Opinion filed February 7 , 2019



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 17

- 00074

- CR

__________ MICHAEL HOMER REYNA , Appellant
V.
THE STATE OF TEXAS , Appellee

On Appeal from the 35 th District Court Brown County , Texas Trial Court Cause No. CR24380

M E M O R A N D U M O P I N I O N After an agreed unified bench trial, t he trial court convicted Michael Homer
Re y n a , upon his open plea of “ no contest,” of the second

- degree felony offense of indecency with a child

. Appellant entered a plea of “not true” to a n enhancement allegation . The trial court found the enhancement allegation to be true and assessed Appellant’s punishment at confinement for twenty years. Appellant brings two2 issues on appeal
, both of which are related to the effectiveness of his plea of no

contest

. We affirm. Appellant urges in Issue One that the trial court erred when i t failed to consider
all the evidence at the time it accepted his no

- contest plea

. Appellant bases his claim on an argument that
, because the evidence at trial created a fact issue on an essential element of the offense charged , the trial court should not have accepted his plea

. The evidence at trial established that the alleged offense took place at Appellant’s cousin’s home in Brownwood. B.R. , 1 the victim, went to Appellant’s
cousin’s home to visit and stay the night with Appellant’s cousin , J.M. ; Appellant

was there too

. B.R. and J.M. fell asleep on the couch in the living room
, and Appellant fell asleep on the floor near the couch

. Sometime d uring the night, J.M.

g ot up and went to her bedroom ; B.R. a nd Appellant were then alone in the living

room

. B.R. testified that
, at some point during the night, she woke up because Appellant asked her to “come here

. ” B.R. testified that
, when she did, Appellant
kissed her on her lip s , rubbed her sexual organ from outside her clothes, and told her not to tell anyone. B.R. left the living room and immediately told J.M.’s sister, who reported it to her mother

. After B.R. ’ s mother found out about the incident, she reported it to the police. Harold Thomas, a detective for the Brownwood Police De partment , interviewed Ap pellant

. Detective Thomas testified that Appellant said that , although
he was alone with B.R. in the living room
, he did not have any physical contact with
her . Ap pellant also told Detective Thomas that it was not until the next m orning that
he realized that B.R. was on the couch.

1 Brook e Reynolds was a p seudonym used in the trial court to protect the identity of the victim.3 After Detective Thomas had interview ed Appellant, Department of Public Safety Trooper Anthony Bennett , along with Detective Tho mas, interviewed Appellant

. Appellant did not tell Trooper Bennett the same story that he had told Detective Thomas, even though Detective Thomas was present at the second
interview

. Detective Thomas and Trooper Bennett both testified that
, in the second
interview
, Appellant admitted that he had engaged i n physical contact with B.R. but that Appellant said that B.R. had initiated it

. Detective Thomas and Trooper Bennett
also testified that Appellant claimed that B.R. grabbed Appellant’s hand and brought
it into contact with B.R.’s “ vaginal area

. ” Appellant told Trooper Bennett that he rejected B.R.’s advance and that he had not kissed her

. On appeal, Appellant asserts that Detective Thomas and Trooper Bennet t both
testi fied about Appellant’s pretrial denial s of the offense

. Those pretrial denials
, Appellant claims, create d fact issues as to the sexual contact element of the offense

. Appellant argues that the trial court erred when it failed to consider those denials
when it accepted his plea. In the trial court, Appellant did not claim that the trial court should have stated explicitly that it had considered all the evidence. As a result, Appellant has waived his complaint. T EX

. R. A PP . P. 33.1(a ); Taylor v. State , No. 11

- 10

- 00264

- CR, 2011 WL 2991851, at *3 (Tex. App.

— Eastland Ju ly 21, 2011, pet

. ref’d) (mem. op., not designated for publication)

. Even if A ppellant did not waive his complaint , he cannot prevail. Initially, Appellant does not refer us to anything in the record that would support a conclusion
that the trial court did not consider all the evidence. Appellant suggests that the trial court should have affirmatively stated for the
record that it considered all the evide nce when it found him guilty

. He relies upon4 Moon v. State , 572 S.W.2d 681 (Tex. Crim. App. 1978)
, and T EX

. C ODE C RIM

. P ROC

. A NN

. art. 1.15 (West 2005 ) to support his contention.
Moon stands for the proposition that a trial judge in a bench trial has no sua sponte duty to withdraw a p lea of guilty or nolo contend e re

— even when evidence
inconsistent with a defendant’s plea is presented. Id. at 682 ; see Aldrich v. State
, 104 S.W.3d 890, 893

– 94 (Tex. Crim. App. 2003). Under Moon , the trial court in a
bench trial is only required to consider all the evidence submitted and, as the finder of fact, determine a defendant’s guilt and punishment. Moon , 572 S.W.2d at 68 2 ;

see Aldrich , 104 S.W.3d at 894

. However, w e find nothing in Moon , nor in
Article 1.15, to support an argument t hat a trial court must expressly state that it
consider ed all the evidence. Taylor , 2011 WL 2991851, at *3. We overrule Appellant’s first issue on appeal. Appellant argues in his second issue on appeal that he “ effectively withdrew ”
his plea. Appellant admits that he did not ask the trial court to withdraw his plea
, but he contends that Detective Thomas’ s testimony and Trooper Benne t t’s testimony , in which they testified about Appellant’s pretrial denials of the offense, effectively served as a withdr a w al of his plea

. Appellant cites Mendez in support of his position

. Mendez v. State , 138 S.W. 3d 334 (Tex. Crim. App. 2004)

. However,
the court in Mendez held that
, after a defendant waives his right to plead not guilty,
he must timely seek to withdraw his plea before he may reclaim his right to plead not guilty

— he must “take some affirmative action to don the armor again.” Id. at 350 ; see C RIM

. P ROC

. art. 27.02 (West 2006 ) (plea of guilty and nolo contend e re are of the same legal effect)

. The record does not show that Appellant took any affirmati ve action to withdraw his plea of no contest in the trial court

. E vidence of pretrial denials does not constitute an affirmative withdrawal of a defendant’s plea of guilty or no contest. W e overrule Appellant’s second issue on a ppeal.5 We affirm the judgment of the trial court.

JIM R. WRIGHT
SENIOR CHIEF JUSTICE

February 7 , 2019
Do not publish

. See T EX

. R. A PP

. P. 47.2 (b). Panel consists of: Bailey, C.J.
, Stretcher, J., and Wright, S.C.J. 2
Willson, J., not participating.

2 Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.