Pena v. State, 13-01-00067-CR.

• Decision Date: 08 April 2004
• Docket Number: No. 13-01-00068-CR.,No. 13-01-00069-CR.,No. 13-01-00067-CR.,13-01-00067-CR.,13-01-00068-CR.,13-01-00069-CR.
• Citation: 132 S.W.3d 663
• Parties: Michael PENA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

132 S.W.3d 663 Michael PENA, Appellant,
v.
The STATE of Texas, Appellee. No. 13-01-00067-CR. No. 13-01-00068-CR. No. 13-01-00069-CR. Court of Appeals of Texas, Corpus Christi-Edinburg. April 8, 2004.

[132 S.W.3d 665]

John Grogan Kearney, Corpus Christi, for appellant.

Carlos Valdez, Nueces County Dist. Atty., Jill S. Williams, Asst. Dist. Atty., Corpus Christi, for appellee.

Before Justices HINOJOSA, YAÑEZ, and GARZA.

OPINION

Opinion by Justice HINOJOSA.

Pursuant to a plea agreement, appellant, Michael Pena, pleaded "guilty" in cause number 13-01-00067-CR to the second degree felony offense of burglary of a habitation.¹ The trial court found him guilty and, in accordance with the agreement, assessed his punishment at ten years imprisonment. Appellant also pleaded "true" to the State's allegations in two motions to revoke community supervision filed in cause numbers 13-01-00068-CR and 13-01-00069-CR. In both cases, the trial court found that appellant had violated the conditions of his community supervision, revoked the community supervision, and assessed punishment at two years confinement in a state jail facility. All three sentences were ordered to run concurrently. The trial court has certified that it gave appellant permission to appeal these three cases. See Tex.R.App. P. 25.2(a)(2). In a single issue, appellant contends he was denied due process of law when the trial court accepted his plea of guilty and sentenced him under a purported plea bargain that he had not knowingly and voluntarily entered into. We affirm.

A. VOLUNTARINESS OF THE PLEA AGREEMENT

Before accepting a plea of guilty or no contest, article 26.13 of the Texas Code of Criminal Procedure requires a trial court to admonish the defendant as to the range of punishment, as well as to other consequences of his plea. Tex.Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp.2003); Tabora v. State, 14 S.W.3d 332, 334 (Tex.App.-Houston [14th Dist.] 2000, no pet.). The "range of punishment" for article 26.13 purposes does not include community supervision, and there is no mandatory duty for the trial court to admonish a defendant regarding his eligibility for community supervision. Tabora, 14 S.W.3d at 334. The admonishments may be made either orally or in writing. Tex.Code Crim. Proc. Ann. art. 26.13(d) (Vernon 1989). If the admonishments are made in writing, the defendant and his attorney must sign a statement that the defendant understood the admonitions and was aware of the consequences of the guilty plea. Id.

The purpose of article 26.13 is to ensure that only a constitutionally valid plea is entered by the defendant and accepted by the trial court. Meyers v. State, 623 S.W.2d 397, 402 (Tex.Crim.App.1981); see also Basham v. State, 608 S.W.2d 677, 678 (Tex.Crim.App.1980). To be constitutionally valid, a guilty plea must be knowingly and voluntarily made. Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). "The overriding concern is whether a defendant has been deprived of due process and due course of law." Ex parte Lewis, 587 S.W.2d 697, 700 (Tex.Crim.App.1979).

However, the rule that a guilty plea must be voluntary, especially as it concerns consequences, is not without limits. Gomez v. State, 921 S.W.2d 329, 332 (Tex.App.-Corpus Christi 1996, no pet.) (citing Ex parte Evans, 690 S.W.2d 274, 277 (Tex.Crim.App.1985)). A plea is not

132 S.W.3d 666

involuntary solely because the accused pleads guilty out of a desire to limit the possible penalty. Id. (citing Flakes v. State, 802 S.W.2d 844, 853 (Tex.App.-Houston [14th Dist.] 1990, pet. ref'd)). In fact, if the record establishes that the trial court properly admonished the defendant about the consequences of his plea, there is a prima facie showing that the guilty plea was entered knowingly and voluntarily. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App.1998); Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex.Crim.App.1985); Dorsey v. State, 55 S.W.3d 227, 235 (Tex.App.-Corpus Christi 2001, no pet.). The burden then shifts to the defendant to show that he pleaded guilty without understanding the consequences of his plea and, consequently, suffered harm. Martinez, 981 S.W.2d at 197; Ex parte Gibauitch, 688 S.W.2d at 871; Dorsey, 55 S.W.3d at 235. In determining the voluntariness of a plea, we consider the totality of the circumstances, viewed in light of the entire record. Martinez, 981 S.W.2d at 197; Ybarra v. State, 93 S.W.3d 922, 925 (Tex.App.-Corpus Christi 2002, no pet.). Once a defendant has pleaded guilty and attested to the voluntary nature of his plea, he bears a heavy burden at a subsequent hearing to demonstrate a lack of voluntariness. Ybarra, 93 S.W.3d at 925.

In the present case, the trial court held a combined hearing on the indictment presented in cause number 13-01-00067-CR as well as the motions to revoke appellant's community supervision in cause numbers 13-01-00068-CR and 13-01-00069-CR. The record clearly shows that the trial court admonished appellant at length concerning the consequences of his plea. The trial court's written admonishments informed appellant that for the offense of burglary of a habitation, he could be imprisoned for a term of not more than twenty years or less than two years, and in addition, be assessed a fine not to exceed $10,000. Additionally, the trial court orally...