Munoz v. State

• Decision Date: 17 September 1992
• Docket Number: 13-91-335-CR,Nos. 13-91-334-C,s. 13-91-334-C
• Citation: 840 S.W.2d 69
• Parties: Santiago Dominguez MUNOZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 69

840 S.W.2d 69

Santiago Dominguez MUNOZ, Appellant, v. The STATE of Texas, Appellee.

Nos. 13-91-334-CR, 13-91-335-CR.

Court of Appeals of Texas Corpus Christi.

Sept. 17, 1992.

Rehearing Overruled Oct. 15, 1992.

Discretionary Review Refused Jan. 27, 1993.

Joseph Connors, III, McAllen, for appellant.

Luis V. Saenz, John A. Olson, Brownsville, for appellee.

Before NYE, C.J., and SEERDEN and GILBERTO HINOJOSA, JJ.

OPINION

NYE, Chief Justice.

Santiago Munoz appeals from two convictions of illegal investment. ¹ Both convictions resulted from plea bargain agreements. The trial court assessed punishment at eight years' imprisonment for each offense.

On cause number 1274-E, appellant brings twenty-one points of error, claiming that the judgment recitals are incorrect, that the trial court wholly failed to admonish him before accepting his guilty plea, that appellant did not personally enter his plea, and that insufficient evidence exists to convict.

On cause number 495-E, appellant complains by eleven points of error that his plea was involuntary, that his attorney rendered ineffective assistance, that insufficient evidence exists to convict, and that the trial court failed to admonish him. We affirm both judgments.

Cause Number 1274-E (13-91-334-CR)

By his first point of error, appellant complains that the judgment is incorrect because it states that appellant was sentenced pursuant to a guilty plea entered on February 4, 1991, when appellant's guilty plea was actually made on April 30, 1991. To resolve appellant's point, a review of the events leading to appellant's plea is necessary. On February 4, 1991, a plea hearing was held in which the trial court admonished appellant, and appellant entered his guilty plea according to a plea agreement. The State introduced the police officers' reports and appellant's written waiver and consent to stipulation of testimony, waiver of jury, and plea of guilty. The trial judge accepted appellant's guilty plea but refused to state whether he would follow the plea agreement until after he received a presentence investigation report.

On March 22nd, after the reports were prepared, the trial court held another hearing. Appellant's attorney informed the trial court that, since the February proceeding, appellant had been arrested for a second drug transaction. Hearing this, the court refused to follow the plea agreement, appellant withdrew his guilty plea, and the causes were set for trial.

On April 30th, appellant appeared and re-urged his guilty plea under a renegotiated agreement. The trial court asked if he should admonish appellant again, and his counsel said, "No." Nonetheless, the trial court inquired personally of appellant whether they had been through this case once before, whether the court had accepted the evidence, whether appellant wished to re-urge his plea, and whether the plea was made freely and voluntarily. Appellant personally responded affirmatively to each of these questions. After receiving these assurances that the plea was voluntary, the trial judge accepted appellant's plea.

Although the circumstances are somewhat unusual, we find no error in the judgment recitals that appellant entered his guilty plea on February 4th, the date of original entry. It was on February 4th when appellant was admonished and the evidence to support the plea was introduced. The events on April 30th were merely a reassertion of the events which already occurred. Appellant's first point of error is overruled.

By points two through fifteen, appellant claims that the trial court erred in failing to admonish him and in failing to first determine if appellant's plea was voluntary. We overrule all these points. The record shows that the trial judge orally admonished appellant on February 4th, and the admonishments complied with the Code of Criminal Procedure. Moreover, the plea papers show that appellant received and signed written admonishments. The trial judge approved the plea papers containing the written admonishments by signing a statement reciting his satisfaction with the same and ordering the documents to be filed in the papers of the case. The written documents constitute substantial compliance with Texas Code of Criminal Procedure article 26.13 (Vernon 1989). Blanco v. State, 771 S.W.2d 598, 599 (Tex.App.--Corpus Christi 1989, no pet.).

At the April 30th hearing, appellant stated that he wished to re-urge his February guilty plea. He waived re-arraignment and waived any further admonishment. Appellant told the trial court that he was pleading guilty voluntarily. A defendant in a criminal prosecution for any offense may waive any rights secured him by law except that of trial by jury in a capital felony case. TEX.CODE CRIM.PROC.ANN. art. 1.14(a) (Vernon Supp.1992). Illegal investment is not a capital felony offense. Appellant does not complain that the waiver was made without his knowledge and consent. He makes no showing that he was unaware of the consequences of his plea or that he was misled or harmed by the court's admonishment. Blanco, 771 S.W.2d at 599. We overrule points of error two through fifteen.

