Opinion
No. 05-02-01632-CR.
Opinion Filed June 4, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-81013-02. AFFIRMED.
Before Justices JAMES, FRANCIS, and LANG.
OPINION
Javier Cipriano appeals his conviction for aggravated robbery. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). Appellant waived a jury trial, entered an open guilty plea, and pleaded true to an enhancement paragraph. The trial court found the enhancement paragraph true and sentenced appellant to twenty-five years' confinement. The trial court also made an affirmative finding that appellant used or exhibited a deadly weapon, a pellet gun, during the commission of the offense. In two points of error, appellant contends the trial court's admonishments violated due process and article 26.13 of the Texas Code of Criminal Procedure and caused his guilty plea to be involuntary. We affirm the trial court's judgment. Appellant contends for the first time on appeal that the trial court's failure to correctly admonish him on the punishment range caused his guilty plea to be involuntary. Appellant argues the punishment range was stated orally and in writing as five to ninety-nine years or life confinement with no mention that the enhancement paragraph increased the minimum punishment to fifteen years. Appellant further argues the trial court's misstatements of the law on the punishment range caused him to give up important constitutional and substantive rights because he relied on the misstatements in making his decision to enter a guilty plea. Appellant also argues he was not aware of the consequences of his plea and was harmed and misled because neither the prosecuting attorney nor his own counsel called the trial court's attention to the fact that there was an enhancement paragraph that increased the minimum punishment from five years to fifteen years. The State, citing Monreal v. State, 99 S.W.3d 615 (Tex.Crim.App. 2003), responds the appeal should be dismissed because appellant waived his right to appeal and failed to obtain the trial court's consent to appeal. The State further argues appellant failed to preserve error regarding the voluntariness of his plea by not complaining first in the trial court. In the alternative, the State argues appellant failed to show how he was harmed by the trial court's misstatement on the punishment range because appellant was sentenced within the enhanced and non-enhanced punishment ranges. In Monreal, the court of criminal appeals held that a waiver of the right to appeal, whether done pretrial or post-sentencing, is valid if the defendant is fully aware of the consequences at the time he enters the waiver. See Monreal, 99 S.W.3d at 622. The waiver need not be part of a plea bargain. Rather, the critical question is whether the defendant understood the consequences of the waiver. Id. at 621. In Monreal, the defendant entered his waiver seven days after he was sentenced. Here, the record contains a document entitled "Defendant's Waiver of Rights" that is signed by appellant, his attorney, and the trial judge, and is dated July 11, 2002, the date of the plea hearing. The waiver was not discussed at the plea hearing, and appellant was not sentenced until two months after he entered his guilty plea. Further, nothing in the record shows the waiver was addressed after appellant was sentenced. Because appellant could not have known what his sentence would be at the time he entered his plea, Monreal does not apply. A waiver of the right to appeal entered before the defendant is aware of the consequences of his plea is invalid. See Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App. 1977); Ex parte Townsend, 538 S.W.2d 419, 420 (Tex.Crim.App. 1976). Therefore, we will address the merits of appellant's complaints. Article 26.13 of the Texas Code of Criminal Procedure requires the trial court to give certain admonishments before accepting a plea of guilty, and the admonishment may be given either orally or in writing. Tex. Code Crim. Proc. Ann. art. 26.13 (a), (d) (Vernon 1989 Supp. 2003). Substantial compliance by the trial court is sufficient unless the defendant affirmatively shows he was not aware of the consequences of his plea and that he was harmed or misled by the admonishment. Id. art. 26.13(c). A record that shows the trial court properly admonished the defendant constitutes a prima facie showing the defendant entered into a knowing and voluntary plea. