Gary Lynn Robinson v. The State of Texas--Appeal from 402nd Judicial District Court of Wood County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00129-CR

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GARY LYNN ROBINSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 402nd Judicial District Court

Wood County, Texas

Trial Court No. 14,710-96

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

On January 29, 1997, Gary Lynn Robinson pled guilty to two charges of aggravated assault. Pursuant to a plea agreement, the State dismissed a third charge and recommended that, in the two remaining cases, Robinson be sentenced to twenty years' imprisonment. As part of the plea agreement, the parties also agreed there would be no deadly weapon finding. The trial court found Robinson's plea to be entered willingly, knowingly, intelligently, and voluntarily; the trial court then accepted Robinson's plea; and the trial court expressed its intent to follow the parties' plea agreement. However, at the parties' request, the trial court delayed imposing sentence until March 5, 1997. When the trial court reconvened March 5, 1997, Robinson moved to withdraw his earlier guilty plea. The trial court denied Robinson's request and formally imposed the sentence previously announced. In addition to the terms to be expected in the trial court's written judgment, the judgment also recites that the court made an affirmative deadly weapon finding. The court's oral pronouncement of judgment, however, contained no deadly weapon finding.

Last spring, the Texas Court of Criminal Appeals granted relief on Robinson's application for writ of habeas corpus and awarded him an out-of-time appeal. See Ex parte Robinson, No. AP-75,155 (Tex. Crim. App. Apr. 27, 2005) (not designated for publication). Robinson now appeals, urging two issues. We reform the trial court's judgment and, as reformed, affirm that judgment because (1) denying Robinson's request to withdraw his guilty plea was not an abuse of discretion, and (2) the judgment's affirmative deadly weapon finding was error.

(1) Denying Robinson's Request to Withdraw His Guilty Plea Was Not an Abuse of Discretion

"[W]hen the defendant decides to withdraw his or her guilty plea after the trial court takes the case under advisement or pronounces judgment, the withdrawal of such plea is within the sound discretion of the trial court." Grant v. State, 172 S.W.3d 98, 100 (Tex. App. Texarkana 2005, no pet.) (citing Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. [Panel Op.] 1979)). A trial court abuses its discretion if it acts without reference to guiding rules or principles, or if the court's decision is outside the zone of reasonable disagreement. Grant, 172 S.W.3d at 100.

In this case, the trial court delayed sentencing at the request of the parties to allow for the preparation of a presentence investigation report. This procedure is consistent with taking the case under advisement. See, e.g., Jackson, 590 S.W.2d at 515; Thompson v. State, 852 S.W.2d 268, 269 70 (Tex. App. Dallas 1993, no pet.). Robinson asserted at the March 5 hearing that his guilty plea had been rendered involuntary because, when he entered the plea, he was under the influence of pain medication. Robinson's own testimony is the only evidence in the record supporting this claim.

The trial judge at the March 5 hearing was, however, the same judge who had presided at Robinson's earlier plea, had witnessed Robinson's demeanor at the earlier plea proceeding, and had inquired of Robinson at the earlier plea hearing whether his plea was knowingly and intelligently entered. As the trial court was the exclusive arbiter of witness credibility and was in the best position to evaluate Robinson's testimony, the trial court was free to accept or discredit Robinson's claim. Cf. Diaz v. State, 516 S.W.2d 154, 156 (Tex. Crim. App. 1974) (in revocation proceeding, trial court exclusive judge of witness credibility). It is quite possible that the trial court, in recalling the earlier plea proceeding, did not believe Robinson's March 5 testimony. We do not believe such a conclusion would be outside the zone of reasonable disagreement, especially since there is scant additional evidence. Thus, the record before us does not support Robinson's claim that the trial court abused its discretion by denying the motion to withdraw the guilty plea. We overrule Robinson's first point of error.

(2) The Judgment's Affirmative Deadly Weapon Finding Was Error

With respect to Robinson's second point of error, the State properly concedes the trial court's judgment erroneously contains an affirmative finding that Robinson used or exhibited a deadly weapon during the commission of the underlying offense. We agree and reform the trial court's judgment by deleting the deadly weapon finding. Cf. Williams v. State, 970 S.W.2d 566 (Tex. Crim. App. 1998) (reforming judgment proper remedy for correcting erroneous deadly weapon finding).

As reformed, the trial court's judgment is affirmed. //

Josh R. Morriss, III

Chief Justice

Date Submitted: January 19, 2006

Date Decided: January 24, 2006

Do Not Publish