holding that the trial court abused its discretion in not allowing defendant to withdraw his waiver of jury trial, where a lengthy continuance already had been granted
How later courts described this case
- holding that the trial court abused its discretion in not allowing defendant to withdraw his waiver of jury trial, where a lengthy continuance already had been granted
Written by the judges who cited it.
The opinion
PD-0415-15
PD-0415-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/14/2015 2:45:21 PM
Accepted 4/15/2015 5:36:36 PM
PDR No. ABEL ACOSTA
CLERK
In The Court of Criminal Appeals of Texas
DONTA TREMAINE BROWNING, Appellant
V.
THE STATE OF TEXAS, Appellee.
On Appellant's Petition for Discretionary Review
From the Fourteenth Court of Appeals,
Appeal No. 01-14-00052-CR
On Appeal from the 240th District Court
of Fort Bend County Texas,
Cause No. 11-DCR-058541.
PETITION FOR DISCRETIONARY REVIEW
FOR APPELLANT, DONTA TREMAINE BROWNING
Oral Argument Requested
Cary M. Faden
77 Sugar Creek Center Blvd., Suite 230
Sugar Land, Texas 77478 April 15, 2015
Telephone: (281) 491-6182
Texas Bar No. 06768725
E-MAIL: caryfaden@aot.com
Attorney for Appellant
IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEX. R. APP. P., Rule 38.1(a) and Rule 68.4(a), appellant certifies
that the following is a complete list of the parties to the final judgment and the names
and addresses of counsel in the trial and on appeal:
Appellant:
Donta Tremaine Browning
Counsel for Appellant:
Tommy James Stickler, Jr. (at trial)
235 West Sealy Street
Alvin, TX 77511
Cary M. Faden (on appeal)
77 Sugar Creek Center Blvd., Suite 230
Sugar Land, Texas 77478
Counsel for the State of Texas:
John F. Healey, Jr.
Stuti Trehan Patel
Fort Bend County, Texas
District Attorney
301 Jackson Street, Room 101
Richmond, Texas 77469
Trial Judge:
The Honorable Thomas R. Culver, III
ii
Table of Contents
Index of Authorities
Statement Regarding Oral Argument vi
Statement ofthe Case vii
Procedural History of the Case vii
Ground for Discretionary Review 2
GROUND ONE
THE FIRST COURT OF APPEALS ERRED IN REFUSING TO
CONDUCT A HARM ANALYSIS AND TO APPLY THE LAW IN
FINDING THE TRIAL COURT DID NOT COMMIT ERROR IN
NOT ALLOWING APPELLANT TO WITHDRAW HIS PLEA OF
GUILTY.
Reasons to Grant Review in Support of Ground for Review 2
Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court
Of Appeals has rendered a decision, which is in conflict with the
decisions of another court of appeals on the same matter, namely:
Ground One: Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim.
App.1997); Childs v. Reunion Bank, 587 S.W.2d 466, 471 (Tex. Civ.
App. - Dallas 1979, writ refd n.r.e.); Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Guillett v. State, 677 S.W.2d
46, 49 (Tex. Crim. App.1984); Henderson v. Youngblood, 512 S.W.2d
35, 37 (Tex. Civ. App.—El Paso 1974, no writ) (superseded by statute
on other grounds); Higginbotham v. Collateral Protection Inc., 859
S.W.2d 487, 491 (Tex. App. - Houston [1st Dist.] 1993, writ denied);
Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979);
Lenamond v. N Shore Supply Co., 667 S.W.2d 283, 285 (Tex. App. -
Houston [14th Dist.] 1984, no writ); Lowery v. State, 974 S.W.2d 936,
iii
942 (Tex. App. - Dallas 1998, no pet.); Lyles v. State, 850 S.W.2d 497,
502 (Tex. Crim. App. 1993); Marquez v. State, 921 S. W.2d 217, 223
(Tex. Crim. App.1996); Montgomery v. State, 810 S.W.2d 372, 380
(Tex. Crim. App. 1990); Ferny v. State, 903 S.W.2d 715, 728 (Tex.
Crim. App.1995); People v. Abrams, 211 Cal. App.2d 773, 776, 27 Cal.
Rptr. 639, 641 (1963); Samudio v. State, 648 S.W.2d 312, 314 (Tex.
