request to withdraw his plea of guilty and withdraw
    the jury waiver would not have resulted in unnecessary delay or inconvenience to
    witnesses because the court already had reset the trial date in order to secure the
    attendance of out-of-state witnesses. See 
    Marquez, 921 S.W.2d at 223
    . Likewise,
    there is nothing in the record that suggests allowing appellant to withdraw his jury
    waiver would have had any adverse consequences on the State, witnesses, or the
    court. In fact, by continuing the case, the court implicitly found the absence of any
    such injury or interference.
    In light of appellant's claims of lack of prejudice, inconvenience or interference
    with court administration, it was incumbent upon either the State or the court to rebut
    appellant's assertions and identify the adverse consequences, if any, that would flow
    from the withdrawal. However, there is nothing in this record to rebut appellant's
    claims that no adverse consequences would flow from the withdrawal of his waivers.
    Under these circumstances, it was not reasonable for the trial court to have denied
    appellant's request to withdraw the guilty plea and the jury waiver. The court already
    had continued the sentencing trial of the case for more than a month almost two
    months. Granting appellant's request would not have resulted in any additional delay
    10
    or inconvenience to the witnesses or the prosecution, nor would it have interfered
    with the orderly administration of the court's docket. Accordingly, the court abused
    its discretion in denying appellant's request to withdraw his plea of guilty and his
    waiver and to proceed to trial before a jury.
    Denial of a criminal defendant's constitutionally guaranteed right to a jury trial
    is structural constitutional error and, therefore, reversible without a harm analysis.
    Lowery v. State, 
    974 S.W.2d 936
    , 942 (Tex. App. - Dallas 1998, no pet.) (citing Cain
    v. State, 
    947 S.W.2d 262
    , 264 (Tex. Crim. App.1997) (superseded by statute on other
    grounds)); TEX. R. APP. P. 44.2(a). Accordingly, appellant's point of error should
    be sustained.
    Where, as here, a defendant makes a good faith request to withdraw his plea of
    guilty and his jury waiver and no adverse consequences would flow from the
    withdrawal, the court should exercise its discretion to grant the moving party the jury
    trial he seeks. Failure to do so constitutes an abuse of discretion. Therefore, this Court
    should reverse the trial court's judgment and remand the case with instructions to
    grant appellant a new trial.
    Appellant is in dispute with the First Court's opinion issued and requests that
    this Court consider this Petition For Discretionary Review. Appellant urges this
    Petition based upon the fact that this Court attempts to address the issues as briefed.
    The Court Of Appeals lack of cited case law has departed from the accepted and usual
    course of judicial proceedings and the case law cited by Appellant in his Petition For
    11
    Discretionary Review, as to call for an exercise of this Court's power of supervision.
    PRAYER FOR RELIEF
    WHEREFORE, PREMISES CONSIDERED, Appellant, Donta Tremaine
    Browning, prays that the Court grant the Petition For Discretionary Review for
    Appellant, order briefing on this cause, and set it for submission at the earliest
    possible date. Moreover, upon submission and review of the appellate record and the
    briefs and arguments of counsel, the Court issue an opinion resolving this conflict so
    that the bench and bar of this state will know how to address and dispose of similar
    issues in the future.
    Respectfully submitted,
    /s/CARY M. FADEN
    Cary M. Faden
    SBN 06768725
    Counsel for Appellant
    77 Sugar Creek Center Blvd., Suite 230
    Sugar Land, Texas 77478
    Telephone: (281) 491-6182
    Facsimile: (281) 491-0049
    E-Mail: caryfaden@aol.com
    Attorney For Appellant
    12
    CERTIFICATE OF COMPLIANCE, T.R.A.P., RULE 9.4(3)
    In accordance with TEX. R. APP. P. 9.4(3), I Cary M. Faden, certify that this
    is a computer generated document and I state that the number of words in this
    document is approximately 4,490 words. I am relying on the word count of the
    computer program used to prepare this document.
    /s/CARY M. FADEN
    Cary M. Faden
    CERTIFICATE OF SERVICE
    In accordance with Tex. R. App. P. 9.5, I, Cary M. Faden, certify that a true and
    correct copy of the foregoing Petition For Discretionary Review has been served, by
    U.S. Mail, upon Donta Tremaine Browning, to the attorney for the State Of Texas,
    John F. Healey, Jr., District Attorney, Appellate Division, 301 Jackson Street, Room
    101, Richmond, Texas 77469, to the State Of Texas Prosecuting Attorney, Lisa C.
    McMinn, P. 0. Box 13046, Capitol Station, Austin, Texas 78711 on this the 14th day
    of April, 2015.
    /s/CARY M. FADEN
    Cary M. Faden
    13
    APPENDIX
    JUDGMENT
    Court of Zippealz
    ,first fi= ittrirt of Texao
    NO. 01-14-00052-CR
    DONTA TREMAINE BROWNING, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    Appeal from the 240th District Court of Fort Bend County.
