ACCEPTED
01-18-01140-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/27/2019 11:27 AM
CHRISTOPHER PRINE
CLERK
No. 1-18-01140-CR
FILED IN
In The Court of Appeals 1st COURT OF APPEALS
HOUSTON, TEXAS
First District of Texas
3/27/2019 11:27:20 AM
At Houston
CHRISTOPHER A. PRINE
Clerk
CECILIO MENDOZA,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
On Appeal from Cause No. 83463-CR
th
In the 149 Judicial District Court of Brazoria County, Texas
The Honorable Terri Holder Presiding
APPELLANT’S OPENING BRIEF ON THE MERITS
ORAL ARGUMENT REQUESTED
LAW OFFICES OF D. CRAIG HUGHES
D. Craig Hughes
State Bar No. 10211025
Attorney for Appellant
7324 Southwest Freeway – Suite 1466
Houston, Texas 77074
713-535-0683
Fax (713) 510-1856
dcraighughes@msn.com
IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEX. R. APP. P. 38.1(a), the following is a complete list of the
names of the parties and their counsel.
PARTIES COUNSEL
Cecilio Mendoza Trial Counsel
Defendant/Appellant Luis Ledesma
500 North Chenango – Suite 304
Angleton, Texas 77515
Appellate Counsel
D. Craig Hughes
Law Offices of D. Craig Hughes
7324 Southwest Freeway
Suite 1466
Houston, Texas 77074
The State of Texas Trial Counsel
Prosecution/Appellee Robyn Griffith & Paige Santell
Assistant District Attorneys
111 East Locust – Suite 408A
Angleton, Texas 77515
Appellate Counsel
David P. Bosserman
Assistant District Attorney
111 East Locust – Suite 408A
Angleton, Texas 77515
i
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT OF ISSUE PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . v
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
I. The Trial Court Erred by Denying Mr. Mendoza’s Timely Motion
to Withdraw his Plea to Count 11 . . . . . . . . . . . . . . . . . . . . . . . . 11