Crim. App.1983); Staten v. Maryland, 13 Md. App. 425, 430, 283 A.2d
644, 647 (1971); Stevenson v. Indiana, 163 Ind. App. 399, 404, 324
N.E.2d 509, 512 (1975); Trimble v. Tex. Dept. of Protective & Reg.
Serv., 981 S.W.2d 211, 214-15 (Tex. App. - Houston [14th Dist.] 1998,
no pet.); Wheatfall v. State, 882 S.W.2d 829 (Tex. Crim. App.1994);
Wissinger v. State, 702 S.W.2d 261, 262 (Tex. App. Houston [1st
Dist.] 1985, pet. ref d).
Review is proper, under Tex. R. App. P. 66.3 (b), because the Court Of
Appeals has rendered a decision, which encompasses an important
question of state law, which has not been, but should be, settled by this
Court.
Review is important, under Tex. R. App. P. 66.3(1), because the Court
Of Appeals has so far departed from the accepted and usual course of
judicial proceedings, as to call for an exercise of this Court's power of
supervision.
Argument And Authorities In Support Of Ground For Review
One 3
Prayer for Relief 12
Certificate of Service 13
Appendix-First Court Of Appeals Judgment & Opinion
iv
INDEX OF AUTHORITIES
CASES:
Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App.1997) iii,2,11
Childs v. Reunion Bank, 587 S.W.2d 466, 471 (Tex. Civ. App. - Dallas 1979, writ
refdn.r.e.) iii,2,9
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985) iii,2,6
Guinea v. State, 677 S.W.2d 46, 49 (Tex. Crim. App.1984) iii,2,8
Henderson v. Youngblood, 512 S.W.2d 35, 37 (Tex. Civ. App.—El Paso 1974, no
writ) (superseded by statute on other grounds) iii,2,9
Higginbotham v. Collateral Protection Inc., 859 S.W.2d 487, 491 (Tex. App. -
Houston [1st Dist.] 1993, writ denied) iii,2,9
Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979) iii,2,5
Lenamond v. N. Shore Supply Co., 667 S.W.2d 283, 285 (Tex. App. - Houston [14th
Dist.] 1984, no writ) iii,2,9
Lower); v. State, 974 S.W.2d 936, 942 (Tex. App. - Dallas 1998, no pet.) iii,2,11
Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993) iv,2,6
Marquez v. State, 921 S.W.2d 217, 223 (Tex. Crim. App.1996) iv,2,6,8,10,12
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) iv,2,6
Penry v. State, 903 S.W.2d 715, 728 (Tex. Crim. App.1995) iv,2,6
People v. Abrams ,211 Cal. App.2d 773, 776, 27 Cal. Rptr. 639, 641 (1963) iv,2,10
Samudio v. State, 648 S.W.2d 312, 314 (Tex. Crim. App.1983) iv,2,8
Staten v. Maryland, 13 Md. App. 425, 430, 283 A.2d 644, 647 (1971) iv,2,11
Stevenson v. Indiana, 163 Ind. App. 399, 404, 324 N.E.2d 509, 512 (1975) iv,3,10
Trimble v. Tex. Dep't. of Protective & Reg. Serv., 981 S.W.2d 211, 214-15 (Tex. App.
- Houston [14th Dist.] 1998, no pet.) iv,3,6
Wheatfall v. State, 882 S.W.2d 829 (Tex. Crim. App.1994) iv,3,6
Wissinger v. State, 702 S.W.2d 261, 262 (Tex. App.—Houston [1st Dist.] 1985, pet.
ref d) iv,3,5
STATUES, CODES, AND RULES:
Tex. Code Crim. Proc. Ann. art. 1.12 (Vernon 1977) 7,8
Tex. Code Crim. Proc. Ann. art. 1.13 (Vernon Supp.2000) 8.9
TEX. CONST. art. I, § 15 7.9
Tex. R. App. P. 33.1(a) 5
Tex. R. App. P. 44.2(a) 13
Tex. R. App. P. 66.3(a) iii,2,3
Tex. R. App. P. 66.3(b) iv,3
Tex. R. App. P. 66.3(f) iv,3,4
Tex. R. App. P. 68.2 viii
Tex. R. App. P. 68.4(c) vii
U.S. CONST. amend. VI 7,8
Vi
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Tex. R. App. P. 68.4(c), counsel respectfully requests oral
argument. Oral argument would be helpful in the event this petition for discretionary
review is granted. This appeal involves questions of law, questions of fact, public
policy and procedure which cannot be adequately addressed, analyzed and evaluated
through written communication alone. Oral argument is essential to emphasize the
unique characteristics of these questions and to address the unforeseeable exigencies
arising during the Court's consideration of this appeal.
