Opinion
No. 05-07-00330-CR
Opinion issued April 16, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 282nd Judicial District Court Dallas County, Texas, Trial Court Cause No. F06-68571-S.
Before Justices MORRIS, WRIGHT, and MOSELEY. Opinion By Justice MORRIS.
MEMORANDUM OPINION
In this case, Juan Medina pleaded guilty to a jury for the offense of aggravated robbery. Following his conviction, he now complains his plea was not made knowingly and voluntarily because the record does not demonstrate compliance with the Vienna Convention and with article 26.13(a)(1) of the Texas Code of Criminal Procedure. We affirm the trial court's judgment. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in the case is well settled. In appellant's first issue, he complains his plea was not made knowingly or voluntarily because the record fails to show the State complied with the Vienna Convention in his case. Appellant did not raise this complaint at trial. Accordingly, he may not now complain of it on appeal. See Tex. R. App. P. 33.1(a); Ex parte Medillin, 223 S.W.3d 315, 332 (Tex.Crim.App. 2006), aff'd, Medillin v. Texas, No. 06-984, 552 U.S. ___, 128 S. Ct. 1346 (2008). We resolve appellant's first issue against him. In his second issue, appellant complains his guilty plea was entered unknowingly and involuntarily because he was not admonished properly about the punishment range in his case. The clerk's record in the case contains a plea agreement signed by all the parties on December 13, 2006. The agreement shows the applicable punishment range for appellant's offense to be that of a second degree felony — two to twenty years' confinement and an optional fine not to exceed $10,000. Appellant chose to reject the plea deal and enter a guilty plea to a jury. On February 16, 2007, the trial judge orally admonished appellant that the punishment range for his offense was "anywhere from 20 years in prison, or they could place you on probation, or anywhere in between." After the judge concluded his admonishments and after the prosecutor read the indictment, the trial judge corrected himself, stating:
Sir, before you enter your plea, I made a mistake earlier and admonished you that the punishment range was two to 20. The punishment range is five years in prison to life in prison. I apologize for misspeaking earlier. If you still — your sentence still could be probated, or you could get probation still.This admonishment was the correct one for appellant's offense, a first degree felony. See Tex. Penal Code Ann. § 12.32 (Vernon 2003). When appellant inquired about the plea bargain he had been offered by the State, the trial judge reminded him the State had offered a plea deal of ten years and reiterated the correct punishment range in the case. Then the judge asked appellant if he wanted to talk to his lawyer about the punishment range. Appellant and his attorney indicated that he did understand the punishment range in his case. At that point, appellant pleaded guilty to the offense. Following his plea, appellant was present during jury selection when the correct punishment range for his offense was mentioned several times. Neither he nor his attorney spoke up at that time or later in the trial claiming appellant was confused about the applicable punishment range for his offense. Article 26.13 of the Texas Code of Criminal Procedure requires a trial court to give certain admonishments before accepting a plea of guilty, and the admonishments may be given either orally or in writing. See Tex. Code Crim. Proc. Ann. art. 26.13(a), (d) (Vernon Supp. 2007). Proper admonishment by the trial court creates a prima facie showing that the defendant entered a knowing and voluntary plea. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998). Once a prima facie showing of voluntariness is made, the burden shifts to the defendant to show that he entered the plea without knowing its consequences and was thereby harmed. See id. In this case, although appellant had initially received incorrect admonishments about the punishment range for his offense, the record makes clear that in the moments just before the entry of his plea, the trial judge specifically instructed that the earlier admonishments were incorrect and properly admonished appellant about the correct punishment range for his offense. The judge further inquired whether appellant needed to discuss the proper punishment range with his lawyer. Both appellant and his lawyer indicated appellant was aware of the true punishment range for his offense. Appellant has not pointed us to any evidence in the record contradicting the evidence of his awareness of the proper punishment range, nor has he met his burden of showing how he was harmed. We resolve appellant's second issue against him. We affirm the trial court's judgment.