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

MEMORANDUM OPINION
No. 04-06-00443-CR
Manuel MONTEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CR-3957
Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Karen Angelini, Justice

 

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: September 12, 2007

 

AFFIRMED

Appellant, Manuel Montez ("Montez"), appeals his conviction of aggravated robbery of an elderly person, raising the following issues: 1) the evidence is factually insufficient to support a conviction for aggravated robbery due to the misidentification of Montez; 2) the trial court erred in forcing the jury to continue deliberating after they announced they were deadlocked; and 3) the trial court erred in refusing to enforce a plea bargain agreement, after the jury reached a verdict but before the judge accepted the plea in open court, notwithstanding the fact that Montez accepted the agreement and was in the process of signing the necessary paperwork. We affirm the judgment of the trial court.

Factual and Procedural Background

On January 16, 2005, at approximately 2:00 a.m., Manuel Rivera ("Rivera"), a 77 year old man, was beaten in the parking lot of Margie's Bar. Rivera had parked his truck and was going to pick up his girlfriend, Gloria Garcia ("Garcia"), who worked at the bar. He had just reached the door to the bar and was about to enter when he was grabbed from behind, severely beaten, and robbed. Rivera lost consciousness and was unable to identify his assailant until several weeks after the incident. However, when presented with a photo line up, Rivera immediately identified Montez as his assailant. Although Rivera did not know Montez personally, he recognized Montez as a regular customer of Margie's Bar, and also as "Blanca's brother."

Montez was charged with one count of aggravated robbery of an elderly person. He pled not guilty and was tried by a jury. After both sides rested and the jury was deliberating, the trial court received and responded to several notes from the jury. When it appeared the jury would not be able to reach a unanimous verdict, the trial judge gave the jury an Allen charge. Thereafter, the jury resumed its deliberation and the State offered Montez ten years deferred adjudication, along with other conditions, in exchange for his plea of guilty. Montez accepted this plea bargain offer and was in the process of signing the necessary documents when the jury buzzer sounded twice, indicating that the jury had reached a verdict. The State then withdrew its plea bargain offer, and the jury announced its verdict of guilty, subsequently assessing punishment at 30 years' confinement and a $10,000 fine.

 

Discussion

I. The "Misidentification of Montez"

Montez initially argues that the evidence is factually insufficient to support a conviction for aggravated robbery because he was misidentified. Specifically, Montez contends that the complainant, Rivera, who was the only "witness" to the assault, initially denied seeing his attacker and stated that not one, but two males had attacked him. Montez maintains that it was only after Rivera's girlfriend and the police suggested to Rivera that Montez was his assailant that Rivera identified him as such.

In conducting a factual sufficiency review, we consider all of the evidence in a neutral light, and determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). In doing so, we must "be mindful that a jury has already passed on the facts, and convicted, and that the court should never order a new trial simply because it disagrees with the verdict, but only where it seems to the court to represent a manifest injustice, though supported by legally sufficient evidence." Id. at 414-15. The factual-sufficiency analysis can be broken down into two prongs. Id. "The first prong asks whether the evidence introduced to support the verdict, though legally sufficient, is nevertheless 'so weak' that the jury's verdict seems 'clearly wrong and manifestly unjust.'" Id. "The second prong asks whether, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence." Id.

In the present case, Rivera's girlfriend, Gloria Garcia, testified that she had known Montez for about two years and that he was present at the bar on the night Rivera was assaulted. Garcia stated that on that night, just prior to closing, she was throwing empty cases of beer into the dumpster when she noticed Montez and his girlfriend arguing outside. Garcia also testified that Rivera would usually drop her off at work and return at approximately 1:40 a.m. to pick her up. On the date the incident occurred, Garcia had just gone back inside and was expecting Rivera to pick her up as usual. Instead, she was told she needed to go outside because something had happened to Rivera in the parking lot. Garcia went looking for Rivera and eventually found him between two cars. He was swollen and bleeding and could not immediately recall what had happened. Garcia testified she yelled for someone to call the police and stayed with Rivera until the police and ambulance arrived. Garcia stated that she looked around and saw that Montez's truck was gone; however, his girlfriend was still inside the bar drinking.

Garcia further testified that after Rivera was hospitalized, she visited him every day. A few days after the incident, Garcia asked Rivera if he recalled what happened. Garcia stated that Rivera did recall what happened, that he never told Garcia two assailants had attacked him, and that he described his assailant as "Blanca's brother" and the big guy with the cowboy hat and big belt. Rivera, the only person to actually witness the assault, testified that as he drove into the parking lot of the bar, he saw Montez. He further testified that after he parked his truck and was about to enter the bar, he was grabbed from behind. Rivera stated that he was able to look behind him and recognized his assailant as Montez. Finally, Rivera stated that during the assault, he came face to face with his assailant, whom he identified as Montez.

The paramedic who treated Rivera at the scene and transported him to Wilford Hall testified that he did not believe Rivera was confused following the attack but rather, shaken up from being assaulted. However, the paramedic also testified that he wasn't as concerned with finding out what exactly happened as he was in treating Rivera. The police officer who interviewed Rivera at the scene stated that he was unable to obtain any information directly from Rivera due to his injuries. The officer further stated that someone at the scene suggested there may have been more than one assailant. When the officer was specifically asked whether Rivera had reported that he had been approached by two unknown males, the officer responded, "Yes. He actually confirmed, like I said, I asked him if this is what happened and he confirmed he wasn't too -- like I said, I had trouble getting information out of him." The officer later testified that Rivera, whom the officer described as dazed, was just replying "yes, yes, yes" to whatever questions the officer asked.

