                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00013-CR



         BILLY JOE HERNANDEZ, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 297th District Court
                Tarrant County, Texas
              Trial Court No. 1215541D




       Before Morriss, C.J., Carter and Moseley, JJ.
               Opinion by Justice Moseley
                                             OPINION
        Billy Joe Hernandez and Rogelio Marquez got into a fight while at a Tarrant County1

Church’s Chicken restaurant. During the altercation, Hernandez struck Marquez with a chair,

shattering bones in Marquez’ elbow. Hernandez was indicted on one count of assault causing

serious bodily injury.

        At a July 12, 2013, hearing, Hernandez entered into a plea agreement wherein he would

receive a sentence of five years’ incarceration with the stipulation that no punishment hearing

would be held until August 19, 2013. The parties understood that if Hernandez did not appear on

the August 19 date, the plea would stand as an open plea, but the State would not be bound to the

plea agreement. 2 Hernandez failed to appear at the time set for sentencing as he had promised

and, in fact, was re-arrested. The punishment hearing eventually took place November 21, 2013.

        After Hernandez heard Marquez’ testimony during the punishment hearing, Hernandez

attempted to withdraw his guilty plea, arguing that Marquez’ testimony as to the degree he was

injured during the fight was “newly discovered evidence.” In other words, Hernandez argued

that Marquez’ testimony established a lack of serious bodily injury resulting from the




1
 Originally appealed to the Second Court of Appeals in Fort Worth, this case was transferred to this Court by the
Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).
We are unaware of any conflict between precedent of the Second Court of Appeals and that of this Court on any
relevant issue. See TEX. R. APP. P. 41.3.
2
 We have not been supplied with a reporter’s record of the July 12 hearing. The content of that hearing is drawn
from comments of the parties and the trial court at the sentencing hearing. Hernandez makes no complaint about the
absence of a record of this hearing.

                                                        2
altercation. 3   The trial court denied the request to withdraw the guilty plea and sentenced

Hernandez to fifteen years’ confinement.

         On appeal, Hernandez contends that: (1) the trial court erred by denying his request to

withdraw his guilty plea 4 and (2) the State engaged in prosecutorial misconduct by commenting

on a photograph that was never introduced in evidence.

I.       Did the Trial Court Err by Denying Hernandez’ Request to Withdraw his Guilty
         Plea?

         Near the end of the punishment hearing, after testimony had concluded and both parties

had announced that they had closed on the presentation of evidence in the punishment phase of

the trial, the trial court asked for arguments. Hernandez then commenced his argument by

insisting that Marquez’ testimony regarding the extent of the injury he sustained was “newly

discovered evidence” that Marquez had not suffered serious bodily injury in the fight. Based on

that assertion, Hernandez insisted that he wanted to withdraw his guilty plea. The trial court

denied Hernandez’ attempt to withdraw his previously announced plea.

          A defendant may withdraw his guilty plea as a matter of right without assigning reason

until judgment has been pronounced or the case has been taken under advisement. Grant v.

State, 172 S.W.3d 98, 100 (Tex. App.—Texarkana 2005, no pet.); see Stanton v. State, 262

S.W.2d 497, 498 (Tex. 1953). However, when the defendant decides to withdraw his guilty plea

3
 A person commits assault if the person “intentionally, knowingly, or recklessly causes bodily injury to another.”
See TEX. PENAL CODE ANN. § 22.01(a) (West Supp. 2013). Assault becomes the offense of aggravated assault when
one of the following two circumstances is present: (1) the assault causes serious bodily injury or (2) the actor uses
or exhibits a deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a) (West 2011); Landry v. State, 227 S.W.3d 380
(Tex. App.—Texarkana 2007, pet. denied).
4
 Though Hernandez phrases this point of error in terms of a “motion for new trial,” no motion for new trial was filed
in this case, and Hernandez failed to move for such during the punishment hearing.
                                                         3
after the trial court takes the case under advisement or pronounces judgment, the decision to

accept or reject the withdrawal is within the sound discretion of the trial court. Jackson v. State,

590 S.W.2d 514, 515 (Tex. Crim. App. [Panel Op.] 1979) (citing McWherter v. State, 571

S.W.2d 312 (Tex. Crim. App. [Panel Op.] 1978)). An abuse of discretion is shown only when

the trial court’s ruling lies outside the “zone of reasonable disagreement.” Montgomery v. State,

810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g).

