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


                  No. 06-18-00075-CR



        MITCHELL WAYNE PETREA, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 8th District Court
               Hopkins County, Texas
               Trial Court No. 1726265




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                          MEMORANDUM OPINION
            Mitchell Wayne Petrea was highly intoxicated when he attempted a U-turn in front of an

oncoming tow truck, causing a crash that resulted in the death of his wife, Katelyn. Petrea was

charged with intoxication manslaughter and entered an open plea of guilty. The trial court accepted

his plea, declared Petrea guilty, 1 held a bench trial on punishment, found that a deadly weapon was

used in the commission of the offense, and sentenced Petrea to twenty years’ incarceration.

            On appeal, Petrea challenges the sufficiency of the evidence supporting his guilty plea and

the deadly-weapon finding and asserts that the trial court abused its discretion in refusing his

request to withdraw his guilty plea. Because we find that sufficient evidence supports (1) his guilty

plea and (2) the deadly-weapon finding and that (3) the trial court did not abuse its discretion, we

will affirm the trial court’s judgment.

(1)         Sufficient Evidence Supports Petrea’s Guilty Plea

            Petrea’s guilty plea was supported by written plea admonishments, waivers, and his judicial

confession under oath, in which he judicially confessed to the allegations made in the indictment

and attested that all of the facts alleged in the indictment 2 were true and correct. 3 During the plea



1
    See TEX. PENAL CODE ANN. § 49.08 (West 2011).
2
    In relevant part, the indictment alleged,

            MITCHELL WAYNE PETREA on or about the 24th day of August, 2017, and before the
            presentment of this indictment, in said County and State, did then and there operate a motor vehicle
            in a public place, while intoxicated, and did by reason of such intoxication cause the death of
            another, namely, KATELYN PETREA, by accident or mistake, to-wit: by failing to maintain a
            single lane of traffic and/or by failing to keep a proper lookout for another vehicle.
3
 In his judicial confession, Petrea also attested that his attorney had reviewed the indictment with him and that he
understood all matters contained in it.

                                                             2
hearing, the State introduced into the record the written plea admonishments, waiver, and judicial

confession, without objection.

        A trial court may not render a judgment of conviction in a felony case based on a plea of

guilty “without sufficient evidence to support the same.” TEX. CODE CRIM. PROC. ANN. art. 1.15

(West 2005); Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). Under its plain terms,

Article 1.15 “requires evidence in addition to, and independent of, the plea itself to establish the

defendant’s guilt.” Baggett v. State, 342 S.W.3d 172, 175 (Tex. App.––Texarkana 2011, pet. ref’d)

(quoting Menefee, 287 S.W.3d at 14). By merely pleading guilty to the charges in the indictment,

the defendant is “not confessing to the truth and correctness of the indictment or otherwise

providing substance to the plea.” Menefee, 287 S.W.3d at 15.

        “Evidence offered in support of a guilty plea may take many forms.” Id. at 13. This

evidence may include a judicial confession, which will be sufficient to support a guilty plea as

long as it “covers all of the elements of the charged offense.” Id. However, if the judicial

confession does not establish every element of the charged offense, it will not support the

conviction. Id. at 14.

        Petrea acknowledges that the State offered his judicial confession in support of his guilty

plea. Nevertheless, he argues that, because the confession contained no substantive reference to

the offense charged or the allegations contained in the indictment, it should be held insufficient to

support his guilty plea. Petrea cites no statutory or case authority that requires the specific charges

and allegations made in the indictment to be contained in the judicial confession in order to support

a guilty plea.

                                                  3
       In Dinnery v. State, the Texas Court of Criminal Appeals held that, when a defendant

testifies that he has read the indictment and that it is true and correct, it is “tantamount to a

statement that all the allegations of the indictment were true and correct and was a judicial

confession that he was a guilty participant in the offense charged,” and it is sufficient to support a

guilty plea. Dinnery v. State, 592 S.W.2d 343, 352, 354 (Tex. Crim. App. [Panel Op.] 1979) (op.

on reh’g). In this case, Petrea attested in his sworn judicial confession that he had reviewed and

understood the indictment and everything contained in it, stated that he committed and was guilty

of each allegation made in the indictment, and he attested that all facts alleged in the indictment

were true and correct. Since the facts alleged in the indictment cover all of the elements of

intoxication manslaughter, we find that the judicial confession was sufficient to support Petrea’s

guilty plea. See id. at 354. We overrule this issue.

