                                  NO. 07-11-00505-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                   OCTOBER 4, 2012


                            GILL R. DELEON, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


           FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

       NO. 2009-422,272; HONORABLE BRADLEY S. UNDERWOOD, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.



                               MEMORANDUM OPINION

      Appellant Gill R. Deleon appeals from the judgment convicting him of robbery

and the resulting enhanced sentence of ninety-nine years of imprisonment. Through

one point of error, he contends the trial court erred in failing to withdraw appellant’s

guilty plea, sua sponte, because appellant’s testimony reasonably and fairly raised an

issue regarding his innocence. We will affirm the judgment of the trial court.
                                      Background


      Appellant was charged by indictment with the offense of robbery. 1 He plead

guilty and opted to have a jury determine his punishment. Appellant also plead true to

the two enhancement paragraphs in the indictment. Following the sentencing hearing,

the jury assessed punishment at ninety-nine years of imprisonment.


      Evidence showed the victim of the robbery, Marquez, was assaulted at a

Lubbock bar as its patrons left at closing time. Witnesses gave varying accounts of the

events surrounding the robbery. Marquez testified he remembered walking to the door

to leave the bar, but had no idea who hit him.        During his punishment testimony,

appellant said he went to the bar that evening with two women, Gorostiza and Montoya.

Marquez sat with their group for a time, and appellant, the two women and Marquez left

the bar at the same time.     Another man of appellant’s acquaintance, Falcon, was

present. Testimony from other witnesses indicated Falcon hit Marquez. Appellant said

he did not see Falcon hit Marquez, but heard Marquez fall to the floor.


      Appellant, Gorostiza and Montoya left the bar in appellant’s red pickup truck and

stopped at a convenience store. A 9-1-1 call from a bar patron had identified a red

pickup in connection with the robbery, and a responding officer quickly saw appellant

and the women at the convenience store.         Testimony from officers described the

eventual search of Montoya, revealing in her pockets Marquez’s credit cards, cell phone

and keys along with some cash.        Gorostiza’s testimony included statements that,

outside the bar, appellant had possession of Marquez’s wallet and keys. Appellant
      1
          Tex. Penal Code Ann. § 29.02 (West 2011).

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acknowledged during his testimony that “you all” took the items, although he denied

taking or handling any of Marquez’s belongings and denied participating in the assault

against him. He told the jury Falcon threw Marquez’s wallet and keys into his truck. He

admitted lying to police when he was initially detained.


       During appellant’s testimony, he was questioned concerning the law of parties.

As he continued to deny direct involvement in Marquez’s assault, and deny handling the

items taken from Marquez, appellant responded affirmatively to the prosecutor’s

question asking if he was pleading guilty because he was a party. Asked why he was a

party, appellant responded, “Because I was there.”


                                         Analysis


       In his sole point of error on appeal, appellant characterizes his punishment

testimony as exculpatory, and asserts it affirmatively illustrated his misunderstanding of

the law of parties. He argues his testimony showed he had no criminal responsibility for

the robbery, and that he was pleading guilty only under the misconception that his

presence was sufficient to demonstrate guilt. He asserts the trial court should have sua

sponte withdrawn his plea of guilty.


       Appellant recognizes current law is contrary to his contention on appeal. The

right of the defendant in a criminal case to plead not guilty is a “waivable-only” right, a

right that “must be implemented by the trial court unless expressly waived.” Mendez v.

State, 138 S.W.3d 334, 343-44 (Tex.Crim.App. 2004) (quoting Marin v. State, 851

S.W.2d 275, 279 (Tex.Crim.App. 1993)). Moreover, Texas law permits the defendant to

change his plea from guilty to not guilty, if done timely, which in a trial before a jury
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means at any time before the jury retires to deliberate. McWherter v. State, 571 S.W.2d

312, 313 (Tex.Crim.App. 1978); see Mendez, 138 S.W.3d at 345 (citing McWherter).

But in Mendez, the Court of Criminal Appeals rejected its prior case law finding such a

duty and held that the trial court has no duty to change the defendant’s plea of guilty to

one of not guilty on the court’s own motion when evidence inconsistent with guilt is

heard in a jury trial. Mendez, 138 S.W.3d at 336. As the court explained, once a

defendant makes a valid waiver of his right to plead not guilty, “it is appropriate that the

defendant be required to take some affirmative action to don the armor again.” Mendez,

138 S.W.3d at 350. Thus, when a defendant has knowingly waived his right to plead

not guilty and entered a guilty plea, it is his obligation to timely seek withdrawal of his

plea, and absent a timely request to withdraw his plea of guilty, he cannot complain on

appeal that the trial court failed to do it for him. Id.; Tex. R. App. P. 33.1(a).


         Appellant contends Mendez was wrongly decided, and “makes a good-faith plea

that it be reevaluated, reconsidered, and reversed on point.” He argues the trial court’s

duty to withdraw his plea and enter a not-guilty plea for him, sua sponte, derives from

article 1.15 or article 26.13 of the Code of Criminal Procedure, Tex. Code Crim. Proc.

Ann. arts 1.15, 26.13 (West 2012), and should be treated like the trial court’s duty

properly to admonish defendants with regard to pleas of guilty as set forth in article

26.13.     See Bessey v. State, 239 S.W.3d 809 (Tex.Crim.App. 2007) (holding

defendant’s right to be properly admonished is waivable-only right, and defendant could

raise for first time on appeal court’s failure to admonish him of requirement he register

as sex offender).


                                               4
       We must decline appellant’s invitation to reconsider the Court of Criminal

Appeals’ decision in Mendez. See Perez v. State, No. 07-10-0390-CR, 2012 Tex.App.

LEXIS 3218, at *3-4 (Tex.App.—Amarillo April 24, 2012, no pet.) (mem. op., not

designated for publication) (following Mendez); Purchase v. State, 84 S.W.3d 696, 701

(Tex. App.--Houston [1st Dist.] 2002, pet. ref'd) (intermediate courts of appeals are

bound to follow the precedent of the court of criminal appeals).


       Because the trial court had no duty to withdraw appellant’s plea of guilty on its

own motion, and because appellant did not complain or otherwise raise the point in the

trial court, his point of error is not preserved for our review. Tex. R. App. P. 33.1(a)(1).

Accordingly, we resolve appellant’s sole point of error against him and affirm the

judgment of the trial court.




                                                 James T. Campbell
                                                     Justice



Do not publish.




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