By points sixteen through twenty, appellant claims that the judgment is without evidentiary support since appellant withdrew his original guilty plea and his stipulation of evidence was never re-introduced. We disagree. After the trial court accepted appellant's plea on April 30th, he stated, "[H]aving accepted the [State's] evidence once before, referring back to that admission of evidence, [that leaves] only punishment." Defense counsel agreed. Appellant did not object to the trial court's adjudication of guilt based on the State's previously admitted evidence. Evidence which the parties treat as admitted is deemed admitted. See generally Heberling v. State, 834 S.W.2d 350, 355 (Tex.Crim.App. 1992); see also Cammack v. State, 645 S.W.2d 866, 868 (Tex.App.--Dallas 1983, pet. ref'd) (withdrawal of a guilty plea does not automatically result in withdrawal of judicial confession). Sufficient evidence existed such that a rational trier of fact could have found every element of the offense beyond a reasonable doubt. We overrule points sixteen through twenty.

By point twenty-one, appellant contends that the law mandates reversal because appellant did not personally plead guilty. A plea of guilty or nolo contendere in a felony case must be made in open court by the defendant in person. TEX.CODE CRIM.PROC.ANN. art. 27.13 (Vernon 1989). Appellant personally answered the trial judge in the affirmative when asked if he wanted to reurge his previous guilty plea. No evidence in the record shows that appellant did not intend to plead guilty. We find no error. Shields v. State, 608 S.W.2d 924, 927 (Tex.Crim.App.1980); Adkinson v. State, 762 S.W.2d 255, 257-60 (Tex.App.--Beaumont 1988, pet. ref'd); see generally Tindel v. State, 830 S.W.2d 135, 136-37 (Tex.Crim.App.1992).

We affirm the trial court's judgment on cause number 1274-E.

Cause Number 495-E (13-91-335-CR)

Appellant's second conviction for illegal investment also resulted from a plea bargain.

By points five, six, and seven, appellant claims that the trial court reversibly erred by denying his motion for new trial and failing to order an acquittal because the State's evidence was insufficient to support his guilty plea, and because the State failed to prove appellant's guilt as charged. Appellant stipulated that each and every allegation in the indictment was true and correct. Such language constitutes a judicial confession and is alone sufficient to support a conviction. Potts v. State, 571 S.W.2d 180, 182 (Tex.Crim.App.1978); Elliott v. State, 768 S.W.2d 351, 353 (Tex.App.--Corpus Christi 1989, no pet.). Points five, six, and seven are overruled.

In points one, two, and three, appellant claims that his guilty plea was not knowingly and voluntarily made. All of these points are based on the premise that, although appellant pleaded guilty and judicially confessed, the facts of the case show as a matter of law that he was not guilty. By point four, appellant claims that, but for his attorney's faulty advice, he would not have pleaded guilty. Because all of these points are essentially based on the assertion that appellant could not be guilty of the offense, we will review the facts in some detail.

As this was a guilty plea supported by a judicial confession, the only facts actually presented to the court were contained in a police report. The report shows that on March 19, 1991, undercover police officer Vasquez met with a man who identified himself as Francisco. Francisco stated that he had some friends who wanted to buy 200 pounds of marihuana. Vasquez and Francisco agreed on a price of $350 per pound. When Francisco stated that he had to show a sample of the marihuana to his friends, Vasquez supplied a sample, and Francisco left.

About two hours later, Vasquez contacted Francisco, who now said that his friends wanted to see a larger sample. About an hour later, Vasquez brought the larger sample to a motel room where appellant and others were located. The group approved of the marihuana, and appellant asked Vasquez when he could deliver. Vasquez said he needed about an hour. Appellant said that if everything went fine, he would buy between 200 and 500 pounds of marihuana a week, which he would take to Florida and sell. Vasquez left, telling appellant he would get 200 pounds.

About three hours later, Vasquez met with Francisco and another man, identified as Ricardo, to make the delivery. At this time, Ricardo said that they wanted to buy only thirty-five pounds and that if everything went fine, they would buy the other 165 pounds later. When Ricardo produced money, other officers moved in and made the arrest. The police confiscated $12,688.

Appellant was indicted for financing or investing funds to further the commission of the offense of aggravated delivery of marihuana. A person can be guilty...