## (£aurt ofAppeals 

## IFtf ttj Itsirtrt of©*>xas at lallas JUDGMENT EJIKEME OKECHUKWU NDUKA, Appellant No. 05-94-01959-CR V. THE STATE OF TEXAS, Appellee 

### Appeal from the 291st Judicial District Court ofDallas County, Texas. (Tr.Ct.No. F94-00169-HU). 

### Opinion delivered by Chief Justice Thomas, Justices Bridges and Roach also participating. 

### Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. 

### Judgment entered September 15, 1998.

LR<DATHOMAS CHIEF JUSTICEAFFIRM and Opinion Filed September 15, 1998

In The 

## Court nfAppeals 

## JtfttfItstrtrt of(Eexas at latias No. 05-94-01959-CR EJIKEME OKECHUKWU NDUKA, Appellant V. THE STATE OF TEXAS, Appellee On Appealfrom the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. F94-00169-HU OPINION Before ChiefJustice Thomas and Justices Bridges and Roach Opinion By ChiefJustice Thomas 

### EjikemeOkechukwuNduka appeals his conviction forengaging in organizedcriminal activity. The sole issue is whether the trial court abused its discretion in denyingappellant's motion to withdraw his guilty plea. For the reasons stated, we affirm the trial court's judgment. 

### Appellant was to be triedwith co-defendant Janet Mitchell. Prior to trial, appellantfiled a motion to sever his case from Mitchell's. The basis of the motion to sever was that 

### (i) the trial would be lengthy because of Mitchell's participation and (ii) Mitchell had agreed to testify on his behalfifseparate trials were held. Appellantfiled an affidavit from Mitchell in which Mitchell agreed to testify, if there were separate trials, that appellant had no knowledge of any ongoing criminal activity; otherwise Mitchell would exercise her right to 

### remain silent during the joint trial.1 The trial court denied appellant's motion to sever. On September 30, 1994, appellant signed a waiver of a jury trial and judicial confession, was admonished, and pleaded guilty before a magistrate. The magistrate entered a findingthat the evidence was sufficient to prove appellant's guilty and ordered the 

### "case passed to 10/3/94for further adjudication if any, and punishment." The district court adopted the magistrate's actions. On October 20, 1994, at the sentencing hearing, appellant moved to withdraw his guilty plea. Appellant argued that the onlyreason he pleaded guilty

was because the trial court denied his motion to sever. He testified that Mitchell would now be available as a defense witness because she had entered a guilty plea in her case. The trial court tookjudicial notice that appellant had filed the Mitchell affidavit in connection with the motion to sever. The trial court denied appellant's motion to withdraw. 

### It is undisputed that the appellate standard of review in this case is "abuse of discretion." A trial court abuses its discretion if its decision lies outside a "zone of

1Mitchell's affidavit isnot a partofourrecord. The contentof theaffidavit isfrom theinformation provided intheparties briefs.

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### reasonable disagreement." SeeMontgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g); Gottson, 940 S.W.2d 181, 187 (Tex. App.--San Antonio 1996, pet. refd). In the plea papers, appellantwaived the right to the appearance, confrontation, and cross-examination of witnesses. Appellant further consented to written stipulation of the 

### evidence and agreed to the introduction of his judicialconfession into evidence. Appellant judiciallyconfessed his guilt to the offense as charged. SeeDinnery v. State, 592S.W.2d 343, 353 (Tex. Crim. App. 1980) (op. on reh'g) (en banc); Wright v. State, 930 S.W.2d 131, 133 

### (Tex. App.--Dallas 1996, no pet.) (judicial confession sufficiently proves guilt). Appellant never retracted his judicial confession to the offense. Furthermore, appellant did not produce Mitchell or a new affidavit. Thus, there was no evidence of Mitchell's proposed 

### testimony or the fact that she was still willing to testify on appellant's behalf. On this record, we cannot conclude that the trial court abused its discretion in denying appellant's 

### motion to withdraw his guilty plea. Accordingly, we overrule appellant's sole point oferror and affirm the trial court's judgment.

Do Not Publish Tex. R. App. P. 47

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