                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-241-CR


RICHARD GONZALEZ                                                      APPELLANT

                                             V.

THE STATE OF TEXAS                                                          STATE

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     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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     Appellant Richard Gonzalez appeals his conviction for aggravated sexual

assault of a child under fourteen years of age.         In a single point, Gonzalez

argues that the trial court abused its discretion by denying his motion to

withdraw his guilty plea. We will affirm.




     1
         … See T EX. R. A PP. P. 47.4.
      The grand jury indicted Gonzalez for multiple sexual offenses involving a

child. With a venire panel waiting outside of the courtroom anticipating the

commencement of voir dire, Gonzalez decided to enter an open plea of guilty

to a single count of aggravated sexual assault of a child. He signed written plea

admonishments, including admonishments for sex offender registration

requirements. Gonzalez also signed a judicial confession admitting his guilt for

the offense.     The trial court deferred sentencing to prepare a presentence

investigation report (“PSI”). 2

      Just under three months after pleading guilty but before sentencing,

Gonzalez filed a motion to withdraw his guilty plea alleging that the PSI

contained multiple instances where he had recanted his guilty plea and

affirmatively denied his guilt for the instant offense. He contended that his

guilty plea should be withdrawn and a new trial granted because his assertions

were inconsistent with his guilty plea. At a hearing on his motion, Gonzalez

testified (1) that he wanted to withdraw his plea of guilty and (2) that he was

ready for a jury trial. The trial court took judicial notice of the PSI and denied

his motion to withdraw his guilty plea. The trial court subsequently found

Gonzalez guilty and sentenced him to twenty-five years’ confinement.




      2
          … There is no reporter’s record of Gonzalez’s plea proceeding.

                                         2
      In his sole point, Gonzalez argues that the trial court abused its discretion

by denying his motion to withdraw his guilty plea. He contends that his plea

of guilty and judicial confession were not freely, knowingly, and voluntarily

entered, that he did not understand the consequences of his plea, and that he

was denied due process and a fair trial under both the United States and Texas

constitutions.

      A defendant may withdraw his guilty plea as a matter of right without

assigning reason at any time before judgment has been pronounced or the case

has been taken under advisement. Jackson v. State, 590 S.W.2d 514, 515

(Tex. Crim. App. 1979). However, if a defendant decides to withdraw his

guilty plea after the trial court takes the case under advisement or pronounces

judgment, the withdrawal of the plea is within the sound discretion of the trial

court. Id.; Labib v. State, 239 S.W.3d 322, 331 (Tex. App.—Houston [1st

Dist.] 2007, no pet.).    Once the judge has admonished the accused and

accepted his or her plea, passing the case for a PSI constitutes “taking the case

under advisement.”     Crumpton v. State, 179 S.W.3d 722, 724 n.2 (Tex.

App.—Fort Worth 2005, pet. ref’d); Watson v. State, 974 S.W.2d 763, 765

(Tex. App.—San Antonio 1998, pet. ref’d).

      Here, Gonzalez signed the written plea admonishments and a judicial

confession on February 20, 2007, and the trial court deferred sentencing for

                                        3
preparation of a PSI. Gonzalez filed his motion to withdraw his guilty plea on

May 14, 2007, almost three months later. Because the trial court had already

taken the case under advisement when Gonzalez filed his motion to withdraw

his guilty plea, we review the trial court’s denial of Gonzalez’s motion under an

abuse of discretion standard. See Jackson, 590 S.W.2d at 515; Watson, 974

S.W.2d at 765.

      In determining whether the trial court abused its discretion, we must

uphold the trial court’s ruling if it is reasonably supported by the record and is

correct under any theory of law applicable to the case. Carrasco v. State, 154

S.W.3d 127, 129 (Tex. Crim. App. 2005). An 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.

1990).

      A guilty plea must be made knowingly and voluntarily before it can meet

the statutory and constitutional requirements and be accepted. See T EX. C ODE

C RIM. P ROC. A NN. art. 26.13(b) (Vernon Supp. 2007). When the trial court has

admonished the defendant concerning the possible range of punishment for the

crime for which he stands accused, there is a prima facie showing that the plea

was made knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195, 197

(Tex. Crim. App. 1998). The burden then shifts to the defendant to show that

                                        4
he was harmed because he did not fully understand the consequences of his

plea. Id.; Crumpton, 179 S.W.3d at 724.

      Although there is no reporter’s record of the plea proceeding, evidence

of Gonzalez’s plea is in the clerk’s record. See T EX. C ODE C RIM. P ROC. A NN. art.

26.13(d) (permitting the trial court to admonish defendant orally or in writing);

Scott v. State, 86 S.W.3d 374, 375 (Tex. App.—Fort Worth 2002, no pet.)

