Opinion
No. 04-04-00612-CR
Delivered and Filed: June 1, 2005. DO NOT PUBLISH.
Appeal from the 379th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-1286, Honorable Fred Shannon, Judge Presiding. Affirmed.
The record reflects that the Honorable James E. Barlow took Escamilla's plea and admitted the State's evidence at a hearing on May 26, 2004. The Honorable Fred Shannon presided over the sentencing hearing on August 2, 2004.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Appellant Juan Escamilla appeals his conviction for aggravated sexual assault and indecency with a child. Pursuant to a plea bargain agreement, Escamilla entered a no contest plea to one count of aggravated sexual assault and one count of indecency with a child. At the plea hearing, the trial court took Escamilla's plea and admitted the State's evidence, but deferred making a finding of guilt until a pre-sentence investigation was completed. At the sentencing hearing, the trial court denied Escamilla's request to withdraw his plea, found Escamilla guilty of both counts and, in accordance with the plea bargain agreement, sentenced Escamilla to twenty years imprisonment in the Texas Department of Criminal Justice — Institutional Division and a $1,200 fine on each count. In two issues on appeal, Escamilla contends his plea was involuntary, and the trial court erred by denying his request to withdraw his no contest plea. We affirm the trial court's judgment in this memorandum opinion under Tex.R.App.P. 47.4 for the following reasons:
1. Escamilla first contends his plea was involuntary because he was mentally compelled to enter a no contest plea after his attorney advised him a jury was likely to assess a fifty year sentence; he did not understand that entering a no contest plea was equivalent to entering a guilty plea; and the trial court did not inquire whether he had been forced, threatened, coerced, or induced into pleading no contest. The record does not support Escamilla's contention that his plea was involuntary.In order for a plea of nolo contendere to be appropriate, it must be made freely and voluntarily. Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 1989). Proper admonishments by the trial court create a prima facie showing that a plea of guilty or nolo contendere was entered knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998). When the record reflects that a defendant was duly admonished, the defendant has the burden to demonstrate that he did not fully understand the consequences of his plea such that he suffered harm. Id. In considering the voluntariness of a nolo contendere plea, we must examine the record as a whole. Id. The record reflects that Escamilla reviewed and signed the trial court's written admonishments, which included the statement: "I have not been threatened, coerced, or placed in fear by any person to induce me to enter my plea." The trial judge asked Escamilla if he understood that by entering a no contest plea, the trial court had the authority to find him guilty of the charged offense, and he answered affirmatively. Escamilla also stated he understood that the trial court was not required to follow the terms of the plea agreement for sentencing. The trial court found Escamilla to be mentally competent and that he understood he would be required to register as a sex offender as a consequence of his plea. The record shows Escamilla understood the consequences of entering his plea. Escamilla also complains his plea was involuntarily induced by his fear he risked a fifty year sentence if he insisted on a jury trial. However, this is not the "fear" that article 26.13 was designed to protect against. The leading case pertaining to voluntary pleas is Boykin v. Alabama, 395 U.S. 238 (1969). In discussing the type of activities to be guarded against during a plea of guilty, the court stated that "[i]gnorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality." Id. at 242-43. The possibility of a harsher prison sentence from a jury trial is a reality every defendant faces. Because the record does not support Escamilla's contention that his plea was involuntary, we overrule his first issue. 2. In his second issue, Escamilla contends the trial court abused its discretion in denying his request to withdraw his plea. We disagree. Escamilla's request to withdraw his plea was made after the trial court took his case under advisement. See DeVary v. State, 615 S.W.2d 739, 740 (Tex.Crim.App. 1981) (setting a case for pre-sentence investigation constitutes "taking the case under advisement"). Once the trial court takes a case under advisement, the trial court has discretion to deny the defendant's permission to withdraw his no contest plea. See id. (it was not an abuse of discretion to deny defendant's request to withdraw his plea when request was made after the court had taken the case under advisement); Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App. 1979) (same). At the hearing, Escamilla stated he wished to withdraw his plea because he involuntarily entered it when he was afraid a jury would assess a harsher sentence than his plea bargain, and he was confident a jury would find him not guilty. Although Escamilla claimed a jury might find him not guilty, he also assured the trial court in writing that he understood the effects of his no contest plea and that his plea was voluntary. Thus, the trial court was under no obligation permit Escamilla to withdraw his plea. DeVary, 615 S.W.2d at 740; Jackson, 590 S.W.2d at 515. We overrule Escamilla's second issue. The trial court's judgment is affirmed.