STATEMENT OF THE CASE
On October 31, 2011, Donta Tremaine Browning, Appellant, was indicted for
the second degree felony offense of aggravated assault with a deadly weapon. (1 CR
at 6). The offense was alleged to have occurred on or about September 23, 2011. (1
CR at 6). On October 15, 2013, Appellant pleaded guilty to the indictment. (1 CR at
3-4). After Appellant's plea of guilty, on December 10, 2013, at a sentencing hearing,
the trial court assessed Appellant's punishment at ten (10) years of deferred
adjudication community supervision, with a $1,000.00 fine. (2 CR at 93). On January
6, 2013, Appellant timely filed his notice of appeal. (1 CR at 128).
PROCEDURAL HISTORY OF THE CASE
On February 26, 2015, the First Court of Appeals affirmed Appellant's
vii
conviction. Browning v. State, Nos. 01-14-00052-CR, slip op. at 1-4 (Tex. App.—
Houston [1st Dist.], February 26, 2015, pet. pending). On March 9, 2015, Appellant
timely filed his motion for rehearing. The First Court Of Appeals overruled and
denied Appellant's Motion For Rehearing on March 26, 2015. On April 14, 2015,
Appellant timely filed this Petition For Discretionary Review with the Clerk of the
Court Of Criminal Appeals. TEX. R. APP. P. 4.1 and 68.2.
viii
PDR No.
In The Court of Criminal Appeals of Texas
DONTA TREMAINE BROWNING, Appellant
v.
THE STATE OF TEXAS, Appellee.
On Appellant's Petition for Discretionary Review
From the First Court of Appeals,
Appeal No. 01-14-00052-CR,
On Appeal from the 240th District Court
of Fort Bend County Texas,
Cause No. 11-DCR-058541.
PETITION FOR DISCRETIONARY REVIEW
FOR APPELLANT, DONTA TREMAINE BROWNING
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW Appellant, Donta Tremaine Browning, by and through his
attorney of record, Cary M. Faden, and files this petition for discretionary review of
the February 26, 2015, decision of the First Court of Appeals of Texas in Browning
1
v. State, No. 01-14-00052-CR, slip op. at 1-4 (Tex. App. – Houston [1st Dist.],
February 26, 2015, pet. pending); and would respectfully show the Court following:
GROUNDS FOR REVIEW
GROUND ONE
THE FIRST COURT OF APPEALS ERRED IN REFUSING TO
CONDUCT A HARM ANALYSIS AND TO APPLY THE LAW IN
FINDING THE TRIAL COURT DID NOT COMMIT ERROR IN
NOT ALLOWING APPELLANT TO WITHDRAW HIS PLEA OF
GUILTY.
REASONS 10 GRANT REVIEW IN SUPPORT OF GROUNDS FOR REVIEW
Review is appropriate, under Tex. R. App. P. 66.3(a), because the Court
Of Appeals has rendered a decision, which is in conflict with the
decisions of another court of appeals on the same matter, namely:
Ground One: Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim.
App.1997); Childs v. Reunion Bank, 587 S.W.2d 466, 471 (Tex. Civ.
App. - Dallas 1979, writ rcfd n.r.e.); Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Guillett v. State, 677 S.W.2d
46, 49 (Tex. Crim. App.1984); Henderson v. Youngblood, 512 S.W.2d
35, 37 (Tex. Civ. App.—El Paso 1974, no writ) (superseded by statute
on other grounds); Higginbotham v. Collateral Protection Inc., 859
S.W.2d 487, 491 (Tex. App. - Houston [1st Dist.] 1993, writ denied);
Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979);
Lenamond v. N. Shore Supply Co., 667 S.W.2d 283, 285 (Tex. App. -
Houston [14th Dist.] 1984, no writ); Lowery v. State, 974 S.W.2d 936,
942 (Tex. App. - Dallas 1998, no pet.); Lyles v. State, 850 S.W.2d 497,
502 (Tex. Crim. App. 1993); Marquez v. State, 921 S.W.2d 217, 223
(Tex. Crim. App.1996); Montgomery v. State, 810 S.W.2d 372, 380
(Tex. Crim. App. 1990); Penry v. State, 903 S.W.2d 715, 728 (Tex.
