Opinion filed July 26, 2012




                                             In The


   Eleventh Court of Appeals
                                           __________

                                      No. 11-10-00238-CR
                                          __________

    THELMA MALDONADO A/K/A THELMA MALDONADO LOMAS
            A/K/A TAMMY MALDONADO, Appellant

                                                V.

                                 STATE OF TEXAS, Appellee


                              On Appeal from the 104th District Court

                                       Taylor County, Texas

                                   Trial Court Cause No. 17196B


                              MEMORANDUM OPINION
       Thelma Maldonado a/k/a Thelma Maldonado Lomas a/k/a Tammy Maldonado entered an
open guilty plea to the intentional murder of Michael Myrick and a plea of “true” to a prior
felony of robbery alleged for enhancement. She signed written plea admonishments, a judicial
confession admitting guilt, and a written waiver of jury trial. The trial court found appellant
guilty of murder and assessed her punishment at life in the Institutional Division of the Texas
Department of Criminal Justice.
          During the disposition hearing, appellant’s videotaped statement to the investigating
officer was introduced into evidence. Although she admitted stabbing the victim, she asserted
that she did not mean to hurt him. In three issues, appellant asserts that (1) the evidence was
insufficient for conviction because she lacked the necessary intent to commit murder; (2) the trial
court should have sua sponte withdrawn her guilty plea when it heard her statement that she did
not intend to kill the victim; and (3) the trial court erred in not considering all the evidence when
it accepted her guilty plea because her statement created a fact issue concerning intent, an
essential element of the offense charged. We affirm.
                                                     Background Facts
          Michael Myrick, the victim, invited some friends to his house on Briarwood Street in
Abilene for a party after they left a club when it closed. Approximately thirty people showed up
for the party; a number of them were not part of Myrick’s group of friends.
          One of appellant’s sons, Albert Lomas; and his cousin, Jason Anderson; and a friend,
Kaleb Covarrubias, appeared at the party even though they were virtually unknown to Myrick’s
friends.1 Several witnesses testified that Albert, Jason, and Kaleb were rude and disrespectful to
Myrick. They were yelling obscenities at Myrick, and he told them to leave. The six or seven
people in the Lomas group left through the back door. Witnesses then saw Covarrubias throw a
beer bottle that shattered Myrick’s front door.
          Myrick went out his front door and chased the Lomas group as they left in their blue
pickup. Amanda Powell and Modesto Lozano, two friends of Myrick, saw Myrick hanging on
(or being pulled in) to the passenger window of the pickup; he and the group in the pickup were
yelling at each other. Amanda and Modesto pulled Myrick away from the pickup as it sped off.
Myrick told them that the people in the pickup were hitting him with a pipe of some sort.
          After leaving Myrick’s house, Albert and his group went to appellant’s home to get
weapons. There were at least six people in the pickup when it returned to Myrick’s house,
including appellant. Appellant had a kitchen knife that was approximately eight inches in length;
Albert had pliers; Edward Lomas had a pipe; Jason had a shovel head with a shortened handle;
and Star Gutierrez had a tire iron. Although the record does not reflect whether Kaleb had a


