                                                                                PD-0415-15
                         PD-0415-15                            COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                             Transmitted 4/14/2015 2:45:21 PM
                                                               Accepted 4/15/2015 5:36:36 PM
                     PDR No.                                                     ABEL ACOSTA
                                                                                         CLERK




                 In The Court of Criminal Appeals of Texas




               DONTA TREMAINE BROWNING, Appellant

                                         V.


                     THE STATE OF TEXAS, Appellee.




              On Appellant's Petition for Discretionary Review
                  From the Fourteenth Court of Appeals,
                       Appeal No. 01-14-00052-CR
                 On Appeal from the 240th District Court
                        of Fort Bend County Texas,
                        Cause No. 11-DCR-058541.


             PETITION FOR DISCRETIONARY REVIEW
          FOR APPELLANT, DONTA TREMAINE BROWNING


Oral Argument Requested

Cary M. Faden
77 Sugar Creek Center Blvd., Suite 230
Sugar Land, Texas 77478                               April 15, 2015
Telephone: (281) 491-6182
Texas Bar No. 06768725
E-MAIL: caryfaden@aot.com

Attorney for Appellant
                    IDENTITY OF PARTIES AND COUNSEL

      Pursuant to TEX. R. APP. P., Rule 38.1(a) and Rule 68.4(a), appellant certifies

that the following is a complete list of the parties to the final judgment and the names

and addresses of counsel in the trial and on appeal:


Appellant:

Donta Tremaine Browning

Counsel for Appellant:

Tommy James Stickler, Jr. (at trial)
235 West Sealy Street
Alvin, TX 77511

Cary M. Faden (on appeal)
77 Sugar Creek Center Blvd., Suite 230
Sugar Land, Texas 77478

Counsel for the State of Texas:

John F. Healey, Jr.
Stuti Trehan Patel
Fort Bend County, Texas
District Attorney
301 Jackson Street, Room 101
Richmond, Texas 77469

Trial Judge:

The Honorable Thomas R. Culver, III




                                           ii
                                  Table of Contents

Index of Authorities

Statement Regarding Oral Argument                                               vi

Statement ofthe Case                                                            vii

Procedural History of the Case                                                  vii

Ground for Discretionary Review                                                  2

                                  GROUND ONE

      THE FIRST COURT OF APPEALS ERRED IN REFUSING TO
      CONDUCT A HARM ANALYSIS AND TO APPLY THE LAW IN
      FINDING THE TRIAL COURT DID NOT COMMIT ERROR IN
      NOT ALLOWING APPELLANT TO WITHDRAW HIS PLEA OF
      GUILTY.

Reasons to Grant Review in Support of Ground for Review                          2

      Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court
      Of Appeals has rendered a decision, which is in conflict with the
      decisions of another court of appeals on the same matter, namely:

      Ground One: Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim.
      App.1997); Childs v. Reunion Bank, 587 S.W.2d 466, 471 (Tex. Civ.
      App. - Dallas 1979, writ refd n.r.e.); Downer v. Aquamarine Operators,
      Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Guillett v. State, 677 S.W.2d
      46, 49 (Tex. Crim. App.1984); Henderson v. Youngblood, 512 S.W.2d
      35, 37 (Tex. Civ. App.—El Paso 1974, no writ) (superseded by statute
      on other grounds); Higginbotham v. Collateral Protection Inc., 859
      S.W.2d 487, 491 (Tex. App. - Houston [1st Dist.] 1993, writ denied);
      Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979);
      Lenamond v. N Shore Supply Co., 667 S.W.2d 283, 285 (Tex. App. -
      Houston [14th Dist.] 1984, no writ); Lowery v. State, 974 S.W.2d 936,

                                         iii
      942 (Tex. App. - Dallas 1998, no pet.); Lyles v. State, 850 S.W.2d 497,
      502 (Tex. Crim. App. 1993); Marquez v. State, 921 S. W.2d 217, 223
      (Tex. Crim. App.1996); Montgomery v. State, 810 S.W.2d 372, 380
      (Tex. Crim. App. 1990); Ferny v. State, 903 S.W.2d 715, 728 (Tex.
      Crim. App.1995); People v. Abrams, 211 Cal. App.2d 773, 776, 27 Cal.
      Rptr. 639, 641 (1963); Samudio v. State, 648 S.W.2d 312, 314 (Tex.
      Crim. App.1983); Staten v. Maryland, 13 Md. App. 425, 430, 283 A.2d
      644, 647 (1971); Stevenson v. Indiana, 163 Ind. App. 399, 404, 324
      N.E.2d 509, 512 (1975); Trimble v. Tex. Dept. of Protective & Reg.
      Serv., 981 S.W.2d 211, 214-15 (Tex. App. - Houston [14th Dist.] 1998,
      no pet.); Wheatfall v. State, 882 S.W.2d 829 (Tex. Crim. App.1994);
      Wissinger v. State, 702 S.W.2d 261, 262 (Tex. App. Houston [1st
      Dist.] 1985, pet. ref d).

