JOSE GARCIA v. THE STATE OF TEXAS (2010)

MEMORANDUM OPINION

Opinion By Justice Lang-Miers

Jose Garcia pleaded guilty before a jury to aggravated assault with a deadly weapon.   After finding appellant guilty, the jury assessed punishment at seven years' imprisonment.   In a single issue, appellant contends the trial court erred in failing to withdraw his guilty plea.   We affirm the trial court's judgment.   The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts.   We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.

Appellant contends the trial court should have sua sponte withdrawn his guilty plea because the evidence is insufficient to support the finding of a deadly weapon.   Appellant asserts the testimony at trial failed to prove that either a candle holder, an ashtray, a screwdriver, or a foot was a deadly weapon, as alleged in the indictment.   The State responds that the trial court had no duty to withdraw appellant's guilty plea and, alternatively, the evidence is legally and factually sufficient to support the deadly weapon finding.

Appellant did not complain about his guilty plea in the trial court.   See Tex.R.App. P. 33.1(a)(1);  Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.) (for error to be preserved for appeal, the record must show appellant made a timely request, objection, or motion).   Moreover, in a trial before a jury, a defendant may change his plea from guilty to not guilty at any time before the jury retires to deliberate its verdict.   Mendez v. State, 138 S.W.3d 334, 345 (Tex.Crim.App.2004).   The trial court, however, has no duty to change the plea on its own motion.  Id. at 350.

We conclude that because appellant did not timely seek to withdraw his guilty plea, he may not complain for the first time on appeal that the trial court should have withdrawn the plea for him.  Id. We resolve appellant's sole issue against him.

We affirm the trial court's judgment.

ELIZABETH LANG-MIERS JUSTICE