No. 05-01-00855-CR, No. 05-01-00856-CR, No. 05-01-00857-CR.
Opinion Filed January 30, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause Nos. F00-70968-VH, F00-70999-VH, and F00-70998-VH. AFFIRMED.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
Opinion by Justice FRANCIS.
Jimmy Frank Dobecka appeals his convictions for aggravated assault with a deadly weapon. Appellant pleaded nolo contendere to the charges. After a bench trial, the trial court found appellant guilty in all three cases. Appellant then pleaded true to two enhancement paragraphs in each indictment. The court found all of the enhancement paragraphs true and assessed punishment in each case at twenty-five years imprisonment. In three issues, appellant asserts the trial court erred by accepting his nolo contendere pleas and that the evidence is legally insufficient to support his convictions. We affirm the trial court's judgments.
Factual Background
On the night of April 16, 2000, Helena Wright and her two children, Bernard and Breeana, were traveling north on Buckner Boulevard in Helena's Geo Prism. Helena felt a "big jerk hitting behind" her car. After three more impacts, Helena lost control of her car and crossed the median into oncoming traffic. Before the car could careen into a pawn shop, the engine died. Helena saw the rear of the Camaro that hit her, then saw a police officer begin to chase the Camaro. Helena testified her children were "traumatized" by the experience and that she suffered bruises from being bounced around the car while it was being struck by the Camaro. Her children also suffered "injuries" and had been in fear of their lives. Her car was "totaled." Dallas Police Officer Michael Mondy was patrolling on southbound Buckner when he saw two cars on the wrong side of the roadway. One of the cars, a Camaro, was "just slamming" into another vehicle. Mondy saw the Camaro hit the other car, back up, hit the other car again, back up, and then drive away. Mondy chased the Camaro, and it eventually stopped in the parking lot of a tattoo parlor. Mondy arrested appellant, who had been driving the Camaro. Appellant told Mondy that some "guys" had been following him and were trying to kill him. Mondy testified that appellant's acts of striking Helena's Prism were "likely to cause death or serious bodily injury." Appellant testified he had been working at the tattoo parlor the day of his arrest. Appellant had borrowed the Camaro from a friend. After leaving the parlor, appellant noticed a group of men following him. Appellant was concerned because several people had come to the parlor "harassing" him. Appellant pulled into a gas station and believed he saw one of the men point "something shinny [sic]" at him. Appellant became nervous, and drove away at a high rate of speed. While executing some evasive maneuvers, appellant crashed the Camaro into a wall, damaging the car's transmission. Appellant began slowly driving back to the tattoo parlor. Appellant saw a car approaching him from behind, so, while "laying over the seat," he used his "car as protection." Appellant felt a "bump" on the side of the car, "let go of the steering wheel," and felt another bump. Appellant became scared and decided to drive to the tattoo parlor to phone for assistance. Once there, the police "drug" him out of the Camaro, threw him to the ground, handcuffed him, "slammed him into the concrete," hit him, and kicked him. The police took appellant to Parkland Hospital, where they gave him "a shot to calm [him] down." Appellant claimed he had not rammed anyone "on purpose" that night. Appellant admitted he had only been out of the penitentiary for six months when his Camaro collided with Helena's Prism. Appellant also admitted consuming cocaine and methamphetamine the morning of the 16th, and conceded he may have also smoked marihuana. Appellant stated he had previous felony convictions for forgery, burglary, possession of cocaine, and possession with intent to "manufacture" methamphetamine. Appellant testified he took medications for his "depression" and "paranoia" while in jail awaiting trial. He stated he had been diagnosed as a paranoid schizophrenic. Acceptance of Nolo Contendere Pleas
In his first issue, appellant contends the trial court erred when it accepted his nolo contendere pleas because the court failed to admonish him in accordance with article 26.13 of the code of criminal procedure. Appellant asserts his pleas were not entered knowingly or voluntarily because of the trial court's failure to admonish. Specifically, appellant complains he was harmed by the trial court's failure to inquire whether there was a plea bargain agreement, if appellant understood any such agreement, and whether he desired to accept any such agreement. The code of criminal procedure requires a court, before accepting a nolo contendere plea in a felony case, to admonish the defendant on the following: (1) the punishment range; (2) that the State's sentencing recommendation is not binding on the court; (3) the limited right of appeal; (4) the possibility of deportation; and (5) that the defendant will be required to register as a sex offender pursuant to Chapter 62 of the code of criminal procedure if the defendant is convicted of, or placed on deferred adjudication for, an offense subject to that chapter. Tex. Code Crim. Proc. Ann. art. 26.13(a)(1)-(5) (Vernon Supp. 2003); Ducker v. State, 45 S.W.3d 791, 793-794 (Tex.App.