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ii
INDEX OF AUTHORITIES
CASES PAGE
Abrego v. State,
977 S.W.2d 835 (Tex.App.–Fort Worth 1998, pet. ref’d) . . . . . . . . . . . 17
DeVary v. State,
615 S.W.2d 739 (Tex.Crim.App.1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Duwe v. State,
642 S.W.2d 804 (Tex.Crim.App.1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Fairfield v. State,
610 S.W.2d 771 (Tex.Crim.App.1981) . . . . . . . . . . . . . . . . . . 12, 13, 15, 17
Harling v. State,
899 S.W.2d 9 (Tex.App.—San Antonio 1995, pet. ref’d) . . . . . . . . . . . 12
Jackson v. State,
590 S.W.2d 514 (Tex.Crim.App.1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Jagaroo v. State,
180 S.W.3d 793 (Tex.App. – Houston [14th Dist.] 2005, pet. ref’d) . . 16
Lawal v. State,
th
368 S.W.3d 876 (Tex. App. – Houston [14 Dist.] 2012, no pet) . . . . 16
McWherter v. State,
571 S.W.2d 312 (Tex.Crim.App.1978) . . . . . . . . . . . . . . . . . . . . . . . . 12, 19
iii
Mendez v. State,
138 S.W.3d 334 (Tex.Crim.App.2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Milligan v. State,
324 S.W.2d 864 (Tex. Crim. App. 1959) . . . . . . . . . . . . . . . . . . . . . . . . . 16
Ortiz v. State,
933 S.W.2d 102 (Tex.Crim.App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Payne v. State,
790 S.W.2d 649, 651 (Tex.Crim.App.1990). . . . . . . . . . . . . . . . . 18, 19, 20
Santos v. State,
st
961 S.W.2d 304 (Tex. App. – Houston [1 Dist.] 1997, pet. ref’d) . . . 14
Thompson v. State,
852 S.W.2d 268 (Tex.App.—Dallas 1993, no pet) . . . . . . . . . . . . . . . . . 12
Wilson v. State,
515 S.W.2d 274 (Tex.Crim.App.1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
RULES
TEX. R. APP. P. 44.2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18
iv
STATEMENT OF THE ISSUE PRESENTED FOR REVIEW
I. Did the Trial Court Err by Refusing to Allow Mr. Mendoza to Withdraw his Plea?
v
STATEMENT OF THE CASE
I. Nature of the Case
This is an appeal from convictions for: 1) three counts of the first-degree
felony of aggravated sexual assault of a child; 2) three counts of the second-
degree felony offense of indecency with child sexual contact; criminal episode;
3) one count of the second-degree felony offense of sexual assault of a child; and 4) five counts of the third-degree felony of prohibited sexual conduct, and the resultant sentence(s) of ten-years’ imprisonment in the Institutional Division of the Texas Department of Criminal Justice on the second- and third-degree felony counts and fifty-years’ imprisonment in the Institutional Division of the Texas Department of Criminal Justice on the first-degree felony counts.
II. Trial Court
th
The Honorable Terri Holder, Presiding Judge of the 149 Judicial
District Court of Brazoria County, Texas.
vi
III. Course of the Proceedings and the Trial Court’s Disposition of the Case
During the pre-trial reading of the indictment, Appellant Cecilio
Mendoza pleaded guilty to one count of the second-degree felony offense of
indecency with child sexual contact; criminal episode. (3 RR 14, 16-17; CR
1
70-71) ; see TEX. PEN. CODE ANN. § 21.11(a)(1). Mr. Mendoza proceeded to trial
2
and the jury convicted him of the remaining counts , comprised of three
counts of the first-degree felony of aggravated sexual assault of a child, two
(additional) counts of the second-degree felony offense of indecency with
child sexual contact; criminal episode, one count of the second-degree felony
offense of sexual assault of a child, and five counts of the third-degree felony
of prohibited sexual conduct. (3 RR 129-130; CR 87); see TEX. PEN. CODE ANN.
1
The record in this case consists of one volume of the Clerk’s Record and 4 volumes of the Reporter’s Record. Throughout this brief, the Clerk’s Record is referenced as “CR.” The Reporter’s Record is referenced as “RR,” with the volume of the record preceding the “RR” and the page number of the record following “RR.” For example, “3 RR 54” refers to page number 54 of the third volume of the Reporter’s Record.
2
Count 9 had been abandoned by the State prior to the reading of the indictment. (3 RR 6; CR 87).
vii
§§ 22.021(a)(B)(I), 21.11(a)(1), 21.011(a)(2); & 25.02 . On December 13, 2018, the court assessed Mr. Mendoza’s punishment as confinement for a term of ten (10) years on the second- and third-degree felony counts and confinement for a term of fifty (50) years’ on the first-degree felony counts, with all sentences to be served concurrently. (4 RR 9-11; CR 87). Mr. Mendoza filed a Notice of Appeal on December 21, 2018. (CR 86); TEX. R. APP. P. 26.2(A)(1).
viii
No. 1-18-01140-CR
In The Court of Appeals
First District of Texas
At Houston
CECILIO MENDOZA,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
On Appeal from Cause No. 83463-CR
th
In the 149 Judicial District Court of Brazoria County, Texas
The Honorable Terri Holder Presiding
APPELLANT’S OPENING BRIEF ON THE MERITS
TO THE HONORABLE COURT OF APPEALS:
Cecilio Mendoza, Appellant in docket number 1-18-01140-CR, submits
this Brief on the Merits in support of his appeal of the conviction imposed
below and request for vacation of the same and remand for new trial.
STATEMENT OF FACTS
Appellant Cecilio Mendoza was indicted on three counts of the first-
degree felony of aggravated sexual assault of a child, three counts of the
second-degree felony offense of indecency with child sexual contact; criminal
episode, one count of the second-degree felony offense of sexual assault of a
3
child, and six counts of the third-degree felony of prohibited sexual conduct.
(CR 5-8). Mr. Mendoza’s minor daughter was the victim of the offenses alleged
in the indictment. Id.