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           Appellant indicates in her brief that another son, Edward Lomas, and his girlfriend, Star, were drinking with appellant
at appellant’s home and initially were not at the party; they later went with the group to attack Myrick. That is also this court’s
impression from appellant’s videotaped statement. However, it appears from Modesto Lozano’s testimony that Edward was at
the party and was part of the group arguing with Myrick in his kitchen. The evidence is consistent that Edward was with the
group when they returned to Myrick’s house.
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weapon, his DNA was on the metal pipe the officers found in appellant’s residence; the pipe also
had Myrick’s blood on it.
       Modesto Lozano testified that, after the Lomas group left in their blue pickup, he and his
friends decided to also leave. As they were driving north and stopped at the next intersection,
they saw the same blue pickup going back toward Myrick’s house. The time between the blue
pickup leaving and returning was about fifteen to twenty minutes. Modesto made a U-turn at the
intersection and returned to Myrick’s house. As he pulled up, he saw the group beating Myrick
with what appeared to be pipes.
       Modesto said that he tried to get to Myrick to help, but Albert grabbed Modesto by the
arms and Edward hit him on the back of his head several times with a pipe. Modesto did not see
anyone else fighting the blue-pickup group on Myrick’s behalf, and he was unable to help
Myrick. Modesto received a gash on the back of his head that required stitches and staples. As
Modesto went down, he called to his friends to call the police.            The blue-pickup group
immediately ran back to the pickup and left. Modesto attempted to give Myrick CPR, but
Myrick was dead when the fire department arrived.
       When the police officers went to appellant’s house at around 4:00 a.m, members of the
blue-pickup group were talking and drinking beer in the living room. Appellant was drinking
beer and had blood on her right pant leg; the blood was subsequently identified as belonging to
Myrick. In her statement, appellant said that she still had the knife in her hand when the group
returned to her house and that Edward, seeing that the knife had blood on it, took the knife from
her hand. Edward told the officers that he put the knife behind the house, and the officers found
it there. At the house, the officers also found the pipe used by Edward.
       Myrick was found dead in the street in front of his house. Forensic evidence established
that, in addition to the fatal stab wound, Myrick had severe wounds to his head from the shovel
head and from the pipe. The fatal wound inflicted by appellant was a stab wound to the chest
that severed the aorta. Myrick’s blood was found on several areas of the blue pickup.
       The lead investigator was Detective Will Ford with the Criminal Investigation Division
of the Abilene Police Department. He described the knife wound as a deep penetrating stab
wound that, according to the autopsy, struck Myrick’s aorta or heart. The fabric on Myrick’s
shirt was not torn; the knife had sliced through his shirt. Detective Ford interviewed appellant at
her home and then took a formal statement from her a few hours later at the law enforcement
center. In her statement, appellant said that she thought the group was taking her to the store for
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cigarettes, that she grabbed the knife for protection, and that she did not know they were going to
Myrick’s house. Detective Ford testified that he did not believe appellant when she told him that
she took the knife for protection and that she did not know the group was going to Myrick’s
house that night. In the video, he pointed out to appellant that she was “going to the store” with
four strong men and asked appellant why she also wanted to take a knife. Appellant said that she
did not know why she took the knife.
       At the disposition hearing, the trial court stated at the outset that the evidence would be
relevant to two cases before the court: (1) cause no. 17,196-B (the murder charge) and (2) cause
no. 16,501-B. The State had filed a motion to revoke appellant’s probation in the latter cause. In
cause no. 16,501-B, appellant had been charged with theft in 2007 and was on community
supervision. Appellant’s community supervision officer testified. She related a conversation
with appellant concerning the events on the night of the murder. Appellant told her community
supervision officer that she had been drinking, that she remembered being surrounded by a lot of
people, that she saw a man coming toward her, and that she stabbed him.
                                             Analysis
       No trial court is authorized to render a conviction in a felony case consistent with
Article 1.15 of the Texas Code of Criminal Procedure based upon 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).
       In appellant’s videotaped statement that she gave to Detective Ford, she stated that she
asked her sons to take her to the store to get cigarettes when Jason and his companions returned
from Myrick’s house the first time. Appellant claimed that, when they loaded into Jason’s
pickup, she did not know they were going back to Myrick’s house. “For protection,” she took a
kitchen knife. She sat in the bed of the pickup with Kaleb and Albert; Jason drove with Edward
and Star in the cab of the pickup. During the fight at Myrick’s house, appellant claimed that she
remained in the pickup and saw a man trying to get into the cab to get to Star. She got out of the
pickup and “stabbed the guy” as he was reaching for Star, but she “didn’t mean to hurt him.”
