Gonzales v. State

• Decision Date: 18 February 1998
• Docket Number: No. 04-96-00941-CR,04-96-00941-CR
• Citation: 963 S.W.2d 844
• Parties: Basilio GONZALES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 844

963 S.W.2d 844

Basilio GONZALES, Appellant, v. The STATE of Texas, Appellee.

No. 04-96-00941-CR.

Court of Appeals of Texas,

San Antonio.

Feb. 18, 1998.

John W. Bull, Pearsall, for Appellant.

Lynn Ellison, Dist. Atty., Reynaldo Padilla Morin, Asst. Dist. Atty., Jourdanton, for Appellee.

Before HARDBERGER, C.J., and LPEZ and FRANK MALONEY, ¹ JJ.

OPINION

FRANK MALONEY, Justice (Assigned).

Appellant pleaded guilty before the court to an indictment charging him with the offense of possession of a controlled substance with intent to deliver. In accordance with the plea agreement, Appellant was sentenced to 30 years confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Appellant proffers two points:

Point One: That his plea of guilty was not made knowingly and voluntarily because he did not understand the English language and was unable to read the written admonishments, and the admonishments were not explained to him; therefore, he did not understand the consequences of his plea.

Point Two: His plea was not knowingly and voluntarily made because he did not receive the effective assistance of counsel.

We begin by stating that Appellant may challenge only the jurisdiction of the district court to accept his plea and the voluntariness of the plea itself, having filed only a general notice of appeal. Flowers v. State, 935 S.W.2d 131, 134 (Tex.Crim.App.1996).

POINT ONE

The gravamen of Appellant's complaint on appeal in his first point is that because he did not understand the English language, he was not able to read the written admonishments, which were in English, and therefore he did not understand the consequences of his plea.

The Texas Code of Criminal Procedure article 26.13 states:

"(b) No plea of guilty ... shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.

(c) In admonishing the Defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.

(d) The court may make the admonitions required by this article either orally or in writing. If the court makes the admonitions in writing, it must receive a statement signed by the defendant and the defendant's attorney that he understands the admonitions and is aware of the consequences of his plea ..."

TEX.CODE CRIM. PROC. ANN. art. 26.13 (Vernon 1989).

Appellant does not contest that the record reflects that he signed his name to the written court's admonitions as well as to a waiver and that he orally represented to the trial judge at the plea hearing that he had read and understood the admonitions and was voluntarily pleading guilty. See attached Appendix--Chronology, July 18, 1996, and September 17, 1996. Appellant correctly states that the voluntariness of a plea is determined by the totality of the circumstances surrounding the entry of the plea (citing Munoz v. State, 840 S.W.2d 69, 74 (Tex.App.--Corpus Christi 1992, pet. ref'd)) and that the written admonitions signed by the Appellant and the court reporter's record showing that Appellant orally represented to the court that he understood the admonitions constitute a prima facie showing that the plea was voluntary. Fuentes v. State, 688 S.W.2d 542, 544 (Tex.Crim.App.1985); Crawford v. State, 890 S.W.2d 941, 944 (Tex.App.--San Antonio 1994, no pet.).

We said in Hinkle v. State, 934 S.W.2d 146 (Tex.App.--San Antonio 1996, pet ref'd), that it is the trial judge's responsibility to ascertain whether a guilty plea is voluntarily and knowingly given in light of the totality of the circumstances. Hinkle, 934 S.W.2d at 148. In Edwards v. State, 921 S.W.2d 477 (Tex.App.--Houston [1st Dist.] 1996, no pet.), the Houston Court of Appeals stated that once the defendant and trial counsel have signed written admonishments, statements, or waivers, and the judge has established that the defendant has read and understood the admonishments, the judge is not required to orally inquire about voluntariness of the plea. Edwards, 921 S.W.2d at 479.

In this case, the record shows that the Appellant received and signed the admonishments and waivers; thus a prima facie showing exists that the guilty plea was knowing and voluntary. The burden, therefore, shifted to the Appellant to show that he entered a plea without knowledge of its consequences. Rodriguez v. State, 933 S.W.2d 702, 706 (Tex.App.--San Antonio 1996, pet. ref'd), Harling v. State, 899 S.W.2d 9, 13 (Tex.App.--San Antonio 1995, pet. ref'd); Miller v. State, 879 S.W.2d 336, 338 (Tex.App.--Houston [14th Dist.] 1994, pet. ref'd); Hernandez v. State, 885 S.W.2d 597, 601 (Tex.App.--El Paso 1994, no pet.).