Crim. App.1995); People v. Abrams, 211 Cal. App.2d 773, 776, 27 Cal.
Rptr. 639, 641 (1963); Samudio v. State, 648 S.W.2d 312, 314 (Tex.
Crim. App.1983); Staten v. Maryland, 13 Md. App. 425, 430, 283 A.2d
2
644, 647 (1971); Stevenson v. Indiana, 163 Ind. App. 399, 404, 324
N.E.2d 509, 512 (1975); Trimble v. Tex. Dept. of Protective & Reg.
Serv., 981 S.W.2d 211, 214-15 (Tex. App. - Houston [14th Dist.] 1998,
no pet.); Wheatfall v. State, 882 S.W.2d 829 (Tex. Crim. App.1994);
Wissinger v. State, 702 S.W.2d 261, 262 (Tex. App.—Houston [1st
Dist.] 1985, pet. ref d).
Review is proper, under Tex. R. App. P. 66.3 (b), because the Court Of
Appeals has rendered a decision, which encompasses an important
question of state law, which has not been, but should be, settled by this
Court.
Review is important, under TEX. R. APP. P. 66.3(f), because the Court
Of Appeals has so far departed from the accepted and usual course of
judicial proceedings, as to call for an exercise of this Court's power of
supervision.
ARGUMENT AND AUTHORITIES IN SUPPORT OF
GROUND FOR REVIEW ONE
In its February 26, 2015, opinion, the First Court Of Appeals affirmed
Appellant's convictions in finding the trial court did not commit error abuse its
discretion by not allowing Appellant to withdraw his plea of guilty and refused to
conduct a harm analysis.
This Court should review this issue, and review is appropriate, under Tex. R.
App. P. 66.3(a), because the Court Of Appeals has rendered a decision, which is in
conflict with the decisions of another court of appeals on the same matter; and review
is appropriate, under Tex. R. App. P. 66.3 (d), because the Court Of Appeals appears
to have misconstrued a statute, rule, regulation, or ordinance; and review is important,
3
under Tex. R. App. P. 66.3(f), because the Court Of Appeals has so far departed from
the accepted and usual course of judicial proceedings, as to call for an exercise of this
Court's power of supervision.
The First Court Of Appeals stated in its opinion: Browning was indicted for
felony aggravated assault with a deadly weapon after he was accused of using his car
to run over the friend of his girlfriend's aunt during a dispute in the aunt's front yard.
Browning pleaded guilty. The State did not recommend sentence. Instead, the case
was reset to allow a pre-sentence investigation (PSI).
At the sentencing hearing two months later, both the State and Browning
announced ready and gave their opening statements. After the first witness was sworn
in and ready to begin testifying, Browning interrupted to inform the trial court, "I
want to change my plea today to not guilty." His attorney responded, "Right now, it's
the first time he told me he intends to change his plea." The trial court denied the
request, and the sentencing hearing continued. After the State's two witnesses
testified and Browning testified against his attorney's advice, the trial court deferred
a finding of guilty and placed Browning on community supervision for ten years. The
trial court also ordered Browning to perform 400 hours of community service and pay
a $1,000 fine. Browning timely appealed.
Browning Did Not Preserve Issue of Jury-Waiver
Browning contends that the trial court erred by denying his request "to
4
that Browning did attempt to withdraw his guilty plea; however, nowhere in
the record do we find any indication that Browning attempted to withdraw his jury
waiver. Browning does not point to any document or transcript where such a
statement was made either. Because the jury-waiver withdrawal issue was not
presented to the trial court for its consideration, it is waived on appeal. TEX. R. APP.
P. 33.1(a) (requiring that complaint be made to trial court through timely request,
objection or motion to preserve issue for appellate review). Thus, the only issue to be
resolved is whether the trial court erred by denying Browning's request to withdraw
his guilty plea.