      Review is proper, under Tex. R. App. P. 66.3 (b), because the Court Of
      Appeals has rendered a decision, which encompasses an important
      question of state law, which has not been, but should be, settled by this
      Court.

      Review is important, under Tex. R. App. P. 66.3(1), because the Court
      Of Appeals has so far departed from the accepted and usual course of
      judicial proceedings, as to call for an exercise of this Court's power of
      supervision.

Argument And Authorities In Support Of Ground For Review
One                                                    3

Prayer for Relief                                                                 12

Certificate of Service                                                            13

Appendix-First Court Of Appeals Judgment & Opinion




                                         iv
                            INDEX OF AUTHORITIES

CASES:

Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App.1997)                      iii,2,11

Childs v. Reunion Bank, 587 S.W.2d 466, 471 (Tex. Civ. App. - Dallas 1979, writ
refdn.r.e.)                                                              iii,2,9

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)        iii,2,6

Guinea v. State, 677 S.W.2d 46, 49 (Tex. Crim. App.1984)                       iii,2,8

Henderson v. Youngblood, 512 S.W.2d 35, 37 (Tex. Civ. App.—El Paso 1974, no
writ) (superseded by statute on other grounds)                        iii,2,9

Higginbotham v. Collateral Protection Inc., 859 S.W.2d 487, 491 (Tex. App. -
Houston [1st Dist.] 1993, writ denied)                                 iii,2,9

Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979)                   iii,2,5

Lenamond v. N. Shore Supply Co., 667 S.W.2d 283, 285 (Tex. App. - Houston [14th
Dist.] 1984, no writ)                                                    iii,2,9

Lower); v. State, 974 S.W.2d 936, 942 (Tex. App. - Dallas 1998, no pet.)     iii,2,11

Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993)                     iv,2,6

Marquez v. State, 921 S.W.2d 217, 223 (Tex. Crim. App.1996)            iv,2,6,8,10,12

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)                iv,2,6

Penry v. State, 903 S.W.2d 715, 728 (Tex. Crim. App.1995)                      iv,2,6

People v. Abrams ,211 Cal. App.2d 773, 776, 27 Cal. Rptr. 639, 641 (1963)    iv,2,10

Samudio v. State, 648 S.W.2d 312, 314 (Tex. Crim. App.1983)                    iv,2,8
Staten v. Maryland, 13 Md. App. 425, 430, 283 A.2d 644, 647 (1971)            iv,2,11

Stevenson v. Indiana, 163 Ind. App. 399, 404, 324 N.E.2d 509, 512 (1975)     iv,3,10

Trimble v. Tex. Dep't. of Protective & Reg. Serv., 981 S.W.2d 211, 214-15 (Tex. App.
- Houston [14th Dist.] 1998, no pet.)                                          iv,3,6

Wheatfall v. State, 882 S.W.2d 829 (Tex. Crim. App.1994)                       iv,3,6

Wissinger v. State, 702 S.W.2d 261, 262 (Tex. App.—Houston [1st Dist.] 1985, pet.
ref d)                                                                    iv,3,5


STATUES, CODES, AND RULES:

Tex. Code Crim. Proc. Ann. art. 1.12 (Vernon 1977)                                7,8

Tex. Code Crim. Proc. Ann. art. 1.13 (Vernon Supp.2000)                           8.9

TEX. CONST. art. I, § 15                                                          7.9

Tex. R. App. P. 33.1(a)                                                             5

Tex. R. App. P. 44.2(a)                                                            13

Tex. R. App. P. 66.3(a)                                                        iii,2,3

Tex. R. App. P. 66.3(b)                                                          iv,3

Tex. R. App. P. 66.3(f)                                                        iv,3,4

Tex. R. App. P. 68.2                                                             viii

Tex. R. App. P. 68.4(c)                                                           vii

U.S. CONST. amend. VI                                                             7,8



                                         Vi
               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Tex. R. App. P. 68.4(c), counsel respectfully requests oral

argument. Oral argument would be helpful in the event this petition for discretionary

review is granted. This appeal involves questions of law, questions of fact, public

policy and procedure which cannot be adequately addressed, analyzed and evaluated

through written communication alone. Oral argument is essential to emphasize the

unique characteristics of these questions and to address the unforeseeable exigencies

arising during the Court's consideration of this appeal.