(2)    Sufficient Evidence Supports the Deadly-Weapon Finding

       In entering his guilty plea, Petrea did not admit to the deadly-weapon allegation of the

State. He challenges the sufficiency of evidence supporting the trial court’s finding that he used a

deadly weapon in the commission of the offense.

       In the indictment, the State alleged that Petrea used a motor vehicle as a deadly weapon

during the commission of the offense. Petrea argues that the State presented no evidence at the

punishment hearing showing that he was driving the motor vehicle in a reckless or dangerous

manner at the time of the offense. We disagree.

       As applicable in this case, a deadly weapon is defined as “anything that in the manner of

its use or intended use is capable of causing death or serious bodily injury.” TEX. PENAL CODE

                                                  4
ANN. § 1.07(17)(B) (West Supp. 2017). When the sufficiency of evidence supporting a deadly-

weapon finding is challenged, we “review the record to determine whether, after viewing the

evidence in the light most favorable to the [verdict], any rational trier of fact could have found

beyond a reasonable doubt that the [vehicle] was used or exhibited as a deadly weapon.” Brister

v. State, 449 S.W.3d 490, 493 (Tex. Crim. App. 2014) (quoting Cates v. State, 102 S.W.3d 735,

738 (Tex. Crim. App. 2003)). To sustain a deadly-weapon finding, the evidence must show beyond

a reasonable doubt that Petrea (1) used or exhibited a motor vehicle in a manner that was capable

of causing death or serious bodily injury, (2) during the commission of intoxication manslaughter,

and (3) other people were placed in actual danger. See id. at 494 (citing Drichas v. State, 175

S.W.3d 795, 798 (Tex. Crim. App. 2005)); Sierra v. State, 280 S.W.3d 250, 255 (Tex. Crim. App.

2009).

         When a defendant waives trial by jury and enters a guilty plea, the proceeding remains a

unitary trial, even though, as in this case, there is a recess to allow for a presentence investigation

(PSI) report to be prepared. Saldana v. State, 150 S.W.3d 486, 489 (Tex. App.—Austin 2004, no

pet.). In a unitary trial, all of the evidence admitted may both substantiate the defendant’s plea

and allow the trial court to determine the proper sentence. Flores-Alonzo v. State, 460 S.W.3d

197, 203 (Tex. App.—Texarkana 2015, no pet.) (citing Rohr v. State, No. 08-12-00219-CR, 2014

WL 4438828, at *1 (Tex. App.—El Paso Sept. 10, 2014, no pet.) (not designated for publication)).

Further, when a PSI report is prepared, the trial court may take judicial notice of unobjected-to

facts contained within the PSI report. See Jackson v. State, 474 S.W.3d 755, 758 (Tex. App.—

Houston [14th Dist.] 2014, pet. ref’d) (PSI report is evidence from which the trial court could find,

                                                  5
beyond a reasonable doubt, that enhancement allegations are true). 4 The record in this case reflects

that the trial court relied on facts contained in the PSI report in making its determination. 5

            In this case, Petrea attested in his judicial confession that all of the facts alleged in the

indictment were true and correct. Thus, Petrea admitted that, as alleged in the indictment, he

operated a motor vehicle, while intoxicated, and by reason of such intoxication caused the death

of Katelyn by failing to maintain a single lane of traffic and/or by failing to keep a proper lookout

for another vehicle.            Further, the PSI report contained a laboratory report from the Texas

Department of Public Safety showing Petrea had a blood-alcohol content of 0.211 gm/100 ml after

the incident. In addition, statements from officers and EMS personnel on the scene after the

accident showed that Petrea smelled strongly of alcohol and that he had admitted drinking alcohol

before the incident. Also, a statement from a witness who had been following Petrea’s pickup

showed that Petrea had been swerving in the roadway before he made a sudden U-turn in front of

the oncoming truck.

