                                 NO. 07-02-0391-CR
                                 NO. 07-02-0392-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                 OCTOBER 10, 2003

                        ______________________________


                             ALVIN ORTIZ, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE


                      _________________________________

           FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

       NO. 45,111-C & 45,112-C; HONORABLE PATRICK A. PIRTLE, JUDGE

                        _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                              MEMORANDUM OPINION


      Pursuant to open pleas of guilty, appellant Alvin Ortiz was convicted of aggravated

assault with a deadly weapon in cause number 45,111-C and assault on a family member

in cause number 45,112-C. After hearing punishment evidence, the trial court assessed

14 years confinement and seven years confinement, respectively. In challenging his
conviction for aggravated assault with a deadly weapon, appellant presents three issues,

to-wit: (1) whether the trial court abused its discretion in failing to sua sponte withdraw his

guilty plea where he testified he did not remember committing the offense; (2) whether the

trial court abused its discretion in failing to weigh the evidence appropriately where

following his guilty plea and prior to adjudication, he testified he did not remember

committing the offense; and (3) whether the trial court abused its discretion in failing to

weigh the evidence appropriately where following his guilty plea and prior to adjudication,

the alleged victim testified she did not remember a knife or being cut or injured by a knife.

Regarding his conviction for assault on a family member, appellant raises two issues by

which he questions (1) whether the trial court abused its discretion in failing to sua sponte

withdraw his guilty plea where he testified he did not remember committing the offense;

and (2) whether the trial court abused its discretion in failing to weigh the evidence

appropriately where following his guilty plea and prior to adjudication, he testified he did

not remember committing the offense. Based upon the rationale expressed herein, we

affirm.


          Late in the afternoon on February 28, 2002, appellant and complainant, his live-in

girlfriend, went to a bar. After leaving the bar, they drove around Amarillo while appellant

assaulted her. The assault continued in their residence until the early morning hours of

March 1, spanning a period of approximately eight hours.            Professing her love for

appellant, complainant reluctantly testified he used his fists to injure her and also kicked

her during the assault. Photographs introduced into evidence depicted black eyes, multiple

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bruises throughout her body, and long cuts to the back of her left leg. A police officer

testified that complainant turned a knife over to her on March 11 claiming it was connected

to the March 1 incident. Complainant, however, testified she could not remember if a knife

or other sharp object was used to inflict some of her injuries.


       During the punishment phase and prior to being adjudicated guilty, appellant

testified he did not remember assaulting complainant because he experienced a blackout.

However, he also testified he was the only person with complainant on the night she was

assaulted and confirmed he had plead guilty because he was guilty. Following the

punishment evidence, the trial court adjudicated appellant guilty of both offenses and

assessed punishment at 14 years confinement for aggravated assault with a deadly

weapon and seven years confinement for assault on a family member.


       By his first issues in each appeal, appellant contends the trial court erred in failing

to sua sponte withdraw his pleas of guilty because he did not remember committing the

offenses. We disagree. In Aldrich v. State, 104 S.W.3d 890 (Tex.Cr.App. 2003), the

Court, quoting from Moon v. State, 572 S.W.2d 681, 682 (Tex.Cr.App. 1978), explained

that once trial courts gained fact-finding authority, it was no longer necessary to sua sponte

withdraw a defendant’s guilty plea if evidence of his innocence was raised–as trier of the

facts, the trial court could decide the evidence did not create a reasonable doubt as to guilt,

find the defendant guilty of a lesser offense and assess the appropriate punishment, or find

the defendant not guilty. Aldrich, 104 S.W.3d at 893. Under the holdings in Aldrich and


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Moon, we conclude the trial court did not abuse its discretion in failing to sua sponte

withdraw appellant’s pleas of guilty.


       Without challenging the sufficiency of the evidence, by his remaining issues,

appellant contends the trial court abused its discretion in failing to appropriately weigh the

evidence. We disagree. The trial court is the sole judge of the credibility of the witnesses

and may accept or reject any part or all of the testimony presented by them. Johnson v.

State, 571 S.W.2d 170, 173 (Tex.Cr.App. 1978).           Also, the trier of fact may draw

reasonable inferences from the evidence. Jones v. State, 944 S.W.2d 642, 647-49

(Tex.Cr.App. 1996), cert. denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997).


       On at least three occasions during her testimony, complainant claimed appellant

“hurt” her and caused the injuries depicted in State’s Exhibits eight through 14. The

exhibits show complainant with two severe black eyes, multiple bruises on her arms, torso,

and legs, and two long cuts to the back of her left leg. Although complainant testified she

could not remember whether appellant used a knife to cut her, she did not exclude the

possibility. She testified, “[c]ould have been a knife, nail, or couch. I don’t know. I don’t

remember.” There was also testimony that complainant turned the knife over to authorities

in connection with the assault.      Appellant testified he did not remember assaulting

complainant because he experienced a blackout. However, it was within the province of

the trial court to believe complainant’s testimony and infer that the cuts on her leg were

inflicted by the knife that was introduced into evidence. Based on the evidence presented,


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we conclude the trial court did not abuse its discretion by weighing the evidence

inappropriately. We overrule issues one, two, and three by which appellant challenges his

conviction for aggravated assault with a deadly weapon and overrule issues one and two

by which he challenges his conviction for assault on a family member.


      Accordingly, the judgments of the trial court are affirmed.


                                         Don H. Reavis
                                           Justice


Do not publish.




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