    (Tr. Ct. No. 11-DCR-058541).
    This case is an appeal from the final judgment signed by the trial court on December
    11, 2013. After submitting the case on the appellate record and the arguments properly
    raised by the parties, the Court holds that the trial court's judgment contains no reversible
    error. Accordingly, the Court affirms the trial court's judgment.
    The Court orders that this decision be certified below for observance.
    Judgment rendered February 26, 2015.
    Panel consists of Chief Justice Radack and Justices Brown and Lloyd. Opinion delivered
    by Justice Brown.
    Opinion issued February 26, 2015
    In The
    Court of CAppealls
    For The
    ,First ifitritt of Xexttc
    NO. 01-14-00052-CR
    DONTA TREMAINE BROWNING, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 240th District Court
    Fort Bend County, Texas
    Trial Court Case No. 11-DCR-058541
    MEMORANDUM OPINION
    Donta Browning pleaded guilty to aggravated assault with a deadly
    weapon.' At the sentencing hearing, Browning sought to withdraw his guilty plea.
    The request was denied, and Browning was sentenced to ten years' community
    TEX. PENAL CODE ANN.   § 22.02 (West 2011).
    supervision. In one issue, Browning contends that the trial court erred by not
    allowing him to withdraw his guilty plea and jury waiver. Because Browning did
    not preserve the issue regarding jury waiver and the trial court did not err in
    denying his request to withdraw his guilty plea, we affirm.
    Background
    Browning was indicted for felony aggravated assault with a deadly weapon
    after he was accused of using his car to run over the friend of his girlfriend's aunt
    during a dispute in the aunt's front yard. Browning pleaded guilty. The State did
    not recommend sentence. Instead, the case was reset to allow a presentence
    investigation (PSI).
    At the sentencing hearing two months later, both the State and Browning
    announced ready and gave their opening statements. After the first witness was
    sworn in and ready to begin testifying, Browning interrupted to inform the trial
    court, "I want to change my plea today to not guilty." His attorney responded,
    "Right now, it's the first time he told me he intends to change his plea." The trial
    court denied the request, and the sentencing hearing continued. After the State's
    two witnesses testified and Browning testified against his attorney's advice, the
    trial court deferred a finding of guilty and placed Browning on community
    supervision for ten years. The trial court also ordered Browning to perform 400
    hours of community service and pay a $1,000 fine.
    2
    Browning timely appealed.
    Browning Did Not Preserve Issue of Jury-Waiver
    Browning contends that the trial court erred by denying his request "to
    withdraw his plea of guilty and withdraw his jury waiver." The record reveals that
    Browning did attempt to withdraw his guilty plea; however, nowhere in the record
    do we find any indication that Browning attempted to withdraw his jury waiver.
    Browning does not point to any document or transcript where such a statement was
    made either. Because the jury-waiver withdrawal issue was not presented to the
    trial court for its consideration, it is waived on appeal. TEX. R. APP. P. 33.1(a)
    (requiring that complaint be made to trial court through timely request, objection or
    motion to preserve issue for appellate review). Thus, the only issue to be resolved
    is whether the trial court erred by denying Browning's request to withdraw his
    guilty plea.
    Withdrawal of Guilty Plea
    A defendant may withdraw his guilty plea at any time before judgment is
    pronounced or the trial court takes the plea under advisement. Jackson v. State, 
    590 S.W.2d 514
    , 515 (Tex. Crim. App. 1979); Wissinger v. State, 
    702 S.W.2d 261
    , 262
    (Tex. App.—Houston [1st Dist.] 1985, pet. red). A case is considered to be
    "under advisement" when the trial court has admonished the defendant, received
    the plea and evidence, and reset the case to allow a pre-sentencing investigation.
    3
    
    Jackson, 590 S.W.2d at 515
    ; 
    Wissinger, 702 S.W.2d at 262
    . Once a plea has been
    taken under advisement, a request to withdraw a plea is untimely and the decision
    to allow or deny the request is within the sound discretion of the trial court.
    
    Jackson, 590 S.W.2d at 515
    ; 
    Wissinger, 702 S.W.2d at 262
    . A trial court abuses its
    discretion when it acts arbitrarily, unreasonably, or without reference to any
    guiding rules or principles. Lyles v. State, 
    850 S.W.2d 497
    , 502 (Tex. Crim. App.
    1993); Montgomery v. State, 
    810 S.W.2d 372
    , 380 (Tex. Crim. App. 1990).
    Browning did not raise the issue of changing his plea until the sentencing
    hearing had already begun. He had pleaded guilty, the PSI report had been
    completed and distributed, both sides had announced ready and given their opening
    statements, and the first witness was on the stand. We conclude that the record
    contains no evidence that the trial court abused its discretion by denying
    appellant's untimely request.
    We overrule Browning's sole issue.
    Conclusion
    We affirm the judgment of the trial court.
    Harvey Brown
    Justice
    Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
    Do not publish. TEX. R. APP. P. 47.2(b).
    4