Withdrawal of Guilty Plea
A defendant may withdraw his guilty plea at any time before judgment
is pronounced or the trial court takes the plea under advisement. Jackson v.
State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979); Wissinger v. State, 702 S.W.2d
261, 262 (Tex. App.—Houston [1st Dist.] 1985, pet. ref d). A case is considered to
be "under advisement" when the trial court has admonished the defendant, received
the plea and evidence, and reset the case to allow a pre-sentencing investigation.
Jackson, 590 S.W.2d at 515; Wissinger, 702 S.W.2d at 262. Once a plea has been
taken under advisement, a request to withdraw a plea is untimely and the decision to
allow or deny the request is within the sound discretion of the trial court. Jackson,
590 S.W.2d at 515; Wissinger, 702 S.W.2d at 262. A trial court abuses its discretion
when it acts arbitrarily, unreasonably, or without reference to any guiding rules or
5
principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993); Montgomery
v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Browning did not raise the
issue of changing his plea until the sentencing hearing had already begun. He had
pleaded guilty, the PSI report had been completed and distributed, both sides had
announced ready and given their opening statements, and the first witness was on the
stand. We conclude that the record contains no evidence that the trial court abused its
discretion by denying appellant's untimely request.
Appellant contended the grant or denial of a request to withdraw a jury waiver
falls within the trial court's discretion in controlling the business of the court.
Marquez v. State, 921 S.W.2d 217, 223 (Tex. Crim. App.1996) (citing Wheatfall v.
State, 882 S.W.2d 829 (Tex. Crim. App.1994)). This Court will not reverse the trial
court's denial of a request to withdraw a waiver of jury trial unless there is a finding
of an abuse of discretion. Id. at 221-22; Trimble v. Tex. Dep't. of Protective & Reg.
Serv., 981 S.W.2d 211, 214-15 (Tex. App. - Houston [14th Dist.] 1998, no pet.). A
trial court abuses its discretion when it acts without reference to guiding rules and
principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.1990) (citing
Downer v. Aquamarine Operators, Inc., 701 S. W.2d 238, 241-42 (Tex.1985)). Stated
differently, a trial court abuses its discretion if it acts arbitrarily or unreasonably. Id.;
Trimble, 981 S.W.2d at 214-15. To determine whether the trial court abused its
discretion, we consider the record as a whole. Penry v. State, 903 S.W.2d 715, 728
6
(Tex. Crim. App.1995).
WITHDRAWAL OF WAIVER OF RIGHT TO JURY
The right to trial by jury is protected by both the United States and Texas
Constitutions. The United States Constitution provides: U.S. CONST. amend. VI.,
TEX. CONST. art. I, § 15.
This right is reiterated in the Texas Code of Criminal Procedure, which
provides "[t]he right of trial by jury shall remain inviolate." TEX. CODE CRIM.
PROC. ANN. art. 1.12 (Vernon 1977). U.S. CONST. amend. VI; TEX. CONST. art.
I, § 15; TEX. CODE CRIM. PROC. ANN. art. 1.12 (Vernon 1977). To be valid, a
waiver of this valuable right must be made in person, in writing, and in open court.
TEX. CODE CRIM. PROC. ANN. art. 1.13 (Vernon Supp.2000). Although the
method for waiving the right to a jury trial is prescribed in article 1.13 of the Texas
Code of Criminal Procedure, the manner for withdrawing such waiver is not.
To protect the inviolate nature of the right to jury trial, Texas follows the
prevailing trend allowing a defendant to withdraw his waiver where the request is
made "in good faith and there are no adverse consequences." Id. at 221-22.
"Authorities adhering to this view hold that a defendant should be permitted to
withdraw his jury waiver unless granting the request would prejudice the state, delay
the trial, impede justice, or inconvenience the witnesses, or, in some cases, unless the
defendant's request was made in bad faith." Id. at 221. Thus, the "substantive
7
standard" for allowing a withdrawal of jury waiver is "the absence of adverse
consequences to granting the withdrawal." Id. at 223.
A defendant has an absolute right to a jury trial. " In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, by an impartial jury{.]"
