Opinion issued August 15, 2013




                                 In The

                           Court of Appeals
                                 For The

                       First District of Texas

                           NO. 01-09-00090-CR
                           NO. 01-09-00091-CR

                     JAMES L. MENEFEE, Appellant
                                   V.

                    THE STATE OF TEXAS, Appellee

                 On Appeal from the 183rd District Court
                          Harris County, Texas
                 Trial Court Cause Nos. 1153928, 1153929


                     MEMORANDUM OPINION

     James L. Menefee pleaded guilty to two third-degree felony offenses of
violating a protective order, without agreed recommendations on punishment.1

The trial court assessed his punishment at eight years’ confinement in TDCJ in

each case and ordered the sentences to run concurrently. In two issues on appeal,

Menefee contends that the trial court erred or abused its discretion by denying his

motion to withdraw his guilty pleas, and that the evidence supporting his pleas was

insufficient.

      Finding no error in the trial court’s judgments, we affirm.

                                    Background

      On August 30, 2005, the trial court issued a temporary protective order

prohibiting Menefee from, inter alia, direct communication with the complainant in

a threatening or harassing manner or going near her residence. At the September

14, 2005 hearing on the complainant’s motion for a permanent order (at which

Menefee was a no-show), the trial court found that the complainant and Menefee

were in a dating relationship, and thus Menefee had committed family violence.

The trial court then issued a permanent protective order with prohibitions identical

to those recited in the temporary order.

      On October 3, 2007, Menefee was charged by indictment with intentionally

and knowingly (1) communicating directly with the complainant in a threatening or



1
      See TEX. PENAL CODE ANN. § 25.07(a)(2)(A), (a)(3)(A), (g) (West 2012).
                                           2
harassing manner on or about July 17, 2007 2 and (2) going to or near the

complainant’s residence on or about July 12, 2007 3 in violation of the permanent

protective order. 4 Each offense was enhanced by two prior convictions for

violating a protective order.

      Menefee was arraigned on November 6, 2008 and pleaded not guilty to both

offenses. The next day, however, Menefee waived his rights to trial by jury, the

appearance, confrontation, and cross-examination of witnesses, and his right

against self-incrimination, and pleaded guilty to both offenses without a

recommendation as to punishment from the State.             He also signed written

admonishments in which, inter alia, he waived his “right to have a court reporter

record [his] plea” and his right to have a pre-sentence investigation report

prepared. Menefee further represented to the trial court that he was mentally

competent and that his pleas were being made freely and voluntarily. The trial

court admonished Menefee as to the consequences of his pleas, and determined

that he was mentally competent to enter the pleas and that he did so freely and

voluntarily.

      Specifically, in trial court case number 1153928, Menefee stipulated that it


2
      Trial court case number 1153928, 01-09-00090-CR.
3
      Trial court case number 1153929, 01-09-00091-CR.
4
      The permanent protective order was attached as Exhibit A to both indictments.
                                          3
was alleged that, on or about July 17, 2007, he “did then and there unlawfully, in

violation of a Protective Order issued under Chapter 85, of the Family Code and

attached hereto as Exhibit A, intentionally and knowingly directly communicate

with [the complainant] in a threatening and harassing manner.” Menefee judicially

confessed that the allegations against him were true and that the acts alleged were

committed on July 12, 2007.

      In trial court case number 1153929, Menefee stipulated that the charges

against him alleged that on or about July 12, 2007, he “did then and there

unlawfully, in violation of a Protective Order issued under Chapter 85, of the

Family Code and attached hereto as Exhibit A, intentionally and knowingly go to

or near the residence described in said Protective Order, of [the complainant], the

protected individual.” Menefee judicially confessed that the allegations against

him were true and that the acts alleged were committed on July 17, 2007. The

protective order attached as Exhibit A to both sets of plea papers, however, was not

the permanent protective order in effect in July 2007 as alleged in (and attached to)

the indictments, but instead, the expired temporary protective order.

      Four days later, on November 11, 2008, the trial court held a hearing in both

cases during which time both Menefee and the complainant testified. Although it

is not entirely clear from the record, the hearing appears to have been part of the

sentencing phase of Menefee’s proceedings pursuant to his plea, at the conclusion
                                         4
of which the court recessed the case for two months and ordered a psychiatric

evaluation to determine Menefee’s competency to proceed.             Menefee was

subsequently found competent.

      A final hearing in both cases was held on January 16, 2009, at the beginning

of which, Menefee’s counsel made an oral motion to withdraw both guilty pleas:

      Your Honor, at this time the Defense would like to make a motion for
      request of Defendant to withdraw his plea for reasons that he feels like
      I misled him at the time of his plea. He felt like I did not adequately
      inform him as to ramifications of his plea. He’s informed me he
      would like to withdraw his plea on both cases. So, I’m asking the
      Court at this time to allow him to withdraw his plea.

