in Re: The State of Texas, Ex Relatione Armando R. Villalobos, County (Criminal District) Attorney, Cameron County, Texas

                              NUMBER 13-05-370-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

IN RE: THE STATE OF TEXAS,

EX RELATIONE, ARMANDO R. VILLALOBOS 

COUNTY (CRIMINAL DISTRICT) ATTORNEY,

CAMERON COUNTY, TEXAS

                       On appeal from the County Court at Law No. 3

                                       of Cameron County, Texas.

                               MEMORANDUM OPINION

                          Before Justices Yañez, Castillo, and Garza

                            Memorandum Opinion by Justice Yañez

Relator, the State of Texas, ex rel. Armando R. Villalobos, County (Criminal District) Attorney, Cameron County, Texas, filed a petition for writ of mandamus with this Court on June 9, 2005.  By this petition, the State requests this Court to direct the trial court to withdraw a judgment of acquittal for real party in interest, C. Douglas Wright. According to the State, the trial court had a ministerial duty to enter a judgment of conviction following Wright=s plea of nolo contendere.  We deny the petition for writ of mandamus. 

                                                                  I.  Background

C. Douglas Wright was charged with driving while intoxicated, a violation of the duty upon striking fixture,^[1] and unlawfully carrying a weapon.  At arraignment, the State and Wright recounted the terms of plea agreements that had been discussed.  However, Wright, who was represented by substitute counsel, entered Aopen@ pleas of nolo contendere to the charges.  The trial court admonished Wright, found that the pleas were voluntarily and intelligently made, and accepted the pleas.  The court informed Wright that the effect of the plea was that Ayou allow the Court to listen to the testimony . . . . I can decide your guilt or innocence, I can decide your punishment.@  The State and Wright introduced evidence and argument regarding the charges.  Wright denied the intoxication charge.  Wright=s counsel raised, without objection, the Atraveling@ defense to the charge of unlawfully carrying a weapon, and then moved for a judgment of acquittal based on insufficient evidence as to the other two charges. The State objected:

Your Honor, for the record, I would object to Mr. Cisneros= interpretation of a no contest plea.  I believe it would have the same legal effect as a guilty plea.  However, that being said, Your Honor, we have no opposition to deferred adjudication, minimal time limit of probation on each of the offenses.

The trial court stated that it believed it was the court=s duty to hear the evidence Abecause sometimes defendants don=t know better,@ and that it was within the court=s authority to find the defendant not guilty of the charge.

Without further objection, the trial court deferred the finding of guilt on the failure of duty upon striking fixture, placed Wright on a six month period of probation, and assessed a fine of $300.00.  The trial court found Wright not guilty of the charges of driving while intoxicated and unlawfully carrying a weapon.  The State has not elected to challenge the trial court=s rulings regarding the failure of duty or the weapon charge.  The State attacks the trial court=s acquittal on the driving while intoxicated charge through this writ of mandamus and by appeal in appellate cause no. 13-05-268-CR.  

                                                           II.  Standard of Review

Mandamus relief may be granted if the relator shows the following: (1) that the act sought to be compelled is purely ministerial and (2) that there is no adequate remedy at law.  De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004); Winters v. Presiding Judge of the Crim. Dist. Court No. Three, 118 S.W.3d 773, 775 (Tex. Crim. App. 2003); State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003). 

An act is ministerial if it does not involve the exercise of any discretion.  Winters, 118 S.W.3d at 775.  Additionally, the relator must have a "clear right to the relief sought," meaning that the merits of the relief sought are "beyond dispute."  In re Rodriguez, 77 S.W.3d 459, 461 (Tex. App.BCorpus Christi 2002, orig. proceeding).  The requirement of a clear legal right necessitates that the law plainly describe the duty to be performed such that there is no room for the exercise of discretion.  See id.  

                                                                    III.  Analysis

            The State contends that the trial court did not have the authority to find Wright not guilty because Wright had entered an Aopen@ plea of nolo contendere.  A plea of nolo contendere, or no contest, is the equivalent of a plea of guilty insofar as criminal prosecution is concerned.  See Tex. Code Crim. Proc. Ann. ' 27.02(5); Lucero v. State, 502 S.W.2d 750, 752 (Tex. Crim. App. 1973).  According to the State, Wright=s plea of nolo contendere was conclusive of Wright=s guilt and the trial court had a ministerial duty to enter a judgment of conviction. 

We disagree. First, nothing in article 27.14 or the case law cited by the State requires the trial court to enter a verdict on the plea.  See  Tex. Code Crim. Proc. Ann. art. 27.14(a) (Vernon 1989 & Supp. 2004-05).  Rather, the principle underlying the article and cases construing the article is that the validity of a conviction following a plea of guilty or nolo contendere can be sustained by the plea itself, without the necessity of proving facts substantiating the guilt of the defendant.  See, e.g., Dees v. State, 676 S.W.2d 403, 404 (Tex. Crim. App. 1984) (plea as conclusive of defendant=s guilt); Perez v. State, 831 S.W.2d 884, 886 (Tex. App.BHouston [14th Dist.] 1992, no pet.) (plea is sufficient, standing alone, to support conviction).

Second, although the defendant may not have the absolute right to withdraw his plea in a misdemeanor proceeding, see Gutierrez v. State, 108 S.W.3d 304, 309 (Tex. Crim. App. 2003) (en banc), the trial court retains discretion to allow the defendant to withdraw his plea.  A liberal practice has prevailed in Texas concerning the withdrawal of a guilty plea.  Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979); Saldana v. State, 150 S.W.3d 486, 490 (Tex. App.BAustin 2004, no pet.).  When a defendant pleads guilty without a plea agreement and judgment has been pronounced or the case has been taken under advisement, the trial court's decision whether to allow a defendant to withdraw his plea is discretionary.  See Zinn v. State, 35 S.W.3d 283, 286 (Tex. App.BCorpus Christi 2000, pet. ref'd) (citing Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979); Rivera v. State, 952 S.W.2d 34, 35 (Tex. App.BSan Antonio 1997, no pet.); Thompson v. State, 852 S.W.2d 268, 270 (Tex. App.BDallas 1993, no pet.)).  Abuse of that discretion is shown only when the trial court's ruling lies outside the zone of reasonable disagreement.  Watson v. State, 974 S.W.2d 763, 765 (Tex. App.BSan Antonio 1998, pet. ref'd) (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g)).

We conclude that the trial court retained discretion to enter a judgment of acquittal in this matter, and accordingly, the State has failed to show that the entry of a judgment of conviction was a ministerial task.  De Leon, 127 S.W.3d at 5.

                                                                 IV.  Conclusion

The Court, having examined and fully considered the petition for writ of mandamus, is of the opinion that relator has not shown itself entitled to the relief sought. The petition for writ of mandamus is DENIED.  See Tex. R. App. P. 52.8(a).

LINDA REYNA YAÑEZ

Justice

Dissenting memorandum opinion by

Justice Errlinda Castillo

Do not publish.  Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 3rd day of January, 2006.

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^[1] AThe operator of a vehicle involved in an accident resulting only in damage to a fixture or landscaping legally on or adjacent to a highway shall: (1) take reasonable steps to locate and notify the owner or person in charge of the property of the accident and of the operator's name and address and the registration number of the vehicle the operator was driving; (2) if requested and available, show the operator's driver's license to the owner or person in charge of the property; and (3) report the accident if required by [ the transportation code] Section 550.061."  Tex. Transp. Code Ann. ' 550.025(a) (Vernon 1999).