Opinion filed June 30, 2016




                                     In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-14-00187-CR
                                   __________

                     ENRIQUE GARZA, JR., Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                      On Appeal from the 35th District Court
                              Brown County, Texas
                         Trial Court Cause No. CR22186


                      MEMORANDUM OPINION
      Enrique Garza, Jr., entered into a plea agreement with the State. He pleaded
guilty to the state jail felony offense of burglary of a building. The trial court
assessed Appellant’s punishment in accordance with the terms of his plea agreement
at confinement for fifteen months in the State Jail Division of the Texas Department
of Criminal Justice. In his sole issue on appeal, Appellant argues that his plea of
guilty was involuntary and that the trial court should have granted his motion for
new trial based upon that contention. We affirm.
                                          Background Facts
        Appellant and Marcus Reese were arrested for burglary of a building.
Appellant asserted that Reese told him that a man named “Jesse” gave him
permission to enter a building to salvage scrap metal from the building. Appellant
accompanied Reese to the building to assist him. The police arrived at the scene
while Appellant and Reese were inside the building. The police arrested Appellant
and Reese after contacting the owner of the property to determine that Appellant and
Reese did not have permission to be in the building to remove items.
        Appellant executed a sworn written stipulation wherein he judicially
confessed to committing the offense of burglary of a building as alleged in the
indictment. He entered a guilty plea before the trial court on March 18, 2014. The
court accepted the guilty plea on that date and scheduled a subsequent sentencing
hearing for April 14, 2014.1 At the sentencing hearing, Appellant presented an oral
request to withdraw his previous plea of guilty. Appellant did not provide any
grounds for his request to withdraw his guilty plea other than to assert that his
codefendant could potentially exonerate him. At the conclusion of the sentencing
hearing, the trial court denied Appellant’s request to withdraw his guilty plea and
sentenced him in accordance with the plea bargain agreement. The trial court also
advised Appellant that, if he desired to pursue an appeal, he would need to file a
formal request seeking the trial court’s permission. See TEX R. APP. P. 25.2(a)(2)(B).
        Appellant subsequently filed a written “Request for Permission to Appeal” on
May 12, 2014. He asserted in the request that his plea was involuntary “because it
was made without realizing that representations made to him were false.” He
attached an affidavit that he executed and an affidavit executed by his trial counsel
in support of the request. Appellant asserted that that he had learned after pleading

        1
          The trial court delayed sentencing at Appellant’s request so that he could take care of some matters
prior to beginning his sentence.