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998). Upon a prima facie showing of voluntariness, the defendant bears the burden of showing he entered the plea without knowing the consequences. Id. During the July 11, 2002 plea hearing, the trial court admonished appellant on the punishment range as five to ninety-nine years or life confinement, which is the punishment range for the offense without an enhancement paragraph. See Tex. Pen. Code Ann. § 12.32 (Vernon 2003). Appellant testified he was freely and voluntarily pleading guilty because he was guilty and for no other reason. Appellant further testified no one forced or coerced him to plead guilty and no one promised him anything of benefit or value for entering his guilty plea. Appellant's signed judicial confession was offered into evidence without objection. The court passed the case for a presentence investigation report. On September 10, 2002, appellant filed a pro se motion to withdraw his guilty plea, which the court heard at the September 13, 2002 sentencing hearing. The motion did not raise the issue of an incorrect oral or written admonishment by the court on punishment. Rather, appellant listed several general reasons to support his withdrawal. Those issues are not before us on this appeal. Appellant was represented by counsel at the time the pro se motion was filed. While "hybrid" representation is generally prohibited, the court can consider such a pro se motion. See Rudd v. State, 616 S.W.2d 623, 625 (Tex.Crim.App. 1981); see also Busselman v. State, 713 S.W.2d 711, 714 (Tex.App.-Hous. (1st Dist.) 1986, no pet.). Indeed, at the September 13, 2002 sentencing hearing, the court heard testimony on appellant's motion. In support of his motion, appellant testified he entered a guilty plea only because his attorney told him he would get appellant a ten-year sentence. Appellant said he turned down the State's offer of nineteen years in the penitentiary because his attorney promised him a ten-year sentence. Defense counsel told the court he never gave appellant an offer of ten years, especially since appellant had prior felony convictions which made the minimum punishment fifteen years. See Tex. Pen. Code Ann. § 12.42(c)(1) (Vernon 2003). When the court asked the prosecuting attorney if the State offered "pen time," the prosecutor told the court the minimum punishment was fifteen years because the offense was "first-degree enhanced." The trial judge explained to appellant that the indictment alleged a prior conviction, which made the minimum punishment fifteen years. Appellant responded to the court's explanation with the comment, "Right." The court then explained to appellant that the court was not offering to give appellant a fifteen-year sentence, he was just telling appellant the punishment range is "fifteen to ninety-nine years or life and an optional fine up to $10,000." Appellant testified he understood, and he admitted the police arrested him in possession of some of the complainant's property. Appellant also admitted he gave police a signed confession. At no point did appellant claim his guilty plea was made in reliance on the court's admonishment of the range of punishment. The trial court denied appellant's motion to withdraw his guilty plea, then proceeded to hear evidence from the complainant and arresting officer on sentencing. When the record reflects that a defendant was admonished under article 26.13(a)(1), even incorrectly, and punishment was assessed within the actual and stated ranges, substantial compliance will be deemed to have occurred. In such an instance, there is a prima facie showing that the defendant's plea was knowing and voluntary. Grays v. State, 888 S.W.2d 876, 878 (Tex.App.-Dallas 1994, no pet.); see also Hughes v. State, 833 S.W.2d 137, 140 (Tex.Crim.App. 1992); Robinson v. State, 739 S.W.2d 795, 801 (Tex.Crim.App. 1987). Once a prima facie case is presented showing the appellant's plea was knowing and voluntary, the burden shifts to appellant to show he was unaware of the consequences of his plea and that he was misled or harmed by the trial court's admonishment. See Tex. Code Crim. Proc. Ann. art. 26.13(c); Robinson, 739 S.W.2d at 801; Grays, 888 S.W.2d at 878; Martinez, 981 S.W.2d at 197. On this record, we conclude that even though the admonishment was incorrect, or actually in this instance incomplete, the punishment assessed was within the actual and stated ranges. Accordingly, the admonishment was in substantial compliance with article 26.13(a)(1). Further, we conclude appellant did not meet his burden by affirmatively showing he was not aware of the consequences of his plea as related to the correct range of punishment and was misled or harmed by the court's admonishment. The only evidence offered by appellant was that his lawyer allegedly "promised" him a ten-year sentence. He has not shown us in the record of the plea hearing or the sentencing hearing how reliance on his lawyer's alleged "promise" is linked to the court's admonishment. Accordingly, we overrule appellant's two points of error. We affirm the trial court's judgment.
The indictment alleged two prior felony convictions. However, the two prior conviction dates alleged in the indictment were only twelve days apart, and the court enhanced appellant's punishment on the basis of one, not two, prior convictions. See Tex. Pen. Code Ann. § 12.42(d) (Vernon 2003).