Peraza v. State

• Decision Date: 30 December 2014
• Docket Number: NO. 01–12–00690–CR, NO. 01–12–00691–CR,01–12–00690–CR
• Citation: 457 S.W.3d 134
• Parties: Osmin Peraza, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

457 S.W.3d 134

Osmin Peraza, Appellant

v.The State of Texas, Appellee

NO. 01–12–00690–CR

NO. 01–12–00691–CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued December 30, 2014

State's Petition for Discretionary Review Granted March 18, 2015.

Appellant's Petition for Discretionary Review Refused March 25, 2015.

Jani Maselli, Assistant Public Defender, Houston, TX, for appellant.

Devon Anderson, District Attorney, Jessica Akins, Assistant District Attorney, Houston, TX, for State.

Panel consists of Justices Jennings, Sharp, and Brown.

OPINION

Terry Jennings, Justice

Appellant, Osmin Peraza, without an agreed punishment recommendation from the State, pleaded guilty to two separate offenses of aggravated sexual assault of a child less than fourteen years of age.¹ The trial court assessed his punishment at confinement for twenty-five years for each offense, with the sentences to run concurrently. In four issues, appellant contends that each judgment contains an erroneous and unsupported “Sheriff's Fee” and an unconstitutional “DNA Record Fee,” the trial court erred in not permitting him to withdraw his guilty pleas, and it erred in denying him a hearing on his motions for new trial and in arrest of judgment.

We modify the trial court's judgments and affirm as modified.

Background

A Harris County Grand Jury issued a true bill of indictment, accusing appellant of committing two separate offenses of aggravated sexual assault of a child less than fourteen years of age. After his arrest, appellant failed a polygraph test and then admitted to a police officer that he had committed the offenses. He subsequently pleaded guilty to committing the offenses. In his plea papers, appellant admitted that he had intentionally and knowingly caused both the mouth of the complainant, a person younger than fourteen years of age, to contact his sexual organ and the sexual organ of the complainant to contact his sexual organ. In each case, appellant also signed written admonishments, representing that he was mentally competent, understood the nature of the charge against him and the consequence of his plea, and freely and voluntarily pleaded guilty to the offense. Appellant's attorney signed the plea papers, affirming that she believed that appellant had executed his pleas knowingly, voluntarily, and after a full discussion of the consequences of his pleas. The trial court found sufficient evidence of appellant's guilt in both cases and that appellant had entered his guilty pleas freely, knowingly, and voluntarily. And it admonished appellant of his legal rights, accepted his guilty pleas, and ordered a presentence investigation in each case.

At the sentencing hearing, appellant moved to withdraw his guilty pleas, arguing that they had been coerced. After finding that appellant had pleaded guilty freely and voluntarily, the trial court denied his motion.

In its judgment of conviction in each case, the trial court ordered appellant to pay $634 in court costs, including, as part of the “Sheriff's Fee,” a $50 charge for “serving capias”² and a $5 charge for an arrest without a warrant or capias.³ The trial court also included within the $634 of court costs a $250 “DNA Record Fee.”⁴ Appellant then filed his motions for new trial and in arrest of judgment, which the trial court denied without a hearing.

Withdrawal of Guilty Pleas

In his first issue, appellant argues that the trial court erred in denying his motion to withdraw his guilty pleas because he did not enter the pleas voluntarily.

A defendant may withdraw his guilty plea at any time before judgment is pronounced or the trial court takes the plea under advisement. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App.1979) ; State v. Ellis, 976 S.W.2d 789, 792 (Tex.App.–Houston [1st Dist.] 1998, no pet.). Once a plea has been taken under advisement or guilt has been adjudicated, however, a request to withdraw the plea is untimely, and the withdrawal of the plea is within the sound discretion of the trial court. Jackson, 590 S.W.2d at 515 ; Ellis, 976 S.W.2d at 792. After the trial court has admonished the defendant and received the plea and evidence, the passage of the case for a presentence investigation constitutes taking the case under advisement. See Jackson, 590 S.W.2d at 514–15 ; Wissinger v. State, 702 S.W.2d 261, 262–63 (Tex.App.–Houston [1st Dist.] 1985, pet. ref'd). Because appellant did not request that his guilty pleas be withdrawn until after the trial court had taken his cases under advisement, we review the trial court's denial of his motion to withdraw his pleas for an abuse of discretion.