The court noted that it had already heard testimony from both Menefee and the

complainant and denied the motion. Both sides then made closing arguments, the

State asked the court to assess the maximum ten years’ confinement, and Menefee

sought the minimum two years. The court sentenced Menefee to eight years in

TDCJ in each case and ordered the sentences to run concurrently. Menefee filed a

notice of appeal.

            Trial Court’s Denial of Motion to Withdraw Guilty Plea

      Menefee contends that because the critical question of his competency had

yet to have been resolved, the denial of his motion to withdraw his guilty pleas was

error since neither case had been taken under advisement. Alternatively, Menefee

contends that even had both cases been taken under advisement, the trial court

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nevertheless abused its discretion when it denied his motion because there was

evidence before the court that Menefee’s pleas were involuntary, and that Menefee

did not believe that he was guilty of either offense.

      A defendant has an absolute right to withdraw a guilty plea any time before

his plea has been taken under advisement or guilt has been adjudicated. See

Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979). Once a plea has

been taken under advisement or guilt has been adjudicated, however, a request to

withdraw a plea is untimely and the withdrawal of such a plea is within the sound

discretion of the trial court. See DeVary v. State, 615 S.W.2d 739, 740 (Tex. Crim.

App. [Panel Op] 1981) (citing Jackson, 590 S.W.2d at 515). It is well established

that a court takes a case under advisement when it accepts a properly admonished

guilty plea and passes the case for punishment. 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, where 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
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purpose” of determining defendant’s punishment).

      Because Menefee waived his right to have the court reporter record his plea

proceedings, the only evidence before this court consists of the clerk’s record

containing the plea and admonishments signed by Menefee on November 7th, and

the reporter’s record from the sentencing hearing on January 16, 2009. See

Montoya v. State, 872 S.W.2d 24, 25 (Tex. App.—Houston [1st Dist.] 1994, pet.

ref’d) (stating defendant who waives presence of court reporter at plea hearing has

burden to bring forth sufficient record on appeal to show error).        Absent a

reporter’s record of the plea hearing, there is a presumption of truthfulness and

regularity in the proceedings. Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim.

App. 1984) (op. on reh’g).

      Here, the record clearly reflects the trial court’s proper admonishments of

Menefee prior to accepting his guilty pleas on November 7th. Well-established

case law dictates that both cases were taken “under advisement” at that time. See

DeVary, 615 S.W.2d at 740 (holding matter taken under advisement when

defendant pleaded guilty and was properly admonished); Jackson, 590 S.W.2d at

514–15 (holding case had been taken under advisement when court had accepted

guilty plea and passed case for pre-sentence investigation); Thompson, 852 S.W.2d

at 270 (holding matter taken under advisement when “only issue remaining to be

decided was the appropriate punishment”). The record also reflects that the court
                                         7
determined that Menefee was mentally competent and had entered both pleas

knowingly and voluntarily when the trial court accepted the pleas on November

7th.   The fact that the trial court ordered Menefee to undergo a psychiatric

evaluation after he testified at the punishment hearing on November 11th does not

alter the fact that both cases had already been taken under advisement after the

previous hearing on November 7th. 5

       Because Menefee’s request to withdraw his pleas was untimely, the

withdrawal of such pleas is within the sound discretion of the trial court. DeVary,

615 S.W.2d at 740. Menefee argues that the trial court abused its discretion when

it denied his motion to withdraw his pleas because there was evidence before the

court that his pleas were involuntary because they were based on misinformation

that he received from his trial counsel, and that he did not believe that he was

guilty of either offense.

       If counsel conveys erroneous information to a defendant, a plea of guilty

based on that misinformation is involuntary. Ex parte Griffin, 679 S.W.2d 15, 17

(Tex. Crim. App. 1984); Rivera v. State, 952 S.W.2d 34, 36 (Tex. App.—San

Antonio 1997, no pet.); Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.—

Houston [1st Dist.] 1996, pet. ref’d). A bare allegation by a defendant that he was
5
       Notably, despite whatever concerns the trial court may have had as to Menefee’s
       competency after the November 11th hearing, the psychiatrist determined that
       Menefee was, in fact, competent to stand trial.
                                          8
misled or misinformed by his trial court, however, is insufficient to obtain relief.

