Julia Cameron v. State ( 2004 )

                     NO. 12-03-00267-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

  TYLER, TEXAS

  JULIA CAMERON,                                           §     APPEAL FROM THE 7TH

APPELLANT

V.                                                                         §     JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE                                                        §     SMITH COUNTY, TEXAS

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  MEMORANDUM OPINION

            Julia Cameron appeals her conviction for murder, for which she was sentenced to imprisonment for life. Appellant raises one issue on appeal. We affirm.

Background

            Appellant was charged by indictment with murder. On April 21, 2003, Appellant pleaded guilty as charged. The trial court accepted Appellant’s sworn judicial confession and stipulation of evidence, but deferred a formal finding of guilt to allow a pre-sentence investigation report to be prepared. Subsequently, after the State had put on punishment evidence, Appellant sought to withdraw her guilty plea. The court noted that Appellant had included a three-page handwritten letter with her PSI report. The trial court made a preliminary, advisory finding that Appellant should be permitted to withdraw her guilty plea, but gave the State two weeks to submit a brief on the issue before it made a final ruling thereon. The court set a trial date for July 28, 2003 on the contingency that it did permit Appellant to withdraw her guilty plea.

            On May 27, 2003, the State submitted a brief to the trial court opposing Appellant’s motion to withdraw her guilty plea. On June 11, 2003, the court entered an order denying Appellant’s motion. The court subsequently found Appellant guilty as charged and sentenced Appellant to imprisonment for life. This appeal followed.

Withdrawal of Guilty Plea

            In her sole issue, Appellant argues that the trial court erred in denying her motion to withdraw her guilty plea. A defendant may withdraw her guilty plea as a matter of right any time before judgment has been pronounced or the case has been taken under advisement. Moreno v. State, 90 S.W.3d 887, 889 (Tex. App.–San Antonio 2002, no pet.); see also Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. [Panel Op.] 1979); Rivera v. State, 952 S.W.2d 34, 35 (Tex. App.–San Antonio 1997, no pet.). Once the trial judge has admonished the defendant, received the plea, and received evidence, the passage of the case for a pre-sentence investigation constitutes taking the case under advisement. Moreno, 90 S.W.3d at 889; Rivera, 952 S.W.2d at 35–36. Whether to allow withdrawal of a plea pursuant to a motion filed after the judge has taken the case under advisement is within the sound discretion of the trial court. Donovan v. State, 68 S.W.3d 633, 637 (Tex. Crim. App. 2002); Moreno, 90 S.W.3d at 889; see also Jackson, 590 S.W.2d at 515; Rivera, 952 S.W.2d at 35. To establish that the trial court abused its discretion, the appellant must show that the trial court’s ruling lies outside the zone of reasonable disagreement. See Moreno, 90 S.W.3d at 889; see also Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g).

            In the case at hand, the trial court admonished Appellant, received her plea, and received Appellant’s sworn judicial confession and stipulation of evidence. The court then deferred a formal finding of guilt to allow a pre-sentence investigation report to be prepared. Thus, by its actions, the trial court took the case under advisement. The record does not support Appellant’s contention that the trial court granted Appellant’s motion to withdraw her plea, thereby reinstating the case to its status prior to being taken “under advisement.” Rather, the record reflects that the trial court’s finding that Appellant should be permitted to withdraw her guilty plea was only preliminary and advisory. Indeed, in addition to its specific statement that the finding was “preliminary” and “advisory,” the trial court requested that the State brief a response on the issue and gave the State two weeks to do so. After receiving the State’s brief, the trial court entered an order denying Appellant’s motion to withdraw her guilty plea. Therefore, we hold that Appellant was not entitled to withdraw her guilty plea as a matter of right because the trial court had already taken the case under advisement and had not otherwise granted her motion to withdraw her guilty plea. Appellant has not put forth any argument in her brief that the trial court abused its discretion in denying her motion to withdraw her guilty plea after taking the case under advisement. Therefore, we will not consider such an issue. Appellant’s sole issue is overruled.

Conclusion

Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                                                     JAMES T. WORTHEN

                                                                                                                 Chief Justice

Opinion delivered August 25, 2004.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)