Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-20-00352-CR
William Roy TATE, Appellant
v.
The STATE of Texas, Appellee
From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 19-0335-CR-B Honorable William D. Old, III, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Rebeca C. Martinez, Chief Justice Irene Rios, Justice Liza A. Rodriguez, Justice
Delivered and Filed: August 11, 2021
AFFIRMED
William Roy Tate appeals his conviction for driving while intoxicated-3rd offense or more
(DWI). See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b). We affirm the trial court’s judgment.
BACKGROUND
Tate was arrested and charged with DWI after a woman called 911 to report an altercation
between a man and a woman inside a vehicle parked in a residential area. When the responding
officer stopped Tate’s vehicle, which was leaving the scene, the officer determined that Tate was 04-20-00352-CR
intoxicated. 1 Tate filed a pretrial motion to suppress challenging the legality of the stop and
seeking to suppress the evidence that resulted from his detention. The trial court conducted a
hearing on the motion to suppress on Friday, March 6, 2020. Trial was set to begin on Monday,
March 9, 2020. At the conclusion of the evidentiary hearing, the trial court verbally denied the
motion to suppress and Tate requested findings of fact and conclusions of law and a copy of the
hearing transcript. Tate filed a motion for continuance that afternoon. The trial court held a
hearing on the motion for continuance on Monday morning, but denied it and stated trial would
proceed as scheduled. After a brief recess, Tate expressed his desire to enter a guilty plea pursuant
to a plea bargain which included the right to appeal the ruling on his pretrial motion to suppress.
The trial court proceeded to administer the plea admonishments to Tate and accepted his plea. The
trial court ordered a presentence report and set the sentencing hearing for June 30, 2020. Two
days before sentencing, Tate filed a motion to withdraw his plea based in large part on denial of
the continuance. The trial court heard and denied the motion before proceeding with the sentencing
hearing. In accordance with the plea agreement, Tate was sentenced to ten years’ confinement,
the sentence was suspended, and he was placed on community supervision for a term of seven
years and assessed a $750 fine. Tate appeals.
MOTION TO SUPPRESS
In his first issue, Tate argues his investigative detention was not supported by reasonable
suspicion and the trial court therefore erred in denying his motion to suppress the evidence
obtained as a result of the detention.
1 Tate was also arrested for assault, but the State declined to charge him with assault.
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Standard of Review
We review a trial court’s ruling on a motion to suppress under a bifurcated standard,
reviewing fact-findings for an abuse of discretion and applications of law de novo. State v. Ruiz,
581 S.W.3d 782, 785 (Tex. Crim. App. 2019); State v. Rodriguez, 521 S.W.3d 1, 8 (Tex. Crim.
App. 2017). In doing so, we afford almost total deference to the trial court’s determination of
historical facts, especially when it is based on assessment of a witness’s credibility, as long as the
fact-findings are supported by the record. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App.
2013); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We apply the same deferential
standard when reviewing the court’s ruling on mixed questions of law and fact where resolution
of those issues turns on an evaluation of credibility. Johnson, 414 S.W.3d at 192. We review de
novo the trial court’s application of the law to the facts and its resolution of mixed questions of
law and fact that do not depend upon credibility assessments. Id.; Wade v. State, 422 S.W.3d 661,
669 (Tex. Crim. App. 2013). Finally, we view the record in the light most favorable to the trial
court’s determination and will reverse its ruling only if it was arbitrary, unreasonable, or “outside
the zone of reasonable disagreement.” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App.
2014). When the trial court makes express findings of fact, as it did here, we determine whether
the evidence, viewed in the light most favorable to the trial court’s ruling, supports the fact
findings. Johnson, 414 S.W.3d at 192.
Reasonable Suspicion Required for Investigative Detention
Under the Fourth Amendment, an investigative detention must be justified by a reasonable
suspicion. Derichsweiler v. State, 348 S.W.3d 906, 914–15 (Tex. Crim. App. 2011) (citing United
States v. Sokolow, 490 U.S. 1, 7 (1989)); State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App.
2013). An investigative detention occurs when a person is temporarily detained by law
enforcement for purposes of an investigation. Castro v. State, 373 S.W.3d 159, 164 (Tex. App.—
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San Antonio 2012, no pet.). “A police officer has reasonable suspicion to detain if he has specific,
articulable facts that, combined with rational inferences from those facts, would lead him
reasonably to conclude that the person detained is, has been, or soon will be engaged in criminal
activity.” Derichsweiler, 348 S.W.3d at 914. It is an objective standard that disregards the actual
subjective intent of the detaining officer and focuses instead on whether there was an objectively
justifiable basis for the detention. Id. “[T]he relevant inquiry is not whether particular conduct is
innocent or criminal, but the degree of suspicion that attaches to particular non-criminal acts.” Id.
