Opinion
No. 13-05-370-CR
Memorandum Opinion Delivered and Filed January 3, 2006. Dissenting Memorandum Opinion delivered and Filed April 13, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the County Court at Law No. 3 of Cameron County, Texas.
Before Justices YAÑEZ, CASTILLO, and GARZA.
MEMORANDUM OPINION
Relator, the State of Texas, ex rel. Armando R. Villalobos, County (Criminal District) Attorney, Cameron County, Texas, filed a petition for writ of mandamus with this Court on June 9, 2005. By this petition, the State requests this Court to direct the trial court to withdraw a judgment of acquittal for real party in interest, C. Douglas Wright. According to the State, the trial court had a ministerial duty to enter a judgment of conviction following Wright's plea of nolo contendere. We deny the petition for writ of mandamus.
I. Background
C. Douglas Wright was charged with driving while intoxicated, a violation of the duty upon striking fixture, and unlawfully carrying a weapon. At arraignment, the State and Wright recounted the terms of plea agreements that had been discussed. However, Wright, who was represented by substitute counsel, entered "open" pleas of nolo contendere to the charges. The trial court admonished Wright, found that the pleas were voluntarily and intelligently made, and accepted the pleas. The court informed Wright that the effect of the plea was that "you allow the Court to listen to the testimony. . . . I can decide your guilt or innocence, I can decide your punishment." The State and Wright introduced evidence and argument regarding the charges. Wright denied the intoxication charge. Wright's counsel raised, without objection, the "traveling" defense to the charge of unlawfully carrying a weapon, and then moved for a judgment of acquittal based on insufficient evidence as to the other two charges. The State objected:Your Honor, for the record, I would object to Mr. Cisneros' interpretation of a no contest plea. I believe it would have the same legal effect as a guilty plea. However, that being said, Your Honor, we have no opposition to deferred adjudication, minimal time limit of probation on each of the offenses.The trial court stated that it believed it was the court's duty to hear the evidence "because sometimes defendants don't know better," and that it was within the court's authority to find the defendant not guilty of the charge. Without further objection, the trial court deferred the finding of guilt on the failure of duty upon striking fixture, placed Wright on a six month period of probation, and assessed a fine of $300.00. The trial court found Wright not guilty of the charges of driving while intoxicated and unlawfully carrying a weapon. The State has not elected to challenge the trial court's rulings regarding the failure of duty or the weapon charge. The State attacks the trial court's acquittal on the driving while intoxicated charge through this writ of mandamus and by appeal in appellate cause no. 13-05-268-CR.
II. Standard of Review
Mandamus relief may be granted if the relator shows the following: (1) that the act sought to be compelled is purely ministerial and (2) that there is no adequate remedy at law. De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex.Crim.App. 2004); Winters v. Presiding Judge of the Crim. Dist. Court No. Three, 118 S.W.3d 773, 775 (Tex.Crim.App. 2003); State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex.Crim.App. 2003). An act is ministerial if it does not involve the exercise of any discretion. Winters, 118 S.W.3d at 775. Additionally, the relator must have a "clear right to the relief sought," meaning that the merits of the relief sought are "beyond dispute." In re Rodriguez, 77 S.W.3d 459, 461 (Tex.App.-Corpus Christi 2002, orig. proceeding). The requirement of a clear legal right necessitates that the law plainly describe the duty to be performed such that there is no room for the exercise of discretion. See id.III. Analysis
The State contends that the trial court did not have the authority to find Wright not guilty because Wright had entered an "open" plea of nolo contendere. A plea of nolo contendere, or no contest, is the equivalent of a plea of guilty insofar as criminal prosecution is concerned. See Tex. Code Crim. Proc. Ann. § 27.02(5); Lucero v. State, 502 S.W.2d 750, 752 (Tex.Crim.App. 1973). According to the State, Wright's plea of nolo contendere was conclusive of Wright's guilt and the trial court had a ministerial duty to enter a judgment of conviction. We disagree. First, nothing in article 27.14 or the case law cited by the State requires the trial court to enter a verdict on the plea. See Tex. Code Crim. Proc. Ann. art. 27.14(a) (Vernon 1989 Supp. 2004-05). Rather, the principle underlying the article and cases construing the article is that the validity of a conviction following a plea of guilty or nolo contendere can be sustained by the plea itself, without the necessity of proving facts substantiating the guilt of the defendant. See, e.g., Dees v. State, 676 S.W.2d 403, 404 (Tex.Crim.App. 1984) (plea as conclusive of defendant's guilt); Perez v. State, 831 S.W.2d 884, 886 (Tex.App.