Richard Gonzalez v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-241-CR
RICHARD GONZALEZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Richard Gonzalez appeals his conviction for aggravated sexual
assault of a child under fourteen years of age. In a single point, Gonzalez
argues that the trial court abused its discretion by denying his motion to
withdraw his guilty plea. We will affirm.
1
… See T EX. R. A PP. P. 47.4.
The grand jury indicted Gonzalez for multiple sexual offenses involving a
child. With a venire panel waiting outside of the courtroom anticipating the
commencement of voir dire, Gonzalez decided to enter an open plea of guilty
to a single count of aggravated sexual assault of a child. He signed written plea
admonishments, including admonishments for sex offender registration
requirements. Gonzalez also signed a judicial confession admitting his guilt for
the offense. The trial court deferred sentencing to prepare a presentence
investigation report (“PSI”). 2
Just under three months after pleading guilty but before sentencing,
Gonzalez filed a motion to withdraw his guilty plea alleging that the PSI
contained multiple instances where he had recanted his guilty plea and
affirmatively denied his guilt for the instant offense. He contended that his
guilty plea should be withdrawn and a new trial granted because his assertions
were inconsistent with his guilty plea. At a hearing on his motion, Gonzalez
testified (1) that he wanted to withdraw his plea of guilty and (2) that he was
ready for a jury trial. The trial court took judicial notice of the PSI and denied
his motion to withdraw his guilty plea. The trial court subsequently found
Gonzalez guilty and sentenced him to twenty-five years’ confinement.
2
… There is no reporter’s record of Gonzalez’s plea proceeding.
2
In his sole point, Gonzalez argues that the trial court abused its discretion
by denying his motion to withdraw his guilty plea. He contends that his plea
of guilty and judicial confession were not freely, knowingly, and voluntarily
entered, that he did not understand the consequences of his plea, and that he
was denied due process and a fair trial under both the United States and Texas
constitutions.
A defendant may withdraw his 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. Jackson v. State, 590 S.W.2d 514, 515
(Tex. Crim. App. 1979). However, if a defendant decides to withdraw his
guilty plea after the trial court takes the case under advisement or pronounces
judgment, the withdrawal of the plea is within the sound discretion of the trial
court. Id.; Labib v. State, 239 S.W.3d 322, 331 (Tex. App.—Houston [1st
Dist.] 2007, no pet.). Once the judge has admonished the accused and
accepted his or her plea, passing the case for a PSI constitutes “taking the case
under advisement.” Crumpton v. State, 179 S.W.3d 722, 724 n.2 (Tex.
App.—Fort Worth 2005, pet. ref’d); Watson v. State, 974 S.W.2d 763, 765
(Tex. App.—San Antonio 1998, pet. ref’d).
Here, Gonzalez signed the written plea admonishments and a judicial
confession on February 20, 2007, and the trial court deferred sentencing for
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preparation of a PSI. Gonzalez filed his motion to withdraw his guilty plea on
May 14, 2007, almost three months later. Because the trial court had already
taken the case under advisement when Gonzalez filed his motion to withdraw
his guilty plea, we review the trial court’s denial of Gonzalez’s motion under an
abuse of discretion standard. See Jackson, 590 S.W.2d at 515; Watson, 974
S.W.2d at 765.
In determining whether the trial court abused its discretion, we must
uphold the trial court’s ruling if it is reasonably supported by the record and is
correct under any theory of law applicable to the case. Carrasco v. State, 154
S.W.3d 127, 129 (Tex. Crim. App. 2005). An abuse of discretion is shown
only when the trial court’s ruling lies outside the “zone of reasonable
disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.
1990).
A guilty plea must be made knowingly and voluntarily before it can meet
the statutory and constitutional requirements and be accepted. See T EX. C ODE
C RIM. P ROC. A NN. art. 26.13(b) (Vernon Supp. 2007). When the trial court has
admonished the defendant concerning the possible range of punishment for the
crime for which he stands accused, there is a prima facie showing that the plea
was made knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195, 197
(Tex. Crim. App. 1998). The burden then shifts to the defendant to show that
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he was harmed because he did not fully understand the consequences of his
plea. Id.; Crumpton, 179 S.W.3d at 724.
Although there is no reporter’s record of the plea proceeding, evidence
of Gonzalez’s plea is in the clerk’s record. See T EX. C ODE C RIM. P ROC. A NN. art.
26.13(d) (permitting the trial court to admonish defendant orally or in writing);
Scott v. State, 86 S.W.3d 374, 375 (Tex. App.—Fort Worth 2002, no pet.)
