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Court of Appeals of Texas, Dallas.


No. 05–10–00960–CR

Decided: December 20, 2011

Before Justices Bridges, Richter, and Murphy


Opinion by Justice Murphy

Walter Lee Johnson appeals his three convictions for possession with intent to deliver more than four but less than 200 grams of a controlled substance, crack cocaine.   See Tex. Health & Safety Code Ann. § 481.112(d) (West 2010).   Appellant claims in a single point of error that the trial court erred by refusing to allow him to withdraw his guilty plea in each case.   We affirm.


Appellant was indicted in three separate cases for possession with intent to deliver a controlled substance of more than four but less than 200 grams.   The indictments covered three discrete arrests on August 27, November 20, and December 4, 2009.   Each indictment included an enhancement paragraph alleging the offense was committed within 1,000 feet of an elementary school.   See id. § 481.134(a)(5), (c).  The State also filed a notice of intent in each case to enhance appellant's punishment range with a prior felony conviction for attempted aggravated assault with a deadly weapon.   See Tex. Penal Code Ann. § 12.41(c)(1) (West 2011).   Appellant thus was facing minimum punishment of twenty years in each case.   See id.;  Tex. Health & Safety Code Ann. §§ 481.112(d), 481.134(c).

Appellant pleaded guilty in all three cases at his arraignment, reserved his right to go to a jury for punishment, and signed judicial confessions to the allegations in each indictment.   The State agreed to abandon the sentence enhancements in all three cases in exchange for appellant's guilty pleas.   As a result, appellant faced minimum punishments of five years in each case instead of twenty years.   See Tex. Penal Code Ann. § 12.32(a).   The trial court informed appellant at his arraignment that appellant could change his pleas if some evidence was presented indicating his “plea ought to be not guilty instead of guilty.”

The three cases were tried together, and appellant pleaded guilty before the jury in the punishment phase.   The State presented evidence supporting the allegations in the indictments and in support of punishment.   Appellant rested without presenting any evidence, and the trial court recessed the punishment hearing until the next day.

The next morning, before the court's charge was read to the jury and before closing jury arguments, appellant asked to withdraw his guilty pleas and enter pleas of not guilty.   The trial court denied appellant's request.


A defendant has an absolute right to withdraw a guilty plea any time before the jury retires.   See Fairfield v. State, 610 S.W.2d 771, 776 (Tex.Crim.App. [Panel Op.] 1981).   The trial court's denial of a defendant's request to withdraw his guilty plea is constitutional error subject to the harm standard set out in Texas Rule of Appellate Procedure 44.2(a).   See Abrego v. State, 977 S.W.2d 835, 839 (Tex.App.—Fort Worth 1998, pet. ref'd).   The harm standard for constitutional error requires an appellate court to “reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.”  Tex.R.App. P. 44.2(a).

In applying a harmless error analysis to the failure of a trial court to allow a timely request to withdraw a guilty plea, the Texas Court of Criminal Appeals noted in Payne v. State, that it had found the error harmless only “when there is no evidence suggesting that the defendant is not guilty or is guilty only of a lesser included offense.”  790 S.W.2d 649, 651 (Tex.Crim.App.1990).   In Payne, the defendant was convicted of aggravated robbery.   The court of criminal appeals stressed in its opinion that the defendant had taken the stand to testify and had “failed to make an unequivocal oral judicial confession.”  Id. at 652.   The court also emphasized that the defendant's testimony that he used a “toy” gun contradicted his signed confession in which he stated he had used a gun.  Id. The distinction between a real gun and a toy gun would be the difference between aggravated robbery and robbery, a lesser included offense.   Because of the factual dispute, the court could not “say beyond a reasonable doubt that the trial error” did not affect the outcome.  Id.

The court compared and distinguished two of its prior cases in concluding in Payne that it could not find the trial court's refusal to allow withdrawal of a guilty plea to be harmless.  Id. at 651–52 (citing McWherter v. State, 571 S.W.2d 312 (Tex.Crim.App.1978), and Wilson v. State, 515 S.W.2d 274 (Tex.Crim.App.1974)).  Wilson was the court's first time to conclude this form of trial court error was harmless.  Id. at 651.   The court emphasized that in Wilson, “there apparently was never any challenge to the substance of any of the confessions and the defendant's guilt was not a factual issue”—defendant had testified and made a judicial confession, a written judicial confession was admitted as evidence, and the evidence of guilt was overwhelming.  Id. at 652.   The court distinguished Wilson in light of the factual dispute created by the evidence in Payne and compared that factual dispute to the situation faced by the court in McWherter.