-Houston [14th Dist.] 1992, no pet.) (plea is sufficient, standing alone, to support conviction). Second, although the defendant may not have the absolute right to withdraw his plea in a misdemeanor proceeding, see Gutierrez v. State, 108 S.W.3d 304, 309 (Tex.Crim.App. 2003) (en banc), the trial court retains discretion to allow the defendant to withdraw his plea. A liberal practice has prevailed in Texas concerning the withdrawal of a guilty plea. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App. 1979); Saldana v. State, 150 S.W.3d 486, 490 (Tex.App.-Austin 2004, no pet.). When a defendant pleads guilty without a plea agreement and judgment has been pronounced or the case has been taken under advisement, the trial court's decision whether to allow a defendant to withdraw his plea is discretionary. See Zinn v. State, 35 S.W.3d 283, 286 (Tex.App.-Corpus Christi 2000, pet. ref'd) (citing Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App. 1979); Rivera v. State, 952 S.W.2d 34, 35 (Tex.App.-San Antonio 1997, no pet.); Thompson v. State, 852 S.W.2d 268, 270 (Tex.App.-Dallas 1993, no pet.)). Abuse of that discretion is shown only when the trial court's ruling lies outside the zone of reasonable disagreement. Watson v. State, 974 S.W.2d 763, 765 (Tex.App.-San Antonio 1998, pet. ref'd) (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g)). We conclude that the trial court retained discretion to enter a judgment of acquittal in this matter, and accordingly, the State has failed to show that the entry of a judgment of conviction was a ministerial task. De Leon, 127 S.W.3d at 5.IV. Conclusion
The Court, having examined and fully considered the petition for writ of mandamus, is of the opinion that relator has not shown itself entitled to the relief sought. The petition for writ of mandamus is DENIED. See Tex.R.App.P. 52.8(a).DISSENTING MEMORANDUM OPINION
At a hearing convened on a plea of no contest, the trial court entered a judgment of acquittal on grounds of legally insufficient evidence. The relator seeks a writ of mandamus from this Court directing the respondent trial court to vacate that judgment. In denying extraordinary relief, the majority concludes that the trial court retained discretion to enter a judgment of acquittal on grounds that the State failed to show that entry of a judgment of conviction, in lieu of acquittal, was a ministerial task. Because the accused confessed guilt, I conclude that the evidence is legally sufficient. Accordingly, the trial court had a non-discretionary duty to enter a judgment of conviction. Thus, I would conditionally grant relief because binding rules and precedent from a court of superior jurisdiction compel entry of a judgment of conviction.
I. Relevant Facts
The information alleged that, on or about November 20, 2004, the defendant unlawfully operated a motor vehicle in a public place while intoxicated. The record contains a document signed by the accused, his defense counsel, and the prosecutor, confessing guilt. That document contains the following statement:I confess that I committed the offense as alleged in the State's information and that each element of the State's pleading is true. In open court I freely and voluntarily enter my plea of guilty/nolo contendere to the offense charged in the information and request the Court to make immediate disposition of this case based upon my plea.The document also reflects the trial court's finding as follows: After consulting with the defendant and informing the defendant of the nature of the charges, all rights and the consequences of the plea of guilty/nolo contendere, the defendant waived arraignment and with the advice of counsel, decided not to contest the case. The Court finds that the defendant is competent and that the plea was entered only after the defendant knowingly, intelligently, and voluntarily waived the right to a trial by jury; and all other rights set out above. The Court hereby accepts this plea which is (is not) the result of a plea bargain agreement with the prosecuting attorney . . . The Court finds that there is sufficient information in the record to permit the meaningful exercise of sentencing discretion. The document was executed by the parties and the trial court on March 30, 2005, the same date of the plea hearing. During the plea hearing, on the trial court's questioning as to plea agreements on three charges stemming from the same incident, the defendant responded, "I understood the offer to allow me to enter a no contest plea on a deferred adjudication to the one charge. . . . And although I don't think there is evidence on that charge, I was willing to do that and did agree to that." This colloquy ensued:
The Court: So since the plea-whatever was offered is a little bit different from what you understood, if you enter a plea, you would be entering a cold plea on all three as cold pleas.
The defendant: On no contest?
