Chowdhury, Zuel v. The State of Texas--Appeal from 268th District Court of Fort Bend County

Affirmed and Memorandum Opinion filed April 3, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00176-CR

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ZUEL CHOWDHURY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 32,804-A

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M E M O R A N D U M O P I N I O N

Appellant Zuel Chowdhury was convicted of felony possession of a controlled substance. After waiving a jury trial, appellant pleaded guilty and tried the punishment issue to the court. In his sole point of error, appellant argues the trial court erred because it did not sua sponte withdraw his plea of guilty when he introduced evidence of entrapment during the punishment phase of the case. We affirm.

I. Factual Background

On February 10, 2000, appellant was arrested in the parking lot of a Lowe s hardware store. Count one on the indictment charged him with intentionally and knowingly delivering by actual transfer a controlled substance, namely cocaine, in an amount of 400 grams or more. Count two charged that he knowingly and intentionally possessed a controlled substance, namely cocaine, in an amount of 400 grams or more. Appellant pleaded guilty to count two, the lesser offense, and waived a jury trial for the opportunity to be sentenced by the court.

During the punishment phase, appellant attempted to present evidence of entrapment for the purpose of mitigating his punishment. In so doing, he called Jeffery Alan Filson, a fifteen year old friend, to testify on his behalf. According to Filson s testimony, an individual known as Richie asked Filson if he knew of anyone who could supply a large amount of cocaine. Filson relayed this message to appellant in casual conversation. Appellant testified he contacted Richie, who in turn put him in contact with Pete Paske, an undercover police officer. According to appellant s testimony, he contacted Richie only to request that he refrain from contacting Filson. He also testified that he asked Richie why he felt it necessary to use a fifteen year old boy to find narcotics. However, after several telephone calls between appellant and Paske, appellant agreed to locate approximately one kilogram of cocaine for the price of $17,500.00. Appellant stated he felt pressured by numerous phone calls from Paske and others and felt he would continue to be bothered by them until he complied with their wishes.

The court sentenced appellant to fifteen years imprisonment. This appeal ensued.

II. Standard of Review

Whether a defendant s guilty plea should be withdrawn is left to the sound discretion of the trial court, and we therefore review the trial court s ruling under an abuse of discretion standard. See Graves v. State, 803 S.W.2d 342, 346 (Tex. App. Houston [14th Dist.] 1990, pet. ref d). We look to the totality of the circumstances in each case to determine whether there is sufficient evidence to require the withdrawal of a plea. See Gates v. State, 543 S.W.2d 360, 361 62 (Tex. Crim. App. 1976).

III. ANALYSIS

In his sole point of error, appellant argues the court erred in failing to sua sponte withdraw his guilty plea when evidence of entrapment, an affirmative defense, was fairly raised and presented. A trial court is not required to withdraw a guilty plea sua sponte and enter a plea of not guilty when the defendant enters a plea of guilty before the court, after waiving a jury, even if evidence is thereafter adduced that either makes his innocence evident or reasonably and fairly raises an issue as to guilt. Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App. 1978); see also Solis v. State, 945 S.W.2d 300, 303 (Tex. App. Houston [1st Dist.] 1997, pet. ref d) (noting that it would serve no valid purpose for the court to withdraw the guilty plea and enter a not guilty plea when the defendant enters a plea of guilty before the court after waiving a jury. ); Goodie v. State, 735 S.W.2d 871, 873 (Tex. App. Houston [14th Dist.] 1987, pet denied) (noting that the trial court was not under a duty to order appellant s plea withdrawn based on his subsequent protest); Luna v. State, No. 13-02-147-CR, 2003 WL 60525, at *2 (Tex. App. Corpus Christi Jan. 9, 2003, no pet. h.) (not designated for publication) ( A trial court has no obligation to sua sponte withdraw a plea of guilt or no contest made before it, even if evidence is presented that makes the innocence of the defendant evident or reasonably and fairly raises an issue as to such innocence. ) As the trier of fact, the court may find the appellant guilty of a lesser offense and assess the appropriate punishment or it may find the defendant not guilty. Solis, 945 S.W.2d at 303.

It is true as appellant contends that when a defendant pleads guilty before a jury, the trial court must sua sponte withdraw the plea if evidence fairly raising an issue as to innocence arises before the defendant is found guilty. See Griffin v. State, 703 S.W.2d 193, 195 (Tex. Crim. App. 1986). The Court of Criminal Appeals, however, has held that a different rule applies when, as here, a defendant pleads guilty before the court. See Thomas v. State, 599 S.W.2d 823, 824 (Tex. Crim. App. 1980). The reason for the distinction is that the trial court has authority to find the defendant innocent regardless of the plea if the judge determines the evidence sufficient to support such a judgment. See id.; Goodie, 735 S.W.2d at 873. Thus, all of the cases relied upon by appellant are distinguishable as they involve guilty pleas to a jury. See Payne v. State, 790 S.W.2d 649, 651 (Tex. Crim. App. 1990); Griffin, 703 S.W.2d at 194; Lincoln v. State, 560 S.W.2d 657, 658 (Tex. Crim. App. 1978); Montalvo v. State, 572 S.W.2d 714 (Tex. Crim. App. 1978); Saenz v. State, 807 S.W.2d 10, 11 (Tex. App. Corpus Christi 1991, no pet.); Leal v. State, 730 S.W.2d 72, 73 (Tex. App. Corpus Christi 1987, no pet).

Because the court has the discretion to find the defendant not guilty when the evidence supports such a finding even though the defendant has maintained his guilty plea, the trial court is not required to withdraw the plea of guilty and enter a not guilty plea. Moon, 572 S.W.2d at 682; Solis, 945 S.W.2d at 303. Here, appellant pleaded guilty and waived his right to a jury trial. Thus, we find the trial court was not required to withdraw sua sponte the appellant s freely and voluntarily made plea. Under the facts and circumstances of this case, we find the trial court s election was not an abuse of discretion.

III. Conclusion

Accordingly, we overrule appellant s point of error and affirm the judgment.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed April 3, 2003.

Panel consists of Justices Edelman, Seymore, and Guzman.

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