      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00219-CR



                                Kevin Daniel Anderson, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
            NO. 66777, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Kevin Daniel Anderson pleaded guilty to the offense of aggravated

assault. See Tex. Penal Code Ann. § 22.02 (West 2011). Following a hearing on sentencing, the

district court assessed punishment at 18 years’ imprisonment. In two points of error on appeal,

Anderson asserts that his guilty plea was involuntary and that the district court abused its discretion

in refusing to allow him to withdraw his guilty plea. We will affirm the judgment of conviction.


                                         BACKGROUND

               Anderson was charged with intentionally, knowingly, or recklessly causing serious

bodily injury to Shawn Alosi by striking and kicking him and using or exhibiting a deadly weapon

during the commission of the offense, specifically his hand or foot. Prior to trial, Anderson had

signed a judicial confession and a “waiver of jury and agreement to stipulate upon a plea of guilty.”

The waiver indicated that Anderson understood the charges against him, the consequences of

pleading guilty, and the rights he was waiving by pleading guilty. The waiver further indicated:
       I am mentally competent and I have discussed the facts of the offense or offenses
       charged against me with my attorney and I am satisfied with the investigation of the
       facts and the representation provided by my attorney. My decision to enter a plea of
       guilty before the court is my free and voluntary decision made with knowledge of
       the facts of the case for and against me and represents my free choice between the
       courses of action available to me.


The waiver was also signed by defense counsel, the State, and the district court.

               Prior to accepting Anderson’s guilty plea, the district court admonished Anderson and

asked him numerous questions relating to whether he understood the consequences of his plea.

Because the district court’s questions and Anderson’s responses are relevant to our inquiry into the

voluntariness of Anderson’s plea, we reproduce most of the exchange below:


       THE COURT:             Sir, are you Kevin Daniel Anderson?

       THE DEFENDANT: Yes, ma’am.

       THE COURT:             How old are you?

       THE DEFENDANT: Twenty-one.

       THE COURT:             Are you a United States citizen?

       THE DEFENDANT: Yes, m’am.

       THE COURT:             Do you read, write and speak the English language?

       THE DEFENDANT: Yes, ma’am.

       THE COURT:             Mr. Anderson, you understand that you’re in court this
                              morning charged with the felony offense of aggravated
                              assault?

       THE DEFENDANT: Yes, ma’am.

       THE COURT:             You understand that that is a second-degree felony, and it
                              carries a range of punishment of not less than 2 nor more than
                              20 years in the Institutional Division of the Texas Department

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                of Criminal Justice, and it may include a fine of up to
                $10,000?

THE DEFENDANT: Yes, ma’am.

THE COURT:      Do you understand today’s your trial?

THE DEFENDANT: Yes, ma’am.

THE COURT:      Are you ready to proceed?

THE DEFENDANT: Yes, ma’am.

THE COURT:      Mr. Anderson, I have papers in front of me that I understand
                you signed.

THE DEFENDANT: Yes, ma’am.

THE COURT:      Did you read and understand all of these papers before you
                signed them?

THE DEFENDANT: Yes, ma’am.

THE COURT:      You understand that you have the right to have a jury trial;
                and in fact, there’s a jury panel waiting in the hallway.
                You’re set for jury trial today. Do you understand that?

THE DEFENDANT: Yes, ma’am.

THE COURT:      Do you want a jury trial?

THE DEFENDANT: No, ma’am.

THE COURT:      Do you want to proceed before the court without a jury?

THE DEFENDANT: Yes, ma’am.

THE COURT:      Do you also understand, sir, that you have an absolute right to
                remain silent and you do not have to make any statements in
                these proceedings?

THE DEFENDANT: Yes, ma’am.



                                  3
THE COURT:      And do you understand that you can require the state to bring
                their witnesses into court to testify against you, and you and
                your attorney have the right to confront and cross-examine
                those witnesses?

THE DEFENDANT: Yes, ma’am.

THE COURT:      You signed papers, sir, telling me that you want to give up all
                of those rights.

THE DEFENDANT: Yes, ma’am.

THE COURT:      Is that still what you want to do?

THE DEFENDANT: Yes, ma’am.

THE COURT:      And Mr. White, you concur in those waivers?

MR. WHITE:      I do, Your Honor.

THE COURT:      Does the state waive a jury?

MS. STRIMPLE:   Yes, Your Honor.

THE COURT:      I’ll approve those waivers. Mr. Anderson, I also have a
                document that’s a judicial confession. Did you read and
                understand this before you signed it?

THE DEFENDANT: Yes, ma’am.

THE COURT:      Do you understand that when this comes into evidence,
                you’ve given the evidence against yourself in this case?