                           STATEMENT OF THE CASE

      On October 31, 2011, Donta Tremaine Browning, Appellant, was indicted for

the second degree felony offense of aggravated assault with a deadly weapon. (1 CR

at 6). The offense was alleged to have occurred on or about September 23, 2011. (1

CR at 6). On October 15, 2013, Appellant pleaded guilty to the indictment. (1 CR at

3-4). After Appellant's plea of guilty, on December 10, 2013, at a sentencing hearing,

the trial court assessed Appellant's punishment at ten (10) years of deferred

adjudication community supervision, with a $1,000.00 fine. (2 CR at 93). On January

6, 2013, Appellant timely filed his notice of appeal. (1 CR at 128).

                    PROCEDURAL HISTORY OF THE CASE

      On February 26, 2015, the First Court of Appeals affirmed Appellant's


                                         vii
conviction. Browning v. State, Nos. 01-14-00052-CR, slip op. at 1-4 (Tex. App.—

Houston [1st Dist.], February 26, 2015, pet. pending). On March 9, 2015, Appellant

timely filed his motion for rehearing. The First Court Of Appeals overruled and

denied Appellant's Motion For Rehearing on March 26, 2015. On April 14, 2015,

Appellant timely filed this Petition For Discretionary Review with the Clerk of the

Court Of Criminal Appeals. TEX. R. APP. P. 4.1 and 68.2.




                                        viii
                       PDR No.



                   In The Court of Criminal Appeals of Texas




                DONTA TREMAINE BROWNING, Appellant

                                          v.

                       THE STATE OF TEXAS, Appellee.



               On Appellant's Petition for Discretionary Review
                     From the First Court of Appeals,
                        Appeal No. 01-14-00052-CR,
                  On Appeal from the 240th District Court
                        of Fort Bend County Texas,
                        Cause No. 11-DCR-058541.


              PETITION FOR DISCRETIONARY REVIEW
           FOR APPELLANT, DONTA TREMAINE BROWNING


TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

      COMES NOW Appellant, Donta Tremaine Browning, by and through his

attorney of record, Cary M. Faden, and files this petition for discretionary review of

the February 26, 2015, decision of the First Court of Appeals of Texas in Browning



                                          1
v. State, No. 01-14-00052-CR, slip op. at 1-4 (Tex. App. – Houston [1st Dist.],

February 26, 2015, pet. pending); and would respectfully show the Court following:

                          GROUNDS FOR REVIEW

                                GROUND ONE

      THE FIRST COURT OF APPEALS ERRED IN REFUSING TO
      CONDUCT A HARM ANALYSIS AND TO APPLY THE LAW IN
      FINDING THE TRIAL COURT DID NOT COMMIT ERROR IN
      NOT ALLOWING APPELLANT TO WITHDRAW HIS PLEA OF
      GUILTY.

REASONS 10 GRANT REVIEW IN SUPPORT OF GROUNDS FOR REVIEW

      Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court
      Of Appeals has rendered a decision, which is in conflict with the
      decisions of another court of appeals on the same matter, namely:

