                                  NO. 07-11-00408-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                 DECEMBER 19, 2012


                          ROBERT SMALL, JR., APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


              FROM THE 272ND DISTRICT COURT OF BRAZOS COUNTY;

          NO. 10-01875-CRF-272; HONORABLE TRAVIS B. BRYAN III, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant, Robert Small, Jr., appeals his conviction following a plea of guilty to

the offense of obstruction or retaliation 1 and sentence, pursuant to a plea bargain, of

three years in the Institutional Division of the Texas Department of Criminal Justice (ID-

TDCJ). We affirm.




      1
          See TEX. PENAL CODE ANN. § 36.06 (West 2011).
                           Factual and Procedural Background


      Appellant appeared before a magistrate judge in Brazos County on October 25,

2010, to enter a plea of guilty pursuant to a plea bargain previously reached with the

State to the offense of obstruction or retaliation. By administrative order of the District

and County Courts at Law of Brazos County, magistrates appointed pursuant to the

Texas Government Code are permitted to receive a negotiated plea of guilty or no

contest. See Acts 2001, 77th Leg., R.S., ch. 954, § 1, sec. 54.1046, 2001 Tex. Gen.

Laws 1911, 1912, repealed by Acts 2011, 82nd Leg., 1st C.S., ch. 3, § 6.11, 2011 Tex.

Gen. Laws 116, 153-54 (formerly TEX. GOV’T CODE § 54.1106, repealed effective

January 1, 2012). 2 At the conclusion of the hearing on appellant’s plea, appellant’s

counsel requested sentencing be delayed so that appellant could receive treatment for

prostate cancer. The magistrate granted the request. Prior to setting sentencing for a

future date, the magistrate found appellant guilty of the offense of obstruction or

retaliation and found that the enhancement paragraph was true.               The magistrate

subsequently announced the sentencing date would be set later.


      Subsequent to appellant’s plea of guilty, appellant asked that his appointed

counsel be relieved and allowed to withdraw and that another attorney be appointed to

represent him. The referring trial court allowed counsel that appeared at the plea to

withdraw and appointed new counsel. Thereafter, new counsel filed a motion to allow

appellant to withdraw his plea of guilty. The referring trial court heard the motion on




      2
          Further reference will be to “former TEX. GOV’T CODE § 54.1106.”
                                             2
July 29, 2011, and denied the same.          Subsequently, the referring court sentenced

appellant pursuant to the plea agreement to three years incarceration in the ID-TDCJ.


          Appellant has appealed and asserts that the trial court erred by denying him the

unequivocal right to withdraw his plea of guilty. Disagreeing with appellant, we will

affirm.


                                     Withdrawal of Plea


          Prior to actually reaching appellant’s issue, this Court must determine whether

appellant had a right of appeal. Texas Rules of Appellate Procedure provide that, “In a

plea bargain case—that is, a case in which a defendant’s plea was guilty . . . and the

punishment did not exceed the punishment recommended by the prosecutor and

agreed to by the defendant—a defendant may appeal only: (A) those matters that were

raised by written motion filed and ruled on before trial, or (B) after getting the trial court’s

permission to appeal.” See TEX. R. APP. P. 25.2(a)(2). 3


          The State, focusing on subdivision (A), contends that the motion to withdraw the

plea was not a matter “raised by written motion filed and ruled on before trial.”

Therefore, according to the State, appellant does not have a right of appeal, and this

Court should dismiss the appeal based on a defective certification of the right of appeal.

While we might agree with the State in a normal situation, in light of the facts of this

case and the question of whether the plea had been accepted or taken under

advisement, we decline to rule that the certification of defendant’s right to appeal was


          3
        Further reference to the Texas Rules of Appellate Procedure will be by
reference to “rule ____” or “Rule ____.”
                                               3
defective. Rather, we conclude that the trial court’s certification of the right of appeal

can be viewed as simply the trial court’s permission to appeal under subdivision (B) of

the rule. See id.; Salazar v. State, No. 02-10-00105-CR, 2011 Tex. App. LEXIS 2403,

*5–7 (Tex.App.—Fort Worth Mar. 31, 2011, pet. ref’d) (mem. op., not designated for

publication).   Accordingly, we decline to accept the State’s invitation to dismiss the

appeal.


       Having determined that appellant does, in fact, enjoy the right of appeal, we must

now address his issue: did the trial court err when it denied appellant’s request to

withdraw his plea of guilty. We review the trial court’s decision under an abuse of

discretion standard. Stone v. State, 951 S.W.2d 205, 207 (Tex.App.—Houston [14th

Dist.] 1997, no pet.). The record reflects that on October 25, 2010, appellant appeared

before Magistrate Glynis Gore.        Further, appellant executed the typical waivers

associated with the entry of a plea of guilty. Specifically, appellant waived his right to a

jury trial; the appearance, confrontation, and cross-examination of witnesses; and the

right to remain silent. In addition, appellant judicially confessed that he committed the

acts alleged in the indictment. The magistrate further admonished appellant on the

applicable range of punishment and inquired about any mental health issues. After all

the admonishments, the magistrate stated on the record that she found the plea of guilty

to have been freely and voluntarily made and that appellant was mentally competent to

do so. The magistrate then pronounced appellant guilty of the offense charged and that

the enhancement allegations were true.           Finally, at the request of appellant, the

magistrate announced that the sentencing would be reset for a later date so that

appellant could receive treatment for his prostate cancer.
                                             4
       It is appellant’s position that, because the referring trial court did not proceed to

the question of sentencing until July 29, 2011, the plea had not been accepted or taken

under advisement. To arrive at this conclusion, appellant cites the court to language

from Stone which, according to appellant, makes the filing of the plea papers in the

court’s records the pivotal event. See id. A closer reading of Stone, however, does not

support appellant’s position. In Stone, the filing of the papers in the court’s record was

simply one of a list of things that the trial court had done while receiving the appellant’s

plea. See id. The other matters listed are the same types of matters the magistrate

inquired into in the instant case. From the record, we know that the magistrate found

appellant guilty, and the only matter left to attend to was sentencing. Further, we know

that the request to delay sentencing came from appellant. Once a plea has been taken

under advisement or guilt has been adjudicated, a request to withdraw a plea is

untimely. See DeVary v. State, 615 S.W.2d 739, 740 (Tex.Crim.App. [Panel Op] 1981).

In the case before the Court, the magistrate adjudicated appellant guilty and had taken

the case under advisement for sentencing.


       Appellant has not attacked the process, then in existence in Brazos County, of

using the magistrate to take negotiated pleas of guilty. Under the scheme in existence

at the time of this plea, the magistrate had the authority to accept a negotiated plea

bargain. See former TEX. GOV’T CODE § 54.1106. Likewise, the acts of the magistrate

in taking the plea of guilty have the same force and effect of and are as enforceable as

an order of the referring court. See id. § 54.1114.




                                             5
      From a totality of the record, the trial court accepted the plea and adjudicated

appellant guilty; therefore, appellant did not have an unfettered right to withdraw his

plea. See DeVary, 615 S.W.2d at 740. Accordingly, the trial court did not abuse its

discretion in denying appellant’s request to withdraw his plea of guilty. See Stone, 951

S.W.2d at 207. Appellant’s issue is overruled.


                                      Conclusion


      Having overruled appellant’s single issue, we affirm the trial court’s judgment.




                                                 Mackey K. Hancock
                                                     Justice



Do not publish.




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