U.S. CONST. amend. 6. " The right of trial by jury shall remain inviolate." TEX.
CONST. art. I, § 15 & TEX. CODE CRIM. PROC. art. 1.12. As a matter of federal
constitutional law, the State must establish, on the record, a defendant's express,
knowing, and intelligent waiver of jury trial. Guillett v. State, 677 S.W.2d 46, 49
(Tex. Crim. App.1984); Sarnudio v. State, 648 S.W.2d 312, 314 (Tex. Crim.
App.1983). Article 1.13 of the Code of Criminal Procedure sets out the required
formalities of a jury-trial waiver in Texas. TEX. CODE CRIM. PROC. art. I .13(a) ("
The defendant in a criminal prosecution shall have the right, upon entering a plea, to
waive the right of trial by jury, conditioned, however, that such waiver must be made
in person by the defendant in writing in open court with the consent and approval of
the court, and the attorney representing the State." ). But once the defendant validly
waives his right to a jury trial, he does not have an unfettered right to reassert that
right. Should the defendant who wants to withdraw his prior written waiver-and is
seeking to change the status quo-have the burden to show an " absence of adverse
consequences" from granting the withdrawal? See Marquez v. State, 921 S. W.2d 217,
223 (Tex. Crim. App.1996) (plurality op.). He must establish, on the record, that his
request to withdraw his jury waiver has been made sufficiently in advance of trial
such that granting his request will not: (1) interfere with the orderly administration
8
of the business of the court, (2) result in unnecessary delay or inconvenience to
witnesses, or (3) prejudice the State. Id. A request to withdraw a jury waiver is
addressed to the discretion ofthe trial court. Id. 1fthe defendant's claims are rebutted
by the State, the trial court, or the record itself, the trial judge does not abuse his
discretion in refusing to allow the withdrawal of the waiver. Id.
Where a defendant seeks to re-assert his right to a jury trial after waiver, he has
the initial burden to establish on the record that his request to withdraw the waiver
is made sufficiently in advance of trial "such that granting his request will not (1)
interfere with the orderly administration of the business of the court, (2) result in
unnecessary delay or inconvenience to witnesses, or (3) prejudice the State." Id.
It is well-settled that a trial court should grant a motion for continuance only if:
(1) postponement of the trial would not cause injury to the adverse party; and (2) it
would not disrupt the court's docket or interfere with the administration of the court's
business. See Higginbotham v. Collateral Protection Inc., 859 S.W.2d 487, 491 (Tex.
App. - Houston [1st Dist.] 1993, writ denied) (citing Lenamond v. N. Shore Supply
Co., 667 S.W.2d 283, 285 (Tex. App. - Houston [14th Dist.] 1984, no writ); Childs
v. Reunion Bank, 587 S.W.2d 466, 471 (Tex. Civ. App. - Dallas 1979, writ refd
n.r.e.); Henderson v. Youngblood, 512 S.W.2d 35, 37 (Tex. Civ. App.—El Paso 1974,
no writ) (superseded by statute on other grounds)). Thus, in granting the continuance,
the trial court implicitly found that a delay of trial would not injure the State or
disrupt the court's business.
Appellate courts have found an abuse of discretion where the trial court grants
9
a continuance but then refuses to permit withdrawal of the defendant's waiver of jury
trial. See, e.g., Stevenson v. Indiana, 163 Ind. App. 399, 404, 324 N.E.2d 509, 512
(1975); People v. Abrams, 211 Cal. App.2d 773, 776, 27 Cal. Rptr. 639, 641 (1963)
(holding that the trial court abused its discretion in not allowing defendant to
withdraw his waiver of jury trial, where a lengthy continuance already had been
granted).
Here, granting appellant's request to withdraw his plea of guilty and withdraw
the jury waiver would not have resulted in unnecessary delay or inconvenience to
witnesses because the court already had reset the trial date in order to secure the
attendance of out-of-state witnesses. See Marquez, 921 S.W.2d at 223. Likewise,
there is nothing in the record that suggests allowing appellant to withdraw his jury
waiver would have had any adverse consequences on the State, witnesses, or the
court. In fact, by continuing the case, the court implicitly found the absence of any
such injury or interference.
