                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                 §
 JEROME GORDON,                                                  No. 08-07-00281-CR
                                                 §
                        Appellant,                                    Appeal from
                                                 §
 v.                                                               195th District Court
                                                 §
 THE STATE OF TEXAS,                                            of Dallas County, Texas
                                                 §
                        Appellee.                                (TC # F-0747797-N)
                                                 §

                                          OPINION

       Jerome Gordon appeals his conviction of possession of more than one gram but less than four

grams of cocaine with intent to deliver, enhanced by a prior felony conviction. Appellant entered

a plea of guilty before the jury and the trial court conducted a unitary proceeding to determine both

guilt and punishment. TEX .CODE CRIM .PROC.ANN . art. 26.14 (Vernon 2009); see Frame v. State,

615 S.W.2d 766, 767 (Tex.Crim.App. 1981).            The jury found Appellant guilty, found the

enhancement paragraph true, and assessed his punishment at imprisonment for a term of seventeen

years. We affirm.

                                     FACTUAL SUMMARY

       Prior to voir dire, Appellant pled guilty to the indictment and true to the enhancement

paragraph. The court admonished Appellant that the range of punishment was imprisonment for a

minimum term of five years up to a life sentence or 99 years. Appellant understood the range of

punishment that would be available to the jury and he also understood that he was not eligible for

probation. The court also admonished Appellant regarding the consequences of pleading guilty

before the jury. Appellant assured the court that he understood the consequences. The court
accepted Appellant’s guilty plea and plea of true, finding they were knowingly and voluntarily made.

Still outside the jury’s presence, the State offered into evidence State’s Exhibit 1 which is a written

document containing Appellant’s judicial confession, stipulation of evidence, and plea of true to the

enhancement paragraph. The trial court admitted State’s Exhibit 1. The court then proceeded with

voir dire and a jury was selected. Appellant entered his pleas before the jury.

       The State also introduced evidence relevant to punishment. Gerardo Huante, a Dallas police

officer, was assigned to the Narcotics Division Street Squad which deals with street level drugs and

narcotics. The Street Squad generally works undercover and responds to complaints from citizens

about drugs. In response to a citizen complaint, Huante went to an apartment complex in Dallas in

January 2007. Appellant approached Huante in the parking lot and asked him what he was looking

for. Huante understood that Appellant wanted to know what kind of drugs he wanted to buy, and

he replied, “crack.” Appellant sold crack cocaine to Huante. Approximately one week later, Huante

and another officer went back to the apartment complex and saw Appellant standing in front of an

apartment door while another individual was selling drugs. Appellant was “controlling” the door,

meaning that he determined who went into the apartment to purchase drugs. Huante did not buy

drugs from Appellant on that occasion but the officer who was with him obtained a search warrant

for the apartment. Officer Barry Ragsdale, along with other officers, participated in the execution

of the search warrant. They found Appellant and a woman sitting on a couch in the apartment. The

police seized 2.7 grams of crack cocaine and some marihuana. The crack cocaine was not a single

rock but had been cut up in smaller pieces so that it could be re-sold.

       In addition to State’s Exhibit 1, the State introduced several exhibits showing Appellant’s

prior criminal convictions, including the conviction alleged in the enhancement paragraph.

Appellant had three convictions of evading arrest. He had been convicted of possession of cocaine
in 2000 and 2001. He had also been convicted of possession of cocaine with intent to deliver in

2005.

        The jury found Appellant guilty, found the enhancement paragraph true, and assessed his

punishment at imprisonment for seventeen years. This appeal follows.

                                    FACTUAL SUFFICIENCY

        In Point of Error One, Appellant challenges the factual sufficiency of the evidence to support

his conviction. The entry of a valid guilty plea has the effect of admitting all material facts alleged

in the formal criminal charge. Ex parte Williams, 703 S.W.2d 674, 682 (Tex.Crim.App. 1986);

McGill v. State, 200 S.W.3d 325, 330 (Tex.App.--Dallas 2006, no pet.). The State is no longer

required to prove his guilt beyond a reasonable doubt. See id.; McGill, 200 S.W.3d at 330. When

a defendant waives his right to a jury trial and chooses to plead guilty or nolo contendere, the State

must introduce sufficient evidence to support the guilty verdict. TEX .CODE CRIM .PROC.ANN . art.

