Opinion issued September 26, 2019




                                       In The

                                Court of Appeals
                                       For The

                           First District of Texas
                              ————————————
                               NO. 01-18-01140-CR
                             ———————————
                        CECILIO MENDOZA, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 149th District Court
                            Brazoria County, Texas
                        Trial Court Case No. 83463-CR


                                 O P I N I O N

      A jury found Cecilio Mendoza guilty of twelve sexual offenses. He challenges

his judgment of conviction as to one of these offenses, contending that the trial court

erred by refusing to allow him to withdraw his guilty plea to count eleven of the

indictment and instructing the jury to find him guilty in conformity with his plea.
      We agree with Mendoza. We reverse his conviction under count eleven of the

indictment and remand this cause to the trial court so that he may answer this count.

As Mendoza does not challenge his convictions under any of the other counts of the

indictment, we otherwise affirm the trial court’s judgment.

                                   BACKGROUND

      A grand jury indicted Mendoza for three counts of aggravated sexual assault

of a child, three counts of indecency with a child by sexual contact, one count of

sexual assault of a child, and six counts of prohibited sexual conduct, all as part of

one criminal episode. See TEX. PENAL CODE §§ 3.01, 21.11, 22.011, 22.021, 25.02.

Each of these counts concerned the same child, Mendoza’s daughter.

      Before the reading of the indictment, the state abandoned one count of

prohibited sexual conduct. When the indictment was read, Mendoza pleaded not

guilty to all but one of the remaining twelve counts in the presence of the jury. He

pleaded guilty to count eleven of the indictment, which alleged that he had

committed the offense of indecency with a child by sexual conduct, specifically by

touching his daughter’s breasts.

      Mendoza testified at trial. He denied that he was guilty as to count eleven. The

following exchange occurred between him and the prosecutor:

      Q. And in front of this jury and the judge you stood up and pled guilty
         to touching on the breasts for your sexual gratification?
      A. No.

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Q. Okay. So you don’t remember pleading guilty to touching your
   daughter’s breasts?
A. Oh, yes. Yes, I did say that.
Q. Okay. So that count is touching breasts with sexual gratification or
   desire?
A. No.
Q. So you didn’t listen to when the District Attorney read that charge
   and you pled guilty?
A. Yes, I said yes. But I’ve never seen her like that in that way.
Q. So you pled guilty to this not understanding it?
A. No. I did understand the question.
Q. Okay. Well, let me read it to you. Hang on. It says on or about the
   1st day of January, 2015, and before the presentment of this
   indictment, in said County and State, did then and there, with the
   intent to arouse or gratify the sexual desire of said Defendant—
   that’s you—intentionally or knowingly engage in sexual contact
   with [his daughter], a child younger than 17 years and not the
   spouse of the Defendant, by touching the breasts of said child. Do
   you remember that being read to you?
A. Yes.
Q. Do you remember pleading guilty to it?
A. Yes.
Q. Okay. So why don’t you tell me about the time that you first touched
   your daughter’s breasts in a sexual manner?
A. I didn’t do it like that.
Q. Okay. Tell me how you did it.
A. Playing. Like I said before.
Q. So why did you plead guilty to something you didn’t do?



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      A. Because all the questions that are—that are right there have
         something to do because they say that there were sexual relations.
      Q. No. That count says that you touched her breasts for sexual
         purposes. So did you touch her for sexual purposes?
      A. No.

Mendoza previously had testified that any physical contact with his daughter was

unintentional or non-sexual in nature and occurred in the context of wrestling or

other play.

      Subsequently, defense counsel also questioned Mendoza about whether he

touched his daughter’s breasts. Mendoza again denied doing so as charged:

      Q. So I guess just to be clear, I mean today you pled guilty to what is
         Count Eleven. Did you not hear the intent to arouse or gratify the
         sexual desire of said Defendant as part of that count?
      A. I was just thinking it was touching without any intention.
      Q. But that’s not what you said in the past. I mean you said not guilty
         in the past. Would that be fair?
      A. Yes.

      Before the jury was charged, Mendoza tried to withdraw his guilty plea to

count eleven. Defense counsel argued that Mendoza “essentially retracted that guilty

plea in his testimony.” The State opposed withdrawal, contending that it would

“confuse the jury.” The trial court stated that it “already accepted the plea” and

denied Mendoza’s request.

      In its charge to the jury, the trial court stated that Mendoza “entered a plea of

‘Guilty’” to the offense of indecency with a child by sexual contact and “persists in
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his plea.” The trial court thus instructed the jury to find Mendoza guilty of count

eleven. The prosecution echoed this instruction in its closing argument, stating that

Mendoza had “already pled guilty” to this count, “so you must find him guilty” on

this count.