A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex.Crim.App.1993) ; Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990). To show that the trial court abused its discretion when it refused to allow appellant to withdraw his guilty pleas, he must show that “the trial court's rulings lie outside the zone of reasonable disagreement.” Jagaroo v. State, 180 S.W.3d 793, 802 (Tex.App.–Houston [14th Dist.] 2005, pet. ref'd).

Appellant first argues that there is no evidence that he voluntarily entered his pleas because there is no record of the trial court's oral discussion with him of his legal rights. We consider the entire record in determining whether a plea was entered voluntarily. Fimberg v. State, 922 S.W.2d 205, 207 (Tex.App.–Houston [1st Dist.] 1996, pet. ref'd). A prima facie presumption that a defendant voluntarily and knowingly pleaded guilty arises when the trial court finds that the defendant was properly admonished. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App.1998) ; see also Tex.Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp.2014) (guilty pleas may not be accepted unless mentally competent defendant enters plea freely and voluntarily). When the record presents a prima facie showing that the plea was entered voluntarily and knowingly, “the burden shifts to the defendant to show that he entered the plea without understanding the consequences.” Arreola v. State, 207 S.W.3d 387, 391 (Tex.App.–Houston [1st Dist.] 2006, no pet.).

Here, the absence of a recorded plea colloquy, alone, does not overcome the presumption that appellant was properly admonished and understood the consequences and nature of his pleas.See Dusenberry v. State, 915 S.W.2d 947, 949–52 (Tex.App.–Houston [1st Dist.] 1996, pet. ref'd) (concluding guilty plea voluntary because defendant received written admonishments of legal rights). Although the plea colloquy was not recorded, appellant received written admonishments of his legal rights, affirmed that he was mentally competent and understood the nature of the charges against him and the consequences of his pleas, and agreed that he freely and voluntarily pleaded guilty in each case. Further, the plea papers show that appellant's trial counsel and the trial court both verified that appellant entered his guilty pleas freely, knowingly, and voluntarily, after having fully discussed his pleas and their consequences with counsel. On this record, there is no evidence that appellant was not properly admonished or failed to understand the consequence or nature of his pleas.

In regard to appellant's assertion that his guilty pleas were coerced, we note that “a plea is involuntary when it is ‘induced by threats, misrepresentations, or improper promises' ” by the prosecutor, judge, or law enforcement officials. Rios v. State, 377 S.W.3d 131, 136 (Tex.App.–Houston [1st Dist.] 2012, pet. ref'd) (quoting Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App.2006) ). Moreover, we presume the regularity of the judgments and proceedings, and appellant has the burden of overcoming this presumption. Dusenberry, 915 S.W.2d at 949.

Appellant presented no evidence that his guilty pleas were actually coerced. At his sentencing hearing, appellant's trial counsel suggested that appellant was coerced into pleading guilty because the jury was “on the way” and appellant had failed a polygraph test immediately before admitting to a police officer that he had committed the sexual-assault offenses. The record, however, contains no evidence that anyone coerced appellant into pleading guilty. Appellant voluntarily submitted to a polygraph test, and neither his failure of the polygraph test, nor the immediacy of a jury trial, constituted a threat, misrepresentation, or improper promise. Thus, appellant has not overcome the presumption that he knowingly and voluntarily entered his pleas.

When appellant requested to withdraw his guilty pleas, the trial court had taken his cases under advisement and reset them for a punishment hearing. Because the trial court had already admonished appellant of his legal rights and he had already voluntarily pleaded guilty, his request to withdraw his pleas was untimely, and the trial court had discretion to accept or deny his motion. See Jackson, 590 S.W.2d at 515.

Accordingly, we hold that the trial court did not err in denying appellant's motion to withdraw his guilty pleas.

We overrule appellant's first issue.

Court Costs for Arrest

In his second issue, appellant argues that the trial court's judgments are invalid because they each contain an erroneous and unsupported “Sheriff's Fee.” Appellant asserts that, “[a]t the very least, the $50.00 Sheriff's Fee [for serving a capias] should be removed” from the $634 in court costs assessed against him in each judgment.

A criminal defendant must pay certain statutorily mandated costs and fees, which vary depending on the type of offense, the underlying facts, and the procedural history of the case. See Tex. Gov't Code Ann. § 102.021 (Vernon Supp.2014) (listing court costs upon conviction); Tex. Loc. Gov't Code Ann. § 133.102 (Vernon Supp.2014) (same). The district court clerk must keep a record of each fee or cost charged for a service rendered in a criminal action or proceeding. Tex....