1.15 (Vernon 2005). This statute does not apply when the defendant enters a plea of guilty to a

felony case before the jury. In felony cases, a plea of guilty before the jury admits the existence of

all necessary elements to establish guilt, and in such cases, the introduction of testimony by the State

is to enable the jury to intelligently exercise the discretion which the law vests in them touching the

penalty to be assessed. Ex parte Martin, 747 S.W.2d 789, 791 (Tex.Crim.App. 1988). Appellant

is not entitled to factual sufficiency review of the evidence supporting his conviction because his

plea of guilty had the effect of admitting all necessary elements to establish guilt and relieving the

State of its burden of proof. Even if Article 1.15 applied in this case, the State introduced into

evidence Appellant’s judicial confession wherein Appellant admitted that he had intentionally and

knowingly possessed with intent to deliver cocaine in the amount of more than one gram but less

than four grams. Point of Error One is overruled.
                                    WITHDRAWAL OF GUILTY PLEA

         In Point of Error Two, Appellant asserts that the trial court should have, on its own motion,

withdrawn the guilty plea because evidence was introduced which cast doubt on Appellant’s guilt.

He cites Griffin v. State, 703 S.W.2d 193 (Tex.Crim.App. 1986) in support of his argument. Griffin

holds that when the defendant enters a guilty plea before a jury and evidence is introduced which

reasonably and fairly raises an issue as to the innocence of the accused, and the evidence is not

withdrawn, the defendant’s guilty plea must be withdrawn and a plea of not guilty must be sua

sponte entered by the court. Id. at 195. More recently, the Court of Criminal Appeals has held that

while a defendant has a right to change his plea of guilty to not guilty when evidence is introduced

in a jury trial that is inconsistent with guilt, the trial court has no duty to change the plea on its own

motion. Mendez v. State, 138 S.W.3d 334, 350 (Tex.Crim.App. 2004). Instead, the defendant

must make a timely request1 to withdraw his guilty plea. Id. Appellant did not move to

withdraw his guilty plea at any time during the proceedings below. Therefore, his complaint is

without merit. Point of Error Two is overruled.

                                 CRUEL AND UNUSUAL PUNISHMENT

         In Points of Error Three and Four, Appellant argues that his sentence violates his right to be

free from cruel and unusual punishment under the Eighth Amendment of the United States

Constitution and Article I, §19 of the Texas Constitution because the sentence is grossly

disproportionate to the offense. Appellant’s brief does not contain any argument or authority related

to the protection provided by the Texas Constitution or explaining how that protection differs from


         1
            In a trial before a jury, the defendant may change the plea from guilty to not guilty at any time before the jury
retires to deliberate its verdict. McWherter v. State, 571 S.W .2d 312 (Tex.Crim.App. 1978).
the protection provided by the United States Constitution. State and federal constitutional claims

should be argued in separate grounds, with separate substantive analysis or argument provided for

each ground. Muniz v. State, 851 S.W.2d 238, 251-52 (Tex.Crim.App. 1993); Heitman v. State, 815

S.W.2d 681, 690-91 n.23 (Tex.Crim.App. 1991). Because Appellant has inadequately briefed the

issue related to Article I, §19, nothing is presented for our review. See Muniz, 851 S.W.2d at 251-

52; TEX .R.APP .P. 38.1(h).

       Turning to the Eighth Amendment issue, we note Appellant did not object when the court

imposed sentence nor did he raise the issue in a motion for new trial. As a prerequisite to presenting

a complaint for appellate review, the record must show that the complaint was made to the trial court

by a timely request, objection, or motion that stated the grounds for the ruling sought with sufficient

specificity to make the trial court aware of the complaint unless the grounds were apparent from the

context. TEX .R.APP .P. 33.1(a)(1). This requirement applies to a complaint that a sentence is grossly

disproportionate and violates the defendant’s constitutional right to be free from cruel and unusual

punishment. See Noland v. State, 264 S.W.3d 144, 151-52 (Tex.App.--Houston [1st Dist.] 2007, pet.

ref’d); Wynn v. State, 219 S.W.3d 54, 61 (Tex.App.--Houston [1st Dist.] 2006, no pet.); see also

Mercado v. State, 718 S.W.2d 291, 296 (Tex.Crim.App. 1986)(defendant may not assert error

pertaining to his sentence or punishment when he failed to object or otherwise raise such error in the

trial court). Points of Error Three and Four are overruled. The judgment of the trial court is

affirmed.


December 22, 2009
                                                       ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)
