AFFIRM; and Opinion Filed May 17, 2013.




                                                           S
                                                          In The
                                                    Court of Appeals
                                             Fifth District of Texas at Dallas

                                                       No. 05-12-01453-CR

                                             RANZY YOUNG, Appellant
                                                       V.
                                           THE STATE OF TEXAS, Appellee

                                On Appeal from the 292nd Judicial District Court
                                             Dallas County, Texas
                                     Trial Court Cause No. F12-19005-V

                                                 OPINION
                         Before Chief Justice Wright and Justices Evans and Campbell 1
                                         Opinion by Justice Campbell

           Ranzy Young appeals the order placing him on deferred adjudication community

supervision for the offense of evading arrest or detention. See TEX. PENAL CODE ANN. § 38.04(a)

(West Supp. 2012). In his sole issue on appeal, appellant contends the trial court erred in

denying his request to withdraw his plea of no contest because the trial court had not yet taken

the case under advisement or pronounced judgment. We affirm.

                                                                  FACTS

           On August 13, 2012, appellant waived a jury trial and pleaded no contest to the charged

offense. The State agreed to a plea bargain calling for three years of deferred adjudication and a

fine of $ 2,000. The trial court accepted the plea, called a halt to the plea hearing, and reset the

   1
       The Honorable Charles F. Campbell, Senior Appellate Judge, Texas Court of Criminal Appeals, sitting by assignment.
case pending completion of a presentence investigation. On October 3, 2012, during the

“sentencing” proceeding, appellant attempted to withdraw his plea. While on the witness stand,

appellant blamed his trial attorney for his no contest plea, testifying that his attorney told him to

plead guilty or face almost certain conviction by a jury. The trial court listened to all the

evidence appellant presented, but then overruled his motion to withdraw his plea. That court

followed the plea agreement, deferred adjudicating appellant’s guilt, placed him on three years’

community supervision, and assessed a fine of $720. He also granted appellant permission to

appeal.

                                      ARGUMENTS OF PARTIES

          Appellant contends he should have been allowed to withdraw his no contest plea because

“there was no indication that a judgment had been pronounced or that the case had been taken

under advisement.” Without one of those two events having taken place, appellant contends he

was entitled as a matter of right to withdraw his plea, citing Jackson v. State, 590 S.W.2d 514,

514–15 (Tex. Crim. App. [Panel Op.] 1979). The State responds the trial court was not required

to withdraw appellant’s plea because the court had already accepted the plea and taken the case

under advisement, citing chiefly Washington v. State, 893 S.W.2d 107, 108–09 (Tex. App.—

Dallas 1995, no pet.).

                                          APPLICABLE LAW

          A liberal practice prevails in Texas concerning the withdrawal of a guilty plea. Jackson,

590 S.W.2d at 515. A defendant may withdraw his guilty plea as a matter of right without

assigning reason until judgment has been pronounced or the case has been taken under

advisement. Id. at 515. However, where the defendant decides to withdraw his guilty plea after

the trial judge takes the case under advisement or pronounces judgment, the withdrawal of such

plea is within the sound discretion of the trial judge. Id. at 515.

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       A case is considered to be under advisement after each side has concluded its case-in-

chief, the defendant has entered a plea of guilty, said plea has been accepted, and the necessary

admonishments have been given, even though the issue of punishment remains unsettled.

Washington, 893 S.W.2d at109; see also Thompson v. State, 852 S.W.2d 268, 270 (Tex. App.—

Dallas 1993, no pet); Jackson, 590 S.W.2d at 514–15. There is no requirement that there be a

finding of guilt before a case is considered to have been taken under advisement. Scott v. State,

860 S.W.2d 645, 646 (Tex. App.—Dallas 1993, no pet.).

                                 APPLICATION OF LAW TO FACTS

       In the instant case, appellant entered a no contest plea before the trial court. Appellant

testified he had waived his right to a jury trial and he was entering his plea freely and voluntarily

without coercion or undue influence. Appellant’s plea was part of a plea bargain that called for

the trial court to defer adjudication of guilt, assess three years’ probation, and impose a fine. The

trial court accepted appellant’s plea on the record, and then reset the case until October 3, 2012

so that a presentence report could be prepared. On October 3, after denying appellant’s motion to

withdraw the plea, the trial court followed the plea bargain, placed appellant on probation for

three years, and assessed a fine in an amount lower than called for in the plea agreement.

       Appellant’s position seems to be that the trial court neither pronounced judgment nor

took the case under advisement during the August 13 plea hearing thereby giving appellant a

right to withdraw his plea at any time. Appellant alleges the trial court failed to accept the plea

until the October 3 hearing. The trial record, however, shows the trial court accepted the plea

immediately after appellant entered it. The only remaining question is whether accepting a plea

constitutes taking a case under advisement.

       Both parties cite Thompson in support of their respective positions. The facts in

Thompson are strikingly similar to those in this case. In Thompson, the defendant pleaded guilty

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on October 13, 1991, after the trial court had admonished him. See Thompson, 852 S.W.2d at

269. The trial judge accepted the plea and the defendant executed a judicial confession and

written stipulation of evidence. See id. The trial court did not make a finding of guilt but rather

reset the case until November 8, 1991 so that a presentence report could be prepared. See id. At

the November 8 hearing, the defendant testified to facts that, if true, were exculpatory. His

attorney then moved to withdraw the guilty plea, but the trial judge denied it. Appellant was then

sentenced. See id. The Thompson court, relying on the analysis of the court of criminal

appeals’s opinion in Jackson, held that the passing of a case for a presentence investigation under

those facts constituted taking a case under advisement. See id. at 270.

       In the instant case, appellant entered his plea of no contest, the plea was accepted by the

trial court, and the necessary admonishments were given. See Washington, 893 S.W.2d at 108–

09. As in Thompson, the only issue remaining in Washington was the assessment of punishment.

Id. Thus, the instant case is governed by this Court’s decisions in Thompson and Washington.

The issue at bar, whether the trial court had taken the case under advisement at the August 13

hearing, must be answered in the affirmative. As a sub-issue of same, whether the trial court

accepted appellant’s plea, that issue must be answered in the affirmative as well. Thus the

withdrawal of appellant’s plea was within the sound discretion of the trial judge, and there has

been no showing in the record that the trial court abused its discretion. Appellant’s sole point of

error is overruled.

       The judgment of the trial court is affirmed.


                                                      _/Charles Campbell/____________
                                                      CHARLES F. CAMPBELL
                                                      JUSTICE, ASSIGNED

Do Not Publish
TEX. R. APP. P. 47
121453F.U05
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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

RANZY YOUNG, Appellant                               On Appeal from the 292nd Judicial District
                                                     Court, Dallas County, Texas
No. 05-12-01453-CR        V.                         Trial Court Cause No. F12-19005-V.
                                                     Opinion delivered by Justice Campbell,
THE STATE OF TEXAS, Appellee                         Chief Justice Wright and Justice Evans
                                                     participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 17th day of May, 2013.




                                                     /Charles Campbell/
                                                     CHARLES F. CAMPBELL
                                                     JUSTICE, ASSIGNED




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