Mendez v. State

• Decision Date: 30 June 2004
• Docket Number: No. 0817-01.,0817-01.
• Citation: 138 S.W.3d 334
• Court: Texas Court of Criminal Appeals
• Parties: John Bustamante MENDEZ, Appellant, v. The STATE of Texas.

138 S.W.3d 334

John Bustamante MENDEZ, Appellant, v. The STATE of Texas.

No. 0817-01.

Court of Criminal Appeals of Texas, En Banc.

June 30, 2004.

Appeal from the District Court, Taylor County, Billy John Edwards, J Richard Alan Anderson, Dallas, for Appellant.

Kollin Shadle, Asst. DA, Abilene, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

WOMACK, J., delivered the opinion for a unanimous Court.

In this case we resolve conflicts in our cases that have existed for over 75 years on the question of a defendant's changing a plea of guilty to a plea of not guilty when evidence that is inconsistent with guilt is introduced in a jury trial. We hold that a defendant has a right on timely request to change the plea, but that a court has no duty to do it on the court's own motion.

I. The Trial

It is undisputed that the appellant shot and killed the victim. He was indicted for the offense of murder. The court impaneled a jury. The prosecutor read to the jury only one paragraph of the indictment, which required the State to prove that the appellant intentionally or knowingly caused the victim's death. The defendant pleaded guilty. The State and the appellant introduced evidence for several days.

The fifty-four-year-old appellant was the last witness to be called in his defense. He testified about his sexual relationship with the sixteen-year-old victim, which ended when she "left" him. The appellant said that for three or four days he "stayed drunk most of the time" and used methamphetamine. He said that after the victim made taunting telephone calls to him, he put a handgun in his pants and went to the victim's place of work. When the victim locked the doors, he shot the lock to get in and "just went crazy." He shot the victim in the head.

He testified on direct examination:

Q. Now you've told the jury, you've pled guilty to knowingly and intentionally —

A. I shot her. I sure did.

Q. So whatever —

A. I did not mean to shoot her. I was going to scare her, as drunk as I was, and I hit her.

...

Q. Do you remember what you told the policeman when he came up?

A. Yeah. I told him that I thought I'd shot her, "I swear to God I think I shot her in the head."

Q. You swear to God you think you shot her.

A. I didn't even know where I'd hit her. I knew there was blood everywhere.

Q. Could you believe that you'd done that?

A. No, I didn't think I was going to hit her. I loved her more than life itself.

On cross-examination, the appellant testified:

A. I just — was in a rage; I don't remember. ... I remember pointing a gun, but I didn't point it at her, I was just going to scare her, and then I shot —

...

Q. And in the intoxicated state that you were in, from this distance, you managed to hit her right in the head.

A. I didn't never intended to hit her.

Q. Okay. You pled on Monday ... of intentionally and knowingly killing [the victim]. You did not plead to recklessly, accidentally shooting [the victim]. Which one is it, sir?

A. I didn't intend to kill her. I mean, I killed her, and I know I did, it's my fault, but —

Q. So you did not intend to kill her.

A. No, I did not.

Q. You did not knowingly kill her.

A. No. Well, I mean, I know that I killed her; she's dead.

Q. Okay. So the plea that you entered on Monday was really a fictitious plea; is that right?

A. I just didn't — didn't understand how the — why I was — the plea worked, but, I mean, I didn't — I didn't intentionally walk in there to go shoot her right in the head and kill her.

Q. Okay. Well, we went over the definitions of intentionally and knowingly in great detail with this jury panel; gave them examples. You were in the courtroom during that time. And then you entered a plea to intentionally and knowingly killing [the victim]. You still hold by that plea?

A. I did not go in there directly to shoot her, I just — I did not.

After closing the evidence, the court instructed the jury to find the defendant guilty as charged in the indictment and assess his punishment. The charge of the court required the jury to decide whether the murder was of the second degree, that is, a murder committed under the immediate influence of sudden passion arising from an adequate cause.¹ The charge also required the jury, if it assessed punishment of not more than ten years in prison, to decide whether the defendant should have a suspended sentence and community supervision.² The charge instructed the jury that evidence of temporary insanity caused by intoxication could be considered in mitigation of punishment.³

The jury found the defendant guilty of murder; it did not find that the murder was of the second degree; it assessed punishment of 99 years in prison and no fine. The court entered judgment in accordance with the verdict.

