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)

21

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

22