The Court: No contest.
The Defendant: I think I would prefer to do that, Judge.
The Court: Very well. That's fine. Let me go ahead and we'll get some plea forms for you. Can you get some for Mr. Wright?The trial court provided the statutory admonishments including, among other things, that the effect of the defendant's plea was to waive the constitutional right to force the State to prove the allegations beyond a reasonable doubt. The trial court asked the defendant if he understood his constitutional rights, and he responded he did. The trial court further admonished:
If you enter a plea of guilty or nolo contendere, no contest, the effect of these pleas is that you waive these constitutional rights; you allow the Court to listen to the testimony. Based on what I hear that's read into the record off a report or a statement, I can decide your guilt or innocence, I can decide your punishment. Do you understand the effect of your pleas?The defendant responded affirmatively. The trial court effected the written admonishments:
The Court: Very well. These three plea forms, one in each case, they set out this information I just explained to you. If you'll please review these forms, sign the back where it reads "defendant," I'll keep those forms in your file as evidence that you have been admonished of these very important rights.Next, the trial court accepted the plea of nolo contendere. The trial court found that the defendant was competent and that the plea was voluntarily and intelligently made. After the prosecutor summarized the evidence, the trial court asked the defendant what happened. Admitted into evidence was the defendant's affidavit, attesting, among other things, that he "consumed no alcoholic beverages prior to [his] arrest on November 20, 2004." In open court, the defendant admitted he drank the night before:
The Court: All right. The officer, I heard from the evidence, smelled an odor of alcohol. Do you know what that —
The Defendant: I had not had any alcoholic beverage on the 20th.
The Court: Which was that day, evening, nighttime. . . . Had you been drinking the evening before, earlier?
The Defendant: Much earlier. I was at a birthday dinner for Mr. Rodriguez.
The Court: Okay. Do you recall what you consumed, what you were drinking? Wine?
The Defendant: Beer. I had I think one glass of wine and I had two beers.The judgment of acquittal reflects that (1) the cause was regularly reached and called for trial and that the parties announced ready for trial, (2) the defendant entered a plea of not guilty to the charge, (3) the plea was entered of record in the minutes of the court, (4) the defendant and the State agreed in writing to waive a jury and submit the cause to the court, and (5) having heard the State's evidence, the trial court found the defendant not guilty.
II. Relief by Mandamus
Mandamus may compel a trial court to rule a certain way on an issue that is clear and indisputable, such that its merits are beyond dispute, or when the law clearly spells out the duty to be performed with such certainty that nothing is left to the discretion or judgment, whether that law is derived from statute, rule, or opinion of a superior court. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 n. 3 (Tex.Crim.App. 2003) (citing State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927-28 n. 3, n. 5 (Tex.Crim.App. 2001)). Mandamus will not lie even under these circumstances if the aggrieved party has a right to appeal since the right to appeal is usually considered an adequate legal remedy. Hill, 34 S.W.3d at 928 n. 5.III. Nolo Contendere Plea and Legal Sufficiency
When a defendant enters a nolo contendere plea before the trial court in a misdemeanor case, he, in effect, is admitting every element of the offense charged. See Dees v. State, 676 S.W.2d 403, 404 (Tex.Crim.App. 1984). A plea of nolo contendere in a misdemeanor case may be made either (1) by the defendant or (2) by his counsel in open court, and (3) in such case, the defendant or his counsel may waive a jury, and (4) the punishment may be assessed by the court either upon or without evidence, at the discretion of the trial court. See TEX. CODE CRIM. PROC. ANN. art. 27.14(a) (Vernon Supp. 2005). Prior to accepting a plea of nolo contendere, the court shall provide certain statutory admonitions. TEX. CODE CRIM. PROC. ANN. art. 26.13 (Vernon Supp. 2005). The admonitions may be