THE DEFENDANT: Yes, ma’am.

THE COURT:      Also, sir, I understand that you do not have any plea
                agreements with the state.

THE DEFENDANT: Yes, ma’am.

THE COURT:      Do you understand that that leaves the full range of
                punishment available to the court?

THE DEFENDANT: Yes, ma’am.

                                    4
THE COURT:      Is it true, sir, that you don’t have any agreements with the
                state?

THE DEFENDANT: Yes, ma’am.

THE COURT:      If you do have agreements with the state, Mr. Anderson, I
                don’t know about them and I’m not bound by them. You
                understand that?

THE DEFENDANT: Yes, ma’am.

THE COURT:      You also understand, sir, that this confession and the
                indictment in this case contain an allegation of a deadly
                weapon?

THE DEFENDANT: Yes, ma’am.

THE COURT:      Do you understand the effect that that would have on any
                parole eligibility in this case in the event that you were
                sentenced to time in the Institutional Division of the Texas
                Department of Criminal Justice?

THE DEFENDANT: Yes, ma’am.

THE COURT:      Do you understand that?

THE DEFENDANT: Yes, ma’am.

THE COURT:      You’ve talked with your attorney about that?

MR. WHITE:      Your Honor, we have discussed that he would not be eligible
                for good time parole or eligibility of parole until one-half of
                the sentence is served, in actuality that could be a lot longer
                than 50 percent of sentence. We explained that to him.

THE COURT:      All right. You understand that, Mr. Anderson?

THE DEFENDANT: Yes, ma’am.

THE COURT:      Understanding all that, do you still want to proceed?

THE DEFENDANT: Yes, ma’am.

....

                                   5
THE COURT:       Okay. Mr. Anderson, do you believe you’re mentally
                 competent? Do you understand everything that we’re doing?

THE DEFENDANT: Oh, yes, ma’am.

THE COURT:       Do you understand what you’ve been charged with?

THE DEFENDANT: Yes, ma’am.

THE COURT:       Have you been able to talk with Mr. White about the
                 allegations against you?

THE DEFENDANT: Yes, ma’am.

THE COURT:       Have you been able to talk with him about any possible
                 defenses that you might have in this case?

THE DEFENDANT: Yes, ma’am.

THE COURT:       Do you feel like you’ve understood everything?

THE DEFENDANT: Yes, ma’am.

THE COURT:       Have you been satisfied with the representation that he has
                 provided for you in this case?

THE DEFENDANT: Yes, ma’am.

THE COURT:       Mr. White, do you believe your client is mentally competent?

MR. WHITE:       I do, Your Honor.

THE COURT:       Mr. Anderson, to the charge of aggravated assault alleged to
                 have occurred in Bell County, Texas, on August the 29th of
                 2009, how do you plead, sir; are you guilty or not guilty?

THE DEFENDANT: Guilty.

THE COURT:       Are you pleading guilty freely and voluntarily?

THE DEFENDANT: Yes, ma’am.

THE COURT:       Has anyone promised you anything in order to get you to enter
                 the plea of guilty?

                                     6
       THE DEFENDANT: No, ma’am.

       THE COURT:              Has anyone threatened you or forced you or done something
                               to you to make you plead guilty?

       THE DEFENDANT: No, ma’am.

       THE COURT:              Are you pleading guilty, sir, because you are guilty?

       THE DEFENDANT: Yes, ma’am.

       THE COURT:              You did commit this offense?

       THE DEFENDANT: Yes, ma’am.

       THE COURT:              You understand that based on your plea, punishment will be
                               assessed?

       THE DEFENDANT: Yes, ma’am.

       THE COURT:              Do you still want to plead guilty?

       THE DEFENDANT: Yes, ma’am.

       THE COURT:              Mr. White, do you concur?

       MR. WHITE:              I do, Your Honor.

       THE COURT:              At this time I find the defendant is competent, he understands
                               the nature and consequences of his plea, his plea is free and
                               voluntary.


The district court then admitted Anderson’s judicial confession into evidence, found the evidence

sufficient to prove that Anderson had committed the offense, withheld a finding of guilt at that time,

ordered a pre-sentence investigation report, and reset the case for sentencing.

               Sentencing commenced that afternoon in order to accommodate the availability of

one out-of-town witness and another out-of-state witness, both of whom the State had scheduled



                                                   7
to testify that day. After hearing their testimony, however, the district court recessed and did not

reconvene sentencing until several months later.

