David Daniel Cruz v. The State of Texas--Appeal from 179th District Court of Harris County

Opinion issued July 6, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00388-CR

NO. 01-05-00389-CR

NO. 01-05-00390-CR

DAVID DANIEL CRUZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause Nos. 936032, 938629, & 938631

MEMORANDUM OPINION

Appellant, David Daniel Cruz, appeals from judgments of conviction for the first-degree felony of aggravated robbery of Blanca Maulion; // the aggravated robbery of Rosario Rodriguez; // and the second-degree felony of robbery of Townya Duncan. // See Tex. Pen. Code Ann. 29.03(a) (Vernon 2003) (aggravated robbery); id. 29.02(a) (Vernon 2003) (robbery). Appellant entered pleas of guilty for each offense without an agreed punishment recommendation from the State and pleaded true to allegations that he had previously been convicted of two felonies. After a presentence investigation (PSI) report had been prepared, the trial court assessed punishment at 60 years in prison and a $10,000 fine for each offense, with the sentences to run concurrently. In his sole issue on appeal, appellant asserts that the trial court abused its discretion by refusing to grant appellant s pro-se motions to withdraw his plea prior to sentencing. We conclude that the trial court did not abuse its discretion by declining appellant s request to withdraw his guilty pleas and, therefore, affirm.

Procedural BackgroundAppellant originally pleaded not guilty, requesting a jury trial. Prior to commencement of trial, the trial court ordered that Harris County Forensic Psychiatric Services conduct a psychiatric examination of appellant to determine his competence to stand trial. Appellant was determined to be mentally competent. During jury selection, appellant decided to change his pleas of not guilty to guilty.

The trial court admonished appellant concerning his desire to plead guilty. The trial court asked appellant if he wanted the trial court to assess punishment after the return of a presentence investigation report. Appellant replied, Yes, sir. The trial court then read each indictment to appellant and asked, [H]ow do you plead, guilty or not guilty? Appellant initially replied, Not guilty, but changed his plea to guilty after a discussion off the record. Appellant told the trial court that no one had promised him anything, threatened him, or coerced him to persuade him to plead guilty. Appellant also stated that he was pleading guilty only because he was guilty of the offenses. Appellant acknowledged that he understood that the range of punishment was not less than 25 and not more than 99 years confinement for each offense. In addition to receiving the oral admonishments provided by the trial court, appellant received written admonishments that he and his attorney read and signed. The written admonishments include a paragraph that stated that appellant was mentally competent, which appellant initialed.

During the hearing at which appellant pleaded guilty, appellant told the trial court that he had been in the past, and was currently being, treated for schizophrenic, paranoid schizophrenic and bipolar depression. Although appellant was mentally ill and medicated, appellant s trial attorney stated that she was able to consult with him, that he understood the nature of the consequences of his actions, and that he was competent.

The trial court accepted appellant s pleas of guilty, found true the enhancement allegations, and found that the evidence substantiated appellant s guilt. The trial court ordered the preparation of the PSI report and reset the cases for a sentencing hearing. Appellant subsequently filed a pro se Motion to Withdraw Plea of Guilty, which the trial court denied. At the sentencing hearing, the trial court reviewed the PSI report, heard argument by counsel, and assessed appellant s punishment.

Withdrawal of Guilty Plea

Appellant asserts that the trial court abused its discretion in refusing to allow him to withdraw his guilty plea. A motion to withdraw a plea of guilty may be made at any time, but, when it is raised after the court takes the case under advisement, the trial court has broad discretion to deny the motion. DeVary v. State, 615 S.W.2d 739, 740 (Tex. Crim. App. 1981); Donovan v. State, 17 S.W.3d 407, 410 (Tex. App. Houston [1st Dist.] 2000), aff d, 68 S.W.3d 633 (Tex. Crim. App. 2002); State v. Ellis, 976 S.W.2d 789, 792 (Tex. App. Houston [1st Dist.] 1998, no pet.). A trial court that announces that there is sufficient evidence to support a finding of guilt, as here, has taken the case under advisement. Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979); Zuazu v. State, 691 S.W.2d 88, 90 (Tex. App. Houston [1st Dist.] 1985, pet. ref d); see also Washington v. State, 893 S.W.2d 107, 108 (Tex. App. Dallas 1995, no pet.) (holding that case is taken under advisement when each side has concluded its case, defendant has entered plea of guilty, plea has been accepted, and necessary admonishments have been given).

Under article 26.13 of the Code of Criminal Procedure, [n]o plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2005). A person is incompetent to stand trial if the person does not have (1) the sufficient present ability to consult with that person s lawyer with a reasonable degree of rational understanding or (2) a rational, as well as factual, understanding of the proceedings against the person. Tex. Code Crim. Proc. Ann. art. 46B.003(a) (Vernon Supp. 2005). A person is presumed competent to stand trial and will be found competent to stand trial unless proved incompetent by a preponderance of the evidence. Id. art. 46B.003(b) (Vernon Supp. 2005). Once the issue of incompetency is raised by either party or by the trial court, the trial court is to determine from informal inquiry whether there is evidence that would support a finding of the defendant s incompetence. Id. art. 46B.004(a) (c) (Vernon Supp. 2005). A trial court need not hold a trial to determine the issue of incompetency if neither party s counsel requests a hearing. Id. art. 46B.005(b) (Vernon Supp. 2005).

Because the trial court had already taken appellant s case under advisement, the denial of appellant s motion to withdraw his plea of guilty was within the discretion of the trial court. See DeVary, 615 S.W.2d at 740. In this appeal, appellant contends that the trial court abused its discretion because (1) he was being treated for serious mental illnesses, (2) he had undergone a recent court-ordered psychiatric evaluation, (3) he twice stated that he was pleading not guilty, and (4) he maintained his innocence in the motion to withdraw his plea, in his statements to the PSI interviewer, and in his statements to the trial court at the sentencing hearing. Appellant also points to the recent court-ordered psychiatric evaluation as evidence that suggests his incompetence. Contrary to appellant s assertions that he was incompetent to stand trial, the psychiatrist who performed the court-ordered evaluation opined that appellant was competent. The record further demonstrates appellant s competency to stand trial during his plea of guilty to the trial court. Appellant orally represented to the trial court at the time that he pleaded guilty that he understood the consequences of his plea. Additionally, appellant s trial counsel orally represented to the trial court at the time of appellant s plea that appellant was competent. Further, appellant and his attorney signed written admonishments acknowledging that appellant was competent to stand trial and that his plea was freely and voluntarily entered. We hold that the trial court could reasonably have concluded from this information that appellant failed to rebut his presumed competence.

We overrule appellant s sole issue presented in this appeal.

Conclusion

We affirm the judgments of the trial court.

Elsa Alcala

Justice

Panel consists of Justices Keyes, Alcala, and Bland.

Do not publish. Tex. R. App. P. 47.2(b).