(quoting Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997)). The facts need not point to
a particular, distinctive criminal offense. Johnson v. State, 444 S.W.3d 209, 214 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d) (facts need only be sufficiently detailed and reliable to
suggest something of an apparently criminal nature). A court determines whether reasonable
suspicion exists based on the totality of the circumstances. Derichsweiler, 348 S.W.3d at 914.
“[T]he detaining officer need not be personally aware of every fact that objectively
supports a reasonable suspicion to detain; rather, ‘the cumulative information known to the
cooperating officers at the time of the stop is to be considered in determining whether reasonable
suspicion exists.’” Id. (quoting Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987)). A
911 police dispatcher is considered a “cooperating officer” for purposes of determining reasonable
suspicion. Id.; State v. Martinez, 569 S.W.3d 621, 626 (Tex. Crim. App. 2019) (discussing the
collective knowledge doctrine). In addition, a citizen-informant who provides information to
police and who identifies himself or herself and can be held to account for the accuracy and
veracity of their report may be regarded as reliable. Derichsweiler, 348 S.W.3d at 914-15. “In
such a scenario, the only question is whether the information that the known citizen-informant
provides, viewed through the prism of the detaining officer’s particular level of knowledge and
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experience, objectively supports a reasonable suspicion to believe that criminal activity is afoot.”
Id. at 915.
Suppression Hearing
The evidence at the suppression hearing consisted of testimony by the 911 caller, Jennifer
Brenner, and the detaining officer, Guadalupe County Sheriff’s Deputy Wesley Doss, and the
admission of the following exhibits: an audio recording of the 911 call; dash-cam video from
Deputy Doss’s vehicle; a Google map of the residential area; and a series of photographs of dark
colored trucks parked in the residential area.
Benner testified that on the evening of September 18, 2018 she heard a woman screaming
and saw “arms flailing” inside a vehicle parked near her home in the Las Brisas subdivision; it
looked like “two people going at it.” She saw the woman get out of the vehicle before it sped
away. The vehicle returned shortly thereafter, and the driver yelled at the woman before driving
away over some boulders marking the border of a neighbor’s yard. At that point, Benner called
911. Benner related the above-stated details to the 911 operator, adding that the woman was crying
and distraught, and that “her husband was, I think, beating her.” Benner told the 911 operator the
woman said “Tate” was the last name of both her and her husband and they lived in the
neighborhood. The woman would not answer when asked whether her husband had hit her. When
asked whether the woman needed EMS, Benner replied she did not see any obvious marks or
injuries but it was dark in the area. According to the 911 recording, Benner described the vehicle
as a “dark blue or black Chevy truck, I think.” Benner also told the 911 operator the neighborhood
was a controlled access, gated community with only one entrance that also served as the exit.
Deputy Doss testified he received a 911 dispatch for “a disturbance in progress” in the Las
Brisas subdivision. The dispatcher told Doss the vehicle involved was a dark colored truck and it
was currently leaving the scene. Deputy Doss was in the vicinity and arrived at the subdivision in
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less than two minutes, at approximately 9:17 p.m. Deputy Doss testified that Las Brisas is a gated,
controlled access community for which a resident or invitee needs a code to enter the gate; there
is only one entrance and exit. As soon as Doss approached the gate to the subdivision, he saw a
dark colored truck exiting the subdivision. He shined the spotlight from his patrol vehicle on the
truck to verify that it was dark in color and then turned his patrol vehicle around to follow the
truck. Deputy Doss activated his overhead lights and the truck pulled over into a parking lot.
According to the dash-cam video and his testimony, Doss told the dispatcher to show him stopped
on a “Ford pickup, dark green; I’m not sure if this is the vehicle or not, but it pulled off of Las
Brisas.” After he stopped the truck, Deputy Doss called in the truck’s license plate number. The
dash-cam video shows the dispatcher told him the truck was registered to “a Katherine Michelle
Tate or a William Roy Tate” and that Tate was the last name of the people involved in the
disturbance. At the hearing, Deputy Doss stated he was told the last name of the registered owner
was “Kimberly Tate” and “Mr. Tate,” and “I had that information prior, and they also told me that
it was possibly the subject that was involved in the assault or disturbance.” Deputy Doss then
exited his vehicle and made contact with the driver of the truck, who identified himself as William
Roy Tate. When Deputy Doss asked whether he had been involved in an altercation with his wife,
Tate answered, “Yes.” Tate also admitted consuming several alcoholic beverages that evening.
