Opinion issued October 30, 2014.




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NOS. 01-13-01056-CR
                                  01-13-01057-CR
                           ———————————
                       JIMMIE JOHNSON, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                  On Appeal from the 338th District Court
                           Harris County, Texas
                  Trial Court Case Nos. 1346765 & 1366083



                         MEMORANDUM OPINION

      Appellant, Jimmie Johnson, pleaded guilty to aggravated robbery and

burglary of a habitation. The court accepted appellant’s pleas, found him guilty,

and, after a punishment hearing, assessed punishment at forty-five years’

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confinement for the aggravated robbery and twenty years’ confinement for the

burglary of a habitation. After sentencing, appellant mailed motions to withdraw

his guilty pleas to the trial court. The trial court did not rule on the motions. On

appeal, Appellant contends the trial court erred by denying his motions to

withdraw his guilty pleas, arguing that they were involuntary. We affirm.

                                  BACKGROUND

      In March 2012, James Bevan discovered appellant had broken into his

garage and was stealing a bicycle. Bevan attempted to chase appellant, but was

unsuccessful. In May of that year, appellant was charged with burglary of a

habitation relating to the bicycle theft.

      Later that year, in October 2012, appellant entered a Radio Shack store and

pointed a gun at Lashad Jackson, the store manager. Appellant proceeded to duct

tape Jackson’s hands and demanded the keys to the safe. When Jackson could not

unlock the safe, appellant fired a shot in Jackson’s direction, hitting a filing cabinet

nearby. Appellant then took several cell phones and approximately $300 from the

cash register. He was apprehended by police as he was leaving the store and

charged with aggravated robbery. The two offenses were to be tried separately.

      The aggravated robbery case was tried first.            Appellant underwent a

competency evaluation and was found competent to stand trial. For aggravated

robbery, appellant originally pleaded not guilty. However, during trial he changed


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his plea to guilty. In addition to pleading guilty to the aggravated robbery,

appellant also pleaded guilty to the burglary of a habitation case, which was an

open case at that time.

      Appellant’s attorney stated that he believed that appellant understood the

nature and consequences of his plea and was competent. The trial court found that

appellant’s pleas were freely and voluntarily given, and accepted them. For both

offenses, appellant pleaded guilty without an agreed recommendation. Appellant

also stipulated to evidence that he had prior convictions for burglary and tampering

with evidence. By stipulating to the State’s evidence, appellant agreed that all of

the evidence against him was true. On November 25, 2013, he was sentenced to 45

years’ confinement in the aggravated robbery case and 20 years’ confinement in

the burglary of a habitation case, to run concurrently.

      Ten days later, on December 5, 2013, appellant mailed motions to withdraw

his guilty pleas to the trial court, which were filed on December 11, 2013. The trial

court never ruled on the motions, thus they were overruled by operation of law.

                                   DISCUSSION

      In his sole point of error, appellant contends “[t]he trial court erred in failing

to allow the appellant to withdraw his guilty plea[s].”




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1. Motion to Withdraw Guilty Plea – presentment requirement

      Generally, a defendant may withdraw his plea any time before judgment is

pronounced or the case is taken under advisement by the court. Jackson v. State,

590 S.W.2d 514, 515 (Tex. Crim. App. [Panel Op.] 1979). When a defendant files

a motion to withdraw a guilty plea after he has been adjudged guilty, the motion

operates as a motion for new trial, and the trial court’s decision whether to allow a

defendant to withdraw his plea is discretionary. Id. Abuse of discretion is shown

only when the trial court’s ruling lies outside the zone of reasonable disagreement.

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g).

      Under Texas Rule of Appellate Procedure 21.6, a criminal defendant is

required to “present” a motion to the trial court within 10 days of filing it. TEX. R.

APP. P. 21.6; Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998). The

mere fact that a defendant has filed a motion is insufficient to satisfy this

presentment requirement. Stokes v. State, 277 S.W.3d 20, 21 (Tex. Crim. App.

2009). The term “present” means that “the record must show the movant for new

trial sustained the burden of actually delivering the motion for new trial to the trial

court or otherwise bringing the motion to the attention or actual notice of the trial

court.” Butler v. State, 6 S.W.3d 636, 640 (Tex. App.—Houston [1st Dist.] 1999,

pet. ref’d) (citing Carranza, 960 S.W.2d at 79). Actual notice may be shown by




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such things as the judge’s signature or notation on a proposed order or by a hearing

date set on the docket. Carranza, 960 S.W.2d at 79.

      Unlike Butler v. State, in which the record showed that defense counsel

informed the court coordinator that the motion was filed and the coordinator

scheduled a hearing, 6 S.W.3d at 630, the record in this case does not indicate that

appellant notified the court of his motions to withdraw and does not establish that

the court had actual knowledge of the motions. Rather, the record shows that the

motions to withdraw were accompanied by a proposed order, which was blank and

unsigned by the trial judge. In addition, the record is also devoid of any ruling on

the motions, or a docket entry evidencing a hearing on the motions. Finding

nothing in the record to suggest otherwise, we conclude that appellant failed to

timely present his motions for new trial. Because it is not apparent from the record

that the motions to withdraw guilty plea were timely presented, the trial court did

not abuse its discretion in failing to grant them.