During the pre-trial reading of the indictment, Appellant Cecilio
Mendoza pleaded guilty to count eleven, which charged him with engaging
in sexual contact with a child younger than 17 years, who was not his spouse,
with the intent to arouse or gratify his sexual desire. (3 RR 14). After the
remainder of the indictment was read, and Mr. Mendoza had entered pleas of
not guilty to all other counts, a brief plea colloquy was held outside the
presence of the jury. (3 RR 16-17).
3
The State abandoned one count of third-degree prohibited sexual conduct prior to trial. (3 RR 6).
2
THE COURT: All right. Mr. Mendoza, you have entered a plea of guilty to Count Eleven of the indictment. Did anyone force you or threaten you to make you enter that plea of guilt?
THE DEFENDANT: No.
THE COURT: Are you pleading freely and voluntarily?
THE DEFENDANT: Yes.
THE COURT: And are you pleading guilty to Count Eleven because you are guilty of Count Eleven? Are you pleading guilty because you are guilty?
THE DEFENDANT: Yes.
THE COURT: All right. Then I will accept your plea of guilt and find that it is freely and voluntarily made.
THE DEFENDANT: Yes.
THE COURT: Anything else we need to do?
MS. GRIFFITH: I’m just curious what happens in punishment.
THE COURT: They will just be told to find him guilty.
(3 RR 16-17).
3
During the trial, Mr. Mendoza, with the assistance of an interpreter,
testified in his own defense. (3 RR 70-89). On direct, Mr. Mendoza testified that
when he touched his daughter it was in the context of playing in a normal
father/daughter way. (3 RR 74). Under cross-examination concerning his plea
of guilty to count 11, Mr. Mendoza denied that he touched his daughter’s
breasts for sexual gratification. (3 RR 78).
Q. And in front of this jury and the judge you stood up and pled guilty to touching on the breasts for your sexual gratification?
A. No.
Q. Okay. So you don’t remember pleading guilty to touching your daughter’s breasts?
A. Oh, yes. Yes, I did say that.
Q. Okay. So that count is touching breasts with sexual gratification of desire?
A. No.
Q. So you didn’t listen to when the District Attorney read that charge and you pled guilty?
A. Yes, I said yes. But I’ve never seen her like that in
4
that way.
Q. So you pled guilty to this not understanding it?
A. No. I did understand the question.
Q. Okay. Well, let me read it to you. Hang on. It says on or about the 1st day of January, 2015, and before the presentment of this indictment, in said County and State, did then and there, with the intent to arouse or gratify the sexual desire of said Defendant
— that’s you — intentionally or knowingly engage in sexual contact with Leslie Mendoza, a child younger than 17 years and not the spouse of the Defendant, by touching the breasts of said child. Do you remember that being read to you?
A. Yes.
Q. Do you remember pleading guilty to it?
A. Oh, yes. Yes, I did say that.
Q. Okay. So why don’t you tell me about the time that you first touched your daughter’s breasts in a sexual manner?
A. I didn’t do it like that.
Q. Okay. Tell me how you did it.
A. Playing. Like I said it before.
5
Q. So why did you plead guilty to something you didn’t do?
A. Because all the questions that are — that are right there have something to do because they say that there were sexual relations.
Q. No. That count says that you touched her breasts for sexual purposes. So did you touch her for sexual purposes?
A. No.
(3 RR 77-79).
On redirect, Mr. Mendoza testified that he pleaded guilty to count 11
based on his understanding that simply touching his daughter’s breasts
rendered him guilty, without regard to his intent. (3 RR 88).
Q. Now, Mr. Mendoza, do you recall, I guess, before trial at some point in the past that I went over this what was originally a 13-count indictment with you?
A. (Witness nods head affirmatively.)
THE COURT: Hold on. Yes or no?
A. Yes, yes.
Q. And at that time you said that you’re not guilty to
6
all of these counts. Do you recall that?
A. Yes.
Q. So I guess just to be clear, I mean today you pled guilty to what is Count Eleven. Did you not hear the intent to arouse or gratify the sexual desire of said Defendant as part of that count?
