CHARLESTON KENDELL McGREGOR v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Maloney

The trial court found Charleston Kendell McGregor guilty of aggravated robbery on his plea of guilty and assessed a fifty year sentence.   In one issue, appellant maintains that the trial court abused its discretion by failing to inquire whether appellant wished to withdraw his plea of guilty.   We affirm the trial court's judgment.

BACKGROUND

Appellant entered his plea of guilty to aggravated robbery without benefit of a plea bargain agreement.   On May 18, 2009, the magistrate accepted appellant's plea, found the evidence substantiated his guilt, but deferred finding him guilty and passed the case for “adjudication[,] if any, and sentencing.”   On June 19, 2009, the trial court heard evidence, argument of counsel, found appellant guilty, and assessed punishment.

Did the Trial Court Abuse its Discretion by Failing to Inquire if Appellant

Wanted to Withdraw his Guilty Plea?

Appellant does not complain of the trial court's failure to withdraw his guilty plea.   Rather, he contends the trial court had a duty to inquire if appellant wished “to persist in his guilty plea.”   He maintains his testimony “that everything that happened that day was an accident” and the complainant attacked him before he used his gun raises self defense and an issue on the requisite intent to commit the alleged offense.

The State responds the trial court was not obligated to inquire whether appellant desired to withdraw his plea and appellant had the duty to ask to withdraw his plea if he desired to do so.   His failure to do so waived any complaint.  Tex.R.App. P. 33.1(a)(1).   We agree.

When a defendant enters a plea of guilty before the trial court, the trial court considers the evidence and decides whether the evidence creates a reasonable doubt of guilt.  Aldrich v. State, 104 S.W.3d 890, 893 (Tex.Crim.App.2003).   If the trial court decides the evidence creates a reasonable doubt of guilt, it may acquit the defendant or find him guilty of a lesser included offense.  Id. at 893.

When this evidentiary hearing began, appellant had not been found guilty.   The trial court after hearing the evidence had the option to find appellant guilty, not guilty, or guilty of a lesser included offense, but no duty to inquire if appellant wished to withdraw his guilty plea.   Rather, appellant had the obligation to call the trial court's attention to appellant's testimony as inconsistent with his guilty plea.   See Mendez v. State, 138 S.W.3d 334, 339 (Tex.Crim.App.2004).   We resolve

appellant's issue against him and affirm the trial court's judgment.

FRANCES MALONEY JUSTICE, ASSIGNED