                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-252-CR


ROBERT ARMSTRONG                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

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           FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Robert Armstrong appeals his conviction for murder. In two

points, Armstrong argues that the trial court erred by failing to sua sponte enter

a plea of not guilty when the evidence raised the issue of his innocence and

that he was denied his right to due course of law under the state constitution.

We will affirm.




      1
          … See Tex. R. App. P. 47.4.
      Armstrong entered an open plea of guilty to the State’s allegation in the

indictment that he “intentionally, with the intent to cause serious bodily injury

to Stephen Hughett, commit[ted] an act clearly dangerous to human life,

namely, by hitting [Hughett] with his hand or his hands, or by kicking him with

his foot, or by hitting him with a BB gun, which caused” Hughett’s death.

Armstrong also signed written plea admonishments, a judicial confession

admitting guilt, and a written waiver—joined by his attorney—waiving his right

to a jury trial and other rights given to him by law. The trial court accepted

Armstrong’s plea and deferred his sentencing until after a presentence

investigation report had been prepared.

      Testimony at punishment showed that Armstrong beat Hughett on his

arm, head, and ribs before leaving him at an isolated location. Investigators

found blood in numerous places around the room in the house where Hughett

lived, including on the wall, a mattress, a computer, a door, the doorknob, a

flag, and the floor.    Hughett’s decomposing body was later discovered,

scavenged by animals. The medical examiner’s office performed an autopsy on

Hughett, ruled the manner of death a homicide, and determined the cause of

death to be blunt force traumatic injuries; Hughett sustained trauma to his head

and brain and injuries to his chest wall and ribs.




                                       2
      Armstrong testified that in the course of his confrontation with Hughett,

he struck Hughett on the arm with a BB gun, exchanged punches with him, and

kicked him. After the confrontation, Hughett merely had a bloody nose and

“seemed a little dazed.” Thereafter, Armstrong and another person put Hughett

in the bed of Armstrong’s truck and took him “a little ways away from the

house,” not intending to dump him someplace where he would die and never

be found. Armstrong testified that he removed a still-alive Hughett from his

truck, placed him on the edge of the road, and left.

      During closing argument, Armstrong’s counsel pointed out that Hughett

had enough methamphetamine in his blood to cause seizures and convulsions,

that the blood in Hughett’s room could have come from Hughett’s bloody nose,

and that Hughett’s death could have been caused by his falling approximately

eight to nine feet from an incline near the place Armstrong left him. The trial

court found Armstrong guilty and sentenced him to forty-five years’

confinement.

      In his first point, Armstrong argues that the trial court erred by failing to

sua sponte enter a plea of not guilty when the evidence raised the issue of his

innocence. In his second, related point, Armstrong argues that the trial court

violated his right to due course of law under the state constitution when it

failed to sua sponte withdraw his guilty plea once the evidence showed that he

                                        3
had pleaded guilty to a crime not recognized by the State of Texas. Armstrong

argues that he “did not cause the death of [Hughett], rather he died from an

unrelated fall. The trial court had an obligation to withdraw the plea of guilty.” 2

      Although a defendant has a right to withdraw his guilty plea in a timely

fashion, the trial court has no duty to sua sponte withdraw the plea in the

absence of such a request. Mendez v. State, 138 S.W.3d 334, 345, 350 (Tex.

Crim. App. 2004); see Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App.

1978) (op. on reh’g).     If a defendant does not make a timely request to

withdraw his plea, he forfeits his right to complain on appeal that the trial court

should have done it for him. Mendez, 138 S.W.3d at 350 (“It is reasonable to

put on such a defendant the requirement of timely seeking . . . to withdraw the

plea of guilty. The appellant not having done so, he may not complain for the

first time on appeal that the trial court did not do it for him.”); Martinez v.

State, No. 02-04-00019-CR, 2004 WL 1798091, at *2 (Tex. App.—Fort Worth

Aug. 12, 2004, no pet.) (mem. op., not designated for publication).

      Here, Armstrong pleaded guilty to murder, and he signed written plea

admonishments and a judicial confession admitting guilt. During his testimony,




      2
      … Armstrong consolidated the arguments for his first and second points
because they “involve the same law and facts.” We will therefore consolidate
our analysis of Armstrong’s first and second points.

                                         4
he affirmed that he was “standing by” his guilty plea, that he knew Hughett

died as a result of his injuries, that he understood he caused Hughett’s injuries,

and that he was responsible for Hughett’s death. There is nothing in the record

indicating that Armstrong ever sought to withdraw his guilty plea. “If it had

been in his interest to do so, he would have known it.” Mendez, 138 S.W.3d

at 350. Therefore, Armstrong has forfeited his two points, failing to preserve

them for appellate review. See id.; Martinez, 2004 WL 1798091, at *2; see

also Rivera v. State, 123 S.W.3d 21, 32–33 (Tex. App.—Houston [1st Dist.]

2003, pet. ref’d) (“The trial court is not required to withdraw a plea of guilty

sua sponte and enter a plea of not guilty for a defendant when the defendant

enters a plea of guilty before the court after waiving a jury, even if evidence is

adduced that reasonably and fairly raises an issue as to his guilt.”); Bledsoe v.

State, No. 05-03-00230-CR, 2003 WL 21544509, at *1 (Tex. App.—Dallas

July 10, 2003, no pet.) (not designated for publication).           We overrule

Armstrong’s two points and affirm the trial court’s judgment.

                                            PER CURIAM

PANEL: MEIER, LIVINGSTON, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 8, 2009



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