DeVary v. State

615 S.W.2d 739, 1981 Tex. Crim. App. LEXIS 1007

• Court: Court of Criminal Appeals of Texas
• Decided: May 13, 1981
• Docket: 67139
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for possession of lysergic acid diethylamide with intent to deliver. Punishment, upon appellant’s plea of guilty, was assessed at five years.

In his sole ground of error appellant contends that the trial court abused its discretion in its failure to hold a hearing on his motion to withdraw his plea of guilty. The record reveals that appellant pled guilty and was admonished under Art. 26.13, V.A. C.C.P.¹ on October 4, 1979. At the subsequent hearing to assess punishment on November 29,1979, appellant moved the court to withdraw his plea. The court denied this motion and assessed punishment at five years.

The law in this regard was well stated in Jackson v. State, Tex.Cr.App., 590 S.W.2d 514, 515:

“A liberal practice prevails in this state concerning the withdrawal of a guilty plea, Garcia v. State, 91 Tex.Cr.R. 9, 237 S.W.2d 279 (1921); Stanton v. State, 159 Tex.Cr.R. 275, 262 S.W.2d 497 (1953), and a defendant may withdraw his guilty plea as a matter of right without assigning reason until such judgment has been pronounced or the case has been taken under advisement. Milligan v. State, 168 Tex.Cr.R. 202, 324 S.W.2d 864 (1959); Rumage v. State, 324 S.W.2d 865 (Tex.Cr.App.1959); Stanton v. State, supra; Ralls v. State, 151 Tex.Cr.R. 146, 205 S.W.2d 594 (1947). However, where the defendant decides to withdraw his guilty plea after the trial judge takes the case under advisement or pronounces judgment, the withdrawal of such plea is within the sound discretion of the trial court. McWherter v. State, 571 S.W.2d 312 (Tex.Cr.App.1978).”

Appellant’s decision to withdraw his plea was too late since the court had two months earlier taken the matter under advisement. Under these circumstances we find no abuse of discretion in the court’s overruling appellant’s motion to withdraw his plea. Jackson v. State, supra at 515; Milligan v. State, 168 Tex.Cr.R. 202, 324 S.W.2d 864, 865 (1959).

The judgment is affirmed.

1 . We note that even though an erroneous admonishment was given by the trial court regarding punishment, an admonishment was nonetheless given. Therefore the record reveals a prima facie showing of a knowing and voluntary plea. Ex parte McAtee, Tex.Cr.App., 599 S.W.2d 335, 336. As we noted in McAtee only the total failure to admonish a defendant under Art. 26.13 is fundamental error. Id. at 336. Hence we decline to review any error concerning this issue under Art. 40.09, Sec. 13.