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 35th 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, the trial court convicted Michael Homer 

Reyna, 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 an enhancement 

allegation. The trial court found the enhancement allegation to be true and assessed 

Appellant’s punishment at confinement for twenty years. Appellant brings two 
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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 it 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 during the night, J.M.

got up and went to her bedroom; B.R. and 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 lips, 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 Department, 

interviewed Appellant. 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. Appellant also told Detective Thomas that it was not until the next morning that 

he realized that B.R. was on the couch. 

 1

Brooke Reynolds was a pseudonym used in the trial court to protect the identity of the victim. 
3

After Detective Thomas had interviewed Appellant, Department of Public 

Safety Trooper Anthony Bennett, along with Detective Thomas, 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 in 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 Bennett both 

testified about Appellant’s pretrial denials of the offense. Those pretrial denials, 

Appellant claims, created 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. TEX. R. APP. P. 33.1(a); Taylor v. State, No. 11-10-00264-CR, 2011 

WL 2991851, at *3 (Tex. App.—Eastland July 21, 2011, pet. ref’d) (mem. op., not 

designated for publication). 

Even if Appellant 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 evidence when it found him guilty. He relies upon 
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Moon v. State, 572 S.W.2d 681 (Tex. Crim. App. 1978), and TEX.CODE CRIM. PROC.

ANN. 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 plea of guilty or nolo contendere—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 682; 

see Aldrich, 104 S.W.3d at 894. However, we find nothing in Moon, nor in 

Article 1.15, to support an argument that a trial court must expressly state that it 

considered 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 Bennett’s 

testimony, in which they testified about Appellant’s pretrial denials of the offense,

effectively served as a withdrawal 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 CRIM. PROC. art. 27.02 (West 2006) (plea of guilty and nolo contendere are 

of the same legal effect). The record does not show that Appellant took any 

affirmative action to withdraw his plea of no contest in the trial court. Evidence of 

pretrial denials does not constitute an affirmative withdrawal of a defendant’s plea 

of guilty or no contest. We overrule Appellant’s second issue on appeal.
5

We affirm the judgment of the trial court. 

JIM R. WRIGHT

SENIOR CHIEF JUSTICE

February 7, 2019

Do not publish. See TEX. R. APP. 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.