oral or in writing. TEX. CODE CRIM. PROC. ANN. art. 26.13(d) (Vernon Supp. 2005). If the court makes the admonitions in writing, it must receive a statement signed by the defendant and the defendant's attorney that evidences the defendant understands the admonitions and is aware of the consequences of his plea. Id. The trial court shall not accept the plea unless it appears that the defendant is mentally competent and the plea is free and voluntary. TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (Vernon Supp. 2005). The defendant may waive any rights secured him by law. TEX. CODE CRIM. PROC. ANN. art. 1.14(a) (Vernon 2005). Upon entering a plea, the defendant shall have the right to waive the right of trial by jury, provided that such waiver must be made (1) in person by the defendant (2) in writing, (3) in open court, and (4) with the consent and approval of both the court and the attorney representing the State. TEX. CODE CRIM. PROC. ANN. art. 1.13(a) (Vernon 2005). The consent and approval by the court shall be entered on the record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea. Id. The legal effect of a plea of nolo contendere in a misdemeanor case is the same as that of a plea of guilty. Tex. Code Crim. Proc. Ann. art. 27.02(5) (Vernon 1989); Lucero v. State, 502 S.W.2d 750, 752 (Tex.Crim.App. 1973). A plea of guilty is sufficient in a misdemeanor case to sustain a conviction. Brown v. State, 507 S.W.2d 235, 238 (Tex.Crim.App. 1974).IV. Application of the Law to The Facts
The plain language of articles 1.13(a) and 27.14(a) of the code of criminal procedure contemplates that, where the plea of nolo contendere in a misdemeanor case is before the trial court, (1) the defendant must waive his right to trial by jury in writing in open court, and (2) the trial court may assess punishment, with or without evidence. Lucero, 502 S.W.2d at 752 (citing TEX. CODE CRIM. PROC. ANN. art. 27.02(5) (Vernon 1989)). A judicial confession, standing alone, is an acceptable method of providing sufficient evidence to sustain a conviction on a nolo contendere plea. See Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. [Panel Op.] 1980) (per curiam) (op. on reh'g) (stating that a judicial confession is generally defined as a confession made in a legal proceeding). Because the defendant by his nolo contendere plea admits every element of the offense and because he waives in open court his right to confront witnesses, the trial court need not hear evidence on the plea. See Tex. Code Crim. Proc. art. 1.13, art. 27.14(a) (Vernon 2005), Dees, 676 S.W.2d at 404. Thus, because a plea of nolo contendere in a misdemeanor case is conclusive of culpability, there is no question about the sufficiency of the evidence. See Ex parte Williams, 703 S.W.2d 674, 678 (Tex.Crim.App. 1986); see also Ex parte Martin, 747 S.W.2d 789, 791-92 (Tex.Crim.App. 1988). In this case, the defendant, represented by counsel, waived the right to trial by jury in writing and in open court with the consent and approval of the trial court and the State. The defendant affirmed that his plea was knowingly and voluntarily made and that he was aware of the consequences of his plea. After being duly admonished orally and in writing, he unequivocally entered in writing a plea of nolo contendere before the trial court and waived in writing the right of confrontation. He made the following judicial admission in writing:I confess that I committed the offense as alleged in the State's information and that each element of the State's pleading is true.The defendant's judicial confession encompasses the essential elements of the charged offense. The defendant's affidavit stating that he consumed no alcoholic beverages on the morning of the arrest does not negate his judicial confession or his open admission to the trial court that he consumed wine and two beers the night before. Once the plea was entered and accepted by the court, there was no longer a question of sufficiency of the evidence as to the defendant's guilt. See Ex Parte Williams, 703 S.W.2d at 678. Because the defendant pleaded nolo contendere, the plea itself is sufficient to support his conviction. See Price v. State, 866 S.W.2d 606, 611 (Tex.Crim.App. 1993); Ex parte Martin, 747 S.W.2d at 792; Ex parte Williams, 703 S.W.2d at 678; Dees, 676 S.W.2d at 404; Avila v. State, 884 S.W.2d 896, 897 (Tex.App.-San Antonio 1994, no pet.).