A. I was just thinking it was touching without any intention.
Q. But that’s not what you said in the past. I mean you said not guilty in the past. Would that be fair?
A. Yes.
(3 RR 88-89).
Outside the presence of the jury, the State took the testimony of both
interpreters, which consistent with the oaths they filed with the court,
indicated that they had “been simultaneously interpreting for the Defendant
the whole day through all the testimony and everything.” (3 RR 90-91; CR 16,
27).
Following an off the record discussion, Mr. Mendoza moved to
withdraw his plea to count 11. (3 RR 91). The court denied the motion on
7
grounds that the plea has already been “accepted.” (3 RR 92).
THE COURT: . . . It’s my understanding the defense has some motions they wanted to make at this time?
MR. LEDESMA: Yes, Your Honor. The defense would respectfully request the Court to consider a motion to allow the Defendant to withdraw his plea of guilty to Count Eleven.
I was not able to find any case law specifically on the point, especially when he pleads guilty before the jury, but he essentially retracted that guilty plea in his testimony and I would respectfully move that he be allowed to do that before, I guess, any deliberation by the jury.
THE COURT: Response?
MS. GRIFFITH: He’s pled guilty. I mean without a hearing, you know, or something outside of this. He’s pled guilty in front of this jury. And now to withdraw it is just going to confuse the jury and I don’t think it’s right.
THE COURT: Okay. I’ve already accepted the plea so I’m going to deny that. I think I asked him sufficient questions at the beginning to make sure he was doing what he was doing because he was guilty and he told me he was.
(3 RR 91-92).
8
Mr. Mendoza then moved for a mistrial, which the court also denied. (3
RR 92). Thereafter, the State raised the issue of whether punishment on count 11 should be decided by the court or the jury. (3 RR 92). In response to this concern, and Mr. Mendoza’s preference that the court decide punishment on count 11, the court and prosecutor agreed that Mr. Mendoza should complete the written admonishments form to formalize the selection after the jury returned its verdict. (3 RR 92-93).
During the jury charge, the court instructed the jury that Mr. Mendoza had pleaded guilty to count 11. (3 RR 94).
THE COURT: The Defendant, Cecilio Mendoza, has entered a plea of guilty to the offense of Indecency with a Child Sexual Contact, Count Eleven. And after being admonished of his rights as required by law, the Defendant persists in his plea. The Court finds that the Defendant is mentally competent and that the plea is free and voluntary. You will, therefore, find the Defendant guilty of the offense of Indecency with a Child Sexual Contact, Count Eleven.
(3 RR 94).
The Court also read the verdict form to the jury, which noted that Mr.
9
Mendoza had pleaded guilty to count 11, requiring the jury to find him guilty
on that count. (3 RR 112). The jury followed this instruction, finding Mr.
Mendoza guilty as a result of his plea. (3 RR 130).
The record indicates that the court did not receive Mr. Mendoza’s
signed written admonishments form until after the jury had reached its
verdict. (3 RR 127-128).
10
SUMMARY OF THE ARGUMENT
The trial court erred when it denied Mr. Mendoza’s timely motion to
withdraw his plea to count 11. This is true because, at the time Mr. Mendoza
sought to withdraw his plea, he enjoyed an absolute right to do so, by virtue
of the realities that: 1) he had not affirmatively waived his right to a jury trial;
and 2) the plea had not been “taken under advisement,” as that phrase has
been interpreted in this context. This court should vacate his conviction and
sentence on count 11 and remand for a new trial.
ARGUMENT
I. The Trial Court Erred by Denying Mr. Mendoza’s Timely Motion to Withdraw his Plea to Count 11
The trial court denied Mr. Mendoza’s timely motion to withdraw his
guilty plea to count 11. (3 RR 91-92). This decision was in contravention of Mr.
Mendoza’s absolute right to change his plea from guilty to not guilty, arising
from the reality that Mr. Mendoza had not affirmatively waived his right to
a jury on Count 11. Mr. Mendoza’s conviction and sentence on count 11
should be vacated and a new trial ordered.