At the conclusion of the hearing, the trial court denied the motion to suppress but made no
verbal findings. As noted, Tate requested the court make findings of fact and conclusions of law.
The trial court’s written findings of fact and conclusions of law were filed on July 8, 2020. The
court made the following fact-findings:
a. At approximately 9:08 p.m. on September 18, 2018, Jennifer Benner was arriving home in the Las Brisas subdivision in Guadalupe County, Texas after attending a volleyball tournament for her daughter.
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b. Upon her arrival, Benner noticed a vehicle parked in her cul-de-sac near where people commonly parked to get to a marina.
c. Benner heard screaming coming from the vehicle, and testified that she saw “arms flailing” inside the vehicle. Benner stated that it looked like two people “going at it.” Benner saw a female, later identified as Kathleen Tate, exit the vehicle as it was driving away. Benner reported that the vehicle was accelerating.
d. After some time, the vehicle, a truck, came back to the scene. The driver yelled loudly and then turned the truck around quickly. In his haste, the driver of the truck drove over some boulders that were positioned as a barrier to keep vehicles out of a yard fronting the cul-de-sac. Benner testified that these boulders were approximately the size of a watermelon if the watermelon were propped up on one end. Their size was such that the truck briefly bottomed out on the boulders.
e. During this time, Benner called 911 and spoke with them for approximately sixteen minutes. She relayed what was happening to the dispatcher, including stating that Kathleen Tate was distraught, that her husband was beating her, and that she was afraid of her husband. Benner also gave the dispatcher the name of Kathleen and William Tate. Benner gave a description of the truck, calling it a “dark blue Chevy, I think.”
f. Benner also testified that there is only one entrance and exit to the Las Brisas subdivision.
g. The 911 dispatcher made a call for a disturbance in progress in the Las Brisas subdivision. Dispatch also stated that the vehicle was a dark-colored truck and was currently leaving the scene.
h. Deputy Wesley Doss was in the vicinity, and answered the call of the 911 dispatcher at approximately 9:17 p.m.
i. From the time he was dispatched, it took Deputy Doss approximately one minute and forty-two seconds to reach the entrance to the Las Brisas subdivision.
j. As Deputy Doss arrived at the entrance to the Las Brisas subdivision, he saw a dark-colored truck exiting the only exit of the subdivision. Deputy Doss turned his spotlight on the truck to verify that it was dark in color, and turned his vehicle around to pursue the truck.
k. Deputy Doss activated his overhead lights and initiated a traffic stop of the vehicle, based on the information he had gotten from the dispatcher, stating that there was a very recent disturbance that had taken place in an area with
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controlled access, and that the vehicle matched the description given to the dispatcher.
l. Deputy Doss stated to the dispatcher that he was not sure if this was the truck, and that it appeared to be dark green in color. Deputy Doss testified that the lighting in the area was dim and sparse.
m. Deputy Doss ran the license plate on the truck, and dispatch informed him that the registered owner of the truck may have been the individual involved in the disturbance.
n. Deputy Doss made contact with the driver of the truck and, after asking for his identification, asked the driver if he had been involved in an altercation with his wife. Defendant William Tate answered in the affirmative.
Based on these findings of fact, the trial court made the following conclusions of law:
1. The court finds that information received from 911 callers can be viewed as reliable if the caller is identified, the caller can be held to account, and the accuracy of the information can be viewed as trustworthy. Information obtained in such a fashion may form the basis for an officer’s reasonable suspicion to perform an investigative stop, when viewed through an officer’s training and experience. Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011); Navarette v. California, 572 U.S. 393 (2014).
2. The court finds that Ms. Benner’s call to 911 was reliable, in that she identified herself, used a 911 system capable of recording the call, and gave specific information to the dispatcher.
3. The court finds that Deputy Doss had reasonable suspicion to conduct an investigative detention on Tate, based on the information he had gotten from the dispatcher, stating that there was a very recent disturbance that had taken place in an area with controlled access, and that the vehicle matched the description given to the dispatcher.
