In the Interest of K.M.M. and E.J.G., Children--Appeal from 100th District Court of Carson County

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State: Texas

Court: Texas Northern District Court

Docket No: 07-10-00083-CV

Case Date: 10/21/2010

Plaintiff: Ann Marie Koenig

Defendant: State of Texas--Appeal from 186th Judicial District Court of Bexar County

Preview:Ann Marie Koenig v. State of Texas--Appeal from 186th Judicial District Court of Bexar County
No. 04-00-00651-CR Ann Marie KOENIG, Appellant v. The STATE of Texas, Appellee From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 1998-CR-4510A Honorable Sam Katz, Judge Presiding Opinion by: Catherine Stone, Justice Sitting: Tom Rickhoff, Justice Catherine Stone, Justice Sarah B. Duncan, Justice Delivered and Filed: August 22, 2001 AFFIRMED Ann Marie Koenig was charged with the capital murder of her husband. Koenig pleaded guilty to the lesser included offense of aggravated kidnapping pursuant to an open plea agreement. The trial court sentenced her to life imprisonment. Koenig appeals in four points of error claiming: (1) her plea was involuntary; (2) the trial court erred in denying her motion for new trial based on her involuntary plea claim; (3) aggravated kidnapping is not a lesser included offense of capital murder; and (4) she was convicted without a charging instrument. We disagree and affirm the trial court's judgment. Involuntary Plea Koenig contends her plea was involuntary because the State failed to carry out its part of the bargain. (1) See Ex parte Austin, 746 S.W.2d 226, 227 (Tex. Crim. App. 1988). She also maintains that the trial court erred in denying her motion for new trial based on the involuntariness of her plea for the same reason. The voluntariness of a guilty plea is determined by the totality of the circumstances. Crawford v. State, 890 S.W.2d 941, 944 (Tex. App.--San Antonio 1994, no pet.). Proper admonishment by the trial court creates a prima facie showing that a guilty plea was knowing and voluntary. Id. The burden then shifts to the defendant to prove that he did not understand the consequences of his pleas. Id. Further, when a defendant indicates at the plea hearing that he understands the nature of the proceeding and is pleading guilty because the allegations in the indictment are true, not because of any outside pressure or influence, he has a heavy burden to prove on appeal that his plea was involuntary. Id. The plea bargain in this case was an open plea that Koenig would plead guilty to the lesser offense of aggravated kidnapping, and in return Koenig agreed to testify truthfully against co-defendant, Tracy Trainer. There was no agreement as to punishment. Koenig claims she only agreed to the plea because she thought she would get to tell her story when she testified against Trainer. Because she was not called by the State to testify in Trainer's trial, Koenig believes the State did not uphold its part of the bargain, rendering her plea involuntary.

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Koenig also claims the trial court erred in denying Koenig's motion for new trial based on the same argument. We review a trial court's order granting a motion for new trial under the abuse of discretion standard. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). We refrain from substituting our judgment for that of the trial court in the absence of a showing that the trial court acted in an arbitrary or unreasonable manner. Id. The record indicates that Koenig's agreement was based on the prosecution's agreement to reduce the charge from capital murder to aggravated kidnapping. The agreement did not contain a promise that Koenig would testify against Trainer, but only that if she were called by the State to do so, she would testify truthfully. Koenig indicated at the plea proceeding and in writing that she understood the nature of her plea and was under no outside pressure or influence. Further, Koenig herself testified at the motion for new trial that she understood that the agreement did not say the State had to or would call her as a witness. Under these facts, we cannot find Koenig's plea was involuntarily entered. Consequently, the trial court did not abuse its discretion in denying Koenig's motion for new trial. Therefore, we overrule Koenig's first two points of error. Lesser Included Offense Koenig's third and fourth points of error center on whether aggravated kidnapping is a lesser included offense of capital murder. In her third point of error, Koenig argues that it was error for the trial court to enter a judgment of guilty of aggravated kidnapping because it is not a lesser included offense of capital murder. In her fourth point of error, Koenig asserts that because aggravated kidnapping is not a lesser included offense of capital murder, she was convicted in the absence of a charging instrument. The State counters that Koenig is estopped from this argument because she sought the trial court's acceptance of her plea of aggravated kidnapping. Because she specifically asked the court to accept this plea, the error, if there is one, occurred at her request. See Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (stating that "the law of invited error estops a party from making an appellate error of an action it induced"). The State additionally argues that aggravated kidnapping is indeed a lesser included offense of capital murder. We agree. If all the elements of one statutory offense are contained within the other, it is presumed that the one offense is a lesser included offense of the other. See Whalen v United States, 445 U.S. 683, 693-94 (1980) (ruling that if all the elements of one offense are contained within the other, the two offenses are considered the same). Therefore, even if Koenig is not estopped from claiming error, the elements of aggravated kidnapping are contained within the elements of capital murder, making it a lesser included offense. Compare Tex. Pen. Code Ann. 19.03(a)(2) (Vernon 1994) (capital murder) with Tex. Pen. Code Ann. 20.04 (Vernon 1994) (aggravated kidnapping). See Quintanilla v. State, 40 S.W.3d 576, 579 (Tex. App.--San Antonio 2001, pet. filed) (holding that aggravated robbery is a lesser included offense of capital murder). We overrule Koenig's third and fourth points of error. The judgment of the trial court is affirmed. Catherine Stone, Justice DO NOT PUBLISH 1. Because Koenig pled guilty without the benefit of a plea bargain, we have jurisdiction to consider this issue. See Cooper v. State, 45 S.W.3d 77, 87 (Tex. Crim. App. 2001) (Price, J., dissenting) (noting defendant entering open plea can appeal voluntariness).

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