                             (£aurt of Appeals
                     IFtfttj Itsirtrt of ©*>xas at lallas
                                    JUDGMENT

EJIKEME     OKECHUKWU       NDUKA,          Appeal from the 291st Judicial District
Appellant                                   Court of Dallas County, Texas. (Tr.Ct.No.
                                            F94-00169-HU).
No. 05-94-01959-CR             V.           Opinion   delivered   by   Chief   Justice
                                            Thomas, Justices Bridges and Roach also
THE STATE OF TEXAS, Appellee                participating.


      Based on the Court's opinion of this date, the judgment of the trial court is
AFFIRMED.




Judgment entered September 15, 1998.




                                            LR<DATHOMAS
                                            CHIEF JUSTICE
AFFIRM and Opinion Filed September 15, 1998




                                           In The

                              Court nf Appeals
                      Jtfttf Itstrtrt of (Eexas at latias
                                    No. 05-94-01959-CR



                      EJIKEME OKECHUKWU NDUKA, Appellant

                                              V.


                            THE STATE OF TEXAS, Appellee


                     On Appeal from the 291st Judicial District Court
                                    Dallas County, Texas
                           Trial Court Cause No. F94-00169-HU



                                      OPINION

               Before Chief Justice Thomas and Justices Bridges and Roach
                            Opinion By Chief Justice Thomas

       Ejikeme Okechukwu Nduka appeals his conviction for engaging in organized criminal

activity. The sole issue is whether the trial court abused its discretion in denying appellant's

motion to withdraw his guilty plea. For the reasons stated, we affirm the trial court's

judgment.

       Appellant was to be tried with co-defendant Janet Mitchell. Prior to trial, appellant
filed a motion to sever his case from Mitchell's. The basis of the motion to sever was that


(i) the trial would be lengthy because of Mitchell's participation and (ii) Mitchell had agreed

to testify on his behalf if separate trials were held. Appellant filed an affidavit from Mitchell

in which Mitchell agreed to testify, if there were separate trials, that appellant had no

knowledge of any ongoing criminal activity; otherwise Mitchell would exercise her right to

remain silent during the joint trial.1 The trial court denied appellant's motion to sever.

          On September 30, 1994, appellant signed a waiver of a jury trial and judicial

confession, was admonished, and pleaded guilty before a magistrate.                                        The magistrate

entered a finding that the evidence was sufficient to prove appellant's guilty and ordered the

"case passed to 10/3/94 for further adjudication if any, and punishment." The district court

adopted the magistrate's actions. On October 20, 1994, at the sentencing hearing, appellant

moved to withdraw his guilty plea. Appellant argued that the only reason he pleaded guilty

was because the trial court denied his motion to sever. He testified that Mitchell would now


be available as a defense witness because she had entered a guilty plea in her case. The

trial court took judicial notice that appellant had filed the Mitchell affidavit in connection

with the motion to sever. The trial court denied appellant's motion to withdraw.

          It is undisputed that the appellate standard of review in this case is "abuse of

discretion."        A trial court abuses its discretion if its decision lies outside a "zone of




    1Mitchell's affidavit is not a part of our record. The content of the affidavit is from the information provided in the parties
briefs.




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reasonable disagreement." See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1991) (op. on reh'g); Gottson, 940 S.W.2d 181, 187 (Tex. App.--San Antonio 1996, pet.

ref d). In the plea papers, appellant waived the right to the appearance, confrontation, and

cross-examination of witnesses. Appellant further consented to written stipulation of the

evidence and agreed to the introduction of his judicial confession into evidence. Appellant

judicially confessed his guilt to the offense as charged. SeeDinnery v. State, 592 S.W.2d 343,

353 (Tex. Crim. App. 1980) (op. on reh'g) (en banc); Wright v. State, 930 S.W.2d 131, 133

(Tex. App.--Dallas 1996, no pet.) (judicial confession sufficiently proves guilt). Appellant

never retracted his judicial confession to the offense. Furthermore, appellant did not

produce Mitchell or a new affidavit. Thus, there was no evidence of Mitchell's proposed

testimony or the fact that she was still willing to testify on appellant's behalf. On this

record, we cannot conclude that the trial court abused its discretion in denying appellant's

motion to withdraw his guilty plea. Accordingly, we overrule appellant's sole point of error

and affirm the trial court's judgment.




                                                    LINDA THOMAS
                                                    CHIEF JUSTICE




Do Not Publish
Tex. R. App. P. 47




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