In the Interest of M. A. A., Child--Appeal from 72nd District Court of Crosby County

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State: Texas

Court: Texas Northern District Court

Docket No: 07-08-00125-CV

Case Date: 11/06/2008

Plaintiff: Valley Nissan, Inc.

Defendant: Davila, Jessica--Appeal from 107th District Court of Cameron County

Preview:Alejandro Garzes v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County
No. 04-98-01074-CR Alejandro GARZES, Appellant v. The STATE of Texas, Appellee From the 187th Judicial District Court, Bexar County, Texas Trial Court No. 97-CR-5165 Honorable Phil Chavarria, Jr., Judge Presiding Opinion by: Paul W. Green, Justice Sitting: Catherine Stone, Justice Paul W. Green, Justice Karen Angelini, Justice Delivered and Filed: June 14, 2000 AFFIRMED Appellant, Alejandro Garzes, pled nolo contendere to a charge of Murder(1) and was sentenced to twenty-five years confinement. Garzes raises one issue challenging the voluntariness of his plea, claiming he was incompetent to stand trial at the time of his plea. Background On August 17, 1998, Dr. John Sparks performed a court ordered evaluation of Garzes to determine his competency to stand trial. He found Garzes competent and trial began on September 10, 1998. After less than a day of trial, Garzes changed his mind and entered a plea of guilty. On October 29, 1998, immediately prior to Garzes' scheduled sentencing, Dr. Sparks prepared another evaluation of Garzes, again concluding that he was competent to stand trial. In that report, Dr. Sparks noted Garzes had been confused in the courtroom at the time of his plea because of all the people and noise. However, Garzes' discussion with his attorney about the plea was a "relatively clear episode." Dr. Sparks noted Garzes understood the meaning of the term "plea-bargaining." Based on the October 29, 1998 report, Garzes' counsel asked that Garzes be allowed to withdraw his plea. Counsel argued there was a question whether Garzes understood the plea process at the time his plea was entered. After an examination of the report, the trial court found no indication Garzes was incompetent at the time of his plea. Further, the trial court judge noted he admonished Garzes at length at the time the plea was entered and was satisfied Garzes understood the consequences of the plea. On October 30, 1998, the trial court denied Garzes' request to withdraw the plea and imposed sentence. Jurisdiction The State argues we have no jurisdiction to hear Garzes' voluntariness claim under Tex. R. App. P. 25.2(b)(3). Although Rule 25.2(b)(3) limits our jurisdiction in appeals that arise from plea bargained convictions, even under a general notice of appeal, we retain jurisdiction to review the voluntariness of a defendant's guilty plea. See Martinez v. State, 5 S.W.3d 722, 725 (Tex. App. San Antonio 1999, no pet.); Luna v. State, 985 S.W.2d 128, 130 (Tex. App. San

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Antonio 1998, pet. ref'd) (citing Flowers v. State, 935 S.W.2d 131, 134 (Tex. Crim. App. 1996)); see also Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994); Hernandez v. State, 986 S.W.2d 817, 820 (Tex. App. Austin 1999, pet. ref'd). We conclude we have jurisdiction to consider Garzes' appeal based on voluntariness of his plea. Voluntariness A guilty plea must be free and voluntary to be effective. See Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468-69 (1970); Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon 1989). Garzes bears the burden to show his plea was involuntary. See Manoy v. State, 7 S.W.3d 771, 778 (Tex. App. Tyler 1999, no pet.); Arista v. State, 2 S.W.3d 444, 446 (Tex. App. San Antonio 1999, no pet.). "Because competence is presumed, [Garzes] must show he lacked the ability to consult with his lawyer with a reasonable degree of rational understanding, or a rational and factual understanding of the proceedings against him." Arista, 2 S.W.3d at 446 (citing Tex. Code Crim. Proc. Ann. art. 46.02 1 (Vernon 1989)). If a defendant requests permission to withdraw a guilty plea after the trial court has taken the case under advisement or pronounces judgment, the withdrawal of the plea is within the sound discretion of the trial court. See Thompson v. State, 852 S.W.2d 268, 270 (Tex. App. Dallas 1993, no pet.). We review the trial court's denial of a request to withdraw a plea under an abuse of discretion standard. See Cano v. State, 846 S.W.2d 525, 526 (Tex. App. Corpus Christi 1993, no pet.) (request made in motion to withdraw); Messer v. State, 757 S.W.2d 820, 827 (Tex. App. Houston [1st Dist.] 1988, pet. ref'd) (op. on reh'g) (request made in motion for new trial). Garzes complains the trial court should have allowed him to withdraw his guilty plea after judgment was pronounced because a later conversation with Dr. Sparks revealed Garzes was confused at times during the trial and subsequent plea proceeding. We disagree. The trial court was required to hold a competency hearing only if there is evidence which creates a bona fide doubt in the mind of the court as to Garzes' competence to stand trial. See Rice v. State, 991 S.W.2d 953, 957 (Tex. App. Fort Worth 1999, pet. ref'd). The record contains Dr. Sparks' psychological evaluation finding Garzes competent to stand trial. Further, the trial court judge specifically asked Garzes' counsel if he had any doubt about his client's ability to understand the admonishments and the consequences of the plea. The trial court, having observed Garzes in person at the time of the plea, is in the best position to determine whether Garzes gave his plea voluntarily and with understanding of the consequences of his action. See Edwards v. State, 993 S.W.2d 171, 176 (Tex. App. El Paso 1999, pet. ref'd). The trial court determined Dr. Sparks' October 29 report did not raise any issue of Garzes' competence at the time of the plea bargain or sentencing. We hold the trial court did not abuse its discretion in denying Garzes' request to withdraw his plea. Conclusion We overrule Garzes' single issue and affirm the judgment of the trial court. PAUL W. GREEN, JUSTICE DO NOT PUBLISH 1. See Tex. Pen. Code Ann. 19.02 (Vernon 1994).

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