KENNETH JOURN EMORY v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice FitzGerald

Kenneth Journ Emory waived a jury and pleaded guilty to sexual assault.   See Tex. Penal Code Ann. § 22.011(a)(1)(A) (West Supp.2009).   After finding appellant guilty, the trial court assessed punishment at twenty years' imprisonment.   In a single point of error, appellant contends the trial court reversibly erred and abused its discretion in not sua sponte withdrawing his guilty plea and granting a new trial.   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Appellant contends that because he denied committing the offense, the trial court should have sua sponte withdrawn his guilty plea and granted a new trial.   The State responds that the trial court had no duty to sua sponte withdraw the guilty plea after hearing appellant's testimony and, alternatively, appellant failed to complain about his guilty plea in the trial court.

Appellant did not complain to the trial court about the voluntariness of his guilty plea either before or after his sentencing, including in his motion for new trial.   See Tex.R.App. P. 33.1(a)(1).   Moreover, when the trial judge acts as the fact finder in a case, even if evidence is presented that raises an issue as to a defendant's guilt, the judge is not required to withdraw a defendant's guilty plea sua sponte and enter a plea of not guilty.   See Mendez v. State, 138 S.W.3d 334, 339, 350 (Tex.Crim.App.2004);  Aldrich v. State, 53 S.W.3d 460, 468-69 (Tex.App.-Dallas 2001), aff'd, 104 S.W.3d 890 (Tex.Crim.App.2003).   Rather, the trial judge's duty is to consider all of the evidence submitted, and he may find a defendant guilty as charged, guilty of a lesser-included offense, or not guilty, as the evidence requires.   See Aldrich, 53 S.W.3d at 467.   Thus, the trial court had no duty to sua sponte withdraw appellant's guilty plea and did not err in failing to do so.

Further, the record shows the trial court admonished appellant orally and in writing about the punishment range for the offense.   See Tex.Code Crim. Proc. Ann. art. 26.13(a), (c) (West Supp.2010);  Kirk v. State, 949 S.W.2d 769, 771 (Tex.App.-Dallas 1997, pet. ref'd).   Appellant testified he understood the punishment range for the offense.   Although appellant testified at the sentencing hearing that he did not strangle or rape the complainant, nothing in the record shows he was unaware of the consequences of his plea and that he was harmed or misled by the trial court's admonishments.   See Aguirre-Mata v. State, 125 S.W.3d 473, 477 (Tex.Crim.App.2003).   We overrule appellant's sole point of error.

We affirm the trial court's judgment.

KERRY P. FITZGERALD JUSTICE