Fisher, Valerie v. The State of Texas--Appeal from 248th District Court of Harris County

Affirmed and Opinion filed _____________, 2002

Affirmed and Opinion filed May 8, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00559-CR

____________

VALERIE FISHER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

   Harris County, Texas

Trial Court Cause No. 894,144

 

 O P I N I O N

Appellant, Valerie Fisher, was charged with the felony offense of delivery or offer to deliver a dangerous drug. She waived a jury and pleaded guilty without an agreed plea bargain. The trial court initially withheld a finding of guilt, pending completion of a pre-sentence investigation report (PSI). After reviewing the PSI at a later hearing, the trial court found appellant guilty and assessed punishment at 13 months confinement.

In one issue, appellant argues the trial court should have withdrawn her guilty plea sua sponte when evidence in the PSI raised an issue as to her innocence,[1] citing Hernandez v. State, 827 S.W.2d 54, 56 (Tex. App. Houston [1st Dist.] 1992, no pet.). While Hernandez may be distinguished on several grounds,[2] in any event it cannot stand for the proposition asserted. The Court of Criminal Appeals, the First Court of Appeals (which issued Hernandez), and this Court all agree withdrawal is not required when a jury has been waived and the case submitted to the court, as the judge is then free to make any finding based on the evidence (guilty, guilty of a lesser-included offense, or not guilty) regardless of the plea. See Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App. 1978); Solis v. State, 945 S.W.2d 300, 302 03 (Tex. App. Houston [1st Dist.] 1997, pet. ref d); Graves v. State, 803 S.W.2d 342, 346 (Tex. App. Houston [14th Dist.] 1990, pet. ref d).

In the present case, appellant expressly and voluntarily waived her right to a jury trial, judicially confessed to the offense charged, received the required admonishments,[3] and entered a guilty plea. The court found appellant mentally competent, found her plea was voluntary, and found sufficient evidence to support guilt. Therefore, the trial court did not err in refusing to withdraw appellant s guilty plea.

The judgment of the trial court is affirmed.

/s/ Scott Brister

Chief Justice

Judgment rendered and Opinion filed May 8, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

[1] In her written statement in the PSI, appellant admitted she drove her aunt to a convenience store where the narcotics were sold, but denied playing any part except receiving the money and responding to questions as directed by her aunt. But in the statement appellant also said I m guilty of this offense. At the hearing, she testified I know I was in the wrong. The PSI also included a synopsis of the police report, in which the arresting officer said appellant not only took the money but said she could provide more narcotics in the future.

[2] The defendant in Hernandez pleaded nolo contendre rather than guilty. Id. at 56. Moreover, the appeals court found the evidence did not raise an issue as to his guilt, id. at 57 58, so the withdrawal question was not directly presented.

[3] See Tex. Code Crim. Proc. 26.13.