Donta Tremaine Browning v. State

Opinion

Opinion issued February 26, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00052-CR ——————————— DONTA TREMAINE BROWNING, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Case No. 11-DCR-058541

MEMORANDUM OPINION

Donta Browning pleaded guilty to aggravated assault with a deadly

weapon.1 At the sentencing hearing, Browning sought to withdraw his guilty plea.

The request was denied, and Browning was sentenced to ten years’ community

1 TEX. PENAL CODE ANN. § 22.02 (West 2011). supervision. In one issue, Browning contends that the trial court erred by not

allowing him to withdraw his guilty plea and jury waiver. Because Browning did

not preserve the issue regarding jury waiver and the trial court did not err in

denying his request to withdraw his guilty plea, we affirm.

Background

Browning was indicted for felony aggravated assault with a deadly weapon

after he was accused of using his car to run over the friend of his girlfriend’s aunt

during a dispute in the aunt’s front yard. Browning pleaded guilty. The State did

not recommend sentence. Instead, the case was reset to allow a presentence

investigation (PSI).

At the sentencing hearing two months later, both the State and Browning

announced ready and gave their opening statements. After the first witness was

sworn in and ready to begin testifying, Browning interrupted to inform the trial

court, “I want to change my plea today to not guilty.” His attorney responded,

“Right now, it’s the first time he told me he intends to change his plea.” The trial

court denied the request, and the sentencing hearing continued. After the State’s

two witnesses testified and Browning testified against his attorney’s advice, the

trial court deferred a finding of guilty and placed Browning on community

supervision for ten years. The trial court also ordered Browning to perform 400

hours of community service and pay a $1,000 fine.

2 Browning timely appealed.

Browning Did Not Preserve Issue of Jury-Waiver

Browning contends that the trial court erred by denying his request “to

withdraw his plea of guilty and withdraw his jury waiver.” The record reveals that

Browning did attempt to withdraw his guilty plea; however, nowhere in the record

do we find any indication that Browning attempted to withdraw his jury waiver.

Browning does not point to any document or transcript where such a statement was

made either. Because the jury-waiver withdrawal issue was not presented to the

trial court for its consideration, it is waived on appeal. TEX. R. APP. P. 33.1(a)

(requiring that complaint be made to trial court through timely request, objection or

motion to preserve issue for appellate review). Thus, the only issue to be resolved

is whether the trial court erred by denying Browning’s request to withdraw his

guilty plea.

Withdrawal of Guilty Plea

A defendant may withdraw his guilty plea at any time before judgment is

pronounced or the trial court takes the plea under advisement. Jackson v. State, 590

S.W.2d 514, 515 (Tex. Crim. App. 1979); Wissinger v. State, 702 S.W.2d 261, 262

(Tex. App.—Houston [1st Dist.] 1985, pet. ref’d). A case is considered to be

“under advisement” when the trial court has admonished the defendant, received

the plea and evidence, and reset the case to allow a pre-sentencing investigation.

3 Jackson, 590 S.W.2d at 515; Wissinger, 702 S.W.2d at 262. Once a plea has been

taken under advisement, a request to withdraw a plea is untimely and the decision

to allow or deny the request is within the sound discretion of the trial court.

Jackson, 590 S.W.2d at 515; Wissinger, 702 S.W.2d at 262. A trial court abuses its

discretion when it acts arbitrarily, unreasonably, or without reference to any

guiding rules or principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App.

1993); Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

Browning did not raise the issue of changing his plea until the sentencing

hearing had already begun. He had pleaded guilty, the PSI report had been

completed and distributed, both sides had announced ready and given their opening

statements, and the first witness was on the stand. We conclude that the record

contains no evidence that the trial court abused its discretion by denying

appellant’s untimely request.

We overrule Browning’s sole issue.

Conclusion

We affirm the judgment of the trial court.

Harvey Brown Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).