       It is well-settled law that a trial court is not required to sua sponte withdraw a guilty plea
and enter a plea of not guilty when the accused has waived a trial by jury and entered a guilty
plea before the court. Aldrich v. State, 104 S.W.3d 890 (Tex. Crim. App. 2003); Thomas v.
State, 599 S.W.2d 823 (Tex. Crim. App. 1980); Moon v. State, 572 S.W.2d 681 (Tex. Crim. App.
1978); Gafford v. State, 262 S.W.3d 452 (Tex. App.—Texarkana 2008, pet. ref’d). This rule
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applies even if evidence is presented that raises an issue of fact as to the guilt of the accused; in
such a case, the trial court, as the trier of fact, may decide the issue of the accused’s guilt without
withdrawing the plea. Thomas, 599 S.W.2d at 824; Moon, 572 S.W.2d at 681.
       The Court of Criminal Appeals has more recently clarified this area of the law with
respect to a guilty plea that is made to a jury. Mendez v. State, 138 S.W.3d 334 (Tex. Crim. App.
2004). The facts and appellant’s arguments are substantially the same as those in Mendez. There
was a jury trial in Mendez as opposed to the bench trial in the case before us; however, the
Mendez court set forth principles that apply in both situations. It was undisputed that Mendez
shot and killed the victim with whom he had been having a sexual relationship. Mendez testified
that he shot her but that he did not mean to shoot her, only to scare her. Like appellant in this
case, Mendez claimed that he was drunk at the time. On appeal, Mendez claimed that the trial
court should have sua sponte withdrawn his guilty plea after his testimony raised an issue as to
his guilt. The Court of Criminal Appeals held that the trial court had no duty to change his plea
on the trial court’s own motion. Mendez, 138 S.W.3d at 336.
       The Mendez court noted that a defendant has the right to withdraw a plea of guilty in a
timely fashion, whether the trial is with or without a jury. A defendant’s decision to plead guilty
“entails the waiver of some important, constitutional rights”; however, “[t]hese are ‘waivable-
only’ rights” in the taxonomy of Marin v. State, 851 S.W.2d 275, 279–80 (Tex. Crim. App.
1993). Mendez, 138 S.W.3d at 350. Once a court has fulfilled its duties and a defendant has
made a valid waiver of his or her rights, “it is appropriate that the defendant be required to take
some affirmative action to don the armor again.” Mendez, 138 S.W.3d at 350. The trial court
had no duty to withdraw appellant’s plea of guilty sua sponte. See Mendez, 138 S.W.3d at 350;
Aldrich, 104 S.W.3d at 896. Because appellant took no action to withdraw her guilty plea, she
may not complain about it for the first time on appeal. Mendez, 138 S.W.3d at 350; Aldrich, 104
S.W.3d at 896; see TEX. R. APP. P. 33.1.
       Appellant argues that the evidence was legally insufficient to sustain her conviction and
that the trial court erred in not considering all the evidence because appellant’s statement created
a fact issue on an essential element of murder. To support an open plea of guilty, the State must
introduce evidence into the record showing the guilt of the defendant, and “in no event shall a
person charged be convicted upon his plea without sufficient evidence to support the same.”
Article 1.15. This evidence may be stipulated if the defendant consents in writing, in open court.
Id. An appellate court will affirm the conviction if the judicial confession, the stipulation of
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evidence, or the evidence introduced embraces every essential element of the offense charged
and is sufficient to establish the defendant’s guilt. Id.; Menefee, 287 S.W.3d at 13. A judicial
confession, standing alone, is sufficient to sustain a conviction upon a plea of guilty if such
judicial confession embraces the essential elements of the offense. Menefee, 287 S.W.3d 13–14;
Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1980).
       The evidence in this case, which included a written stipulation of evidence and a judicial
confession of guilt in open court, is more than sufficient to support the trial court’s finding of
guilt. Even the brief summary of the evidence earlier in this opinion demonstrates that the
evidence was legally sufficient to sustain appellant’s conviction. The trial court, as the trier of
fact, was the exclusive judge of the credibility of the witnesses and the weight to be given to
their testimony. Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995). The trial court
no doubt found appellant’s story lacking credibility. Appellant admitted that she was going with
a group that included four men and Star; those four and Star had weapons. Appellant’s version
conflicts with Modesto’s and Stephanie Delarosa’s version; Stephanie was the one who called
the police when Modesto called to her. The only reasonable explanation for appellant taking her
kitchen knife was for it to be her weapon as the group returned to Myrick’s house. The evidence
of appellant’s guilt is more than sufficient to support appellant’s conviction.
       Due process of law is not denied by a conviction on a plea of guilty when there is a
strong factual basis for the plea and the defendant clearly expressed a desire to enter the guilty
plea despite a professed belief in innocence. Mendez, 138 S.W.3d at 344. Appellant’s three
issues are overruled.
                                            This Court’s Ruling
       The judgment of the trial court is affirmed.




July 26, 2012                                                 TERRY McCALL
Do not publish. See TEX. R. APP. P. 47.2(b).                  JUSTICE
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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