                Approximately two months after pleading guilty, Anderson sent a pro se letter to the

district court in which he claimed that he “never wanted to plead guilty” and that he had done so

because his attorney had informed him that he would receive a lesser sentence or probation if he

pleaded guilty. Anderson asserted that he was “not guilty of this charge,” but qualified this claim

by adding, “I’m not saying that I wasn’t part of this incident [involving the assault], because I was,

but not to the extreme of what the court makes it seem.” Anderson also asserted for the first time

that he had been acting in self-defense when he had committed the offense. The district court took

no action in response to this letter.

                Sentencing resumed approximately two months later, and Anderson testified in his

defense at the hearing. Although Anderson referenced in his testimony some of the defensive claims

that he had made in his letter, he made no request during sentencing to withdraw his guilty plea. The

district court subsequently sentenced Anderson as noted above. This appeal followed.


                                    STANDARD OF REVIEW

                In his first point of error, Anderson asserts that his guilty plea was involuntary. The

standard of review when an appellant contends that his plea was not knowingly and voluntarily

given is whether the record discloses that the defendant’s plea represents a voluntary and intelligent

choice among the alternative courses of action open to the defendant. See North Carolina v. Alford,

400 U.S. 25, 31 (1970); Brown v. State, 896 S.W.2d 327, 328 (Tex. App.—Houston [1st Dist.] 1995,

pet. ref’d). When evaluating the voluntariness of a guilty plea, we consider the entire record.

Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). When the record

                                                   8
reflects that a defendant was properly admonished, it presents a prima facie showing that the guilty

plea was made knowingly and voluntarily. Id. Faced with this prima facie showing, the burden then

shifts to the defendant to demonstrate that his plea was not voluntary. Id. A defendant who attests,

when he enters his plea of guilty, that he understands the nature of his plea and that his plea is

voluntary, has a heavy burden on appeal to show that his plea was involuntary. See Houston v. State,

201 S.W.3d 212, 217 (Tex. App.—Houston [14th Dist.] 2006, no pet.); Dusenberry v. State,

915 S.W.2d 947, 949 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d).

               In his second point of error, Anderson asserts that the trial court abused its discretion

in not allowing him to withdraw his guilty plea. A defendant may withdraw his plea as a matter of

right, without assigning a reason, until judgment is pronounced or the case is taken under advisement

by the trial court.1 Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979); Jagaroo v. State,

180 S.W.3d 793, 802 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). If, on the other hand, the

defendant decides to withdraw his plea after the trial court has taken the case under advisement or

pronounced judgment, the withdrawal of such plea is within the sound discretion of the trial court.

Jackson, 590 S.W.2d at 515; Jagaroo, 180 S.W.3d at 802. A trial court abuses its discretion when

it acts arbitrarily or unreasonably, or without reference to any guiding rules and principles.

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990); Stone v. State, 951 S.W.2d 205,

207 (Tex. App.—Houston [14th Dist.] 1997, no pet.). To show that the trial court abused its




       1
          After a trial court has admonished a defendant, received the plea and evidence, and passed
the case for a pre-sentence investigation, the case has been taken under advisement. See Houston
v. State, 201 S.W.3d 212, 218 (Tex. App.—Houston [14th Dist.] 2006, no pet.); Saldana v. State,
150 S.W.3d 486, 490 (Tex. App.—Austin 2004, no pet.). That is what occurred here.

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discretion when it refused to allow appellant to withdraw his plea, an appellant must show that the

trial court’s ruling lies outside the zone of reasonable disagreement. Jagaroo, 180 S.W.3d at 802.


                                             ANALYSIS

               As an initial matter, it does not appear that Anderson has preserved his complaints

for review. To preserve error, a complaint must be “made to the trial court by a timely request,

objection, or motion that . . . state[s] the grounds for the ruling that the complaining party sought

from the trial court with sufficient specificity to make the trial court aware of the complaint,

unless the specific grounds were apparent from the context.” Tex. R. App. P. 33.1(a)(1)(A). The

record must also show that the trial court “ruled on the request, objection, or motion, either expressly

or implicitly” or “refused to rule on the request, objection, or motion, and the complaining

party objected to the refusal.” Tex. R. App. P. 33.1(a)(2). As a general rule, a complaint

regarding the voluntariness of a guilty plea cannot be raised for the first time on appeal. See Mendez

v. State, 138 S.W.3d 334, 350 (Tex. Crim. App. 2004); Starks v. State, 266 S.W.3d 605, 613

(Tex. App.—El Paso 2008, no pet.).

