Bracie Eugene Rogers v. State

Bracie Eugene Rogers

  IN THE

TENTH COURT OF APPEALS

No. 10-98-154-CR

     BRACIE EUGENE ROGERS,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 177th District Court

Harris County, Texas

Trial Court # 751,908

O P I N I O N

      Appellant Rogers appeals his conviction for aggravated sexual assault of a child, for which he was sentenced to 16 years in the Institutional Division of the Texas Department of Criminal Justice.

      H. B., a child thirteen-years-of-age, was walking from the picture show at Northline Mall when Appellant drove by and offered her a ride home. The child agreed and entered Appellant's vehicle. Appellant drove to the 1000 block of Granville where he demanded that complainant remove her clothes. She refused and Appellant placed a knife to her throat and threatened her if she would not comply with his demands. He proceeded to place his penis in her vagina. Afterwards he abandoned her at 1000 Granville where she walked to a nearby service station and called the police.

      Appellant was indicted and, on September 15, 1997, entered an open plea of guilty. There was no plea bargain. The trial court found there was sufficient evidence to support a finding of guilt but deferred a finding of guilt until a pre-sentence investigation could be completed.

      The pre-sentence investigation was completed and Appellant came up for a punishment hearing on November 18, 1997. Appellant's counsel asked the court to grant Appellant probation with the ordinary conditions and terms which the court ordinarily imposes in this type of case. The State opposed probation.

      The trial court then found Appellant guilty of aggravated sexual assault of a child and sentenced him to 16 years in prison.

      At the hearing on September 15, 1997, Appellant pled guilty, stipulated that the allegations in the indictment were true, and that there was no agreed recommendation. Appellant and his counsel both signed that Appellant knowingly and voluntarily signed the stipulation after the consequences had been fully discussed. The court found that Appellant had knowingly and voluntarily entered his plea of guilty after the court admonished him of the consequences of his plea and that he appeared mentally competent and that the plea was free and voluntary. The court later assessed Appellant's punishment and sentenced him accordingly.

      By different counsel Appellant appeals on one point of error: "The trial court abused its discretion in not conducting a hearing on Appellant's motion for new trial to determine whether he entered his plea voluntarily and whether he had received effective assistance of counsel."

      On September 15, 1997, Appellant entered an open plea of guilty. On November 18, 1997, the trial court assessed Appellant 16 years in prison and rendered judgment in accord therewith.

      Appellant filed written notice of appeal on December 9, 1997, and filed two motions to withdraw his guilty plea (after judgment had already been rendered) on January 15, 1998, and on February 18, 1998. Both motions were denied by the trial court.

      In his motions to withdraw his guilty plea, Appellant asserts his plea was not made intelligently or voluntarily because he did not have effective assistance of counsel. He claims his counsel promised he would get probation if he pled guilty.

      Appellant asserts his motions to withdraw his guilty plea were the functional equivalent of a motion for a new trial. Assuming, without deciding, that is true, Appellant's motions were still untimely filed. A defendant may file a motion for new trial before, but no later than, 30 days after the date where the trial court imposes or suspends sentence in open court. Tex. R. App. P. 21.4. A trial court cannot grant a motion for new trial once the time limits have expired. Drew v. State, 743 S.W.2d 207, 223 (Tex. Crim. App. 1987).

      As noted, Appellant was sentenced on November 18, 1997, and filed his two motions to withdraw his plea of guilty (new trial as he denominates them) January 15, 1998, and February 18, 1998, some 58 and 89 days after sentencing.

      Further Appellant cannot complain on appeal that the trial court erred by not conducting a hearing because he never requested a hearing. Martin v. State, 823 S.W.2d 395, 397 (Tex. App.—Texarkana 1992, pet ref'd).

      Moreover, where there is no plea bargain, as in this case, and a plea of guilty is voluntarily and understandably made, all non jurisdictional defects are waived. Shallhorn v. State, 732 S.W.2d 636, 637 Tex. Crim. App. 1987); Helms v. State, 484 S.W.2d 925, 927 (Tex. Crim. App. 1972); Hall v. State, 853 S.W.2d 757, 758 (Tex. App.—Houston [14th Dist.], pet ref'd). In Hall, supra, the court specifically held that the above rule waives any error with respect to alleged ineffective assistance of counsel.

      For all of the above reasons, Appellant's point and contentions are overruled. The judgment is affirmed.

                                                                         FRANK G. McDONALD

                                                                         Chief Justice (Retired)

Before Chief Justice Davis,

      Justice Vance and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed January 27, 1999

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