       In Jackson v. State, Jackson changed his plea to guilty after the jury was empaneled and

sworn. Jackson, 590 S.W.2d 514. He was appropriately admonished, he waived his right to a

trial by jury, and after certain stipulations were entered into evidence, the court accepted his plea

of guilty, but no punishment was assessed at that time, and the case was passed for a presentence

investigation.   Id.   A month later, when the case was again called for the assessment of

punishment, Jackson sought to withdraw his guilty plea, but the trial court overruled his request

and sentenced him. Id. The Texas Court of Criminal Appeals held that even though his request

came prior to sentencing and the actual pronouncement of judgment, it came “some six weeks

after the court had taken the case under advisement”; therefore, the trial court did not abuse its

discretion because Jackson’s request was not timely. Id. at 515. On appeal, Jackson argued that

the trial court should have allowed him to withdraw his plea at any point prior to sentencing, but

the Texas Court of Criminal Appeals (citing McWherter v. State, 571 S.W.2d 312 (Tex. Crim.

App. [Panel Op.] 1978)), held that where the defendant decides to withdraw his guilty plea after

the trial court takes the case under advisement or pronounces judgment, the withdrawal of such

plea is within the sound discretion of the trial court. Jackson, 590 S.W.2d at 515.

                                                 4
        Here, Hernandez entered his open plea of guilty on July 12, 2013, he was appropriately

admonished, he waived his right to a trial by jury, and the trial court accepted his plea.

Sentencing was delayed by agreement, and the case was continued until August 19, 2013, with

the understanding that if Hernandez appeared, the State would recommend a sentence of five

years’ confinement. However, Hernandez failed to appear, was arrested on October 31, 2013,

and was brought to court for the punishment hearing on November 21, 2013.

        At the punishment hearing, Marquez and Maria Ruiz (Hernandez’ girlfriend who was

present when the fight took place) were the only witnesses. Marquez showed the court scars on

his elbow from surgery necessitated by the injuries he had sustained in the fight with Hernandez.

He also testified that due to his injury, he still suffered from some numbness and pain in his arm

and that he was unable to “lift up heavy things” or to completely straighten his arm. He also

demonstrated certain movements with his arm, such as straightening, lowering, and raising it

over his head. It was Marquez’ understanding that his arm movement limitations would be

permanent. On cross-examination, Marquez admitted that he no longer received treatment or

medication for the injury, that he could still write (although he wrote with the arm that was

injured), and that he still had the same job for the same employer that he had before sustaining

the injuries.

        After testimony was concluded and both sides rested, Hernandez requested to withdraw

his guilty plea because Marquez’ testimony regarding his injury was “newly discovered

evidence” that he failed to suffer “serious bodily injury,” and on appeal, he contends that had he

been aware of this evidence, he would not have pled guilty. The State points out that “in

                                                5
discovery[,] the medical records for [Marquez were] open to the defense for a long time” and

that Hernandez’ counsel had been assigned to the case since 2010.

        “Serious bodily injury” is bodily injury that “creates a substantial risk of death or that

causes death, serious permanent disfigurement, or protracted loss or impairment of the function

of any bodily member or organ.” TEX. PENAL CODE ANN. § 1.07(a)(46) (West Supp. 2013).

