Jamel Whitley v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

Nos. 04-00-00043-CR & 04-00-00044-CR

Jamel WHITLEY,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court Nos. 96-CR-4090C & 96-CR-4092C
Honorable Philip A. Kazen, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: November 1, 2000

AFFIRMED

Jamel Whitley pled no contest to two counts of aggravated robbery with a deadly weapon and was sentenced to twelve years imprisonment and ordered to pay a $1,000 fine in accordance with his plea agreement. He asserts on appeal that his plea of no contest was not voluntary. In general, a defendant who pleads guilty and whose punishment does not exceed that recommended in the plea bargain is not allowed to appeal any matter without the trial court's permission, except rulings on pretrial motions and jurisdictional defects. Tex. R. App. P. 25.2 (formerly Rule 40(b)(1)). However, the Texas Court of Criminal Appeals has held that a plea-bargaining defendant is entitled to challenge the voluntariness of a negotiated guilty plea. Flowers v. State, 935 S.W.2d 131, 133 (Tex. Crim. App.1996) (construing predecessor to Rule 25.2(b)(3)). Accordingly, we have jurisdiction to review Whitley's points of error regarding the voluntariness of his plea. Guzman v. State, 993 S.W.2d 232, 234 (Tex. App.-San Antonio, 1999 pet. ref'd). (1)

In his brief, Whitley's counsel asserts that the trial court failed to determine whether Whitley's plea was freely and voluntarily made. To be constitutionally valid, a guilty plea must be knowing and voluntary. Brady v. United States, 397 U.S. 742, 749 (1970); Guzman, 993 S.W.2d at 235; Tex. Code Crim. Proc. art. 26.13(b) (Vernon 1989) . Proper admonishment by the trial court in substantial compliance with article 26.13 of the code of criminal procedure creates a prima facie showing that the plea was knowing and voluntary. Tex. Code Crim. Proc. art. 26.13(c) (Vernon 1989); Crawford v. State, 890 S.W.2d 941, 944 (Tex. App.-San Antonio 1994, no pet.). The burden then shifts to the defendant to show that he entered his plea without understanding the consequences of the plea, and as a result, suffered harm. Fuentes v. State, 688 S.W.2d 542, 544 (Tex. Crim. App. 1985).

In this case, the trial court held a hearing on Whitley's plea January 19, 1999. The record from that hearing reflects that the trial court engaged in extensive discussion with Whitley regarding the consequences of his plea of no contest. The trial court ensured that Whitley understood the charges made against him, that he had discussed the charges with his attorney, and that he was satisfied with his attorney's representation. Further, the trial court admonished Whitley as to the range of punishment attached to the two offenses and that he was giving up his rights to a jury trial. The trial court showed Whitley the documents he signed for each cause, entitled "Court's Admonishment and Defendant's Waivers and Affidavit of Admonitions," and ensured that Whitley had read and understood the contents of the documents and that he had signed each document. The trial court admonished Whitley that by signing the documents he waived his rights to a jury trial, his right to cross-examine witnesses and his right to confront the witnesses against him. Whitley confirmed that he intended to give up those rights. The trial court further admonished Whitley that the court could either accept or reject the plea bargain in the case and that if he accepted it, Whitley had no right of appeal without the trial court's permission unless the appeal concerned a ruling on a written pretrial motion. The trial court then ensured that Whitley understood the terms of the plea agreement, which included a cap of twelve years of incarceration. Regarding Whitley's application for deferred adjudication, the trial court ensured that Whitley understood the State was making no recommendation on his application. Whitley's counsel then affirmed that Whitley had a rational understanding of the charges against him, that Whitley had been able to assist him in his defense, and that Whitley was mentally capable of waiving his rights. The trial court then explained the consequences of a deferred adjudication to Whitley and ensured that he still wished to apply for deferred adjudication, knowing the risk of receiving a substantially greater sentence should he violate the conditions. Following that, Whitley pled no contest to each charge, and the trial court confirmed that Whitley entered the pleas because he believed it was in his best interests, and that no one had promised Whitley anything in return for the pleas, or threatened, forced, or coerced him into making the pleas. The State then entered its documentary evidence into the record and the trial court then stated:

I find that the evidence is sufficient to establish a finding guilt [sic]. I'll make no other findings at this time, and that's in cause number 96-CR-4092C. In 96-CR-4090C, I also find that the evidence is sufficient to establish of finding of guilt. I'll make no other findings at this time. I'm going to send this for a presentence investigation in both of these cases.

Based upon our review of the record, we conclude that the trial court sufficiently admonished Whitley, both orally and in writing, as to the effect of entering a no contest plea. Whitley's testimony at the hearing on the plea showed that he made his plea voluntarily. A prima facie case has thus been established as to voluntariness of the plea, and Whitley bears the burden on appeal to show that he entered his plea without understanding the consequences of the plea, and as a result, suffered harm. Fuentes v. State, 688 S.W.2d 542, 544 (Tex. Crim. App.1985).

After the hearing on the plea in January of 1999, Whitley filed a motion to withdraw his plea of no contest on June 18, 1999. The hearing on the motion was conducted on November 30, 1999. At that hearing Whitley asserted he did not understand the terms of the plea agreement, and that he thought he was agreeing to twelve years of probation, not incarceration. He basically attempted to retract all his earlier testimony at the hearing on the plea. However, he also stated: "I asked my lawyer was I getting probation, and he said, 'There's a possibility, yes.'" This statement shows that he knew probation was only a possibility pending the acceptance of his application for deferred adjudication.

While a defendant is entitled to withdraw his plea, he must do so before judgment has been pronounced or the case has been taken under advisement. Harling v. State, 899 S.W.2d 9, 11 (Tex. App.-San Antonio 1995, pet. ref'd)(citing Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979)). A motion to withdraw a plea filed after the trial court has taken a case under advisement is untimely, and whether to grant or deny the motion is a matter completely within the trial court's discretion. In Harling, this court held that when a trial court resets a case for a presentence investigation after it finds the evidence sufficient to support a finding of guilt, the court has taken the case under advisement. Harling, 899 S.W.2d at 12. Whitley's motion to withdraw his plea in these causes was untimely, and we cannot say the trial court abused its discretion in denying the motion. Id.

We hold that the record contains enough evidence to conclude that, notwithstanding his untimely attempt to withdraw his plea, the totality of the circumstances shows that Whitley made a voluntary plea of no contest to both charges, he knew of the consequences of making those pleas, and that the trial court gave Whitley the proper admonishments in accordance with Texas Code of Criminal Procedure article 26.13. Therefore, we affirm the judgment of conviction on both charges.

Karen Angelini, Justice

DO NOT PUBLISH

1. This appeal consists of two companion cases. The State asserts in its brief that Whitley filed a notice of appeal in trial court cause number 96-CR-4092C, but not in 96-CR-4090C. The State apparently overlooked the notice of appeal for 96-CR-4090C, which is in the clerk's record for that cause number at page 140.