Briggs, Ursula v. The State of Texas--Appeal from 174th District Court of Harris County

Affirmed and Opinion filed _____________, 2003

Affirmed and Memorandum Opinion filed September 30, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00736-CR

____________

URSULA BRIGGS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

   Harris County, Texas

Trial Court Cause No. 865,043

 

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

Appellant Ursula Briggs appeals her first-degree felony theft conviction for stealing more than $200,000 from her employer. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.1. We affirm.

Appellant waived a jury and entered a plea of guilty to the offense charged. The trial court initially withheld a finding of guilt, pending completion of a pre-sentence investigation ( PSI ) report. Upon review of that report at a later hearing, the trial court found appellant guilty and sentenced her to five years imprisonment.

First, appellant argues the trial court should have withdrawn her guilty plea sua sponte when evidence in the PSI report (namely, her claim that she had stolen only about $5,000) raised an issue as to her innocence. But this rule does not apply to bench trials, as the trial judge is in a position to credit or disbelieve particular evidence. See Moon v. State, 572 S.W.2d 681, 681-82 (Tex. Crim. App. 1978) (en banc). Accordingly, withdrawal of a guilty plea is not required when a jury has been waived and the case submitted to the court. Id.; Fisher v. State, 104 S.W.3d 923, 924 (Tex. App. Houston [14th Dist.] 2003, no pet.). Appellant expressly and voluntarily waived her right to a jury, judicially confessed to the offense charged, received the required admonishments, and entered a guilty plea. The trial court found her mentally competent, her plea voluntary, and sufficient evidence to support guilt. Thus, the trial court did not err in failing to sua sponte withdraw the guilty plea.

Second, appellant argues the trial court abused its discretion in sentencing her to five years imprisonment. But appellant failed to object to the sentence at the time of imposition. Indeed, when asked by the trial judge whether she had anything to say concerning why the sentence should not be pronounced at that time, appellant responded, No. I did not do what they said. Having failed to preserve error, appellant waived any complaint. See Tex. R. App. P. 33.1(a).

Even had she preserved the alleged error, appellant s contention is without merit. We review her sentence for abuse of discretion. Jacksonv. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (en banc). The evidence showed appellant, a cashier at a Wal-Mart, took almost $300,000 over the course of her employment. The trial court assessed appellant s punishment at five years confinement, the minimum term of confinement authorized by law. See Tex. Pen. Code 12.32(a), 31.03(e)(7). The trial court did not abuse its discretion in assessing appellant s punishment.

The judgment is affirmed.

/s/ Scott Brister

Chief Justice

Judgment rendered and Memorandum Opinion filed September 30, 2003.

Panel consists of Chief Justice Brister and Justices Anderson and Seymore.

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