11
The Texas Court of Criminal Appeals recognizes a defendant’s right to
change his plea from guilty to not guilty if the request is timely. Mendez v.
State, 138 S.W.3d 334, 345 (Tex.Crim.App.2004) (citing McWherter v. State, 571
S.W.2d 312 (Tex.Crim.App.1978)); see also Fairfield v. State, 610 S.W.2d 771, 776
(Tex.Crim.App.1981). In a trial before a jury, the defendant may change the
plea at any time before the jury retires to deliberate. Id.
A defendant may also withdraw his guilty plea as a matter of right any
time until judgment has been pronounced or the case has been taken under
advisement. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App.1979).
Whether to allow withdrawal of a plea pursuant to a motion filed after the
judge has taken the case under advisement, though, is within the sound
discretion of the trial court. Jackson, 590 S.W.2d at 515; Thompson v. State, 852
S.W.2d 268, 270 (Tex.App.—Dallas 1993, no pet). Once the trial judge has
admonished the defendant, received the plea, and received evidence, the
passage of the case for a presentence investigation constitutes “taking the case
under advisement.” See Jackson, 590 S.W.2d at 514–15; Harling v. State, 899
12
S.W.2d 9, 12 (Tex.App.—San Antonio 1995, pet. ref’d).
In this case, the fact that Mr. Mendoza had not affirmatively waived his
right to a jury, places his right to change his plea within the scope of Fairfield,
meaning that he enjoyed an absolute right to change his plea, so long as he
timely moved to do so. The record shows that Mr. Mendoza pleaded guilty
to count 11 before the jury and proceeded to trial on the remaining counts. (3
RR 14). Immediately following his plea, the Court briefly engaged Mr. Mendoza outside the presence of the jury. (3 RR 16-17). During that brief interaction, the court inquired on three aspects of Mr. Mendoza’s plea: whether anyone forced or threatened Mr. Mendoza to make him enter the plea; whether Mr. Mendoza was pleading freely and voluntarily; and whether Mr. Mendoza was pleading guilty because he was in fact guilty. (3 RR 16). The court then “accepted” Mr. Mendoza’s plea, without inquiring as to whether he waived his right to a jury on count 11. (3 RR 17).
During Mr. Mendoza’s trial, his testimony indicated that he lacked the requisite intent to commit the offense charged in count 11, and that his plea
13
of guilty to that count arose from his misunderstanding of the elements of the
offense. (3 RR 74, 77-79, 88). Specifically, Mr. Mendoza denied that he acted
with the intent to arouse or gratify a sexual desire, which this court recognizes
as an essential element of the offense. See Santos v. State, 961 S.W.2d 304, 308
st
(Tex. App. – Houston [1 Dist.] 1997, pet. ref’d) (“An essential element of the
offense of indecency with a child is the intent to arouse or gratify the sexual
desire of any person.” (citing Duwe v. State, 642 S.W.2d 804, 805
(Tex.Crim.App.1982)).
Following this testimony, Mr. Mendoza moved the court to withdraw
his guilty plea to count 11, on grounds that his testimony “essentially
retracted that guilty plea in his testimony.” (3 RR 91).The State opposed the
motion on grounds that “[h]e’s pled guilty. I mean without a hearing, you
know, or something outside of this. He’s pled guilty in front of this jury. And
now to withdraw it is just going to confuse the jury and I don’t think it’s
right.” (3 RR 91-92). The court denied Mr. Mendoza the right to change his
plea, stating “I’ve already accepted the plea so I’m going to deny that. I think
14
I asked him sufficient questions at the beginning to make sure he was doing
what he was doing because he was guilty and he told me he was.” (3 RR 92).
This ruling was error under Fairfield, because at the time the court ruled,
Mr. Mendoza had not waived a jury for sentencing on count 11. In fact, the
record shows that Mr. Mendoza did not waive a jury on count 11 until after
the jury had reached a verdict and did so to allow the court to sentence him.
(3 RR 92-93, 127-128).
