Nduka, Ejikeme Okechukwu v. Texas, the State Of

• Court: Court of Appeals of Texas
• Decided: September 15, 1998
• Docket: 05-94-01959-CR
• Status: Published

Opinion

(£aurt of Appeals IFtfttj Itsirtrt of ©*>xas at lallas JUDGMENT

EJIKEME OKECHUKWU NDUKA, Appeal from the 291st Judicial District Appellant Court of Dallas County, Texas. (Tr.Ct.No. F94-00169-HU). No. 05-94-01959-CR V. Opinion delivered by Chief Justice Thomas, Justices Bridges and Roach also THE STATE OF TEXAS, Appellee participating.

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

Judgment entered September 15, 1998.

LR

In The

Court nf Appeals Jtfttf Itstrtrt of (Eexas at latias No. 05-94-01959-CR

EJIKEME OKECHUKWU NDUKA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. F94-00169-HU

OPINION

Before Chief Justice Thomas and Justices Bridges and Roach Opinion By Chief Justice Thomas

Ejikeme Okechukwu Nduka appeals his conviction for engaging in organized criminal

activity. The sole issue is whether the trial court abused its discretion in denying appellant's

motion to withdraw his guilty plea. For the reasons stated, we affirm the trial court's

judgment.

Appellant was to be tried with co-defendant Janet Mitchell. Prior to trial, appellant filed a motion to sever his case from Mitchell's. The basis of the motion to sever was that

(i) the trial would be lengthy because of Mitchell's participation and (ii) Mitchell had agreed

to testify on his behalf if separate trials were held. Appellant filed an affidavit from Mitchell

in which Mitchell agreed to testify, if there were separate trials, that appellant had no

knowledge of any ongoing criminal activity; otherwise Mitchell would exercise her right to

remain silent during the joint trial.1 The trial court denied appellant's motion to sever.

On September 30, 1994, appellant signed a waiver of a jury trial and judicial

confession, was admonished, and pleaded guilty before a magistrate. The magistrate

entered a finding that the evidence was sufficient to prove appellant's guilty and ordered the

"case passed to 10/3/94 for further adjudication if any, and punishment." The district court

adopted the magistrate's actions. On October 20, 1994, at the sentencing hearing, appellant

moved to withdraw his guilty plea. Appellant argued that the only reason he pleaded guilty

was because the trial court denied his motion to sever. He testified that Mitchell would now

be available as a defense witness because she had entered a guilty plea in her case. The

trial court took judicial notice that appellant had filed the Mitchell affidavit in connection

with the motion to sever. The trial court denied appellant's motion to withdraw.

It is undisputed that the appellate standard of review in this case is "abuse of

discretion." A trial court abuses its discretion if its decision lies outside a "zone of

1Mitchell's affidavit is not a part of our record. The content of the affidavit is from the information provided in the parties briefs.

-2- reasonable disagreement." See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1991) (op. on reh'g); Gottson, 940 S.W.2d 181, 187 (Tex. App.--San Antonio 1996, pet.

ref d). In the plea papers, appellant waived the right to the appearance, confrontation, and

cross-examination of witnesses. Appellant further consented to written stipulation of the

evidence and agreed to the introduction of his judicial confession into evidence. Appellant

judicially confessed his guilt to the offense as charged. SeeDinnery v. State, 592 S.W.2d 343,

353 (Tex. Crim. App. 1980) (op. on reh'g) (en banc); Wright v. State, 930 S.W.2d 131, 133

(Tex. App.--Dallas 1996, no pet.) (judicial confession sufficiently proves guilt). Appellant

never retracted his judicial confession to the offense. Furthermore, appellant did not

produce Mitchell or a new affidavit. Thus, there was no evidence of Mitchell's proposed

testimony or the fact that she was still willing to testify on appellant's behalf. On this

record, we cannot conclude that the trial court abused its discretion in denying appellant's

motion to withdraw his guilty plea. Accordingly, we overrule appellant's sole point of error

and affirm the trial court's judgment.

LINDA THOMAS CHIEF JUSTICE

Do Not Publish Tex. R. App. P. 47

-3-