Here, the trial court stated,

        Let me just say for the record that the Court observed the scar on his elbow. The
        Court could observe that he could not straighten his arm apparently. The Court
        could observe that his movement, when he moved his arm towards his body, was
        not the same as with the left arm. The Court has heard evidence that he is not
        able to lift weight and that his hand hurts.
                So it appears to be serious bodily injury to the Court, appears to meet the
        definition of serious bodily injury. Appears to be a permanent disfigurement and
        permanent injury to me. So I’m going to deny the request to withdraw the plea at
        this time.

        Hernandez had entered his guilty plea at the first hearing, and the evidence at the second

hearing bore solely on the issue of punishment. Both sides had presented all of the evidence

pertaining to the issue of punishment that they were going to present. As mentioned above, a

court is deemed to have taken a case under advisement after each side has concluded

presentation of the evidence on the subject of guilt, the defendant’s guilt has been established,

and the sole remaining issue is that of punishment. Scott v. State, 860 S.W.2d 645, 646 (Tex.

App.—Dallas 1993, no pet.). Because the trial court had already taken Hernandez’ case under

advisement, it was within the court’s sound discretion as to whether to allow Hernandez to

withdraw his guilty plea.




                                                6
        Here, the trial court found that the State met its burden of proving serious bodily injury,

and its decision to disallow Hernandez’ request to withdraw his guilty plea was within the zone

of reasonable disagreement. We find that the trial court was within its discretion to deny

Hernandez’ request to withdraw his guilty plea, and we overrule this point of error.

II.     Did the State Engage in Prosecutorial Misconduct?

        In his second point of error, Hernandez argues that the “State engaged in prosecutorial

misconduct by intentionally making comments about a damning photo that was not in evidence[]

[and] that it did not attempt to put into evidence . . . .”

        During its cross-examination of Ruiz, the State asked Ruiz about Stephanie Lopez, and

Ruiz testified that she knew Hernandez “used to talk to her,” but that Ruiz had never met Lopez

before. The State showed Ruiz two photographs of a woman, and Ruiz denied recognizing her.

Then, the following exchange occurred between the State and Ruiz:

                Q.      But you see the shiner on her eye?

                A.      I see it.

                      [Hernandez]: I object, Your Honor. I object to this testimony
        about an exhibit not in evidence and it hasn’t been acknowledged by the witness.

                        THE COURT: I will sustain the objection at this time.

The State asked no more questions about the photographs.

        It is well established that an issue raised on appeal must be the same issue raised by

motion or objection asserted at trial. TEX. R. APP. P. 33.1(a); Ibarra v. State, 11 S.W.3d 189, 197

(Tex. Crim. App. 1999) (nothing preserved for review if issue on appeal does not comport with

objection at trial). Here, Hernandez objected on evidentiary grounds, received a favorable ruling
                                                    7
from the trial court, and was granted all the relief he requested. Hernandez never raised the issue

of prosecutorial misconduct in the trial court. Therefore, this point of error was not preserved for

our review, 5 and we overrule the point of error.

         We affirm the trial court’s judgment.




                                                      Bailey C. Moseley
                                                      Justice

Date Submitted:            June 20, 2014
Date Decided:              July 23, 2014

Publish




5
 Even if Hernandez’ objection were sufficient to preserve this point of error, the activity of which he complains fails
to meet the standard for prosecutorial misconduct. While there is no general test for prosecutorial misconduct and
the issue should be determined on a case-by-case basis, existing caselaw has established three factors for analysis:
(1) whether the defendant objected to the conduct of the prosecutor; (2) whether the prosecutor deliberately violated
an express court order; and (3) whether the prosecutorial misconduct was so blatant as to border on being
contumacious. Stahl v. State, 749 S.W.2d 826, 831 (Tex. Crim. App. 1988). Here, although Hernandez objected to
the State’s questions regarding a photograph not in evidence, Hernandez did not then complain that the conduct rose
to the level of prosecutorial misconduct, and the line of questioning neither violated the court’s orders nor bordered
on being contumacious.
                                                          8