      Ground One: Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim.
      App.1997); Childs v. Reunion Bank, 587 S.W.2d 466, 471 (Tex. Civ.
      App. - Dallas 1979, writ rcfd n.r.e.); Downer v. Aquamarine Operators,
      Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Guillett v. State, 677 S.W.2d
      46, 49 (Tex. Crim. App.1984); Henderson v. Youngblood, 512 S.W.2d
      35, 37 (Tex. Civ. App.—El Paso 1974, no writ) (superseded by statute
      on other grounds); Higginbotham v. Collateral Protection Inc., 859
      S.W.2d 487, 491 (Tex. App. - Houston [1st Dist.] 1993, writ denied);
      Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979);
      Lenamond v. N. Shore Supply Co., 667 S.W.2d 283, 285 (Tex. App. -
      Houston [14th Dist.] 1984, no writ); Lowery v. State, 974 S.W.2d 936,
      942 (Tex. App. - Dallas 1998, no pet.); Lyles v. State, 850 S.W.2d 497,
      502 (Tex. Crim. App. 1993); Marquez v. State, 921 S.W.2d 217, 223
      (Tex. Crim. App.1996); Montgomery v. State, 810 S.W.2d 372, 380
      (Tex. Crim. App. 1990); Penry v. State, 903 S.W.2d 715, 728 (Tex.
      Crim. App.1995); People v. Abrams, 211 Cal. App.2d 773, 776, 27 Cal.
      Rptr. 639, 641 (1963); Samudio v. State, 648 S.W.2d 312, 314 (Tex.
      Crim. App.1983); Staten v. Maryland, 13 Md. App. 425, 430, 283 A.2d
                                         2
      644, 647 (1971); Stevenson v. Indiana, 163 Ind. App. 399, 404, 324
      N.E.2d 509, 512 (1975); Trimble v. Tex. Dept. of Protective & Reg.
      Serv., 981 S.W.2d 211, 214-15 (Tex. App. - Houston [14th Dist.] 1998,
      no pet.); Wheatfall v. State, 882 S.W.2d 829 (Tex. Crim. App.1994);
      Wissinger v. State, 702 S.W.2d 261, 262 (Tex. App.—Houston [1st
      Dist.] 1985, pet. ref d).

      Review is proper, under Tex. R. App. P. 66.3 (b), because the Court Of
      Appeals has rendered a decision, which encompasses an important
      question of state law, which has not been, but should be, settled by this
      Court.

      Review is important, under TEX. R. APP. P. 66.3(f), because the Court
      Of Appeals has so far departed from the accepted and usual course of
      judicial proceedings, as to call for an exercise of this Court's power of
      supervision.

            ARGUMENT AND AUTHORITIES IN SUPPORT OF
                   GROUND FOR REVIEW ONE

      In its February 26, 2015, opinion, the First Court Of Appeals affirmed

Appellant's convictions in finding the trial court did not commit error abuse its

discretion by not allowing Appellant to withdraw his plea of guilty and refused to

conduct a harm analysis.

      This Court should review this issue, and review is appropriate, under Tex. R.

App. P. 66.3(a), because the Court Of Appeals has rendered a decision, which is in

conflict with the decisions of another court of appeals on the same matter; and review

is appropriate, under Tex. R. App. P. 66.3 (d), because the Court Of Appeals appears

to have misconstrued a statute, rule, regulation, or ordinance; and review is important,

                                           3
under Tex. R. App. P. 66.3(f), because the Court Of Appeals has so far departed from

the accepted and usual course of judicial proceedings, as to call for an exercise of this

Court's power of supervision.

      The First Court Of Appeals stated in its opinion: Browning was indicted for

felony aggravated assault with a deadly weapon after he was accused of using his car

to run over the friend of his girlfriend's aunt during a dispute in the aunt's front yard.

Browning pleaded guilty. The State did not recommend sentence. Instead, the case

was reset to allow a pre-sentence investigation (PSI).

      At the sentencing hearing two months later, both the State and Browning

announced ready and gave their opening statements. After the first witness was sworn

in and ready to begin testifying, Browning interrupted to inform the trial court, "I

want to change my plea today to not guilty." His attorney responded, "Right now, it's

the first time he told me he intends to change his plea." The trial court denied the

request, and the sentencing hearing continued. After the State's two witnesses

testified and Browning testified against his attorney's advice, the trial court deferred

a finding of guilty and placed Browning on community supervision for ten years. The

trial court also ordered Browning to perform 400 hours of community service and pay

a $1,000 fine. Browning timely appealed.

                   Browning Did Not Preserve Issue of Jury-Waiver

            Browning contends that the trial court erred by denying his request "to


                                            4
      that Browning did attempt to withdraw his guilty plea; however, nowhere in

the record do we find any indication that Browning attempted to withdraw his jury

waiver. Browning does not point to any document or transcript where such a

statement was made either. Because the jury-waiver withdrawal issue was not

presented to the trial court for its consideration, it is waived on appeal. TEX. R. APP.

