Opinion
No. 13-07-00747-CR
Opinion delivered and filed August 21, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the 347th District Court of Nueces County, Texas.
Before Justices RODRIGUEZ, GARZA, and VELA.
MEMORANDUM OPINION
Appellant, Josh Cano a/k/a Joshua Cano, pleaded guilty to one count of robbery and one count of injury to a child. See Tex. Penal Code Ann. § 29.02 (Vernon 2003), § 22.04 (Vernon Supp. 2007). The trial court assessed punishment at twenty-five years' confinement in the Texas Department of Criminal Justice-Institutional Division (TDCJ-ID) for the robbery and two years in a state jail for the injury to a child, with the sentences to run concurrently. By one issue, Cano contends that his guilty plea was involuntary.
I. Background
Cano pushed Crystal Gomez into the bathroom of a convenience store, causing the bathroom door to hit Gomez's child. Cano attempted to take money from Gomez, then left the store. Gomez's husband caught Cano and held him until police arrived. The State charged Cano with robbery, injury to a child, and attempted sexual assault. Cano pleaded guilty to robbery and injury to a child. The State abandoned the attempted sexual assault charge. At his plea hearing, the following transpired:Trial Court: Mr. Cano, to the count one, robbery, how do you plead?
[Cano]: Guilty.
Trial Court: Count two, injury to a child, how do you plead? You want to talk about it some more? You need to visit with your lawyer about that further?
[Cano]: No, ma'am. I'm guilty.
The Court: Are you pleading guilty to those two counts because you are guilty?
[Cano]: I don't believe I hurt any little kid, ma'am.
The Court: Okay, sir. Are you saying you're not guilty to the injury to a child?
[Cano]: That's right.
The Court: Okay. Then I'm going to reject the [guilty] plea on that case [sic]. We'll proceed then.
[The State]: Okay, Judge. We'll just to go [sic] trial.
The Court: All right. Everybody for Monday?
[Defense Counsel]: No, Your Honor. . . .
. . . .
(Off-the-record discussion. Case stood in recess. Case recalled.)
. . . .
The Court: What are we doing on Mr. Cano?
[The State]: He's pleading guilty to offenses one and two. State's gonna drop count three as part of the plea agreement. He's pleading to counts one and two.
The Court: Are we proceeding as we were awhile ago?
[The State]: Yes.
[Defense Counsel]: Yes, Your Honor. Just to clarify for the record, I've explained to Mr. Cano that, from the evidence, it appears he is guilty of recklessly injuring a child, not intentionally, but that is, in fact, one of the ways you can commit that offense, and that-basically, the child was injured when he opened the door, and the child was knocked down during the course of the robbery. So, I think from that he understands the difference between intentionally and recklessly doing it. Also, I think he's prepared to enter a guilty plea to that.
The Court: Okay, sir. We're back on the record. . . . Earlier you had plead guilty to counts one and two, being robbery and injury to a child. Are you pleading guilty to those offenses because you are guilty?
[Cano]: Yes, ma'am.
The Court: You're doing that voluntarily? Yes, for the record?
[Cano]: Yes, ma'am.
The Court: No one is threatening you or forcing you or making you plead guilty in anyway?
[Cano]: No, ma'am.The trial court proceeded to find Cano guilty and sentenced him to twenty-five years' confinement in the TDCJ-ID for the robbery and two years in a state jail for injury to a child to run concurrently. This appeal ensued.