No. 04-07-00424-CR
Delivered and Filed: April 30, 2008. DO NOT PUBLISH.
Appeal From the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 2005-CR-5658, Honorable Philip A. Kazen, Jr., Judge Presiding.
Sitting: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
REBECCA SIMMONS, Justice.
Appellant Arturo De Luna entered a plea of no contest to three counts of sexual assault of a child and two counts of indecency with a child as a habitual offender. When De Luna tried to subsequently withdraw his plea, the trial court denied his request. Because De Luna failed to meet his burden establishing that his plea was involuntary, we affirm the judgment of the trial court.
Appellant Arturo De Luna is also known as Daniel De Luna.
FACTUAL BACKGROUND
An indictment alleging three counts of sexual assault of a child, two counts of indecency with a child, and two enhancement allegations was returned against Arturo De Luna on November 3, 2004. At defense counsel's request, the trial court granted counsel's motion to withdraw on May 5, 2005 and appointed new representation. Almost two years later, De Luna entered an open plea of no contest to each felony count alleged in the indictment and a plea of true to each of the enhancement allegations. The trial court received both oral and written admonishments from De Luna, as well as a stipulation with regard to the State's evidence against him. The record reflects that De Luna: (1) received the court's written admonishments; (2) understood that by pleading no contest he could be sentenced in accordance with the entire punishment range, "a term of not less than twenty-five years, nor more than ninety-nine years;" (3) confirmed that he had read, understood, conferred with his attorney and signed the court's written admonishments; (4) waived his right to a jury trial; (5) discussed the matter with his attorney and believed that it was in his best interest to enter a plea of no contest; (6) understood that his no contest plea would be treated the same as a guilty plea by the trial court; and (7) denied that anyone forced or threatened him into entering the plea or that anyone promised him anything in exchange for his plea. De Luna's attorney testified that he believed De Luna had a rational and factual understanding of the charges against him and that, in his opinion, De Luna was mentally competent to waive his rights and enter his plea. Additionally, De Luna's attorney and the State each confirmed the absence of a plea agreement in this case. The trial court accepted De Luna's no contest plea, found the evidence sufficient to establish a finding of guilt, and found both of the enhancement allegations true. At the conclusion of the hearing, the trial court ordered the completion of a presentence investigation report and the matter was reset for a sentencing hearing. Ten days prior to the sentencing hearing, De Luna filed a motion to withdraw his plea. After a hearing, the trial court denied De Luna's motion. On June 11, 2007, the trial court held a sentencing hearing. After considering all the evidence, including additional testimony by the State and defense at the sentencing hearing, the trial court found De Luna guilty of the charged offense and sentenced De Luna to a term of life imprisonment. This appeal followed. VOLUNTARINESS OF NO CONTEST PLEA
A. Standard of Review
We review the trial court's refusal to grant a motion to withdraw a plea for an abuse of discretion. Watson v. State, 974 S.W.2d 763, 765 (Tex.App.-San Antonio 1998, pet. ref'd). A decision by the trial court is arbitrary only if it lies outside the "zone of reasonable disagreement." Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990). B. "Under Advisement"
A defendant may withdraw his plea, without stating a reason, at any time prior to the trial court taking the case under advisement or the pronouncement of a judgment. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App. 1979). Once a case is taken under advisement, the trial court maintains broad discretion regarding granting a defendant permission to withdraw his plea. Id. It is well-settled that resetting a criminal matter for pre-sentence investigation constitutes "taking the case under advisement," despite the fact that no punishment has been assessed. DeVary v. State, 615 S.W.2d 739, 740 (Tex.Crim.App. 1981). Because De Luna's motion to withdraw his plea came almost two months after the trial court took the case under advisement, and only ten days prior to the sentencing hearing, it was within the trial court's discretion to deny the motion to withdraw the plea. See id. (trial court did not abuse its discretion when request to withdraw plea came more than two months after taking plea under advisement); Watson, 974 S.W.2d at 765. C. Trial Court Admonishments