            This evidence showed that Petrea was highly intoxicated, drove erratically, and failed to

control his vehicle, which endangered both Katelyn and the driver of the tow truck. Consequently,



4
  See also Menefee v. State, No. 12-07-00001-CR, 2010 WL 3247816, at *7 (Tex. App.—Tyler Aug. 18, 2010, pet.
ref’d) (mem. op., not designated for publication) (officer narrative contained in unobjected-to PSI report supported
guilty plea); Cardenas v. State, 960 S.W.2d 941, 947 n.5 (Tex. App.—Texarkana 1998, pet. ref’d) (“Although
presentence reports are not usually offered formally into evidence, there is authority indicating that since they are
presented for the consideration of the trial judge in sentencing, they are treated as evidentiary in nature.”); Montgomery
v. State, 876 S.W.2d 414, 416 (Tex. App.—Austin 1994, pet. ref’d) (noting that “the Code of Criminal Procedure
authorizes the consideration of a presentence report when the court assesses punishment” and concluding that “the
contents of a presentence report constitute ‘record evidence’”); Nicolopulos v. State, 838 S.W.2d 327, 328 (Tex.
App.—Texarkana 1992, no pet.) (“[T]he trial judge is specifically authorized by statute to consider the contents of the
presentence report.”).
5
    Petrea did not object to the trial court’s reliance on the PSI report.
                                                                6
we find that sufficient evidence supports the trial court’s deadly-weapon finding. We overrule this

issue.

(3)      There Was No Abuse of Discretion in Refusing to Allow Withdrawal of the Guilty Plea

         Six weeks after Petrea entered his guilty plea, the trial court was notified that he wished to

withdraw his plea. At a hearing on his request, Petrea maintained that he earlier thought he was

pleading guilty to manslaughter, not intoxication manslaughter, and that he had felt rushed and

pressured into entering his plea. After hearing Petrea’s testimony, and reviewing the transcript of,

and the evidence submitted at, the plea hearing, the trial court denied Petrea’s request to withdraw

his plea. Petrea asserts that this refusal was an abuse of discretion. He argues that his testimony

at the hearing on his request shows that his plea was not made knowingly and voluntarily.

         As a matter of right, a defendant may withdraw his guilty plea until the trial court has either

pronounced judgment or taken the case under advisement. Jackson v. State, 590 S.W.2d 514, 515

(Tex. Crim. App. [Panel Op.] 1979). However, after the case has been taken under advisement, or

after judgment has been pronounced, the withdrawal of the defendant’s plea is within the sound

discretion of the trial court. Id. Once the trial court has accepted the guilty plea and passed the

case for the preparation of a PSI report, it has been taken under advisement. Id. at 514–15; Rivera

v. State, 952 S.W.2d 34, 35–36 (Tex. App.—San Antonio 1997, no writ).

         Since Petrea sought to withdraw his guilty plea six weeks after the trial court had accepted

his guilty plea and recessed the case for the preparation of a PSI report, we review the trial court’s

denial of his request under an abuse-of-discretion standard. Rivera, 952 S.W.2d at 36. A trial

court abuses its discretion only if its decision “lies outside the ‘zone of reasonable disagreement.’”

                                                   7
Id. (quoting DuBose v. State, 915 S.W.2d 493, 496–97 (Tex. Crim. App. 1996), overruled on other

grounds by Guzman v. State, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997)).

       At the hearing on Petrea’s request, he testified that, when he entered his plea, he thought

he was pleading guilty to manslaughter, not intoxication manslaughter. However, as the trial court

pointed out, the record of the plea hearing shows that, in its admonishments before taking Petrea’s

plea, the trial court clearly stated that the indictment alleged the offense of intoxication

manslaughter and that, in taking his plea, the trial court asked, “To the charge contained in the

indictment, intoxication manslaughter, what is your plea to the charge, guilty or not guilty?”

Further, the written plea admonishments signed by Petrea state, in bold and all capital letters, that

he is charged in the indictment with the offense of “INTOXICATION MANSLAUGHTER.”

       Petrea also testified that he had felt rushed and pressured to enter his guilty plea and that

he had received the offer a mere fifteen minutes before his hearing.           However, on cross-

examination, Petrea admitted that he had received a plea offer almost a month before the hearing

and that he received an alternative plea offer on the day of the hearing. Further questioning showed

that he received this offer at noon on the day of the hearing and that his plea hearing did not

commence until almost 5:00 that afternoon.

       On this record, the trial court’s denial of Petrea’s request to withdraw his guilty plea was

within the zone of reasonable disagreement. Since the trial court did not abuse its discretion, we

overrule this issue.




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      For the reasons stated, we affirm the trial court’s judgment.




                                            Josh R. Morriss III
                                            Chief Justice

Date Submitted:      September 12, 2018
Date Decided:        September 19, 2018

Do Not Publish




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