2. Voluntariness of Guilty Plea

      Even if appellant had presented his motion to withdraw his guilty pleas to

the trial court, he would nonetheless have the burden of showing that his pleas

were invalid for lack of voluntariness. A guilty plea constitutes a waiver of three

constitutional rights: the right to a jury trial, the right to confront one’s accusers,

and the right not to incriminate oneself. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.


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Crim. App. 2006) (citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709,

1712 (1969)). Accordingly, a guilty plea, to be consistent with due process of law,

must be entered knowingly, intelligently, and voluntarily. Id. To be “voluntary,” a

guilty plea must be the expression of the defendant’s own free will and must not be

induced by threats, misrepresentations, or improper promises. Id. (citing Brady v.

United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1471 (1970)).

      If a plea is not entered knowingly and voluntarily, it has been obtained in

violation of due process and is void. Houston v. State, 201 S.W.3d 212, 221 (Tex.

App.—Houston [14th Dist.] 2006, no pet.) (citing McCarthy v. United States, 394

U.S. 459, 466, 89 S. Ct. 1166, 1171 (1969)). The voluntariness of a plea is

determined by considering “all of the relevant circumstances surrounding it” and

must be affirmatively shown in the record. Id. (citing Brady, 397 U.S. at 749, 90 S.

Ct. at 1469; Boykin, 395 U.S. at 242, 89 S. Ct. at 1712). A plea is not involuntary

simply because the defendant “did not correctly assess every relevant factor

entering into his decision.” Talbott v. State, 93 S.W.3d 521, 526 (Tex. App.—

Houston [14th Dist.] 2002, no pet.)).

      The general rule is that a guilty plea is voluntary if the defendant was made

fully aware of the direct consequences of his plea. State v. Jimenez, 987 S.W.2d

886, 888 (Tex. Crim. App. 1999). A guilty plea is not rendered involuntary by a

lack of knowledge as to a collateral consequence of the plea. Id. at 888–89. “There


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are numerous relevant consequences of pleading guilty . . . which are not included

in the admonishments[.]” Vasquez v. State, 889 S.W.2d 588, 590 (Tex. App—

Houston [14th Dist.] 1994, no pet.). “A trial court is not required to admonish a

defendant about every possible consequence of his plea, direct or collateral, only

about those direct consequences that are punitive in nature or specifically

enunciated in the law.” Mitschke v. State, 129 S.W.3d 130, 136 (Tex. Crim. App.

2004). “If the consequence is definite and largely or completely automatic, then it

is a direct consequence.” Id. at 135.

      When the record shows that the trial court gave an admonishment, there is a

prima facie showing of a knowing and voluntary plea of guilty. Ex parte

Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985). When a defendant attests

at his original plea hearing to the voluntary nature of his plea, a heavy burden is

placed on him at a subsequent hearing to show a lack of voluntariness. Thornton v.

State, 734 S.W.2d 112, 113 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d).

      The record in this case shows that the trial court properly admonished

appellant, thus there is a prima facie showing of knowledge and voluntariness. In

addition, both appellant and his trial counsel attested to the voluntary nature of his

pleas. Together, this creates a strong presumption of voluntariness regarding

appellant’s pleas. Nevertheless, appellant now contends that the trial court abused

its discretion in accepting his pleas of guilty because he made the pleas without


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sufficient awareness or a rational understanding of the nature of the charges and

likely consequences. Appellant argues that his pleas were invalid because he was

incompetent at the time he pleaded guilty. Specifically, appellant argues that his

history of mental illness and drug addiction, coupled with his comment to the

judge that he was “not ready” at the beginning of trial, demonstrates he was not

competent.

       Although appellant claims his pleas were invalid because he was not

competent, the record reflects otherwise.       On November 12, 2013, appellant

underwent a competency assessment and was determined competent to stand trial.

Less than two weeks later, appellant made the decision to change his plea to the

aggravated robbery case to guilty and to plead guilty to the separate offense of

burglary of a habitation. Because appellant was held to have been aware of and

have a rational understanding of the charges against him on November 12, 2013,

and there being no evidence to the contrary, it is reasonable to conclude that he

retained sufficient awareness and understanding of the charges on November 25,

and was thus competent at the time of trial. As such, the trial court did not abuse its

discretion in permitting his motions for new trial to be overruled by operation of

law.




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                                 CONCLUSION

      We affirm the trial court’s judgments.




                                               _________________________
                                               Sherry Radack
                                               Chief Justice


Panel consisting of Chief Justice Radack and Justices Jennings and Keyes.

Do not publish. TEX. R. APP. P. 47.2(b).




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