Amaechi, Okechukuy Christopher v. State ( 2004 )

Affirmed and Memorandum Opinion filed May 25, 2004

Affirmed and Memorandum Opinion filed May 25, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-01003-CR

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OKECHUKUY CHRISTOPHER AMAECHI, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 935,002

M E M O R A N D U M   O P I N I O N

Appellant Okechukuy Christopher Amaechi appeals from his felony conviction for aggravated robbery.  After appellant waived a jury and entered a plea of guilty to the charged offense, the trial court sentenced him to eighteen years= confinement.  On appeal, he presents three issues for review.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.  See Tex. R. App. P. 47.4.  We affirm.

In his first issue, appellant argues that the trial court should have sua sponte withdrawn his guilty plea when evidence in the pre-sentence investigation (APSI@) report and his protestations in open court at the sentencing hearing raised an issue as to his innocence.  He cites, inter alia, Odom v. State, 852 S.W.2d 685 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d), in support of this argument.  Odom, however, stands for the proposition that a trial court is obligated to sua sponte withdraw a guilty plea following the presentation of such evidence before a jury.  The same rule does not apply to bench trials, as in the present case, because the trial judge is in a position to credit or disbelieve particular evidence. See Moon v. State, 572 S.W.2d 681-82 (Tex. Crim. App. 1978).  Accordingly, withdrawal of a guilty plea is not required when a jury has been waived and the case submitted to the court.  Id.; Fisher v. State, 104 S.W.3d 923, 924 (Tex. App.CHouston [14th Dist.] 2003, no pet.).  Appellant expressly and voluntary waived his right to a jury, judicially confessed to the offense charged, received the required admonishments, and entered a plea of guilty.  The trial court found him mentally competent, his plea voluntary, and the evidence sufficient to support guilt.  Accordingly, the trial court did not err in failing to sua sponte withdraw appellant=s guilty plea, and his first issue is overruled.

In his second issue, appellant argues that the trial court abused its discretion in rejecting appellant=s application for community supervision and sentencing him to a term of eighteen years= confinement for his first offense.  We review the trial court=s sentence for abuse of discretion.  Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). The trial court found appellant guilty of aggravated robbery, a first-degree felony offense, and assessed punishment at eighteen years= confinement.  See Tex. Pen. Code Ann. ' 29.03(b) (Vernon 1994).  An individual found guilty of such a felony offense may be sentenced to any term of imprisonment not more than 99 years or less than five years.  Tex. Pen. Code Ann. ' 12.32(a) (Vernon 1994).

In general, as long as the sentence imposed lies within the statutory guidelines it will not be disturbed on appeal.  Jackson, 680 S.W.2d at 814.  Provided the trial judge has some evidence before her supporting her decision, the sentence will be upheld. Benjamin v. State, 874 S.W.2d 132, 135 (Tex. App.CHouston [14th Dist.] 1994, no pet.).  In the present case, the trial judge expressly considered, inter alia, the PSI report, witness testimony, the presence of guns and multiple victims at the scene of the crime, and appellant=s escape from custody and subsequent flight from the scene.  Based on this record, we cannot say that the trial court abused its discretion in sentencing appellant to eighteen years= confinement.  Accordingly, we overrule appellant=s second issue.

In his third issue, appellant argues that the trial court=s imposition of a sentence of eighteen years= confinement for the offense of aggravated robbery constitutes a violation of his Eighth Amendment right to be free from cruel and unusual punishment.  The State argues, however, that appellant failed to preserve this issue for appellate review by failing to make a timely objection before the trial court.  We agree with the State=s position. See Tex. R. App. P. 33.1(a); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (rejecting claim of cruel and unusual punishment because error was not preserved by objection in the trial court).  Accordingly, we overrule appellant=s third issue.

The judgment of the trial court is affirmed.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed May 25, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).