In light of appellant's claims of lack of prejudice, inconvenience or interference
with court administration, it was incumbent upon either the State or the court to rebut
appellant's assertions and identify the adverse consequences, if any, that would flow
from the withdrawal. However, there is nothing in this record to rebut appellant's
claims that no adverse consequences would flow from the withdrawal of his waivers.
Under these circumstances, it was not reasonable for the trial court to have denied
appellant's request to withdraw the guilty plea and the jury waiver. The court already
had continued the sentencing trial of the case for more than a month almost two
months. Granting appellant's request would not have resulted in any additional delay
10
or inconvenience to the witnesses or the prosecution, nor would it have interfered
with the orderly administration of the court's docket. Accordingly, the court abused
its discretion in denying appellant's request to withdraw his plea of guilty and his
waiver and to proceed to trial before a jury.
Denial of a criminal defendant's constitutionally guaranteed right to a jury trial
is structural constitutional error and, therefore, reversible without a harm analysis.
Lowery v. State, 974 S.W.2d 936, 942 (Tex. App. - Dallas 1998, no pet.) (citing Cain
v. State, 947 S. W.2d 262, 264 (Tex. Crim. App.1997) (superseded by statute on other
grounds)); TEX. R. APP. P. 44.2(a). Accordingly, appellant's point of error should
be sustained.
Where, as here, a defendant makes a good faith request to withdraw his plea of
guilty and his jury waiver and no adverse consequences would flow from the
withdrawal, the court should exercise its discretion to grant the moving party the jury
trial he seeks. Failure to do so constitutes an abuse of discretion. Therefore, this Court
should reverse the trial court's judgment and remand the case with instructions to
grant appellant a new trial.
Appellant is in dispute with the First Court's opinion issued and requests that
this Court consider this Petition For Discretionary Review. Appellant urges this
Petition based upon the fact that this Court attempts to address the issues as briefed.
The Court Of Appeals lack of cited case law has departed from the accepted and usual
course of judicial proceedings and the case law cited by Appellant in his Petition For
11
Discretionary Review, as to call for an exercise of this Court's power of supervision.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant, Donta Tremaine
Browning, prays that the Court grant the Petition For Discretionary Review for
Appellant, order briefing on this cause, and set it for submission at the earliest
possible date. Moreover, upon submission and review of the appellate record and the
briefs and arguments of counsel, the Court issue an opinion resolving this conflict so
that the bench and bar of this state will know how to address and dispose of similar
issues in the future.
Respectfully submitted,
/s/CARY M. FADEN
Cary M. Faden
SBN 06768725
Counsel for Appellant
77 Sugar Creek Center Blvd., Suite 230
Sugar Land, Texas 77478
Telephone: (281) 491-6182
Facsimile: (281) 491-0049
E-Mail: caryfaden@aol.com
Attorney For Appellant
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CERTIFICATE OF COMPLIANCE, T.R.A.P., RULE 9.4(3)
In accordance with TEX. R. APP. P. 9.4(3), I Cary M. Faden, certify that this
is a computer generated document and I state that the number of words in this
document is approximately 4,490 words. I am relying on the word count of the
computer program used to prepare this document.
/s/CARY M. FADEN
Cary M. Faden
CERTIFICATE OF SERVICE
In accordance with Tex. R. App. P. 9.5, I, Cary M. Faden, certify that a true and
correct copy of the foregoing Petition For Discretionary Review has been served, by
U.S. Mail, upon Donta Tremaine Browning, to the attorney for the State Of Texas,
John F. Healey, Jr., District Attorney, Appellate Division, 301 Jackson Street, Room
101, Richmond, Texas 77469, to the State Of Texas Prosecuting Attorney, Lisa C.
McMinn, P. 0. Box 13046, Capitol Station, Austin, Texas 78711 on this the 14th day
of April, 2015.
/s/CARY M. FADEN
Cary M. Faden
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APPENDIX
JUDGMENT
Court of Zippealz
,first fi= ittrirt of Texao
NO. 01-14-00052-CR
DONTA TREMAINE BROWNING, Appellant
V.
THE STATE OF TEXAS, Appellee
Appeal from the 240th District Court of Fort Bend County.
(Tr. Ct. No. 11-DCR-058541).