Appellant contends that he did not understand the English language and was not able to read the plea papers himself, citing affidavits that were filed with the district clerk and ordered by this court as a supplementary filing. See Appendix--Chronology, April 11, 1997, April 23, 1997, and April 29, 1997.

In Thomas v. State, 932 S.W.2d 128 (Tex.App.--San Antonio 1996, no pet.), we held that a trial court is not required to orally admonish the defendant after it has received the defendant's affidavit of admonishment, as long as the trial court has no notice that the defendant did not in fact understand the admonishments and consequences of his plea. Thomas, 932 S.W.2d at 130. Appellant contends, however, that he raised the involuntariness of his plea in his pro-se Motion For Withdrawal of Plea and Motion ForRehearing (see Appendix--Chronology, October 1, 1996, October 11, 1996, and November 25, 1996), and that once the Motion For Withdrawal of Plea and Motion ForRehearing was filed, the trial judge was on notice of Appellant's non-comprehension of the consequences of his plea. Appellant argues that the court had an opportunity to cure the error by granting a hearing allowing Appellant to withdraw his plea or a new trial. See State v. Evans, 843 S.W.2d 576 (Tex.Crim.App.1992).

The motions alluded to by Appellant (assuming, arguendo, that they were properly verified, see Connor v. State, 809 S.W.2d 560, 563-4 (Tex.App.--Austin 1991) (discussing requirements for inmates' motions for new trial found in Civil Practices and Remedies Code, sections 132.001-132-003), vacated on other grounds, 877 S.W.2d 325 (Tex.Crim.App.1994)), raise the issue of voluntariness of Appellant's plea of guilty (see Appendix-Chronology, October 1, 1996, and October 11, 1996), and were timely filed within the period prescribed by Texas Rule of Appellate Procedure 21.4. ² However, there is nothing in the record to show that the pro-se motion for new trial was presented to the trial court within the 75-day period from the date the court imposed sentence in open court. See T EX. R.APP. P. 21.6 (Vernon 1997); Musgrove v. State, 960 S.W.2d 74, 75-6, (Tex.Crim.App. 1998) (discussing what the term "present" means and upholding presentment of a motion for new trial because the court did rule on the motion); see also Carranza v. State, 960 S.W.2d 76, 77-8, (Tex.Crim.App. 1998).

In the case at bar, the motion for new trial was denied without order, as a matter of law. See TEX.R.APP. P. 21.8(c) (Vernon 1997). It is also clear that the affidavits supplementing the record on appeal (see Appendix--Chronology, April 11, 1997) were never presented to the trial court for its consideration in support of the motion for new trial. The motion for new trial had been denied as a matter of law before the affidavits were obtained and filed with the trial court.

We, therefore, find that error was not committed by the trial court in accepting Appellant's plea of guilty, there being nothing presented to the trial court to indicate that Appellant's plea of guilty was not voluntary or that Appellant could not understand the nature and consequences of his plea.

POINT TWO

Appellant contends that his plea was not made knowingly and voluntarily because he did not receive effective assistance of counsel. He argues that before the plea and at the time the plea was entered, counsel failed to determine whether Appellant could read the admonishments or needed an interpreter in order to fully understand the rights he was waiving by pleading guilty, and that counsel was further ineffective by failing to verbally explain the written admonishments to Appellant before obtaining his signature on the plea documents.

The issue of ineffective assistance of counsel concerning the motion for new trial or the appeal is not before us. Only the issue of ineffective assistance of counsel as to the plea of guilty is before us. A plea of guilty is not knowingly and voluntarily made if it is made as a result of ineffective assistance of counsel. Ex parte Burns, 601 S.W.2d 370, 372 (Tex.Crim.App.1980). A guilty plea's validity depends on whether it was entered voluntarily, knowingly, and intelligently, but if it was entered upon the advice of an attorney, its validity depends on whether counsel was reasonably competent and rendered effective assistance. Curry v. State, 861 S.W.2d 479, 483 (Tex.App.--Fort Worth 1993, pet. ref'd). To successfully attack a guilty plea on the basis of ineffective assistance of counsel, Appellant must show that counsel's alleged deficiencies, i.e. incompetency, resulted in the plea being unknowingly and involuntarily made. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Ex parte Adams, 707 S.W.2d 646, 648 (Tex.Crim.App.1986); Dusenberry v. State, 915 S.W.2d 947, 949 (Tex.App.--Houston [1st Dist.] 1996, pet. ref'd).

In support of his contention, Appellant cites Diaz v. State, 905 S.W.2d 302 (Tex.App.--Corpus Christi 1995, no pet.), and Morales v. State, 910 S.W.2d 642 (Tex.App.--Beaumont 1995, pet. ref'd). The principles of law stated in both Diaz and Morales are applicable here, but there...