               Here, Anderson made no specific complaint to the district court that his guilty plea

was involuntary. Nor did he seek to withdraw his guilty plea during sentencing. The only way that

Anderson might have preserved error was through his pro se letter to the district court.2 But even

if we were to liberally construe Anderson’s letter as a request to withdraw his guilty plea or a



       2
           Because Anderson was represented by counsel at the time he wrote the letter, the
district court was entitled to disregard any pro se motion or filing. See Robinson v. State,
240 S.W.3d 919, 922 (Tex. Crim. App. 2007); see also Costilla v. State, No. 03-10-00226-CR,
2010 Tex. App. LEXIS 10321, at *14 (Tex. App.—Austin Dec. 23, 2010, no pet.) (mem. op.,
not designated for publication).

                                                  10
complaint that his plea was involuntary, the district court made no express ruling on any such request

or complaint. Therefore, for error to have been preserved, the district court must have implicitly

overruled the request or complaint. On this record, there does not appear to be any such ruling,

either during or after sentencing.3

                However, even if we were to find that Anderson had preserved error, we could

not conclude on this record that Anderson’s complaints had merit. Regarding the voluntariness

of Anderson’s plea, the record as a whole supports an implied finding by the district court that

Anderson’s plea represented a voluntary and intelligent choice among the alternative courses of

action open to the defendant. Although Anderson claimed in his letter that he had pleaded

guilty because his counsel had represented that he could receive a lesser sentence if he did so, there

is nothing in the record to support this bare assertion. The record reflects that the district court

admonished Anderson that he was being charged with a second-degree felony punishable by a

term of anywhere between two and twenty years’ imprisonment and that, because Anderson had no

plea agreement with the State, the “full range of punishment” was available to the court and the court

was not “bound” by any agreements to the contrary. Anderson indicated that he understood those

admonishments. Moreover, even if counsel had created an expectation that Anderson would receive

a lesser sentence than what was actually assessed, this would not render Anderson’s plea involuntary.

See West v. State, 702 S.W.2d 629, 633 (Tex. Crim. App. 1986) (“[T]he plea is not involuntary just

because the sentence exceeded what appellant expected, even if the expectation was raised by his

attorney”); State v. Collazo, 264 S.W.3d 121, 127 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d)

(“A plea is not involuntary simply because the defendant ‘did not correctly assess every


       3
           No motion for new trial was filed.

                                                 11
relevant factor entering into his decision.’” (quoting Talbott v. State, 93 S.W.3d 521, 526

(Tex. App.—Houston [14th Dist.] 2002, no pet.)). And, there is nothing in the record to suggest that

Anderson’s plea was involuntary for any other reason, such as threats, misrepresentations, or

coercion. See Brady v. United States, 397 U.S. 742, 755-57 (1970). Thus, the record as a whole

supports an implied finding by the district court that Anderson failed to meet his “heavy burden” to

show that his plea was involuntary.

               We also could not conclude on this record that the district court abused its

discretion in refusing to allow Anderson to withdraw his guilty plea. Assuming without deciding

that Anderson’s pro se letter was a request to withdraw his plea, it was filed some two months after

Anderson had already pleaded guilty and judicially confessed to committing the crime and after the

sentencing hearing had already commenced. The district court had already considered the testimony

of two witnesses, one of whom was an eyewitness to the assault. Thus, it would not have been

outside the zone of reasonable disagreement for the district court to conclude that to allow Anderson

to withdraw his plea at that time would be unduly disruptive to the ongoing proceedings, especially

considering that the letter was apparently written without the participation of Anderson’s counsel.

It also would not have been outside the zone of reasonable disagreement for the district court to

conclude that the letter was equivocal and not a complete renunciation of Anderson’s guilty plea, as

Anderson did not deny his involvement in the assault but claimed only that his involvement was not

as “extreme” as the district court had “made it seem.” Moreover, because Anderson did not request

to withdraw his guilty plea at the sentencing hearing, it would not have been outside the zone of

reasonable disagreement for the district court to conclude that even if Anderson had wanted to

withdraw his guilty plea when he had written the letter, he had subsequently changed his mind.


                                                 12
Finally, as we have already explained, the record supports a finding that Anderson’s plea was a

voluntary and intelligent choice among the alternative courses of action open to him, and it would

not have been outside the zone of reasonable disagreement for the district court to allow Anderson’s

voluntary and intelligent choice to stand. See Jagaroo, 180 S.W.3d at 802-03. For these and other

reasons, we could not conclude on this record that any implicit refusal of Anderson’s purported

request to withdraw his guilty plea was arbitrary or unreasonable.

               We overrule Anderson’s first and second points of error.


                                         CONCLUSION

               We affirm the judgment of the district court.




                                              ___________________________________________

                                              Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Henson

Affirmed

Filed: August 3, 2012

Do Not Publish




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