Miller v. State, A14-92-01126-CR
| Decision Date | 16 June 1994 |
| Docket Number | No. A14-92-01126-CR,A14-92-01126-CR |
| Citation | 879 S.W.2d 336 |
| Parties | Larry MILLER, Appellant, v. The STATE of Texas, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Kenneth W. Smith, Houston, for appellant.
Linda A. West, Houston, for appellee.
Before J. CURTISS BROWN, C.J., and MURPHY and ELLIS, JJ.
Appellant, Larry Miller, is in the auto repair business and was indicted for swindling eight customers. Appellant was doing business as the "Mobile Mechanic" when he was indicted for either wrongfully repossessing customers' cars, keeping customers' cars after repairs were completed, or for making customers pay more than was originally quoted for repairs on their automobiles. Appellant plead nolo contendere to theft, and the trial court placed him on deferred adjudication probation for three years. Appellant raises five points of error. We affirm the judgment of the trial court.
In order to appeal a nonjurisdictional defect from a no contest plea, appellant must comply with the extra notice requirements of Rule 40(b)(1) of appellate procedure. Davis v. State, 870 S.W.2d 43, 46-47 (Tex.Crim.App.1994). Rule 40(b)(1) requires that the notice of appeal state "that the trial court granted permission to appeal or shall specify that those matters were raised by written motion and ruled on before trial." TEX.R.APP.P. 40(b)(1). An appellant failing to comply with Rule 40(b)(1) waives nonjurisdictional defects. Davis, 870 S.W.2d at 46-47. However, an appellant may challenge the voluntariness of his plea. TEX.CODE CRIM.PROC.ANN art. 26.13(b) (Vernon 1989); Soto v. State, 837 S.W.2d 401, 404 (Tex.App.--Dallas 1992, no pet.).
In his fifth point of error, appellant argues that his plea was involuntary because he was not admonished in accordance with article 26.13 of the Code of Criminal Procedure. Because the record on appeal only consists of the transcript, we are unable to determine exactly what the trial judge said to appellant. However, the judgment states that appellant plead guilty after being admonished of the consequences of his plea. In addition, the docket sheet indicates that the trial court admonished appellant of the consequences of his plea in open court.
In providing article 26.13(a) admonishments, the trial court's substantial compliance is sufficient unless the defendant shows that he was not aware of the consequences of his plea and that he was mislead or harmed by the admonishment of the court. TEX.CODE CRIM.PROC.ANN. art. 26.13(c) (Vernon 1989). When the record shows that the defendant received an admonishment on punishment, it is a prima facie showing that the guilty plea was knowing and voluntary. Fuentes v. State, 688 S.W.2d 542, 544 (Tex.Crim.App.1985). The burden then shifts to the defendant to show that he entered his plea without understanding the consequences of such plea. Id. When the record is otherwise silent, we will presume the correctness of a recital in the judgment regarding the voluntariness of a guilty plea. Ford v. State, 848 S.W.2d 776, 777 (Tex.App.--Houston [14th Dist.] 1993, no pet.). Appellant's fifth point of error is overruled.
We are unable to rule upon appellant's other points of error because appellant's notice of appeal did not meet the...
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...ref ’ d ). The burden then shifts to the defendant to establish that he did not understand the consequences of his plea. Miller v. State, 879 S.W.2d 336 (Tex. App.—Houston [14th Dist.] 1994, pet. ref ’ d ). An applicant seeking habeas corpus relief on the basis of an involuntary guilty plea......
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Pretrial Motions
...ref ’ d ). The burden then shifts to the defendant to establish that he did not understand the consequences of his plea. Miller v. State, 879 S.W.2d 336 (Tex.App.— Houston [14th Dist.] 1994, pet. ref ’ d ). An applicant seeking habeas corpus relief on the basis of an involuntary guilty plea......
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