McWherter involved a defendant's guilty plea in the presence of the jury and a request to withdraw the plea before the jury retired to deliberate.   571 S.W.2d at 313.   The trial court denied the request, and the court of criminal appeals concluded the error was reversible in light of defendant's challenge to the sufficiency of the evidence and the admission of defendant's oral confession over his objection and without a separate hearing to determine voluntariness of the confession.  Id. at 314.

Here, appellant pleaded guilty to each indictment before the jury, the State presented uncontradicted evidence in support of the allegations in the indictments, and appellant presented no evidence.   The evidence admitted without objection included testimony of citizen complaints that drugs were being sold from a particular residence within 1,000 feet of an elementary school.   The police verified the activity through confidential informants and surveillance of the residence.   Search warrants were executed on the residence on August 27, November 20, and December 4, 2009, during which appellant and others were found in the residence.   Each time the police recovered sellable rocks of crack cocaine and other items associated with drug trafficking.   Appellant and the others were in a different area of the residence from where the drugs were located during the first two searches.   During the third search, appellant was lying down in front of a clothes dryer.   The officers recovered a plate from the dryer containing sellable crack cocaine and bearing appellant's fingerprint.   Appellant told the officers during the third search that he lived in the residence and clothes belonging to him were located there.   Subsequent police investigation indicated the other persons found in the residence during the three searches did not live there.   Appellant was the only one who was in the residence during all three searches.

Appellant did not contradict this evidence, and the record reveals no factual dispute, as in Payne where the testimony was conflicting, as to appellant's guilt.   See Payne, 790 S.W.2d at 652.   Similarly, appellant does not challenge the voluntariness of his judicial confession.   Rather, more like the facts of Wilson, the uncontradicted evidence shows appellant was the only person living in the house from which drugs were being sold on a regular basis, he was the only person present during all three searches, and his fingerprint was on the plate of sellable drugs.

Although appellant does not challenge the sufficiency of the evidence to support his guilt, he claims that, based upon application of traditional “affirmative links” criteria, the evidence sufficiently raised questions regarding his guilt to justify the withdrawal of his guilty pleas.   Citing Evans v. State, 202 S.W.3d 158 (Tex.Crim.App.2006), appellant claims only a few of the fourteen affirmative links identified in that case existed for the three incidents covered by the indictments.   Specifically, he claims only three links existed for the August 27 and November 20 incidents and only five existed for the December 4 incident.

The court of criminal appeals in Evans, summarized a non-exclusive list of possible “affirmative links” that may be sufficient, either singly or in combination, to establish a person's possession of contraband.  Id. at 162.   The court emphasized that it is not the number of links that is dispositive, but rather the logical force of all of the evidence, direct and circumstantial, that supports a jury's verdict.  Id. at 166.   The logical force of the combined pieces of uncontroverted circumstantial evidence of appellant's residence in the house from which drugs were being sold, his presence and proximity to the drugs during each search, and his fingerprint linking him to the sellable drugs in the residence, coupled with reasonable inferences from those facts, do not raise significant questions that appellant was merely an “innocent bystander.”  Id. at 161–62.

Of additional relevance to the harm analysis, is the State's abandonment of the enhancements in consideration of appellant's guilty pleas.   Had the trial court permitted appellant to withdraw his guilty pleas, appellant would have been subject to the enhancements.   With the uncontested evidence supporting a guilty verdict and the likelihood the jury would have found the enhancements to be “true,” appellant would have faced a twenty-year minimum sentence in each case—not the five-year minimum sentences that he faced with his guilty pleas.   The jury assessed appellant's sentences at a $10,000 fine in each case and ten years' confinement in trial court cause number F–09–30735–Q (appeal number 05–10–00962–CR), fifteen years' confinement in trial court cause number F–09–30733–Q (appeal number 05–10–00961–CR), and twenty years' confinement in trial court cause number F–09–30732–Q (appeal number 05–10–00960–CR).  Accordingly, we conclude beyond a reasonable doubt that the error in not allowing appellant to withdraw his guilty pleas did not contribute to the conviction or punishment and was harmless.  Tex.R.App. P. 44.2(a).   We therefore overrule appellant's sole point of error and affirm the trial court's judgment.


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