Analysis
The record supports the trial court’s findings of fact set forth above, except for minor
deviations, 2 and Tate does not challenge the fact-findings on appeal. Tate contends the evidence
2 The record shows Benner’s exact statement to the 911 operator was, “her husband was, I think, beating her;” the exact description of the truck provided by Benner to the 911 operator was “a dark blue or black Chevy truck, I think;” and Benner told the 911 operator the last name of the two people involved was “Tate,” but she did not know their first names.
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fails to support the trial court’s conclusion of law that Deputy Doss had reasonable suspicion to
conduct the investigative detention because (i) Deputy Doss had no information concerning the
occurrence of any criminal activity, and (ii) even if there was criminal activity, Doss had no
information connecting Tate to the criminal activity.
With respect to the occurrence of some type of criminal activity, Tate stresses that Deputy
Doss was dispatched for a “disturbance” and argues the dispatch was not necessarily for an assault
or other criminal offense. Tate also points out that on the 911 call Benner did not expressly say
she witnessed an assault and the woman did not state that her husband assaulted her; Benner also
did not see any injuries on the woman. 3 During his testimony, Deputy Doss referred to the call he
received that night as one for both a “disturbance” and for an “assault,” stating “when I was
dispatched … it was a disturbance, assault in progress.” When questioned about dispatch’s use of
the term “disturbance,” Deputy Doss explained, “I don’t think the incident type in our system is
titled assault . . . [i]t’s titled disturbance.” Doss testified he stopped Tate’s vehicle to investigate
“whether or not an assault had taken place.” Moreover, under the collective knowledge doctrine,
even if the dispatcher did not tell Deputy Doss all of the details described by Benner to suggest an
assault had occurred, the cumulative information known to the cooperating officers at the time of
the stop included: “two people going at it;” “arms flailing” inside the truck; the woman screaming
and distraught; and Benner reporting, “her husband was, I think, beating her.” See Derichsweiler,
348 S.W.3d at 914; Martinez, 569 S.W.3d at 626. We conclude the evidence developed at the
suppression hearing established that Deputy Doss had specific, articulable facts that, when
3 As set forth supra, the trial court found that Benner’s call to 911 met the requirements to be considered reliable and could support reasonable suspicion for an investigatory stop. Tate does not argue that Benner’s 911 call was not reliable or otherwise challenge the trial court’s first two conclusions of law.
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combined with rational inferences, supported a reasonable suspicion that criminal activity, i.e., an
assault, had occurred.
With respect to evidence establishing a connection between Tate and the suspected
criminal activity/assault, Benner told the 911 operator the person involved was driving a “dark
blue or black Chevy truck,” had just driven away from the scene, would have to exit the
neighborhood through the sole entrance/exit gate, and had the last name “Tate.” This information
was passed on to Deputy Doss by the dispatcher and, even if some details were omitted, they were
known collectively by the cooperating officers and can be considered in determining whether
reasonable suspicion existed. Derichsweiler, 348 S.W.3d at 914; Martinez, 569 S.W.3d at 626. In
his brief, Tate stresses that Deputy Doss told the dispatcher he was “not sure” the vehicle he
stopped was the one involved in the disturbance, and he made the investigative stop “to find out
whether the driver of that vehicle … was a party to the assault.” However, Doss also testified,
“[T]hat was prior to them telling me that the registered owner was possibly involved.” The
evidence showed that, before he approached Tate in his truck, Deputy Doss knew that “Tate” was
the last name of the two people involved in the suspected assault and knew that matched the name
of the registered owner of the truck. We conclude the evidence established that Deputy Doss had
specific, articulable facts that, when combined with rational inferences, lead him to reasonably
conclude that the person detained (Tate), had engaged in criminal activity, i.e., an assault.
Based on the totality of the circumstances, as discussed above, we hold the trial court did
not err in finding that Deputy Doss had reasonable suspicion to conduct an investigative detention
of Tate and did not abuse its discretion in denying Tate’s motion to suppress.
MOTION FOR CONTINUANCE
In his second issue, Tate argues the trial court abused its discretion by denying his motion
for continuance on the Monday morning of trial because (i) his counsel did not have sufficient
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time to review the transcript of the suppression hearing before trial, and (ii) he was not present in
court for the hearing on his motion for continuance. We review a trial court’s denial of a motion
for continuance under an abuse of discretion standard. Janecka v. State, 937 S.W.2d 456, 468
(Tex. Crim. App. 1996); Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). To prevail
on appeal, the defendant must show that he was actually prejudiced by the denial of the
continuance. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995).