(relying on evidence in the clerk’s record to address voluntariness of appellant’s

plea); Cutrer v. State, 995 S.W.2d 703, 706 (Tex. App.—Texarkana 1999, pet.

ref’d) (holding prima facie evidence of voluntary and knowing plea is presented

where defendant was properly admonished in writing). The record reflects that

Gonzalez signed written plea admonishments indicating that he is able to read

the English language and that he fully understood the written                   plea

admonishments; that he was aware of the consequences of his plea; that he

was waiving the attendance and record of a court reporter; that he entered his

plea knowingly, freely, and voluntarily; and that no one threatened, coerced,

forced, persuaded, or promised anything in exchange for his plea. The presiding

judge signed the written plea admonishments, which state that the trial court

gave Gonzalez the admonishments set forth therein, that it found him to be

mentally competent, and that his plea was intelligently, freely, and voluntarily

given. Gonzalez also acknowledged in his signed written plea admonishments

                                         5
for sex offender registration requirements that he freely and voluntarily entered

his plea of guilty. This evidence is sufficient to establish a prima facie showing

that Gonzalez’s plea of guilty was entered knowingly and voluntarily.         See

Martinez, 981 S.W .2d at 197.       Gonzalez consequently had the burden of

showing harm due to his failure to fully understand the consequences of his

plea. See id.; Crumpton, 179 S.W.3d at 724.

      As the basis for his arguments that he should have been allowed to

withdraw his guilty plea because he entered his plea involuntarily, the plea is

untrue, and he was denied due process, Gonzalez merely contends that there

was ample evidence of the repudiation of his judicial confession prior to

sentencing. Gonzalez is apparently referencing his statements in the PSI. The

PSI, however, is not part of the appellate record. In order for a complaint to be

properly considered, the record must be complete on the issue urged.

McQueen v. State, 702 S.W.2d 302, 303 (Tex. App.—Houston [1st Dist.]

1985, no writ). Oddly, although Gonzalez’s argument relies on his statements

contained in PSI, he does not include a discussion or recitation of the specific

contentions contained in the PSI where he allegedly professed his innocence.

Gonzalez also does not raise any contention regarding the PSI’s absence from

the record, nor does the record reflect any attempt to supplement the record

with the PSI.   Having failed to bring forth the PSI as part of the appellate

                                        6
record, Gonzalez’s arguments relying on his statements in the PSI (which are

not included in his own brief) present nothing for our review.3

      Gonzalez testified briefly at the hearing on his motion to withdraw his

guilty plea, but he stated only that he wanted to withdraw his plea of guilty and

that he was ready for a jury trial. Gonzalez directs us to no evidence showing

that he did not understand the consequences of his plea or that he did not enter

his plea knowingly and voluntarily, and we have found none after examining the

entire record.4   Accordingly, we hold that the trial court did not abuse its




      3
        … See Fuller v. State, No. 14-96-00958-CR, 1998 WL 239611, at *1
(Tex. App.—Houston [14th Dist.] May 14, 1998, pet. ref’d) (not designated for
publication) (“Fuller failed to bring forward the pre-sentence investigation the
trial court relied upon prior to sentencing him. Therefore, he presents nothing
for review.”); Tagle v. State, No. 13-97-00193-CR, 1997 WL 33644287, at *3
(Tex. App.—Corpus Christi Dec. 30, 1997, no pet.) (not designated for
publication) (“Appellant has failed to make the pre-sentence investigation part
of the appellate record, so we are unable to confirm whether the pre-sentence
investigation supported the State’s comment that Appellant had been on
probation before and had failed to report. The record must demonstrate
requisite facts entitling the defendant to relief.”); Gibson v. State, No. 01-95-
01046-CR, 1996 WL 580513, at *2 (Tex. App.—Houston [1st Dist.] Oct. 10,
1996, pet. ref’d) (not designated for publication) (“[A]ppellant has not brought
forth the presentence investigation report . . . . [A]ppellant brings nothing for
review.”).
      4
       … Like his appellate brief, Gonzalez’s motion to withdraw his guilty plea
states that he desired to withdraw his plea because there were multiple
instances in his PSI where he had recanted his plea of guilty. But there is no
evidence contained therein or attached thereto either detailing how or why his
plea of guilty was not made knowingly and voluntarily.

                                       7
discretion by denying his motion to withdraw his plea of guilty. See Crumpton,

179 S.W.3d at 725 (holding that trial court did not abuse its discretion by

refusing appellant’s request to withdraw guilty plea); Grant v. State, 172

S.W.3d 98, 100 (Tex. App.—Texarkana 2005, no pet) (same); Dean v. State,

Nos. 02-02-0087-CR, 02-02-0089-CR, 2003 WL 21940898, at *3 (Tex.

App.— Fort Worth Aug. 14, 2003, pet. ref’d) (mem. op.) (not designated for

publication) (same).    We overrule Gonzalez’s sole point and affirm the trial

court’s judgment.




                                           PER CURIAM

PANEL F: HOLMAN, J.; CAYCE, C.J.; and LIVINGSTON, J.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: March 20, 2008




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