II. The Appeal

The defendant appealed, complaining that the trial court should have sua sponte withdrawn his guilty plea after the testimony raised an issue as to his guilt. The Eleventh Court of Appeals said:

The law has been that a trial court is required to sua sponte withdraw a defendant's guilty plea if the evidence reasonably and fairly raises an issue as to the innocence of the accused. See, e.g., Griffin v. State, 703 S.W.2d 193 (Tex.Cr.App.1986); Gates v. State, 543 S.W.2d 360 (Tex.Cr.App.1976). If a trial court fails to act in accordance with that rule, reversible error occurs. See Montalvo v. State, 572 S.W.2d 714 (Tex.Cr.App.1978); Woodberry v. State, 547 S.W.2d 629 (Tex.Cr.App.1977); Gates v. State, supra; Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976); Burks v. State, 145 Tex.Crim. 15, 165 S.W.2d 460 (1942). In each of these cases, the Court of Criminal Appeals held that the trial court should have sua sponte withdrawn the defendant's guilty plea and that, in failing to do so, the trial court reversibly erred. We find it to be significant that in none of those cases was there a discussion of harmless error nor was there a finding of waiver in accordance with the law as it then existed.

Recently, the Court of Criminal Appeals, in a unanimous opinion, cited TEX. R. APP. P. 33.1 and held:

Except for complaints involving fundamental constitutional systemic requirements which are not applicable here, all other complaints based on a violation of both constitutional and statutory rights are waived by failure to comply with Rule 33.1.

Ibarra v. State, 11 S.W.3d 189, 197 (Tex.Cr.App.1999). Structural errors (those which involve fundamental constitutional systemic requirements) are those which defy analysis by harmless error standards. Manley v. State, 23 S.W.3d 172, 175 (Tex.App.-Waco 2000, pet'n ref'd), citing Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Salinas v. State, 980 S.W.2d 219 (Tex.Cr.App.1998); Foster v. State, 8 S.W.3d 445 (Tex.App.-Waco 1999, no pet'n). The Court of Criminal Appeals has held that questions regarding the voluntariness of a plea do not defy harm analysis and, therefore, do not involve fundamental constitutional systemic requirements. Cain v. State, 947 S.W.2d 262, 264 (Tex.Cr.App.1997). In Cain, the court stated:

Except for certain federal constitutional errors labeled by the United States Supreme Court as "structural," no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis. (Emphasis added)

Even if we assume that, under the record in this case, the trial court should have withdrawn appellant's guilty plea on its own motion, the inquiry does not end. Without deciding the effect, if any, that Ibarra and Cain have on a trial court's duty to sua sponte withdraw a guilty plea under these circumstances, we hold that, under the current state of the law, appellant has waived any error by failing to call it to the trial court's attention.

Rule 33.1 provides in relevant part:

(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:

(1) the complaint was made to the trial court by a timely request, objection, or motion that:

(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and

(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and

(2) the trial court:

(A) ruled on the request, objection, or motion, either expressly or implicitly; or

(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

Appellant did not preserve his complaint in accordance with Rule 33.1 regarding the trial court's failure to sua sponte withdraw his guilty plea. As a result of that failure, any error is waived. We note that this very issue has been decided recently by the Waco Court of Appeals in Williams v. State, 10 S.W.3d 788 (Tex.App.-Waco 2000, pet'n ref'd). See also Foster v. State, supra. The first point of error is overruled.⁴

III. Our Review

In this case and in the Williams case that the Eleventh Court cited, the courts of appeals were right to overrule appellants' complaints about trial courts' failing to withdraw pleas of guilty when evidence inconsistent with guilt was introduced before juries. We granted review, not to reverse the judgments of the courts below, but to clarify this area of the law.

Past decisions of this court made the tasks of the courts of appeals in these cases difficult in more than one way. The rules for deciding whether a complaint may be presented on appeal were made indistinct by a sentence in our Ibarra opinion which the courts of appeals quoted.

A. "Structural Errors" and "Systemic Requirements"

In the opinion below and in the Williams case that it cited,⁵ the courts of appeals have mixed the concept of "systemic requirement," which has to do...