Opinion
NUMBER 13-17-00124-CR
04-26-2018
SKY CASHAT, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Valdez
Appellant Sky Cashat entered an open plea of no-contest to the offense of aggravated assault with a deadly weapon. See TEX. PENAL CODE ANN. § 22.011 (West, Westlaw through 2017 1st C.S.). The trial court sentenced appellant to five years' incarceration. By one issue, appellant contends that her guilty plea was involuntary. We affirm.
I. STANDARD OF REVIEW AND APPLICABLE LAW
"No plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary." TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (West, Westlaw through 2017 1st C.S.). Article 26.13 assures that defendants plead guilty or nolo contendere with a full understanding of the charges against them and the consequences of their pleas. Basham v. State, 608 S.W.2d 677, 678 (Tex. Crim. App. 1980). We review the record as a whole when determining the voluntariness of a no-contest plea. Campbell v. State, 5 S.W.3d 693, 701 (Tex. Crim. App. 1999).
"A total failure of the trial court to admonish the defendant concerning the range of punishment is reversible error." Id. The range of punishment does not include probation. Ex parte Williams, 704 S.W.2d 773, 775 (Tex. Crim. App. 1986). Nonetheless, if the trial court choses to admonish the defendant concerning probation, it must do so accurately when it is apparent from the record that the defendant is affirmatively seeking probation. Id.
II. DISCUSSION
By her sole issue, appellant contends that her plea was involuntary. Specifically, as we understand it, appellant argues that the trial court made her believe she was entitled to judge-ordered community supervision when she was not eligible. See TEX. CODE CRIM. PROC. ANN. art. 42A.054 § (b) (West, Westlaw through 2017 1st C.S.). However, appellant was eligible for deferred adjudication community supervision.
in her motion for community supervision, which is a pre-printed form, appellant put a check mark and her initials next to the following statement:
I request that the Court defer further proceedings in my case and not enter a finding or judgment of guilt. If the Court grants my request, I understand that I will be on community supervision without a finding of guilty. I also understand that if I violate any condition of my community supervision, I may be arrested and returned to this Court for a hearing, and the Court may revoke my community supervision, find me guilty and sentence me up to the maximum term of punishment for the offense to which I entered my plea. I further understand, that if within the next 30 days, I do not wish to be on deferred adjudication, I may request the final adjudication of my case by filing a written motion within 30 days from the day I entered my plea, in which event the Court may proceed to find me guilty and then determine the appropriate punishment for me.This form also included the following statement: "I demand a jury trial on the issue of punishment and request the Court to submit the issue of community supervision to the Jury." Appellant did not check or initial this statement. Appellant signed the document.
At the plea hearing, appellant's attorney told the trial court, "Judge, this is actually an open plea to the Court requesting deferred probation." The trial court explained to appellant that "this is an open plea. What that means is, I'm going to take evidence, hear what happened. . . . And . . . because this is a second[-]degree offense, that could be anywhere from two to 20 years in the Texas Department of Criminal Justice, and up to a $10,000 fine. It could also include probation."
Appellant testified at the plea hearing. When her trial counsel asked, "And we're asking the Court to consider deferred probation, which could be anywhere from two to 10 years," appellant replied, "Yes, sir." During closing argument, appellant's trial counsel said, "We ask the Court to consider deferred probation. She did spend approximately 120 days in jail. We hope the Court will consider that. And if the Court does grant a deferred, if he's—the Court is inclined to give her some jail time, give her some credit for the four months she spent in jail." Appellant's trial counsel then stated, "We ask the Court to consider deferred and give her a chance, Your Honor. I think she can comply with any and all court conditions." During the State's closing, the prosecutor said, "We feel that eight years in prison would be fair for this type of a case. It's less than the middle of the spectrum as far as punishment goes, but it's not a deferred probation case." The trial court sentenced appellant to five years' incarceration and explained, "There were numerous lacerations, staples, and it's not a probation case, so thank you-all very much."
Appellant asserts that her trial counsel misspoke when he requested "deferred," and that he obviously meant that appellant was requesting judge-ordered community supervision. However, in her motion for community supervision, appellant clearly requested deferred adjudication and her attorney referred to "deferred" each time he made the request for community supervision. There is nothing in the record supporting appellant's theory that her attorney misspoke each time he made the request for deferred adjudication. Accordingly, we are not persuaded by this argument.
On appeal, appellant argues that the trial court's use of the term "probation" during its admonishments made her believe she was entitled to judge-ordered community supervision causing her plea to be involuntary because she was not eligible for judge-ordered community supervision. We disagree. In her motion for community supervision, appellant requested deferred adjudication community supervision, at the plea hearing, appellant's trial counsel only requested deferred adjudication, and the State and the trial court understood that appellant was requesting deferred adjudication. At no time did appellant request for the trial court to find her guilty of the charged offense, and she only sought deferral of her guilt. The terms "community supervision" and "probation" are synonymous and are generally used interchangeably. Prevato v. State, 77 S.W.3d 317, 317 n.1 (Tex. App.—Houston [14th Dist.] 2002, no pet.). There is nothing in this record indicating that the trial court referred to judge-ordered community supervision when it used the term "probation." Instead, clearly all parties including the trial court understood that appellant requested deferral of her guilt and that she be placed on deferred adjudication community supervision. Based on the entire record, we conclude that there is nothing indicating that the trial court's use of the term "probation" misled appellant into believing that she was eligible for judge-ordered community supervision when she was not so eligible. See Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986) (explaining that there "is the presumption of the regularity of the judgment of conviction and the proceedings absent a showing to the contrary" and that "the burden is on the defendant to overcome the presumption); Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.—Houston [1st Dist.] 1996, pet. ref'd) ("A defendant's attestation of voluntariness at the original plea hearing imposes a heavy burden on the defendant at a later hearing to show a lack of voluntariness."). We overrule appellant's sole issue.
We note that appellant's trial counsel signed the counsel's certification of consultation and consent to waiver acknowledging that appellant and trial counsel had "discussed the facts of the case and the applicable law," that appellant was "fully aware of the consequences of [her] plea," and that appellant knew the range of punishment. In addition, appellant signed and initialed the defendant's statement understanding admonishments stating that she had "sufficient time and opportunity to consult with [her] lawyer" and that they had discussed "all relevant facts and law applicable to this case." In that form, appellant further requested for the trial court to defer adjudication and to place her on community supervision. In addition, appellant initialed the form wherein it explained that community supervision was "formerly known as probation." Appellant was not eligible for judge-ordered community supervision pursuant to article 42A.054 § (b) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 42A.054 § (b) (West, Westlaw through 2017 1st C.S.).
III. CONCLUSION
We affirm the trial court's judgment.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed this 26th day of April, 2018.