The sole ground stated in Tate’s motion for continuance and at the hearing was that his
counsel needed to review the trial court’s written findings of fact and conclusions of law denying
the motion to suppress before advising Tate whether to reject the State’s plea offer and proceed to
trial. The trial court had twenty days to file its findings of fact and conclusions of law. Melendez
v. State, 467 S.W.3d 586, 590 (Tex. App.—San Antonio 2015, no pet.) (referring to TEX. R. CIV.
P. 297). Tate requested the written findings at the motion to suppress hearing on the previous
Friday. At the hearing on the motion for continuance, Tate’s counsel stated he needed to see the
court’s findings of fact and conclusions of law first because if he was satisfied with the framing of
the suppression issues, then Tate might decide not to proceed with a jury trial. The State objected
to the continuance and pointed out, “the concern is for an appellate issue, not a trial issue.” The
trial court agreed and denied the continuance, stating, “[w]e will go forward, and he can certainly
submit the issue of suppression to the jury if it’s appropriate … either way we’ll be clear for
appellate reasons.”
In his appellant’s brief, Tate asserts the trial court erred in denying his request for
continuance on a ground not raised in the trial court — that defense counsel did not have adequate
time to review the transcript of the suppression hearing, which counsel received Friday evening
after business hours. Tate’s counsel never mentioned to the trial court that he needed additional
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time to review the transcript of the suppression hearing in order to prepare for trial. 4 Because
Tate’s appellate issue does not comport with the ground for continuance presented to the trial court,
the issue was not preserved for our review. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App.
2002); Orcasitas v. State, 511 S.W.3d 213, 220 (Tex. App.—San Antonio 2015, no pet.); see also
TEX. CODE CRIM. PROC. ANN. art. 29.03 (a criminal action may be continued upon sufficient cause,
“which cause shall be fully set forth in the motion”). Even if Tate had preserved the issue for
review, he has not shown that he was prejudiced by the short time available to defense counsel to
review the transcript. Heiselbetz, 906 S.W.2d at 512 (bare assertion that counsel did not have time
to prepare does not establish prejudice).
Tate also argues the trial court erred by holding the hearing on his motion for continuance
in his absence. The record shows that, due to a miscommunication, defense counsel was not aware
the trial court planned to hear the motion for continuance at 8:30 a.m., instead of at 9:00 a.m., on
the morning of trial. The trial court talked with the prosecutor on the record about the fact that
proceedings always start at 8:30 a.m. in that court before taking a recess. The transcript resumes
after defense counsel is present, but it is not clear what time proceedings resumed. Defense counsel
apologized to the trial court, explaining that both he and his client “had 9:00 o’clock written down.”
Defense counsel then stated that Tate “should be here shortly,” and proceeded to make his
argument in support of a continuance. After hearing the State’s argument in opposition, the trial
court denied the motion for continuance. Defense counsel then asked, “[c]an I step out and find
out where … my client is?” After a recess, Tate and his counsel appeared in court and declared
he had decided to plead guilty.
4 The transcript of the suppression hearing consists of 60 pages.
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In his brief, Tate asserts the trial court violated his statutory right to be present for the
pretrial hearing on his motion for continuance. See TEX. CODE CRIM. PROC. ANN. art. 28.01, § 1(5)
(defendant’s presence is required during any pretrial proceeding, including on a motion for
continuance); see also Rushen v. Spain, 464 U.S. 114, 117 (1983) (defendant’s right to be present
at all critical stages of trial is a fundamental constitutional right). However, Tate’s counsel did not
object to the hearing proceeding in Tate’s absence; therefore, any error was not preserved for
appellate review. TEX. R. APP. P. 33.1(a); Briggs v. State, 789 S.W.3d 918, 924 (Tex. Crim. App.
1990) (a party may waive constitutional error by failing to object at trial).
MOTION TO WITHDRAW GUILTY PLEA
In his last issue, Tate argues the trial court erred in denying his motion to withdraw his
guilty plea before sentencing. Tate asserts his plea was involuntary because the unexpected denial
of his motion for continuance forced him to make a “hasty decision” to plead guilty to avoid
proceeding to trial without adequate time for his counsel to review the suppression transcript and
findings. He also contends that, because the trial court ruled on his motion for continuance without
him present, he lost faith that he would receive a fair trial.