P. 33.1(a) (requiring that complaint be made to trial court through timely request,

objection or motion to preserve issue for appellate review). Thus, the only issue to be

resolved is whether the trial court erred by denying Browning's request to withdraw

his guilty plea.

                             Withdrawal of Guilty Plea

            A defendant may withdraw his guilty plea at any time before judgment

      is pronounced or the trial court takes the plea under advisement. Jackson v.

State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979); Wissinger v. State, 702 S.W.2d

261, 262 (Tex. App.—Houston [1st Dist.] 1985, pet. ref d). A case is considered to

be "under advisement" when the trial court has admonished the defendant, received

the plea and evidence, and reset the case to allow a pre-sentencing investigation.

Jackson, 590 S.W.2d at 515; Wissinger, 702 S.W.2d at 262. Once a plea has been

taken under advisement, a request to withdraw a plea is untimely and the decision to

allow or deny the request is within the sound discretion of the trial court. Jackson,

590 S.W.2d at 515; Wissinger, 702 S.W.2d at 262. A trial court abuses its discretion

when it acts arbitrarily, unreasonably, or without reference to any guiding rules or


                                           5
principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993); Montgomery

v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Browning did not raise the

issue of changing his plea until the sentencing hearing had already begun. He had

pleaded guilty, the PSI report had been completed and distributed, both sides had

announced ready and given their opening statements, and the first witness was on the

stand. We conclude that the record contains no evidence that the trial court abused its

discretion by denying appellant's untimely request.

      Appellant contended the grant or denial of a request to withdraw a jury waiver

falls within the trial court's discretion in controlling the business of the court.

Marquez v. State, 921 S.W.2d 217, 223 (Tex. Crim. App.1996) (citing Wheatfall v.

State, 882 S.W.2d 829 (Tex. Crim. App.1994)). This Court will not reverse the trial

court's denial of a request to withdraw a waiver of jury trial unless there is a finding

of an abuse of discretion. Id. at 221-22; Trimble v. Tex. Dep't. of Protective & Reg.

Serv., 981 S.W.2d 211, 214-15 (Tex. App. - Houston [14th Dist.] 1998, no pet.). A

trial court abuses its discretion when it acts without reference to guiding rules and

principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.1990) (citing

Downer v. Aquamarine Operators, Inc., 701 S. W.2d 238, 241-42 (Tex.1985)). Stated

differently, a trial court abuses its discretion if it acts arbitrarily or unreasonably. Id.;

Trimble, 981 S.W.2d at 214-15. To determine whether the trial court abused its

discretion, we consider the record as a whole. Penry v. State, 903 S.W.2d 715, 728
                                             6
(Tex. Crim. App.1995).

             WITHDRAWAL OF WAIVER OF RIGHT TO JURY
     The right to trial by jury is protected by both the United States and Texas

Constitutions. The United States Constitution provides: U.S. CONST. amend. VI.,
     TEX. CONST. art. I, § 15.

     This right is reiterated in the Texas Code of Criminal Procedure, which
provides "[t]he right of trial by jury shall remain inviolate." TEX. CODE CRIM.

PROC. ANN. art. 1.12 (Vernon 1977). U.S. CONST. amend. VI; TEX. CONST. art.

I, § 15; TEX. CODE CRIM. PROC. ANN. art. 1.12 (Vernon 1977). To be valid, a

waiver of this valuable right must be made in person, in writing, and in open court.

TEX. CODE CRIM. PROC. ANN. art. 1.13 (Vernon Supp.2000). Although the

method for waiving the right to a jury trial is prescribed in article 1.13 of the Texas

Code of Criminal Procedure, the manner for withdrawing such waiver is not.

     To protect the inviolate nature of the right to jury trial, Texas follows the
prevailing trend allowing a defendant to withdraw his waiver where the request is
made "in good faith and there are no adverse consequences." Id. at 221-22.
"Authorities adhering to this view hold that a defendant should be permitted to

withdraw his jury waiver unless granting the request would prejudice the state, delay

the trial, impede justice, or inconvenience the witnesses, or, in some cases, unless the

defendant's request was made in bad faith." Id. at 221. Thus, the "substantive


                                           7
standard" for allowing a withdrawal of jury waiver is "the absence of adverse

consequences to granting the withdrawal." Id. at 223.
      A defendant has an absolute right to a jury trial. " In all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial, by an impartial jury{.]"

U.S. CONST. amend. 6. " The right of trial by jury shall remain inviolate." TEX.

