                             Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                       No. 04-15-00646-CR

                                   Jimmy Rodgers WHARTON,
                                           Appellant

                                                 v.

                                      The STATE of Texas,
                                            Appellee

                     From the 216th Judicial District Court, Kerr County, Texas
                                     Trial Court No. A14443
                          Honorable N. Keith Williams, Judge Presiding

Opinion by:      Sandee Bryan Marion, Chief Justice

Sitting:         Sandee Bryan Marion, Chief Justice
                 Rebeca C. Martinez, Justice
                 Luz Elena D. Chapa, Justice

Delivered and Filed: December 7, 2016

AFFIRMED

           Jimmy Rodgers Wharton pled guilty to arson and was sentenced to twenty-five years’

imprisonment pursuant to a plea bargain agreement. The trial court granted Wharton permission

to appeal the voluntariness of his plea on the grounds raised in his motion to withdraw his plea.

On appeal, Wharton contends his plea was involuntary because when he entered his plea he did

not have: (1) his expert’s report regarding the cause of the fire; or (2) exculpatory information

developed after his plea involving a second offense which was dismissed as part of the plea

bargain. We affirm the trial court’s judgment.
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                                           BACKGROUND

       On March 26, 2015, Wharton pled guilty to arson pursuant to a plea bargain agreement.

Under the terms of the agreement, Wharton’s sentence was capped at thirty years’ imprisonment

and the State agreed to dismiss a second indictment for solicitation of capital murder. The court

admonished Wharton, accepted the plea, approved the plea agreement, ordered a presentence

investigation report, and set a date for sentencing.

       On March 27, 2015, Wharton filed a motion to withdraw his plea, stating his attorney

received a report from a forensic fire expert upon returning to his office after the plea hearing. The

expert opined the fire could not have been caused in the manner alleged by the State. Wharton

informed his attorney he would not have pled guilty if he had been in receipt of the report. On

March 30, 2015, the trial court held a hearing and denied the motion.

       On August 20, 2015, Wharton filed a first amended motion to withdraw his plea, stating

that on July 29, 2015, the State videotaped an interview with a jailhouse informant who was the

primary witness in the solicitation of capital murder charge. The motion stated the informant

referred to “using manipulation tactics to get [Wharton] to agree and/or to commit to him that he

supposedly wanted him to get rid of his wife.” The motion further stated Wharton would not have

pled guilty if this information had been available to him at the time he entered his plea. On

September 3, 2015, the trial court held a hearing and denied the motion.

       On September 18, 2015, the trial court held a sentencing hearing and sentenced Wharton

to twenty-five years’ imprisonment. The trial court granted Wharton permission to appeal the

voluntariness of his plea.

                                      STANDARD OF REVIEW

       “Whether to allow withdrawal of a plea pursuant to a motion filed after the judge has taken

the case under advisement is within the sound discretion of the trial court.” Moreno v. State, 90
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S.W.3d 887, 889 (Tex. App.—San Antonio 2002, no pet.). “Once the trial judge has admonished

the defendant, received the plea, and received evidence, the passage of the case for a presentence

investigation constitutes taking the case under advisement.” Id. Because Wharton did not file his

motion to withdraw his plea until after the case was taken under advisement, “we review the court’s

decision under an abuse of discretion standard.” Id. A trial court does not abuse its discretion

unless its ruling lies outside the zone of reasonable disagreement.” Id.

                                  VOLUNTARINESS OF THE PLEA

       Because a guilty plea entails a waiver of several federal constitutional rights, due process

requires the plea to be voluntary and that the defendant have sufficient awareness of the

consequences. Ex parte Palmberg, 491 S.W.3d 804, 807 (Tex. Crim. App. 2016). “[S]ufficient

awareness does not require complete knowledge of the prosecution’s case,” and a guilty plea does

not violate due process “even when the defendant enters it while operating under various

misapprehensions about the nature or the strength of the State’s case against him — for example

. . . misjudging the availability of a potential defense.” Id. at 807-08. Similarly, a guilty plea does

not violate due process “because it later develops that the State would have had a weaker case than

the defendant thought.” Id. at 808. For example, in Ex parte Palmberg, the Texas Court of

Criminal Appeals held the defendant’s plea was knowingly and intelligently entered even though

the defendant was unaware the crime laboratory was unable to test the cocaine seized from the

defendant because the officer used the entire substance in conducting a field test. Id. at 811-12.

The court noted the record did not establish the defendant mistakenly believed he was guilty but

only that the defendant “may have overestimated the State’s ability to ultimately prove he was

guilty.” Id. at 811 (emphasis in original).

       “Naturally, the more information the defendant acquires beforehand about the

prosecution’s case, the better informed his decision to plead guilty will be, providing him the
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opportunity to make a ‘wise’ plea.” Id. at 809. “But even if the defendant is less well-informed,

as long as he has a sufficient awareness of his circumstances—including an awareness that some

facts simply remain unknown to him or are undetermined as of the time of the plea—his potentially

unwise plea is still a voluntary one.” Id. “The correct question for due process purposes is not

whether [Wharton] knew every fact relevant to the prosecution of his case. Rather, the correct

question is whether he was aware of sufficient facts—including an awareness that there are or may

be facts that he does not yet know—to make an informed and voluntary plea.” Id. (emphasis in

original). “Simply put, a requirement that a defendant be completely informed about every fact

relevant to his prosecution at the time of his plea (even facts that no one directly involved in the

plea process—including the prosecutor—could possibly yet know) would impose an untenable

and undesirable burden on the institution of plea bargaining.” Id. at 809-10. (emphasis in original).

        With regard to the forensic fire expert’s report, Wharton’s attorney specifically referenced

the missing report in questioning Wharton about his plea during the plea proceeding as follows:

                [DEFENSE ATTORNEY]: And we’ve gone over the offense reports with
        you. Also, we had retained a forensic fire expert that was going to be helping us
        prepare for trial. We don’t have a report from them yet. But I had kept you abreast
        of the information that I had been sharing with them; is that correct?
                THE DEFENDANT: Yes, sir.

During the hearing on his motion to withdraw, Wharton further admitted that prior to his plea, his

attorney informed him the forensic fire expert believed the arson investigation was inadequate.

Accordingly, at the time of his plea, Wharton was aware there “may be facts that he [did] not yet

know.” Id. at 809 (emphasis in original). Therefore, the trial court did not abuse its discretion in

denying Wharton’s motion to withdraw his plea based on the additional facts contained in the

forensic fire expert’s report.

        Similarly, with regard to the statements the informant made in the interview conducted

after Wharton’s plea, Wharton was aware when he entered his plea that the solicitation charge was
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based on Wharton’s conversations with a jailhouse informant. In fact, as the prosecutor noted

during the hearing on the motion to withdraw, because Wharton was a party to those conversations,

he had complete information regarding what transpired. Although the informant’s admission that

he manipulated Wharton may have weakened the State’s case, Wharton was already aware the

informant could have credibility issues. Therefore, the trial court did not abuse its discretion in

denying Wharton’s motion to withdraw his plea simply because the subsequent interview revealed

“the State [might] have had a weaker case than [Wharton] thought.” Id. at 808; see also United

States v. Ruiz, 536 U.S. 622, 625, 633 (2002) (holding plea not involuntary if prosecutor withholds

impeachment information relating to informants or other witnesses).

                                          CONCLUSION

       The trial court’s judgment is affirmed.

                                                  Sandee Bryan Marion, Chief Justice

DO NOT PUBLISH




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