Opinion issued June 26, 2014




                                     In The
                              Court of Appeals
                                    For The
                         First District of Texas
                       ————————————
                          NO. 01-13-00651-CR
                        ———————————
                    HAROLD JAMES REAVES, Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 179th District Court
                           Harris County, Texas
                       Trial Court Case No. 1335623


                         MEMORANDUM OPINION
      Without a sentencing recommendation from the State, Appellant pleaded

guilty to the offense of aggravated robbery. 1 Appellant also pleaded true to an

enhancement paragraph alleging that he had been convicted of the offense of

robbery in 2008. Following the preparation of a pre-sentence investigation report,

1
      See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2011).
the trial court conducted a sentencing hearing. At the hearing, the trial court found

Appellant guilty of the offense of aggravated robbery and found the enhancement

allegation contained in the indictment to be true.        The trial court sentenced

appellant to 35 years in prison. In one issue, Appellant contends that the trial court

should have granted his request at the sentencing hearing to withdraw his guilty

plea.

        We affirm.

                              Background Summary

        Appellant was charged by indictment with the felony offense of aggravated

robbery. The indictment read as follows:

        HAROLD JAMES REAVES, hereafter styled the Defendant,
        heretofore on or about JANUARY 30, 2012, did then and there
        unlawfully, while in the course of committing theft of property owned
        by [A. Velazquez], and with intent to obtain and maintain control of
        the property, INTENTIONALLY AND KNOWINGLY threaten and
        place [A. Velazquez] in fear of imminent bodily injury and death, and
        the Defendant did then and there use and exhibit a deadly weapon,
        namely, A FIREARM.

        Before the commission of the offense alleged above, on MARCH 13,
        2008, in Cause Number 1111621 in the 182nd District Court of
        HARRIS County, Texas, the Defendant was convicted of the felony
        offense of ROBBERY.

        On April 17, 2013, Appellant pleaded guilty to the charged offense of

aggravated robbery. He also pleaded true to the enhancement allegation. At that

time, the trial court admonished Appellant, both orally and in writing, as to the



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consequence of his plea. Appellant acknowledged, orally and in writing, that he

understood the admonishments and that his pleas were made freely and voluntarily.

Appellant’s counsel also stated that he had met with Appellant a number of times,

and he believed Appellant to be competent. In addition, Appellant acknowledged

that he understood that, due to the enhancement allegation, the punishment range

for the offense was 15 years to life in prison. 2

      The trial court then stated on the record, “The Court will find you guilty of

the underlying offense, I will find the enhancement paragraph 25 true. I will not

enter a sentence today, we will reset for a time later so that that presentence

investigation can been prepared. All right. The Court is in recess.”

      After the recess, but on the same day as the plea proceeding, the trial court

heard the testimony of the complainant, A. Velazquez, for purposes of determining

Appellant’s punishment.      After hearing Velazquez’s testimony, the trial court

recessed the hearing to allow preparation of the presentence investigation (“PSI”)

report.




2
      See TEX. PENAL CODE ANN. § 12.42(c)(1)(Vernon Supp. 2013) (providing, “If it is
      shown on the trial of a felony of the first degree that the defendant has previously
      been finally convicted of a felony . . . on conviction the defendant shall be
      punished by imprisonment in the Texas Department of Criminal Justice for life, or
      for any term of not more than 99 years or less than 15 years. . . .”).

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       On May 17, 2013, Appellant filed a motion to substitute new counsel. He

requested that his appointed counsel be permitted to withdraw because Appellant

had obtained new counsel. The trial court granted the motion.

       Appellant’s sentencing hearing resumed on July 17, 2013, after the PSI had

been completed.       At the beginning of the hearing, Appellant’s new counsel

requested the trial court to permit Appellant to withdraw his earlier guilty plea.

Counsel explained,


          I want to put on the record after speaking with my client about the
          case . . . with regards to the aggravated robbery, I’d ask the Court to
          plead to robbery. . . . Based on my reviewing of the evidence, . . . the
          Court should allow him to withdraw the plea and plead to robbery.
          And for the record, that’s my opinion and my client’s opinion.