CONST. art. I, § 15 & TEX. CODE CRIM. PROC. art. 1.12. As a matter of federal

constitutional law, the State must establish, on the record, a defendant's express,

knowing, and intelligent waiver of jury trial. Guillett v. State, 677 S.W.2d 46, 49

(Tex. Crim. App.1984); Sarnudio v. State, 648 S.W.2d 312, 314 (Tex. Crim.

App.1983). Article 1.13 of the Code of Criminal Procedure sets out the required

formalities of a jury-trial waiver in Texas. TEX. CODE CRIM. PROC. art. I .13(a) ("

The defendant in a criminal prosecution shall have the right, upon entering a plea, to

waive the right of trial by jury, conditioned, however, that such waiver must be made

in person by the defendant in writing in open court with the consent and approval of

the court, and the attorney representing the State." ). But once the defendant validly

waives his right to a jury trial, he does not have an unfettered right to reassert that

right. Should the defendant who wants to withdraw his prior written waiver-and is

seeking to change the status quo-have the burden to show an " absence of adverse

consequences" from granting the withdrawal? See Marquez v. State, 921 S. W.2d 217,

223 (Tex. Crim. App.1996) (plurality op.). He must establish, on the record, that his

request to withdraw his jury waiver has been made sufficiently in advance of trial

such that granting his request will not: (1) interfere with the orderly administration

                                           8
of the business of the court, (2) result in unnecessary delay or inconvenience to

witnesses, or (3) prejudice the State. Id. A request to withdraw a jury waiver is

addressed to the discretion ofthe trial court. Id. 1fthe defendant's claims are rebutted

by the State, the trial court, or the record itself, the trial judge does not abuse his

discretion in refusing to allow the withdrawal of the waiver. Id.

     Where a defendant seeks to re-assert his right to a jury trial after waiver, he has
the initial burden to establish on the record that his request to withdraw the waiver

is made sufficiently in advance of trial "such that granting his request will not (1)

interfere with the orderly administration of the business of the court, (2) result in

unnecessary delay or inconvenience to witnesses, or (3) prejudice the State." Id.

     It is well-settled that a trial court should grant a motion for continuance only if:
(1) postponement of the trial would not cause injury to the adverse party; and (2) it

would not disrupt the court's docket or interfere with the administration of the court's

business. See Higginbotham v. Collateral Protection Inc., 859 S.W.2d 487, 491 (Tex.

App. - Houston [1st Dist.] 1993, writ denied) (citing Lenamond v. N. Shore Supply

Co., 667 S.W.2d 283, 285 (Tex. App. - Houston [14th Dist.] 1984, no writ); Childs
v. Reunion Bank, 587 S.W.2d 466, 471 (Tex. Civ. App. - Dallas 1979, writ refd

n.r.e.); Henderson v. Youngblood, 512 S.W.2d 35, 37 (Tex. Civ. App.—El Paso 1974,

no writ) (superseded by statute on other grounds)). Thus, in granting the continuance,

the trial court implicitly found that a delay of trial would not injure the State or
disrupt the court's business.

     Appellate courts have found an abuse of discretion where the trial court grants


                                           9
a continuance but then refuses to permit withdrawal of the defendant's waiver of jury
trial. See, e.g., Stevenson v. Indiana, 163 Ind. App. 399, 404, 324 N.E.2d 509, 512
(1975); People v. Abrams, 211 Cal. App.2d 773, 776, 27 Cal. Rptr. 639, 641 (1963)

(holding that the trial court abused its discretion in not allowing defendant to

withdraw his waiver of jury trial, where a lengthy continuance already had been

granted).

     Here, granting appellant's request to withdraw his plea of guilty and withdraw
the jury waiver would not have resulted in unnecessary delay or inconvenience to

witnesses because the court already had reset the trial date in order to secure the

attendance of out-of-state witnesses. See Marquez, 921 S.W.2d at 223. Likewise,

there is nothing in the record that suggests allowing appellant to withdraw his jury

waiver would have had any adverse consequences on the State, witnesses, or the
court. In fact, by continuing the case, the court implicitly found the absence of any

such injury or interference.

     In light of appellant's claims of lack of prejudice, inconvenience or interference

with court administration, it was incumbent upon either the State or the court to rebut
appellant's assertions and identify the adverse consequences, if any, that would flow
from the withdrawal. However, there is nothing in this record to rebut appellant's

claims that no adverse consequences would flow from the withdrawal of his waivers.

