# Small, Sharon v. State > Texas Court of Appeals, 1st District (Houston) ยท July 11, 2002 URL: https://www.frixlaw.com/law-library/cases/2835324 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** July 11, 2002 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2835324 ## Opinion text In The Court of Appeals For The First District of Texas ____________ NOS. 01-01-01141-CR NOS. 01-01-01142-CR ____________ SHARON SMALL, Appellant V. THE STATE OF TEXAS , Appellee On Appeal from the 174th District Court Harris County, Texas Trial Court Cause Nos. 850333, 848617. O P I N I O N Without an agreed recommendation, appellant pleaded guilty to two aggravated robbery charges. After receiving the Pre-Sentence Investigation report ("PSI") and conducting a sentencing hearing, the trial judge found appellant guilty and assessed punishment at 15 years in prison for each aggravated robbery. We affirm. FACTS The record shows that on June 25, 2000, appellant and codefendant, Roger Wesley, committed two aggravated robberies. The first robbery involved both appellant and Wesley entering a Stop N Go convenience store. The complainant recognized Wesley as someone who had committed several thefts at this particular store. In this instance, Wesley walked to the cash register island and stepped behind the counter. The complainant walked to the same area where Wesley was and tried to make a telephone call. Appellant rushed toward the complainant, slapped his face, and took his telephone away. Wesley then pulled out a knife, demanded cigarettes and money, and chased the complainant around the store. Wesley and appellant then left the store. The second robbery occurred approximately five hours later at an Exxon Gas Station. Wesley entered the gas station, and appellant stayed in the vehicle. Wesley asked the clerk whether a cup of ice was free, and the clerk informed Wesley that it was not. Wesley then walked out, returned, and asked for a carton of cigarettes. After the clerk asked him for identification, Wesley pulled out his knife and stated he wanted the cigarettes and all of the money. The clerk told Wesley the police would be arriving to fill up their patrol cars. Wesley grabbed the money and fled. Appellant remained in the vehicle during this robbery. The suspects' vehicle was traced to another person who later identified appellant and Wesley as the persons in possession of the vehicle when the robberies were committed. Appellant admitted being involved in the robbery at the Stop N Go convenience store and being the driver of the vehicle while Wesley robbed the Exxon Gas Station; however, she denied being involved in the robberies. In her statement, she recalls that she was inside the store when Wesley robbed the clerk, but when she realized what was happening, she panicked and hung up the telephone when complainant attempted to call the police. In regard to the second robbery, she stated that she remained in the vehicle while Wesley entered the store and was not aware of the robbery until they drove away. GUILTY PLEAS In two points of error, appellant contends that the trial judge erred by not sua sponte withdrawing her guilty pleas on the basis that they were not intelligently and knowingly entered. More specifically, appellant argues that her statements in the PSI are inconsistent with her guilty pleas. Appellant contends that she did not understand the law of parties, and her self-serving statements, which are included in the PSI, make her nothing but a "knowing bystander." To examine the voluntariness of a guilty plea, we examine the record as a whole. Brown v. State , 11 S.W.3d 360, 362 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd). Appellant signed and initialed the statutory plea admonishments, and her receipt of the admonishments is prima facie evidence that her plea was knowingly and voluntarily made. See Harrison v. State , 688 S.W.2d 497, 499 (Tex. Crim. App. 1985); Brown , 11 S.W.3d at 362 . The burden then shifts to the appellant to establish she did not understand the consequences of her plea. See Solis v. State , 945 S.W.2d 300, 302 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). Appellant does not contend that she was improperly admonished by the trial judge. The record shows that appellant was properly admonished. Appellant relies on her own statements in the PSI to support her claim. She presents no evidence to rebut the judge's finding that "[T]he pleas are freely and voluntarily made," or that her signature on the written admonishments was not voluntarily made. Appellant does not cite any authority supporting her assertion that a plea is involuntary when the PSI contains information that is inconsistent with a plea of guilty. Appellant relies on Payne v. State , which involved a defendant who pleaded guilty to aggravated robbery. 790 S.W.2d 649 (Tex. Crim. App. 1990). Payne is distinguishable because in Payne the defendant testified during the sentencing hearing and filed a motion to withdraw his guilty plea, which was denied by the trial judge. Id . at 649-51. In this case, appellant neither filed a motion to withdraw her guilty pleas nor did she testify during the sentencing hearing. Appellant also contends that the trial judge erred because he did not sua sponte withdraw appellant's guilty pleas. We find no merit to this contention. A trial judge is not required, under all circumstances, to withdraw a guilty plea sua sponte for a defendant when that defendant entered a plea of guilty and waived a jury. See Moon v. State , 572 S.W.2d 681, 682 (Tex. Crim. App. 1978); Solis , 945 S.W.2d at 302 . Instead, it is the trial judge's duty to consider the evidence submitted, to find appellant guilty, or guilty of a lesser offense, or to acquit the defendant. See Moon , 572 S.W.2d at 682 ; Solis , 945 S.W.2d at 303 . Because the evidence showed that appellant knowingly and voluntarily pleaded guilty, we hold that the trial judge did not abuse his discretion by not sua sponte withdrawing appellant's guilty pleas. We overrule appellant's first and second points of error. The judgments of the trial court are affirmed. Jackson B. Smith, Jr. (1) Justice Panel consists of Justices Mirabal, Taft, and Smith. Do not publish. Tex. R. App. P. 47. 1. The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2835324. Public record. Not legal advice.