       The trial court denied Appellant’s request to withdraw his earlier plea. In

this regard, the trial court stated,


          The Court denies the request to withdraw the plea. We picked a jury
          on this case and sat a jury and were prepared to begin testimony on
          aggravated robbery. I will note that the day after the jury was seated
          that [Appellant] pled guilty to the indicted offense of aggravated
          robbery, also pled true to the enhancement of robbery having been
          convicted of that in 2008. That request is denied.


       The PSI report was admitted into evidence.            The report contained

information that Appellant had committed another aggravated robbery offense the

day after he had committed the offense in this case.



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      After hearing closing argument from counsel, the trial court found Appellant

guilty of the offense of aggravated robbery, found the enhancement allegation to be

true, and sentenced Appellant to 25 years in prison.

      Appellant now appeals. In his sole issue, Appellant complains that the trial

court should have permitted him to withdraw his guilty plea at the punishment

hearing.

                               Withdrawal of Guilty Plea

      Citing DeVary v. State, Appellant asserts that he was entitled to withdraw

his plea “for any reason.” See 615 S.W.2d 739, 740 (Tex. Crim. App. 1981).

However, Appellant’s reliance on DeVary is misplaced because it does not support

his position under the facts of this case. In DeVary, the court explained that

“where the defendant decides to withdraw his guilty plea after the trial judge takes

the case under advisement or pronounces judgment, the withdrawal of such a plea

is within the sound discretion of the trial court.” Id. (citing Jackson v. State, 590

S.W.2d 514, 515 (Tex. Crim. App. 1979)).

      Appellant asserts that the record does not reflect that the case had been taken

under advisement at the time he moved to withdraw his plea. He points out that

the trial court had not expressly stated that the case had been taken under

advisement.    However, it is well-established that, “[a]fter a trial court has

admonished a defendant, received the plea and evidence, and passed the case for



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pre-sentence investigation, the case has been taken under advisement.” Lawal v.

State, 368 S.W.3d 876, 882 (Tex. App.—Houston [14th Dist.] 2012, no pet.)

(citing DeVary, 615 S.W.2d at 740); see Jackson, 590 S.W.2d at 514–15 (holding

case had been taken under advisement, and defendant could not withdraw guilty

plea as matter of right, when court had accepted guilty plea and passed the case for

pre-sentence investigation); Thompson v. State, 852 S.W.2d 268, 270 (Tex. App.—

Dallas 1993, no pet.) (holding defendant could not withdraw guilty plea as matter

of right where “only issue remaining to be decided was the appropriate

punishment”); Wissinger v. State, 702 S.W.2d 261, 262–63 (Tex. App.—Houston

[1st Dist.] 1985, pet. ref d) (holding trial court had discretion to deny defendant’s

motion to withdraw guilty plea at hearing “which was for the sole purpose” of

determining defendant’s punishment).

      Here, when he requested to withdraw his plea at the punishment hearing, the

trial court had already admonished Appellant of the consequences of his plea,

accepted his guilty plea, and passed the case for pre-sentence investigation. As a

result, Appellant’s case was under advisement when he moved to withdraw his

plea. See Jackson, 590 S.W.2d at 514–15. Thus, Appellant was not entitled to

revoke his guilty plea as a matter of right, as he asserts on appeal. Instead,

Appellant’s request to withdraw his plea was within the sound discretion of the

trial court. See DeVary, 615 S.W.2d at 740. Appellant makes no argument on



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appeal that the trial court’s denial of his motion to withdraw his plea was an abuse

of its discretion. We conclude that Appellant has not shown that the trial court

erred when it denied his request to withdraw his guilty plea.

      We overrule Appellant’s sole issue.

                                       Conclusion

      We affirm the judgment of the trial court.




                                               Laura Carter Higley
                                               Justice

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

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




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