(relying on evidence in the clerk’s record to address voluntariness of appellant’s
plea); Cutrer v. State, 995 S.W.2d 703, 706 (Tex. App.—Texarkana 1999, pet.
ref’d) (holding prima facie evidence of voluntary and knowing plea is presented
where defendant was properly admonished in writing). The record reflects that
Gonzalez signed written plea admonishments indicating that he is able to read
the English language and that he fully understood the written plea
admonishments; that he was aware of the consequences of his plea; that he
was waiving the attendance and record of a court reporter; that he entered his
plea knowingly, freely, and voluntarily; and that no one threatened, coerced,
forced, persuaded, or promised anything in exchange for his plea. The presiding
judge signed the written plea admonishments, which state that the trial court
gave Gonzalez the admonishments set forth therein, that it found him to be
mentally competent, and that his plea was intelligently, freely, and voluntarily
given. Gonzalez also acknowledged in his signed written plea admonishments
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for sex offender registration requirements that he freely and voluntarily entered
his plea of guilty. This evidence is sufficient to establish a prima facie showing
that Gonzalez’s plea of guilty was entered knowingly and voluntarily. See
Martinez, 981 S.W .2d at 197. Gonzalez consequently had the burden of
showing harm due to his failure to fully understand the consequences of his
plea. See id.; Crumpton, 179 S.W.3d at 724.
As the basis for his arguments that he should have been allowed to
withdraw his guilty plea because he entered his plea involuntarily, the plea is
untrue, and he was denied due process, Gonzalez merely contends that there
was ample evidence of the repudiation of his judicial confession prior to
sentencing. Gonzalez is apparently referencing his statements in the PSI. The
PSI, however, is not part of the appellate record. In order for a complaint to be
properly considered, the record must be complete on the issue urged.
McQueen v. State, 702 S.W.2d 302, 303 (Tex. App.—Houston [1st Dist.]
1985, no writ). Oddly, although Gonzalez’s argument relies on his statements
contained in PSI, he does not include a discussion or recitation of the specific
contentions contained in the PSI where he allegedly professed his innocence.
Gonzalez also does not raise any contention regarding the PSI’s absence from
the record, nor does the record reflect any attempt to supplement the record
with the PSI. Having failed to bring forth the PSI as part of the appellate
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record, Gonzalez’s arguments relying on his statements in the PSI (which are
not included in his own brief) present nothing for our review.3
Gonzalez testified briefly at the hearing on his motion to withdraw his
guilty plea, but he stated only that he wanted to withdraw his plea of guilty and
that he was ready for a jury trial. Gonzalez directs us to no evidence showing
that he did not understand the consequences of his plea or that he did not enter
his plea knowingly and voluntarily, and we have found none after examining the
entire record.4 Accordingly, we hold that the trial court did not abuse its
3
… See Fuller v. State, No. 14-96-00958-CR, 1998 WL 239611, at *1
(Tex. App.—Houston [14th Dist.] May 14, 1998, pet. ref’d) (not designated for
publication) (“Fuller failed to bring forward the pre-sentence investigation the
trial court relied upon prior to sentencing him. Therefore, he presents nothing
for review.”); Tagle v. State, No. 13-97-00193-CR, 1997 WL 33644287, at *3
(Tex. App.—Corpus Christi Dec. 30, 1997, no pet.) (not designated for
publication) (“Appellant has failed to make the pre-sentence investigation part
of the appellate record, so we are unable to confirm whether the pre-sentence
investigation supported the State’s comment that Appellant had been on
probation before and had failed to report. The record must demonstrate
requisite facts entitling the defendant to relief.”); Gibson v. State, No. 01-95-
01046-CR, 1996 WL 580513, at *2 (Tex. App.—Houston [1st Dist.] Oct. 10,
1996, pet. ref’d) (not designated for publication) (“[A]ppellant has not brought
forth the presentence investigation report . . . . [A]ppellant brings nothing for
review.”).
4
… Like his appellate brief, Gonzalez’s motion to withdraw his guilty plea
states that he desired to withdraw his plea because there were multiple
instances in his PSI where he had recanted his plea of guilty. But there is no
evidence contained therein or attached thereto either detailing how or why his
plea of guilty was not made knowingly and voluntarily.
7
discretion by denying his motion to withdraw his plea of guilty. See Crumpton,
179 S.W.3d at 725 (holding that trial court did not abuse its discretion by
refusing appellant’s request to withdraw guilty plea); Grant v. State, 172
S.W.3d 98, 100 (Tex. App.—Texarkana 2005, no pet) (same); Dean v. State,
Nos. 02-02-0087-CR, 02-02-0089-CR, 2003 WL 21940898, at *3 (Tex.
App.— Fort Worth Aug. 14, 2003, pet. ref’d) (mem. op.) (not designated for
publication) (same). We overrule Gonzalez’s sole point and affirm the trial
court’s judgment.
PER CURIAM
PANEL F: HOLMAN, J.; CAYCE, C.J.; and LIVINGSTON, J.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: March 20, 2008
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