Officer Mark Garza of the San Antonio Police Department testified that on January 19, 2005, he received an anonymous call reporting that the male who had assaulted Rivera was at Margie's Bar. Officer Garza went to the bar and, based on the description provided by the caller, spoke with Montez. Montez reported that on the night the incident took place, he was inside playing pool the whole time and only went outside when he heard the commotion. However, Margie Casias, the owner of the bar, testified that she saw Montez outside with his girlfriend and that Montez was sitting in the truck while his girlfriend, Sandra, was standing outside of the truck. A short while later, Margie saw Sandra, who was crying, come back inside the bar alone. Margie testified on cross that Montez never came back into the bar.

Detective Hector Lopez of the San Antonio Police Department testified that during his investigation, he was unable to contact Montez because the address and phone number Montez had given Officer Garza were not correct. Detective Lopez went to see Rivera at the rehab center at Warm Springs, where he had been transferred after being released from Wilford Hall. Lopez presented a photo line up to Rivera but only after asking Rivera's visitors to leave the room. Detective Lopez also told Rivera that the person who assaulted him might or might not be in the photo line up. Rivera immediately picked Montez from the photos.

The defense presented two witnesses: Montez and his girlfriend, Sandra. Sandra testified that Montez went outside briefly around midnight to get some cigarettes out of the truck, and then came back inside where he remained the rest of the night until they learned of the incident involving Rivera in the parking lot. After the bar was closed, Sandra claims she went outside with Montez, and they tried to leave but were blocked in by the emergency vehicle. Sandra denied that she and Montez were arguing in the parking lot that night. Montez also testified that he went outside briefly to get cigarettes from his truck and then returned inside. He stated that the witnesses were out to get him because they didn't like his mother. When asked about the incorrect information he gave the police, he testified that he gave the police his grandmother's address and although he didn't actually live there, he stayed there.

Viewing all the evidence in a neutral light and favoring neither party, the evidence supporting Montez's conviction here is not so weak that the jury's determination is clearly wrong and manifestly unjust, nor does the conflicting evidence so greatly outweigh the evidence supporting Montez's conviction that the jury's determination is manifestly unjust. See Watson, 204 S.W.3d at 414-15. We overrule Montez's issue.

II. The Allen Charge

Next Montez maintains that the trial court "violated [his] right to Due Process by submitting to the jury a highly coercive 'Dynamite' charge after the jury informed the court that it was hopelessly deadlocked." See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154 (1896) (an Allen charge, or dynamite charge, is designed to encourage the jury to arrive at a verdict without doing damage to the consciences of the jurors). The record reflects that the jury sent out several notes, including one that indicated the jury was deadlocked after three votes. The trial judge proposed to give the jury an Allen charge and asked Montez's trial counsel if he objected, to which Montez's trial counsel responded, "No." The trial judge then told the parties that he had a proposed supplemental charge and asked them to review it and advise him whether they had any suggestions or requests. Montez's trial counsel again advised the trial judge that he had no objections to the court's proposed supplemental charge. The trial judge inquired a third time if trial counsel had any objections to either the giving or the wording of the supplemental charge; Montez's trial counsel's responded, once again, that he had "no objection." Thus, Montez has waived this argument on appeal. Tex. R. App. P. 33.1; Valdes-Fuerte v. State, 892 S.W.2d 103, 108 (Tex. App.-- San Antonio 1994, no pet.).

III. Trial Court's Refusal to Enforce Plea Bargain Agreement

Finally, Montez argues that the trial court erred in refusing to enforce a plea bargain offer made by the State and accepted by Montez.

When a guilty plea is before a jury, the accused may at any time before the retirement of the jury withdraw the plea as a matter of right. See McWherter v. State, 571 S.W.2d 312, 313 (Tex. Crim. App. [Panel Op.] 1978). The same law governing the withdrawal of guilty pleas has been applied to the withdrawal of not-guilty pleas. Scott v. State, 860 S.W.2d 645, 646 (Tex. App.--Dallas 1993, no pet.). Once the trial judge has taken the case under advisement or pronounced judgment or after the jury has retired, the withdrawal of the plea is within the sound discretion of the trial court. Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. [Panel Op.] 1979); McWherter, 571 S.W.2d at 313.

In the present case, the jury had retired to deliberate and had, in fact, sent out several notes. Thus, Montez was not entitled to withdraw his plea of not guilty as a matter of right, but was required to obtain the trial court's permission. McWherter, 571 S.W.2d at 313. And although Montez argues that"the trial court was aware of the ten-year deferred adjudication plea bargain offer" and that the judge"announced its agreement with the plea bargain," the record does not reflect that the plea bargain agreement was accepted by the trial judge in open court. Bitterman v. State, 180 S.W.3d 139, 141 (Tex. Crim. App. 2005). Nevertheless, Montez argues that equity should prevail in view of the fact that the trial judge based his decision to allow the State to withdraw its plea on the "misplaced belief that he was bound to accept the jury's verdict despite the agreement of the parties." However, regardless of his reasons, the trial judge was clearly acting within his discretion in refusing to allow Montez to withdraw his not guilty plea. Jackson, 590 S.W.2d at 515; McWherter, 571 S.W.2d at 313. Accordingly, Montez's issue is overruled.

Conclusion

Finding no error, we affirm the trial court's judgment.

 

Karen Angelini, Justice

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