Tony Canandus Curry v. State ( 2007 )

Affirmed and Memorandum Opinion filed June 7, 2007

Affirmed and Memorandum Opinion filed June 7, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00471-CR

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TONY CANANDUS CURRY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 38,417

M E M O R A N D U M  O P I N I O N

Appellant Tony Canandus Curry challenges the legal and factual sufficiency of the evidence supporting his conviction for aggravated robbery.  We affirm.

I.  Factual and Procedural Background

Appellant pleaded guilty to aggravated robbery before the jury, which found appellant guilty of the charged offense and assessed punishment at twenty-five years= confinement in the Institutional Division of the Texas Department of Criminal Justice.  Appellant now asserts the evidence is legally and factually insufficient to support his conviction.^[1]  Specifically, he challenges the sufficiency of  the evidence to show that the handgun alleged to have been used in the robbery was a deadly weapon.  Appellant also contends there is no evidence to show that the handgun was Aexhibited@ and Aused@ during the robbery.

II.   Analysis

 In felony prosecutions, when a defendant has waived the right to trial by jury and entered a guilty plea, the State is required to introduce evidence showing the guilt of the defendant.^[2]  Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2005).  However, the State is not required to introduce such evidence when a guilty plea is taken before a jury.   Ex parte Martin, 747 S.W.2d 789, 792 (Tex. Crim. App.1988); Ex Parte Taylor, 480 S.W.2d 692, 693 (Tex. Crim. App. 1972).  When the accused enters a plea of guilty before the jury in a felony case, he admits the existence of all necessary elements to establish guilt; the State then introduces evidence to enable the jury to intelligently exercise its discretion to determine the penalty to be assessed.  Compare Burkett v. State, 196 S.W.3d 892, 895 (Tex. App.CTexarkana 2006, no pet.) with Dinnery v. State, 592 S.W.2d 343, 352 (Tex. Crim. App.  1979) (concluding that a plea of guilty does not authorize conviction in a bench trial unless there is evidence offered to support the plea and the judgment to be entered).  In such cases there is no question as to the sufficiency of the evidence on appeal, or on collateral attack.  Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App.1986).  In this case, appellant retained his right to trial by jury and voluntarily entered his guilty plea.  Appellant makes no claim in this appeal that his guilty plea was made involuntarily or without knowledge.  Accordingly, appellant=s challenges to the legal and factual sufficiency of the evidence are without merit.  See Ex parte Williams, 703 S.W.2d at 678; Burkett, 196 S.W.3d at 894B95 (concluding appellant could not complain about  the legal and factual sufficiency of the evidence because he had voluntarily pleaded guilty before the jury).  We overrule appellant=s two issues and affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed June 7, 2007.

Panel consists of Chief Justice Hedges, and Justices Frost and Seymore.

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

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^[1]  Both parties admit that after appellant was arraigned for the offense, he pleaded guilty to the offense as stated in the indictment.

^[2]   Appellant does not assert any violation of article 1.15 of the Texas Code of Criminal Procedure.