Montgomery, Robert Glenn v. State

• Court: Court of Appeals of Texas
• Decided: July 10, 2013
• Docket: 05-12-00474-CR
• Status: Published

Opinion

AFFIRM; and Opinion Filed July 10, 2013.

SIn The Court of Appeals Fifth District of Texas at Dallas

No. 05-12-00474-CR

ROBERT GLENN MONTGOMERY, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F11-00422-P

MEMORANDUM OPINION Before Justices Moseley, O’Neill, and Lewis Opinion by Justice Lewis Robert Glenn Montgomery appeals the trial court’s Judgment Adjudicating Guilt for the

offense of injury to a child. The trial court assessed Montgomery’s punishment at ten years’

confinement. In a single appellate issue, Montgomery contends his plea of true was rendered

involuntary when the trial court refused to follow the sentencing recommendation of the State

without allowing Montgomery to withdraw his plea. Because this issue involves the application

of well-settled principles of law, we issue this memorandum opinion. See TEX. R. APP. P. 47.4.

We affirm the trial court’s judgment.

Montgomery waived a jury and pleaded guilty to injury to a child. Pursuant to a plea

agreement, the trial court deferred adjudicating guilt, placed Montgomery on eight years’

community supervision, and assessed a $1,500 fine. Montgomery was subsequently charged

with indecency with a child by contact, and the State moved to revoke his community service and to adjudicate guilt. Montgomery reached a plea agreement with the State for a three-year

sentence and a $2500 fine for his original offense of injury to a child. He also agreed to plead

guilty to the new indecency charge in return for a three-year sentence.

At the beginning of the combined hearing on the two offenses, the trial court addressed

Montgomery concerning his plea agreement on the original offense:

THE COURT: Sir, you have one case, which is a probation violation, and that’s Cause No. F11-00422, styled The State of Texas versus Robert Glenn Montgomery. And I notice, sir, that you have a plea bargain on that case, however, in my court all probation violations come open to me. So I may or may not honor that plea bargain agreement.

So do you want to proceed knowing that or do you want some more time with your attorney?

THE DEFENDANT: Proceed.

Thus, from the beginning of the hearing, Montgomery was aware that the judge was not bound to

the plea agreement; nevertheless, Montgomery chose to go forward with his plea of true. As the

hearing proceeded, Montgomery was questioned at length by both the judge and his counsel. He

testified that he had gone through the State’s motion with his attorney and understood the

allegations against him. He testified that he was pleading true because the allegations of the

State were true and for no other reason. And he testified repeatedly that he was entering his plea

of true freely and voluntarily.

The trial court found Montgomery’s pleas were freely and voluntarily made. The court

accepted the plea agreement for the indecency offense, but it assessed Montgomery’s

punishment on the original offense at ten years’ confinement in the Texas Department of

Criminal Justice. When asked by the judge if he had any questions, Montgomery said he did not.

And when the judge asked whether there was any reason Montgomery should not be sentenced,

his counsel responded there was not.

–2– Initially, our review of the record establishes Montgomery never attempted to withdraw

his plea before the trial court. Other than matters involving “fundamental constitutional systemic

requirements,” a complaint must be preserved in the trial court for our review. Ibarra v. State,

11 S.W.3d 189, 197 (Tex. Crim. App. 1999). Issues of the voluntariness of a guilty plea do not

fall within the definition of such fundamental requirements. Mendez v. State, 138 S.W.3d 334,

339 n. 5 (Tex. Crim. App. 2004). We conclude Montgomery waived any complaint relating to

the withdrawal of his plea by failing to request withdrawal through timely objection or motion

for new trial.

But even if Montgomery had objected below, his substantive complaint lacks merit. We

review the trial court’s ruling on a motion to adjudicate guilt using an abuse of discretion

standard. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). Montgomery

acknowledges that he had no right to withdraw his plea in this revocation proceeding. See

Gutierrez v. State, 108 S.W.3d 304, 309–10 (Tex. Crim. App. 2003). Nevertheless, he argues his

plea was rendered involuntary because his plea agreement stated he would be able to withdraw

the plea if the trial court rejected the agreement. We review the voluntariness of a plea in light of

the totality of the circumstances. See Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App.

1986). A guilty plea is not rendered involuntary because the actual sentence imposed exceeds

the defendant’s expectations. See West v. State, 702 S.W.2d 629, 633 (Tex. Crim. App. 1986).

Instead, the question is whether the defendant was properly informed of the consequences of his

plea. See Martinez v. State, 981 S.W.2d 195, 196–97 (Tex. Crim. App. 1998). A record that

shows the trial court properly admonished the defendant constitutes a prima facie showing the

defendant entered into a knowing and voluntary plea. Id. at 197. The burden then shifts to the

defendant to show he entered the plea without fully understanding its consequences. Id.

–3– In this case, Montgomery was properly admonished concerning the limitations of his plea

agreement. He testified repeatedly that he was pleading true voluntarily. Nothing in the record

suggests Montgomery failed to comprehend any aspect of the proceedings. We conclude he has

not met his burden of showing he did not understand the consequences of his plea. See Martinez,

981 S.W.2d at 197.

We overrule Montgomery’s single issue and affirm the trial court’s judgment.

/David Lewis/ DAVID LEWIS JUSTICE

Do Not Publish TEX. R. APP. P. 47

120474F.U05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ROBERT GLENN MONTGOMERY, On Appeal from the 203rd Judicial District Appellant Court, Dallas County, Texas Trial Court Cause No. F11-00422-P. No. 05-12-00474-CR V. Opinion delivered by Justice Lewis. Justices Moseley and O’Neill participating. THE STATE OF TEXAS, Appellee

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 10th day of July, 2013.

–5–