A defendant may withdraw his plea at any time before judgment is pronounced or the case
has been taken under advisement. Watson v. State, 974 S.W.2d 763, 765 (Tex. App.—San Antonio
1998, pet. ref’d) (citing Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979)). Once the
judge has admonished the defendant, received his plea, and received evidence, passing the case
for a presentence investigation constitutes “taking the case under advisement.” Id. Once the case
has been taken under advisement, the decision whether to allow the defendant to withdraw his plea
is within the sound discretion of the trial court. Id.; Jackson, 590 S.W.2d at 515.
Here, Tate filed the motion to withdraw his guilty plea two business days before his
sentencing hearing, after the court had accepted his plea and ordered a presentence report.
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Therefore, we review the trial court’s denial of Tate’s motion to withdraw his plea for an abuse of
discretion. Watson, 974 S.W.2d at 765. To establish an abuse of discretion, Tate must show that
the trial court’s ruling falls outside the “zone of reasonable disagreement.” Id.
The appellate record does not contain the transcript of a hearing on Tate’s motion to
withdraw his plea or the sentencing transcript. An affidavit signed by Tate was attached to his
motion to withdraw his plea. In the affidavit, Tate states he was “shocked” to find out when he
arrived for court Monday morning that not only had the hearing been conducted in his absence,
but the continuance had been denied; he was “extremely concerned” about his lawyer being
prepared for trial because he had just recently received the transcript and had not yet received the
findings of fact and conclusions of law; and he was worried that his lawyer would not be able to
effectively defend him. Tate states he was informed the trial court needed him to either enter a
guilty plea or proceed to trial immediately, but he had not yet discussed final terms of a plea
bargain with the State. Tate concludes, “I felt pressured from the Court to enter the guilty plea
and felt I had no other choice, because it was between a guilty plea or a trial that we would not be
prepared for.” Tate’s affidavit does not state that he would have presented any testimony at the
continuance hearing, or would have added anything further to the grounds presented by his
counsel.
Despite Tate’s statement that he felt rushed into a making a decision due to denial of the
continuance, the record of the plea hearing reflects that a recess was taken so that Tate could
consult with his counsel and the prosecutor. When proceedings resumed, defense counsel stated
Tate had decided to plead guilty. The trial court properly admonished Tate, and Tate judicially
confessed he was guilty of the charged offense and affirmed that he understood the waivers and
consequences of his plea; Tate also signed the written admonishments and waivers and affirmed
they were made freely and voluntarily. See TEX. CODE CRIM. PROC. ANN. art. 26.13(a).
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Substantial compliance with the admonishments creates a prima facie showing that the defendant
entered his guilty plea knowingly and voluntarily. De Luna v. State, No. 04-07-00424-CR, 2008
WL 1882788, at *2 (Tex. App.—San Antonio April 30, 2008, no pet.) (mem. op., not designated
for publication) (citing Aguirre-Mata v. State, 125 S.W.3d 473, 479-80 (Tex. Crim. App. 2003)).
The burden then shifts to the defendant to prove that he did not understand the consequences of
his plea and the acceptance of the plea constitutes harm. Id.; Eatmon v. State, 768 S.W.2d 310,
312 (Tex. Crim. App. 1989). A defendant who attests during the initial plea hearing that his plea
is voluntary bears a “heavy burden” to prove in a subsequent hearing that he entered the plea
involuntarily. Coronado v. State, 25 S.W.3d 806, 809 (Tex. App.—Waco 2000, pet. ref’d). Tate
supplied no evidence to the trial court to rebut the presumption of a voluntary plea created by the
admonishments and his acknowledgments that he was pleading guilty voluntarily and knowingly.
Tate does not claim he is innocent, or that he did not understand the consequences of his plea, or
that he was induced by promises or coerced by force or threat into entering the plea. See Brady v.
United States, 397 U.S. 742, 755 (1970); Ex parte Williams, 704 S.W.2d 773, 781 (Tex. Crim.
App. 1986) (plea coerced by threat or force is involuntary). Tate received the sentence agreed to
in his plea agreement with the State. Based on the record before us, we conclude the trial court
did not abuse its discretion in denying Tate’s motion to withdraw his plea.
CONCLUSION
Based on the foregoing reasons, we affirm the trial court’s judgment.
Liza A. Rodriguez, Justice
DO NOT PUBLISH
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