Under these circumstances, it was not reasonable for the trial court to have denied

appellant's request to withdraw the guilty plea and the jury waiver. The court already
had continued the sentencing trial of the case for more than a month almost two

months. Granting appellant's request would not have resulted in any additional delay

                                          10
or inconvenience to the witnesses or the prosecution, nor would it have interfered
with the orderly administration of the court's docket. Accordingly, the court abused

its discretion in denying appellant's request to withdraw his plea of guilty and his

waiver and to proceed to trial before a jury.

      Denial of a criminal defendant's constitutionally guaranteed right to a jury trial
is structural constitutional error and, therefore, reversible without a harm analysis.

Lowery v. State, 974 S.W.2d 936, 942 (Tex. App. - Dallas 1998, no pet.) (citing Cain

v. State, 947 S. W.2d 262, 264 (Tex. Crim. App.1997) (superseded by statute on other

grounds)); TEX. R. APP. P. 44.2(a). Accordingly, appellant's point of error should
be sustained.

     Where, as here, a defendant makes a good faith request to withdraw his plea of
guilty and his jury waiver and no adverse consequences would flow from the

withdrawal, the court should exercise its discretion to grant the moving party the jury

trial he seeks. Failure to do so constitutes an abuse of discretion. Therefore, this Court
should reverse the trial court's judgment and remand the case with instructions to

grant appellant a new trial.

      Appellant is in dispute with the First Court's opinion issued and requests that

this Court consider this Petition For Discretionary Review. Appellant urges this

Petition based upon the fact that this Court attempts to address the issues as briefed.

The Court Of Appeals lack of cited case law has departed from the accepted and usual

course of judicial proceedings and the case law cited by Appellant in his Petition For



                                           11
Discretionary Review, as to call for an exercise of this Court's power of supervision.

                             PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Appellant, Donta Tremaine

Browning, prays that the Court grant the Petition For Discretionary Review for

Appellant, order briefing on this cause, and set it for submission at the earliest

possible date. Moreover, upon submission and review of the appellate record and the

briefs and arguments of counsel, the Court issue an opinion resolving this conflict so

that the bench and bar of this state will know how to address and dispose of similar

issues in the future.

                                       Respectfully submitted,

                                       /s/CARY M. FADEN
                                       Cary M. Faden
                                       SBN 06768725
                                       Counsel for Appellant
                                       77 Sugar Creek Center Blvd., Suite 230
                                       Sugar Land, Texas 77478
                                       Telephone: (281) 491-6182
                                       Facsimile: (281) 491-0049
                                       E-Mail: caryfaden@aol.com

                                       Attorney For Appellant




                                          12
           CERTIFICATE OF COMPLIANCE, T.R.A.P., RULE 9.4(3)

      In accordance with TEX. R. APP. P. 9.4(3), I Cary M. Faden, certify that this

is a computer generated document and I state that the number of words in this

document is approximately 4,490 words. I am relying on the word count of the

computer program used to prepare this document.

                                       /s/CARY M. FADEN
                                       Cary M. Faden



                          CERTIFICATE OF SERVICE

      In accordance with Tex. R. App. P. 9.5, I, Cary M. Faden, certify that a true and

correct copy of the foregoing Petition For Discretionary Review has been served, by

U.S. Mail, upon Donta Tremaine Browning, to the attorney for the State Of Texas,

John F. Healey, Jr., District Attorney, Appellate Division, 301 Jackson Street, Room

101, Richmond, Texas 77469, to the State Of Texas Prosecuting Attorney, Lisa C.

McMinn, P. 0. Box 13046, Capitol Station, Austin, Texas 78711 on this the 14th day

of April, 2015.

                                       /s/CARY M. FADEN
                                       Cary M. Faden




                                          13
APPENDIX
                                     JUDGMENT

                                  Court of Zippealz
                             ,first fi= ittrirt of Texao
                                   NO. 01-14-00052-CR

                     DONTA TREMAINE BROWNING, Appellant

                                          V.

                           THE STATE OF TEXAS, Appellee

               Appeal from the 240th District Court of Fort Bend County.
                            (Tr. Ct. No. 11-DCR-058541).