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guilty that the person named “Jesse” did not exist and his codefendant was never
given permission to enter the building. The trial court granted Appellant’s Request
for Permission to Appeal by executing a “Certification of Defendant’s Right of
Appeal” on May 20, 2014, wherein it granted Appellant permission to appeal.
      Appellant filed a motion for new trial on June 9, 2014, asserting that his plea
was involuntary on the same ground alleged in his Request for Permission to Appeal.
The trial court noted at the outset of the hearing that the motion for new trial
appeared to be untimely because it was filed more than thirty days after Appellant
was sentenced on April 14, 2014. See TEX. R. APP. P. 21.4(a). However, the trial
court allowed Appellant to present evidence concerning his contention that his plea
was involuntary. On direct examination, Appellant testified that his codefendant had
lied to him about having permission from someone named Jesse to enter the building
in order to remove scrap metal. On cross-examination, however, Appellant agreed
with the prosecutor’s statement that he was “not in any way saying [his] plea was
involuntary.” Appellant also stated that there was not any “new information” that
he was relying upon in asking the trial court to set aside his plea of guilty. The trial
court denied the motion for new trial at the conclusion of the hearing.
                                       Analysis
      Appellant contends that he is entitled to a new trial because his plea of guilty
was involuntary. A defendant has an absolute right to withdraw a guilty plea any
time before his plea has been taken under advisement or guilt has been adjudicated.
Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. [Panel Op.] 1979). Once a
plea has been taken under advisement or guilt has been adjudicated, however, a
request to withdraw a plea is untimely and the withdrawal of such a plea is within
the sound discretion of the trial court. Id. Under an abuse of discretion standard, we
must uphold the trial court’s ruling unless it lies outside the zone of reasonable
disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.
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1991). In performing our review, we must view the ruling in light of the information
before the trial court at the time of the ruling. Crumpton v. State, 179 S.W.3d 722,
724 (Tex. App.—Fort Worth 2005, pet. ref’d) (citing Carrasco v. State, 154 S.W.3d
127, 129 (Tex. Crim. App. 2005)).
       After a trial court has admonished a defendant, received the plea and
evidence, and passed the case for sentencing, the case has been taken under
advisement. Lawal v. State, 368 S.W.3d 876, 882 (Tex. App.—Houston [14th Dist.]
2012, no pet.) (citing DeVary v. State, 615 S.W.2d 739, 740 (Tex. Crim. App. [Panel
Op.] 1981)). There is no dispute that the trial court admonished Appellant on his
guilty plea, received his plea, and continued the case for sentencing at a later date as
requested by Appellant. Accordingly, we must review the record to determine if the
trial court abused its discretion in denying Appellant’s request to withdraw his guilty
plea. See DeVary, 615 S.W.2d at 740. We conclude that the trial court did not abuse
its discretion in denying his request.
      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. Boykin v. Alabama, 395 U.S. 238, 243 (1969); Kniatt v. State, 206 S.W.3d
657, 664 (Tex. Crim. App. 2006). Accordingly, a guilty plea, to be consistent with
due process of law, must be entered knowingly, intelligently, and voluntarily.
Boykin, 395 U.S. at 242; Kniatt, 206 S.W.3d at 664. 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. Brady v. United States, 397 U.S.
742, 755 (1970); Kniatt, 206 S.W.3d at 664.
      Appellant initially presented his request to withdraw his guilty plea at the
sentencing hearing. As noted by the trial court at the hearing, Appellant only
presented “a vague reference” as the basis for withdrawing his guilty plea. The
defendant bears a “heavy burden” to prove in a subsequent hearing that his plea was
                                           4
involuntary. Cantu v. State, 988 S.W.2d 481, 484 (Tex. App.—Houston [1st Dist.]
1999, pet. ref’d). We conclude that the trial court did not abuse its discretion in
denying Appellant’s request to withdraw his plea at the sentencing hearing because
Appellant did not present any evidence supporting his claim that his plea was
involuntary.
      Appellant subsequently addressed his claim that his guilty plea was
involuntary in his Request for Permission to Appeal. However, Appellant did not
ask the trial court to permit him to withdraw his guilty plea in this document—he
only asked the trial court for permission to appeal his conviction on this ground.
Finally, Appellant presented his request to withdraw his guilty plea in his motion for
new trial. However, the motion for new trial was not timely filed. A motion for new
trial must be filed no later than thirty days after the date that the trial court imposed
the sentence. TEX. R. APP. P. 21.4(a); see Drew v. State, 743 S.W.2d 207, 222–23
(Tex. Crim. App. 1987). Because Appellant’s motion for new trial was filed outside
the thirty-day window prescribed by Rule 21.4, the motion was untimely and the
trial court lacked jurisdiction to consider it. See Beathard v. State, 767 S.W.2d 423,
433 (Tex. Crim. App. 1989).
      On appeal, Appellant’s attorney asserts that he did not realize that the alleged
permission was relayed to Appellant by Reese rather than given to Appellant and
Reese at the same time by the “phantom ‘Jesse.’” Appellant asserts that his plea was
involuntary because his attorney relied on this erroneous information. However, this
argument was not presented to the trial court. Instead, Appellant’s attorney asserted
in his affidavit that he would have insisted that Appellant not plead guilty had he
known that “Jesse” was a “phantom person.” Appellant asserted in his affidavit that
his guilty plea was involuntary because he did not realize until after he pleaded guilty
that Reese did not actually have permission to enter the building. The fact that
Appellant and Reese were arrested at the scene after the police officers contacted the
                                           5
owner of the property strongly suggests otherwise. Additionally, Appellant later
testified that his plea was voluntary.
      There is no indication in the record that Appellant’s guilty plea was not the
expression of his own free will or that it was induced by threats, misrepresentations,
or improper promises. See Kniatt, 206 S.W.3d at 664. Given the evidence before
the trial court, it could have reasonably concluded that Appellant accepted the State’s
plea bargain and pleaded guilty, not because Appellant or his attorney was mistaken
about the permission allegedly given to Reese, but because they had determined that
it was in Appellant’s best interest to accept the plea bargain.          We overrule
Appellant’s sole issue on appeal.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


June 30, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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