Additionally, the record shows that the court had not taken Mr.
Mendoza’s plea to count 11 under advisement, such that it enjoyed discretion
to deny Mr. Mendoza the right to change his plea. This is true because simply
announcing that the court “accepted” the plea does not constitute taking the
plea under advisement as that phrase is used in this context. See, e.g., Ortiz v.
State, 933 S.W.2d 102, 104 (Tex.Crim.App. 1996).
Texas courts have found cases were “taken under advisement” when the
judge had (1) passed the case for preparation of a pre-sentence investigation,
(2) pronounced the defendant guilty and was in the process of pronouncing
15
judgment, or (3) had accepted the defendant’s plea and stipulation of evidence
and had admonished him. See Milligan v. State, 324 S.W.2d 864, 865 (Tex.
Crim. App. 1959) (holding request to withdraw plea was after trial court took
case under advisement because trial court had “concluded that appellant was
guilty and was in the process of pronouncing judgment”); Lawal v. State, 368
th
S.W.3d 876, 882 (Tex. App. – Houston [14 Dist.] 2012, no pet) (“After a trial
court has admonished a defendant, received the plea and evidence, and
passed the case for pre-sentence investigation, the case has been taken under
advisement.” (citing DeVary v. State, 615 S.W.2d 739, 740 (Tex.Crim.App.1981);
Jagaroo v. State, 180 S.W.3d 793, 802 (Tex.App.-Houston [14th Dist.] 2005, pet.
ref’d)).
Here, at the time of Mr. Mendoza’s oral motion to withdraw his plea, the
trial court had not admonished Mr. Mendoza, obtained a stipulation of
evidence or factual basis for the plea of guilty – to the contrary, the Court had
heard Mr. Mendoza’s post-plea, trial testimony which denied that he had the
requisite intent to commit the offense he had pleaded guilty to –, and had not
16
pronounced Mr. Mendoza guilty. At the time of Mr. Mendoza’s plea, the
Court only inquired if he was guilty and if the plea was freely and voluntarily
given. It appears that the Court did not receive a sworn stipulation signed by
Mr. Mendoza, stating he understood the admonitions, until after the motion
to withdraw was denied. The Court “accepted” the plea as freely and
voluntarily given, but the matter appears to have been deferred for a directed
verdict. Thus, the plea was not taken under advisement until Mr. Mendoza
signed the admonitions, at the earliest.
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.
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
17
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
18
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
19
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 the record does not support that the error was harmless. To the
contrary, during his trial testimony, Mr. Mendoza denied possessing the
requisite intent to commit the offense to which he had pleaded guilty. (3 RR
74, 77-79, 88). Under Payne v. State, this reality precludes a finding that the
constitutional error was harmless, as Mr. Mendoza’s denial of the requisite
intent constitutes “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).
20
PRAYER FOR RELIEF
Mr. Mendoza prays that the Court of Appeals reverse his conviction and
sentence on count 11 and remand his case to the trial court for a new trial.
th
Respectfully submitted on this 27 day of March, 2019.
________________________________
D. Craig Hughes
State Bar No. 10211025
Attorney for Appellant
7324 Southwest Freeway – Suite 1466
Houston, Texas 77074
713-535-0683 (telephone)
713-510-1856 (fax)
dcraighughes @msn.com (email)
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CERTIFICATE OF SERVICE
I certify that on March 27, 2019, a copy of this brief was served on
opposing counsel, David P. Bosserman, Brazoria County District Attorney’s
Office, via electronic service at the address opposing counsel has listed with
the electronic service provider.
______________________________
D. Craig Hughes
CERTIFICATE OF COMPLIANCE
I certify the foregoing Brief on the Merits complies with Rule 9.4(i)(2)(A)
of the Texas Rules of Appellate Procedure. The brief, excluding those portions
detailed in Rule 9.4(I) of the Texas Rules of Appellate Procedure, is 4,521
words long. I have relied upon the word count function of Corel WordPerfect,
which is the computer program used to prepare this document, in making this
representation.
____________________
D. Craig Hughes
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