       This case is an appeal from the final judgment signed by the trial court on December
11, 2013. After submitting the case on the appellate record and the arguments properly
raised by the parties, the Court holds that the trial court's judgment contains no reversible
error. Accordingly, the Court affirms the trial court's judgment.

       The Court orders that this decision be certified below for observance.

Judgment rendered February 26, 2015.

Panel consists of Chief Justice Radack and Justices Brown and Lloyd. Opinion delivered
by Justice Brown.
Opinion issued February 26, 2015




                                     In The

                              Court of CAppealls
                                     For The

                         ,First ifitritt of Xexttc

                              NO. 01-14-00052-CR


               DONTA TREMAINE BROWNING, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 240th District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 11-DCR-058541


                         MEMORANDUM OPINION

      Donta Browning pleaded guilty to aggravated assault with a deadly

weapon.' At the sentencing hearing, Browning sought to withdraw his guilty plea.

The request was denied, and Browning was sentenced to ten years' community



 TEX. PENAL CODE ANN.   § 22.02 (West 2011).
supervision. In one issue, Browning contends that the trial court erred by not

allowing him to withdraw his guilty plea and jury waiver. Because Browning did

not preserve the issue regarding jury waiver and the trial court did not err in

denying his request to withdraw his guilty plea, we affirm.

                                   Background

      Browning was indicted for felony aggravated assault with a deadly weapon

after he was accused of using his car to run over the friend of his girlfriend's aunt

during a dispute in the aunt's front yard. Browning pleaded guilty. The State did

not recommend sentence. Instead, the case was reset to allow a presentence

investigation (PSI).

      At the sentencing hearing two months later, both the State and Browning

announced ready and gave their opening statements. After the first witness was

sworn in and ready to begin testifying, Browning interrupted to inform the trial

court, "I want to change my plea today to not guilty." His attorney responded,

"Right now, it's the first time he told me he intends to change his plea." The trial

court denied the request, and the sentencing hearing continued. After the State's

two witnesses testified and Browning testified against his attorney's advice, the

trial court deferred a finding of guilty and placed Browning on community

supervision for ten years. The trial court also ordered Browning to perform 400

hours of community service and pay a $1,000 fine.


                                          2
      Browning timely appealed.

               Browning Did Not Preserve Issue of Jury-Waiver

      Browning contends that the trial court erred by denying his request "to

withdraw his plea of guilty and withdraw his jury waiver." The record reveals that

Browning did attempt to withdraw his guilty plea; however, nowhere in the record

do we find any indication that Browning attempted to withdraw his jury waiver.

Browning does not point to any document or transcript where such a statement was

made either. Because the jury-waiver withdrawal issue was not presented to the

trial court for its consideration, it is waived on appeal. TEX. R. APP. P. 33.1(a)

(requiring that complaint be made to trial court through timely request, objection or

motion to preserve issue for appellate review). Thus, the only issue to be resolved

is whether the trial court erred by denying Browning's request to withdraw his

guilty plea.

                            Withdrawal of Guilty Plea

      A defendant may withdraw his guilty plea at any time before judgment is

pronounced or the trial court takes the plea under advisement. Jackson v. State, 590

S.W.2d 514, 515 (Tex. Crim. App. 1979); Wissinger v. State, 702 S.W.2d 261, 262

(Tex. App.—Houston [1st Dist.] 1985, pet. red). A case is considered to be

"under advisement" when the trial court has admonished the defendant, received

the plea and evidence, and reset the case to allow a pre-sentencing investigation.


                                          3
Jackson, 590 S.W.2d at 515; Wissinger, 702 S.W.2d at 262. Once a plea has been

taken under advisement, a request to withdraw a plea is untimely and the decision

to allow or deny the request is within the sound discretion of the trial court.

Jackson, 590 S.W.2d at 515; Wissinger, 702 S.W.2d at 262. A trial court abuses its

discretion when it acts arbitrarily, unreasonably, or without reference to any

guiding rules or principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App.

1993); Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

      Browning did not raise the issue of changing his plea until the sentencing

hearing had already begun. He had pleaded guilty, the PSI report had been

completed and distributed, both sides had announced ready and given their opening

statements, and the first witness was on the stand. We conclude that the record

contains no evidence that the trial court abused its discretion by denying

appellant's untimely request.

      We overrule Browning's sole issue.

                                   Conclusion

      We affirm the judgment of the trial court.



                                               Harvey Brown
                                               Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).

                                           4
