Elouise Louis Henry v. State ( 2004 )

11th Court of Appeals

Eastland, Texas

Opinion

Elouise Louis Henry

            Appellant

Vs.                  No. 11-04-00116-CR -- Appeal from Taylor County

State of Texas

            Appellee

            On June 27, 2003, after Elouise Louis Henry waived her right to trial by jury, she entered a plea of guilty to the offense of possession of less than 1 gram of cocaine. Appellant also pleaded true to 2 enhancement paragraphs. After the trial court accepted appellant’s pleas, it indicated that it would order a presentence investigation and that it would notify the attorneys and appellant when they were to return.

            On August 8, 2003, appellant failed to appear for a scheduled sentencing hearing because she was scared about what would happen to her. Appellant did appear for a subsequent sentencing hearing held on April 16, 2004. At the beginning of the sentencing hearing, appellant’s attorney informed the trial court that appellant wished to withdraw her guilty plea. After the trial court heard testimony on the issue, it overruled appellant’s request to withdraw her guilty plea. The trial court assessed appellant’s punishment at confinement in the Institutional Division of the Texas Department of Corrections for a term of 5 years. We affirm.

            Appellant raises one issue on appeal. She argues that the trial court erred when it refused to allow her to withdraw her guilty plea.

            In a trial before the court, a defendant may withdraw her guilty plea, as a matter of right and without any reason, at any time before judgment is pronounced or until the trial court has taken the case under advisement. Jackson v. State, 590 S.W.2d 514 (Tex.Cr.App.1979). The Court of Criminal Appeals has recently acknowledged that rule in Mendez v. State, 138 S.W.3d 334, 345 n.55 (Tex.2004):

[W]hen trial by jury has been waived, the defendant may change the plea from guilty to not guilty until the court pronounces judgment or takes the case under advisement.

            A trial court takes a case under advisement when it has received the plea, entered the plea papers, and passed the case pending completion of a presentence investigation. Davis v. State, 861 S.W.2d 25, 26-27 (Tex.App. - Houston [14th Dist.] 1993, pet’n ref’d). After a trial court has taken a case under advisement, it is within the sound discretion of the trial court whether to allow a defendant to withdraw the plea of guilty. Garcia v. State, 960 S.W.2d 151, 157 (Tex.App. – Corpus Christi 1997, no pet’n). A trial court does not abuse its discretion unless its ruling is outside the zone of reasonable disagreement. Ellis v. State, 86 S.W.3d 759, 761 (Tex.App. - Waco 2002, pet’n ref’d).

            When appellant appeared before the trial court and entered her guilty plea, she signed a stipulation of evidence in which she admitted that she committed the offense to which she pleaded guilty. In that stipulation, she also admitted that the enhancement paragraphs contained in the indictment were true. Appellant also waived her right to confrontation as well as her privilege against self-incrimination. Appellant signed another document in which she acknowledged the trial court’s admonishments contained in that document. She also waived her right to trial by jury. Appellant makes no claim that she was not properly admonished. What appellant does claim is that the cocaine did not belong to her but, rather, to a codefendant, despite evidence that law enforcement officers found cocaine in a crack pipe and on a set of scales in appellant’s purse. The officers also found other crack pipes containing cocaine in the house when they executed the search warrant in this case. In appellant’s testimony at the sentencing hearing, she told the trial court that she had signed all of the original plea papers, including the stipulation of evidence, freely and voluntarily. When appellant requested that the trial court allow her to withdraw her plea, the trial court said:

            Well, [the codefendant] said he wanted a trial because he said it was [appellant’s] last time he was up here. That request will be denied.

            Because the trial court had taken this case under advisement at the time that appellant indicated her desire to withdraw her plea, her request was untimely. Further, because of the admissions, acknowledgments, waivers, testimony, and other information before the trial court at the time that it denied appellant’s request to withdraw her plea, it did not abuse its discretion when it denied the request. Appellant’s issue on appeal is overruled.

            The judgment of the trial court is affirmed.

                                                                                    JIM R. WRIGHT

                                                                                    JUSTICE

October 28, 2004

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.