Robert Daniel Evans v. The State of Texas--Appeal from 203rd District Court of Dallas County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00558-CR
NO. 03-94-00559-CR
NO. 03-94-00560-CR
NO. 03-94-00561-CR
NO. 03-94-00562-CR
NO. 03-94-00563-CR
Robert Daniel Evans, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF DALLAS COUNTY, 203RD JUDICIAL DISTRICT
NOS. F-9420404-WP, F-9423015-HP, F-9423021-HP
F-9441676-KP, F-9454279-LP, F-9454280-KP
HONORABLE JAMES B. ZIMMERMANN, JUDGE PRESIDING

PER CURIAM

 

In a consolidated proceeding before the district court, appellant pleaded guilty and judicially confessed to burglary of a vehicle (two cases), felony criminal mischief, aggravated robbery (two cases), and unauthorized use of a vehicle. In the aggravated robbery causes, the court found appellant guilty and assessed punishment at imprisonment for thirty years. In the remaining causes, the court found that the evidence substantiated appellant's guilt, deferred further proceedings without adjudicating guilt, and placed appellant on community supervision for ten years.

Appellant's sole point of error is that the district court erred by refusing to allow him to withdraw his guilty pleas. Appellant entered his pleas in open court on July 12, 1994. There was no plea bargain agreement. The court accepted the pleas, then heard appellant's judicial confessions. The State presented its punishment evidence the following day. After the State rested, the causes were continued until August 5. On that date, appellant asked the court for permission to withdraw his guilty pleas. The court denied appellant's request and, after hearing defensive testimony, disposed of the causes as detailed above.

A defendant may withdraw his guilty plea as a matter of right before judgment is pronounced or the case is taken under advisement. Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979). Thereafter, withdrawal of the plea is within the sound discretion of the trial court. Id. A case is considered to be under advisement when the court has accepted the defendant's guilty plea and heard his judicial confession, and the only issue remaining is the determination of punishment. Id.; Thompson v. State, 852 S.W.2d 268, 270 (Tex. App.--Dallas 1993, no pet.).

Appellant's decision to withdraw his guilty pleas was occasioned by the return, after the pleas were entered and accepted, of three additional indictments accusing him of aggravated robbery. As appellant explains in his brief:

 

Appellant entered his plea to the six cases at hand based on the assumption that the three additional cases, which had been no-billed but resubmitted and later true-billed by the grand jury, did not in fact exist. His concern, as articulated during the plea, was that any subsequent sentencing would not necessarily result in sentences which would run concurrent to the ones at hand . . . . While Appellant did not enter a negotiated plea, he asserts that due process considerations mandate fairness to him . . . . Although Appellant did not reply to [sic] a plea bargain, he relied on the State's filing of the limited number of (six) cases he thought would be the only ones brought against him.

 

As we understand it, appellant hoped to dispose of all his outstanding criminal charges in a single proceeding. Appellant was concerned that if the other three robberies were tried separately, the sentences in those cases might not run concurrently with the sentences in the causes before us.

We are unpersuaded by this argument. So far as the record before us reflects, appellant's guilty pleas were knowingly and voluntarily made. There was no promise by the State, express or implied, that the three aggravated robberies that had previously been no-billed would not be prosecuted. Further, appellant had no right to concurrent sentences in every prosecution pending against him. Carney v. State, 573 S.W.2d 24, 27 (Tex. Crim. App. 1978); Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 1995). Appellant's mistaken assumption that the other robberies would be forgotten did not give him a due process right to withdraw his guilty pleas after they had been taken under advisement. The district court did not abuse its discretion by refusing to permit appellant to withdraw his pleas. The point of error is overruled.

In cause numbers 3-94-561-CR and 3-94-562-CR, the judgments of conviction are affirmed. In cause numbers 3-94-558-CR, 3-94-559-CR, 3-94-560-CR, and 3-94-563-CR, the orders deferring adjudication are affirmed.

 

Before Chief Justice Carroll, Justices Aboussie and Jones

Affirmed

Filed: August 23, 1995

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