A non-negotiated plea, or open plea, "is conclusive as to the defendant's guilt." Lewis v. State, 911 S.W.2d 1, 4-5 (Tex.Crim.App. 1995), Cantu v. State, 993 S.W.2d 712, 716 (Tex.App.-San Antonio 1999, pet. ref'd). A trial court must not accept a plea of guilty or no contest unless the court determines the defendant is mentally competent, and has entered the plea freely and voluntarily. TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (Vernon 2001). Furthermore, before accepting a plea, a trial court must admonish a defendant in accordance with article 26.13(a). TEX. CODE CRIM. PROC. ANN. art. 26.13(a). Here, the applicable subsections of article 26.13(a) require the trial court to admonish the defendant (1) about the range of punishment attached to the offense; (2) that a punishment recommended by the prosecuting attorney is not binding on the trial court; and (3) that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, the trial court must give its permission to the defendant before he may prosecute an appeal on any matter in the case except for those matters raised by written motions filed prior to trial. Id. at art. 26.13(a). Substantial compliance with these admonishments, which do not mislead or harm the defendant, creates a prima facie showing that the defendant entered his guilty plea knowingly and voluntarily. Aguirre-Mata v. State, 125 S.W.3d 473, 479-80 (Tex.Crim.App. 2003); Eatmon v. State, 768 S.W.2d 310, 312 (Tex.Crim.App. 1989). The burden then shifts to the defendant to prove that he did not understand the consequences of his plea and acceptance of the plea constitutes harm. Eatmon, 768 S.W.2d at 312; Rodriguez v. State, 933 S.W.2d 702, 706 (Tex.App.-San Antonio, 1996, pet. ref'd). When considering the voluntariness of a plea, an appellate court looks to the record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim. App 1998). De Luna alleges that, because of his state of mind and his hearing disability, the plea was involuntary, the trial court abused its discretion by denying his motion. The record, however, indicates the trial court properly admonished De Luna prior to the acceptance of his no contest plea, and thus establishes prima facie evidence that his plea was entered voluntarily. See TEX. CODE CRIM. PROC. ANN. art. 26.13(a); Rodriguez, 933 S.W.2d at 705. The burden then shifted to De Luna to demonstrate his plea was involuntary. See id. at 706 ("This burden is quite heavy, especially when, as here, the defendant states that he understands the nature of the proceeding, that the allegations are true, and that no outside pressure or influences coerced him into making the plea."). 1. Pre-trial Incarceration and State of Mind De Luna asserts that he was exhausted by a lengthy pre-trial incarceration and "not in the proper frame of mind" when he entered his plea. We note, however, that De Luna's lengthy pre-trial incarceration was the result of several issues, including his original request for new representation and from his subsequent attorney's request for DNA testing in the preparation of his case. De Luna's uncorroborated statements about his mood at the plea hearing do not speak to the voluntariness of his plea. To the contrary, it is De Luna's understanding of the consequences of his plea, and not his "frame of mind" that is central to the voluntariness of his plea. See id. De Luna plainly told the trial court that he understood the consequences of the plea. The record supports the conclusion that the trial court and defense counsel both believed De Luna to understand his plea and to be making the same based on his own free will. Without more, we cannot say De Luna's "mood" on the day he entered his plea rendered his plea involuntary. 2. Hearing Disability De Luna next contends that he suffers from a hearing disability so severe that it frustrated his ability to consult with his attorney and rendered his open plea of no contest involuntary. During the plea, however, the trial court engaged De Luna in a methodical line of questioning regarding his plea. The trial court specifically inquired into De Luna's understanding regarding the implications of an open plea of no contest and the voluntariness of his plea. When asked by the trial court, De Luna affirmatively stated that he understood his plea of no contest would be treated the same as a guilty plea and that he could be sentenced anywhere within the punishment range. See id. Throughout both the hearings on his plea and his motion to withdraw, De Luna remained engaged in discussion with the trial court and provided appropriate responses to the trial court's questions. See Crawford v. State, 890 S.W.2d 941, 945 (Tex.App.-San Antonio, 1994, no pet.) ("The record from the plea proceeding demonstrates that appellant was properly admonished, gave appropriate responses to the trial court's inquiries, and gave no indication that his plea was not free and voluntary.") (footnote omitted). Without more, De Luna's bare assertion that he had difficulty hearing fails to overcome the prima facie evidence of voluntariness that his signed written admonishments create. See Martinez, 981 S.W.2d at 197. CONCLUSION
After a review of the record as a whole, we conclude De Luna failed to overcome the heavy burden created by his assent to the trial court's admonishments. Rodriguez, 933 S.W.2d at 706; Martinez, 981 S.W.2d at 197. The evidence reasonably supports the trial court's decision to deny De Luna's motion to withdraw his plea. Accordingly, we affirm the judgment of the trial court.