V. Relief
Neither party contends that relator has an adequate remedy by way of appeal. Indeed, relator has unsuccessfully attempted an appeal before this Court in State v. Wright, No. 13-05-268-CR, 2005 Tex. App. LEXIS ____ (Tex.App.-Corpus Christi November 2005). Thus, relator has satisfied the first requirement for mandamus relief. Rosenthal, 98 S.W.3d at 198; Hill, 34 S.W.3d at 927. However, whether relator has established that he has a clear right to the relief sought, namely to compel a "ministerial" act, is where the majority and I diverge. A trial judge has the discretion to determine facts at issue and the law which governs those facts, unless the court is presented with an issue where there is no factual dispute, and clear, binding and unequivocal precedent compels resolution of the issue in only one manner. See Rosenthal, 98 S.W.3d at 198; State ex rel. Healey v. McMeans, 884 S.W.2d 772, 781 (Tex.Crim.App. 1994) (Baird, J., concurring on reh'g.) In that event, he has a ministerial duty to resolve the matter as compelled by law. Rosenthal, 98 S.W.2d at 198; McMeans, 884 S.W.2d at 781. An act is said to be ministerial when the law clearly spells out the duty to be performed and does so with such certainty that nothing is left to the exercise of discretion or judgment. McMeans, 884 S.W.2d at 774 (citing Texas Dep't of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Crim.App. 1981)). Based on these principles, I respectfully conclude that the trial court was presented a matter without a factual dispute, namely the accepting of the nolo contendere plea and entry of judgment of conviction with appropriate punishment. The defendant freely and voluntarily confessed guilt, was statutorily admonished, waived his right to trial by jury, and waived his right to confrontation of the witnesses against him. The question of legal sufficiency to sustain the conviction did not arise. See TEX. CODE CRIM. PROC. ANN. art. 27.14(a) (Vernon 2005); Ex Parte Williams, 703 S.W.2d at 678. "The defendant who pleads guilty is . . . convicted on his counseled admission in open court that he committed the crime charged against him." Young v. State, 8 S.W.3d 656, 662 (Tex.Crim.App. 2000). "So far as the Constitution of the United States is concerned, a voluntary and knowing plea of guilty is a sufficient basis for a judgment of guilt." Id. at 661. Accordingly, because the judicial action "ignored clear, binding precedent from a court of superior jurisdiction," controlling the issue before it, I respectfully conclude that the trial court had a duty clearly fixed and required by law and, thus, "ministerial." Curry v. Gray, 726 S.W.2d 125, 128 (Tex.Crim.App. 1987) (op. on reh'g.). The duty must be accomplished without the exercise of discretion or judgment. Id. at 128. The duty was to enter a judgment of conviction. See Hill, 34 S.W.3d at 929. Mandamus may lie to compel a trial court "to rule a certain way" on an issue that is clear and indisputable such that its merits are beyond dispute or when the law clearly spells out the duty to be performed with such certainty that nothing is left to discretion or judgment, whether that law is derived from statute, rule, or opinion of a superior court. Rosenthal 98 S.W.3d at 198 (citing Hill, 34 S.W.3d at 928 n. 5). Of course, mandamus will not lie even under these circumstances if the aggrieved party has a right to appeal. Id.VI. Conclusion
Because the performance of the act is clearly imposed by law, relator has established that under the relevant law and facts, (1) he has a clear right to the relief sought, namely, to compel a "ministerial act" and (2) he has no adequate remedy by appeal. Rosenthal, 98 S.W.3d at 198. Respectfully, I would conditionally grant the writ. See Healey, 884 S.W.2d 772; TEX. R. APP. P. 52.8 (c).DISSENTING MEMORANDUM OPINION ON MOTION FOR REHEARING
In the State's direct appeal, by separate opinions, we decided that, essentially, the State had not shown its appeal is authorized. On motion for rehearing, the State asserts that the appealed-from order is in actuality either an order arresting judgment or an order granting a new trial and, thus, appealable under article 44.01. See Tex. Code Crim. Proc. Ann. art. 44.01 (Vernon Supp. 2005). Our review is limited to jurisdictional questions. Wooldridge v. State, 158 S.W.3d 484, 485 (Tex.Crim.App. 2005); see State v. Gutierrez, 129 S.W.3d 113, 115 (Tex.Crim.App. 2004) (holding that it is error to focus on merits of State's appeal in determining whether State's appeal is statutorily authorized). Another panel of this Court recently found appellate jurisdiction on grounds that entry of an instructed verdict served as "both a functional acquittal [of the greater charged offense] and grant of a new trial." See State v. Cook, No. 13-04-533-CR, 2006 Tex. App. LEXIS 460, 7-8 (Tex.App.-Corpus Christi, January 19, 2006) (not designated for publication). Accordingly, guided by the rationale in Cook, I agree with the State that, in this case, the trial court's entry of an acquittal was the functional equivalent of granting a new trial. See id. Because the State is statutorily authorized to appeal the grant of a new trial, I conclude we have jurisdiction. TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(3). Because the State's appeal is tied to its request for extraordinary relief, I would grant the motions in both proceedings.
The State is entitled to appeal an order of a court in a criminal case if the order arrests or modifies a judgment or grants a new trial. TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(2), (3) (Vernon Supp. 2005).