Fimburg, 922 S.W.2d at 208 (“However exceptional the circumstances, a

defendant’s claim he was misinformed by counsel, standing alone, is not enough

for us to hold his plea was involuntary.”). In such circumstances, we determine

whether the record supports the defendant’s contention that his/her guilty plea was,

in fact, induced by significant misinformation. Russell v. State, 711 S.W.2d 114,

116 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d). In cases in which a guilty

plea has been held involuntary, the record contained confirmation of the

misinformation by counsel or there was documentation properly in evidence

corroborating the defendant’s testimony that reveals the misinformation and

illustrates its conveyance to the defendant. See, e.g., Griffin, 679 S.W.2d at 15; Ex

parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980); Rivera, 952 S.W.2d at

36; Murphy v. State, 663 S.W.2d 604, 610 (Tex. App.—Houston [1st Dist.] 1983,

no pet.). Such evidence is wholly absent here. As such, we cannot say that the

trial court abused its discretion when it denied Menefee’s motion to withdraw his

pleas on this basis.

      Menefee additionally argues that the trial court abused its discretion when

the it denied his motion to withdraw his guilty pleas because the psychiatric

evaluation established that Menefee did not believe himself guilty of either

offense. The record before us, however, does not indicate that the psychiatric
                                         9
evaluation was ever admitted into evidence. Moreover, the evaluation indicates

that Menefee denied committing only one of the offenses (i.e., threatening the

complainant), but admitted to going to or near the complainant’s residence (i.e.,

throwing a brick through a car window parked in her driveway). Finally, Menefee

did not argue to the trial court that it should allow him to withdraw his guilty pleas

because he believed himself innocent of the alleged offenses; he argued his

entitlement to withdraw his pleas because they were based on erroneous

information conveyed to him by his trial counsel. See Thomas v. State, 599

S.W.2d 823, 824 (Tex. Crim. App. 1980) (stating that trial court has no duty to

withdraw defendant’s “guilty” plea sua sponte after defendant has waived jury

trial, even if evidence fairly raises issue as to defendant’s innocence).

      We overrule Menefee’s first issue.

                      Article 1.15 Sufficiency Requirements

      In his second issue, Menefee challenges the sufficiency of the evidence

supporting both guilty pleas. Under Texas Code of Criminal Procedure article

1.15, a court may not enter a conviction in a felony case based on a guilty plea

unless evidence is presented establishing guilt in addition to and independent of the

plea. TEX. CODE CRIM. PROC. art. 1.15; Menefee v. State, 287 S.W.3d 9, 13–14

(Tex. Crim. App. 2009). The evidence does not have to establish the defendant’s

guilt beyond a reasonable doubt but must embrace every element of the offense
                                          10
charged. Staggs v. State, 314 S.W.3d 155, 159 (Tex. App.—Houston [1st Dist.]

2010, no pet.).

      Evidence substantiating a guilty plea can take several possible forms.

Menefee, 287 S.W.3d at 13. Article 1.15 itself states that a defendant may consent

to the presentation of evidence either by oral testimony or in written form, or to an

oral or written stipulation of what the evidence would be, without necessarily

admitting to its veracity or accuracy. Id. Additionally, courts have recognized that

a defendant may enter a sworn written confession, or may testify under oath in

open court, admitting his culpability or at least acknowledging generally that the

allegations against him are in fact true and correct. Id. A deficiency in one form

of proof may be compensated for by other competent evidence in the record. Id. at

14. Evidence adduced at a sentencing hearing may also suffice to substantiate a

guilty plea. See id. at 18–19 (remanding in part for determination of whether

evidence at sentencing hearing was sufficient to support guilty plea); Menefee v.

State, No. 12–07–00001–CR, 2010 WL 3247816, at *1, *6–7 (Tex. App.—Tyler

Aug. 18, 2010, pet. ref’d) (not designated for publication) (finding evidence at

sentencing hearing sufficient to support guilty plea).

      The stipulations of evidence and judicial confessions signed by Menefee in

both cases do indeed contain numerous flaws. Not only were the dates for both

offenses mixed up, but the record reflects that the protective order attached to both
                                          11
sets of plea papers (Exhibit A) was not the permanent protective order in effect in

July 2007, but rather, an expired temporary protective order. Notwithstanding

these flaws, we cannot say that the evidence was insufficient to support either plea,

particularly in light of the fact that both the complainant and Menefee testified on

November 11th. Menefee, 287 S.W.3d at 14 (stating deficiency in one form of

proof may be compensated for by other competent evidence). Because there is no

reporter’s record of that hearing, we presume that sufficient evidence to sustain and

support the pleas was introduced into the record at that hearing. See Williams v.

State, 950 S.W.2d 383, 385 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d)

(holding that in order to challenge sufficiency of evidence to support judgment

based on plea of guilty, defendant must bring forward full statement of facts,

including transcript of plea hearing).

      We overrule Menefee’s second issue.

                                     Conclusion

      We affirm the trial court’s judgments.




                                               Jim Sharp
                                               Justice



Panel consists of Justices Keyes, Sharp, and Huddle.
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Justice Keyes, concurring in judgment only.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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