This case is an appeal from the final judgment signed by the trial court on December
11, 2013. After submitting the case on the appellate record and the arguments properly
raised by the parties, the Court holds that the trial court's judgment contains no reversible
error. Accordingly, the Court affirms the trial court's judgment.
The Court orders that this decision be certified below for observance.
Judgment rendered February 26, 2015.
Panel consists of Chief Justice Radack and Justices Brown and Lloyd. Opinion delivered
by Justice Brown.
Opinion issued February 26, 2015
In The
Court of CAppealls
For The
,First ifitritt of Xexttc
NO. 01-14-00052-CR
DONTA TREMAINE BROWNING, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Case No. 11-DCR-058541
MEMORANDUM OPINION
Donta Browning pleaded guilty to aggravated assault with a deadly
weapon.' At the sentencing hearing, Browning sought to withdraw his guilty plea.
The request was denied, and Browning was sentenced to ten years' community
TEX. PENAL CODE ANN. § 22.02 (West 2011).
supervision. In one issue, Browning contends that the trial court erred by not
allowing him to withdraw his guilty plea and jury waiver. Because Browning did
not preserve the issue regarding jury waiver and the trial court did not err in
denying his request to withdraw his guilty plea, we affirm.
Background
Browning was indicted for felony aggravated assault with a deadly weapon
after he was accused of using his car to run over the friend of his girlfriend's aunt
during a dispute in the aunt's front yard. Browning pleaded guilty. The State did
not recommend sentence. Instead, the case was reset to allow a presentence
investigation (PSI).
At the sentencing hearing two months later, both the State and Browning
announced ready and gave their opening statements. After the first witness was
sworn in and ready to begin testifying, Browning interrupted to inform the trial
court, "I want to change my plea today to not guilty." His attorney responded,
"Right now, it's the first time he told me he intends to change his plea." The trial
court denied the request, and the sentencing hearing continued. After the State's
two witnesses testified and Browning testified against his attorney's advice, the
trial court deferred a finding of guilty and placed Browning on community
supervision for ten years. The trial court also ordered Browning to perform 400
hours of community service and pay a $1,000 fine.
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Browning timely appealed.
Browning Did Not Preserve Issue of Jury-Waiver
Browning contends that the trial court erred by denying his request "to
withdraw his plea of guilty and withdraw his jury waiver." The record reveals that
Browning did attempt to withdraw his guilty plea; however, nowhere in the record
do we find any indication that Browning attempted to withdraw his jury waiver.
Browning does not point to any document or transcript where such a statement was
made either. Because the jury-waiver withdrawal issue was not presented to the
trial court for its consideration, it is waived on appeal. TEX. R. APP. P. 33.1(a)
(requiring that complaint be made to trial court through timely request, objection or
motion to preserve issue for appellate review). Thus, the only issue to be resolved
is whether the trial court erred by denying Browning's request to withdraw his
guilty plea.
Withdrawal of Guilty Plea
A defendant may withdraw his guilty plea at any time before judgment is
pronounced or the trial court takes the plea under advisement. Jackson v. State, 590
S.W.2d 514, 515 (Tex. Crim. App. 1979); Wissinger v. State, 702 S.W.2d 261, 262
(Tex. App.—Houston [1st Dist.] 1985, pet. red). A case is considered to be
"under advisement" when the trial court has admonished the defendant, received
the plea and evidence, and reset the case to allow a pre-sentencing investigation.
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Jackson, 590 S.W.2d at 515; Wissinger, 702 S.W.2d at 262. Once a plea has been
taken under advisement, a request to withdraw a plea is untimely and the decision
to allow or deny the request is within the sound discretion of the trial court.
Jackson, 590 S.W.2d at 515; Wissinger, 702 S.W.2d at 262. A trial court abuses its
discretion when it acts arbitrarily, unreasonably, or without reference to any
guiding rules or principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App.
1993); Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
Browning did not raise the issue of changing his plea until the sentencing
hearing had already begun. He had pleaded guilty, the PSI report had been
completed and distributed, both sides had announced ready and given their opening
statements, and the first witness was on the stand. We conclude that the record
contains no evidence that the trial court abused its discretion by denying
appellant's untimely request.
We overrule Browning's sole issue.
Conclusion
We affirm the judgment of the trial court.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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