      The jury found Mendoza guilty on all counts. As to count eleven, the verdict

form signed by the foreperson read that, Mendoza having pleaded guilty, the jury

found him guilty.

                                   DISCUSSION

      Mendoza contends that the trial court erred in not allowing him to withdraw

his guilty plea and instructing the jury to find him guilty of count eleven. The state

concedes on appeal that the court erred in refusing to allow Mendoza to withdraw

his guilty plea. But the parties disagree as to the proper remedy. Mendoza contends

that we should reverse his conviction for this count and remand to the trial court for

a new trial before a jury. The State argues that the error was harmless.

                          Right to Withdraw a Guilty Plea

      A defendant has a right to withdraw a guilty plea, but he must exercise this

right in a timely manner. Mendez v. State, 138 S.W.3d 334, 336, 345 (Tex. Crim.

App. 2004). In a jury trial, the defendant’s request to do so is timely so long as he

makes it “before the jury retires to deliberate its verdict.” Id. at 345. Thus, when a

defendant seeks to withdraw a guilty plea before the jury retires, his right to do so is


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unqualified and the trial court has no discretion to deny the request. Fairfield v. State,

610 S.W.2d 771, 776 (Tex. Crim. App. [Panel Op.] 1981); McWherter v. State, 571

S.W.2d 312, 313 (Tex. Crim. App. [Panel Op.] 1978). This right is derivative of the

defendant’s constitutional right to be tried by a jury. See TEX. CONST. art. I, § 15;

see also TEX. CODE CRIM. PROC. art. 1.12 (statutory guarantee of jury trial).

      The jury had not retired to deliberate when Mendoza asked to withdraw his

guilty plea to count eleven of the indictment. He therefore had an absolute right to

withdraw his guilty plea, and the trial court erred by not allowing him to do so.

                                    Harmless Error

      When a trial court errs by refusing a defendant’s timely request to withdraw a

guilty plea, the error is harmless solely “when there is no evidence suggesting that

the defendant is not guilty or is guilty only of a lesser included offense.” Payne v.

State, 790 S.W.2d 649, 651 (Tex. Crim. App. 1990); accord Abrego v. State, 977

S.W.2d 835, 839 (Tex. App.—Fort Worth 1998, pet. ref’d). The defendant’s own

testimony denying his guilt is sufficient to raise a fact issue rendering this error

harmful. Compare Payne, 790 S.W.2d at 652 (defendant’s testimony raised fact

issues as to his guilt, which made it impossible for court to conclude beyond

reasonable doubt that trial court’s error didn’t affect outcome of defendant’s trial),

with Abrego, 977 S.W.2d at 839–40 (no evidence suggesting defendant wasn’t guilty

and trial court’s error in disallowing withdrawal of guilty plea thus was harmless).


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      The state contends that the trial court’s refusal to allow Mendoza to withdraw

his guilty plea as to count eleven was harmless because the evidence of his guilt was

overwhelming. The state’s position, however, is not consistent with the legal

standard that we must apply. We can hold that the error was harmless only if “no

evidence” suggested that Mendoza was not guilty. Payne, 790 S.W.2d at 651; accord

Smith v. State, Nos. 01-12-00661–63-CR, 2013 WL 6729666, at *4 (Tex. App.—

Houston [1st Dist.] Dec. 19, 2013, pet. ref’d) (mem. op., not designated for

publication). Mendoza’s testimony that he inadvertently touched his daughter’s

breasts while wrestling or engaged in other play, no matter how improbable, created

a fact issue for resolution by the factfinder—the jury—as to his guilt on count eleven.

See Payne, 790 S.W.2d at 652; see also Blackwell v. State, 193 S.W.3d 1, 11–12

(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (defendant’s testimony that he

lacked sexual intent, if credited by jury, would have been defense to offense of

indecency with child by contact).

      In refusing to allow Mendoza to withdraw his guilty plea and instead

instructing the jury to find him guilty as to count eleven, the trial court short-circuited

the factfinding process. See Casanova v. State, 383 S.W.3d 530, 543 n.56 (Tex.

Crim. App. 2012) (appellate court presumes jury followed instructions absent

contrary proof). We therefore hold that the trial court’s error was not harmless.




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                                    CONCLUSION

      We reverse Mendoza’s conviction under count eleven of the indictment and

remand this cause to the trial court so that he may answer this count. See Payne, 790

S.W.2d at 652. Mendoza’s convictions as to the other counts of the indictment are

unaffected; we thus affirm the remainder of the trial court’s judgment.




                                             Gordon Goodman
                                             Justice

Panel consists of Justices Keyes, Kelly, and Goodman.

Justice Keyes, dissenting.

Publish. TEX. R. APP. P. 47.2(b).




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