-Dallas 2001, no pet.). Article 26.13 also requires the trial court to inquire as to the existence of any plea bargain agreements and, if an agreement exists, whether the court will follow the agreement and, in the event the trial court does not follow the agreement, that the defendant will be allowed to withdraw his plea. Tex. Code Crim. Proc. Ann. art. 26.13(a)(2) (Vernon Supp. 2003); Castellano v. State, 49 S.W.3d 566, 570 (Tex.App.-Corpus Christi, pet ref'd). Failure to give some or all of the admonishments required by article 26.13 of the code of criminal procedure, absent any claim of violation of constitutional rights, is statutory error subject to harm analysis under rule 44.2(b) of the rules of appellate procedure. See Aguirre-Mata v. State, 992 S.W.2d 495, 498-499 (Tex.Crim.App. 1999). Under this standard, we disregard any error unless the error affects the appellant's substantial rights. See Torres v. State, 59 S.W.3d 365, 367 (Tex.App.-Houston [1st Dist.] 2001, no pet.). In the context of article 26.13, a substantial right is affected if the conviction results in harm directly related to the subject of the failed admonishment. Shankle v. State, 59 S.W.3d 756, 761 (Tex.App.-Austin 2001, pet. granted). Stated differently, the record must show the defendant was not aware of the consequences of his plea and that he was misled or harmed by the failure to admonish before we will find the error affected substantial rights. Ramos v. State, 45 S.W.3d 305, 309 (Tex.App.-Fort Worth 2001, pet. ref'd). In this case, the record reflects the trial court did advise appellant of the correct range of punishment applicable to his cases in compliance with article 26.13(a)(1), but did not admonish him in conformity with the remainder of article 26.13. However, appellant does not contend he was harmed by the failure to admonish him on these matters. Instead, appellant claims he was harmed by the failure of the trial court to inquire into the existence of a plea bargain, determine if appellant understood the agreement, and if he wanted to accept the agreement. Appellant does not explain how he was harmed by the trial court's failure to inquire into the existence of a plea bargain agreement. Moreover, there is no evidence in the records that any plea agreement existed between appellant and the State at any time during the trial court proceedings. Appellant received what amounted to a full bench trial on the issue of his guilt and received the least possible punishment available for a defendant subject to sentencing under the habitual offender statute. See Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2003). Appellant has not shown that proper admonishment would have affected his willingness to plead nolo contendere or that the failure to admonish him in complete conformity with article 26.13(a) misled him in any way. See, e.g., Castellano, 49 S.W.3d at 572; Hall v. State, 935 S.W.2d 852, 856 (Tex.App.-San Antonio 1996, no pet.). After reviewing the records, we cannot conclude appellant was unaware of the consequences of his pleas or that he was misled or harmed by the failure to admonish. There is no evidence appellant involuntarily pleaded nolo contendere. Accordingly, we resolve appellant's first issue against him. See, e.g., Ducker, 45 S.W.3d at 796. Legal Insufficiency of the Evidence
In appellant's second and third issues, he asserts the evidence is legally insufficient to support his convictions. Specifically, appellant contends there is insufficient evidence to show he knowingly and intentionally caused or threatened bodily injury to Helena, Bernard, and Breeana. Appellant asserts the evidence shows he merely acted recklessly. Appellant also contends the evidence is legally insufficient to show he threatened Bernard and Breeana with bodily injury. Specifically, appellant argues there is no evidence to show Bernard and Breeana felt threatened or had a reasonable apprehension of imminent bodily injury as a result of appellant's conduct. When a defendant voluntarily pleads nolo contendere, we do not use the legal sufficiency standard to measure the sufficiency of the evidence. Young v. State, 993 S.W.2d 390, 391 (Tex.App.-Eastland 1999, no pet.); Wright v. State, 930 S.W.2d 131, 132 (Tex.App.-Dallas 1996, no pet.). Instead, we look to see if the State introduced sufficient evidence to support the pleas and demonstrate appellant's guilt. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2003); Ybarra v. State, 960 S.W.2d 742, 744 (Tex.App.-Dallas 1997, no pet.). To obtain appellant's conviction for aggravated assault in cause number 05-01-00855-CR, the State was required to prove he: (1) intentionally or knowingly (2) caused bodily injury to Helena Wright (3) by striking Helena Wright's vehicle with his vehicle (4) while using and exhibiting a deadly weapon, specifically, his vehicle. See Tex. Pen. Code Ann. §§ 22.01(a)(1), 22.02(a)(2) (Vernon 1994 Supp. 2003). In cause numbers 05-01-00856-CR and 05-01-00857-CR, the State was required to prove appellant (1) intentionally and knowingly (2) threatened Breeana and Bernard with imminent bodily injury (3) while he used and exhibited a deadly weapon, specifically, a motor vehicle. See Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon 1994 Supp. 2003). The trial court could infer appellant's intent from his conduct. Maldonado v. State, 998 S.W.2d 239, 243 (Tex.Crim.App. 1999); Reaves v. State, 970 S.W.2d 111, 117 (Tex.App.-Dallas 1998, no pet.). Here, Mondy's testimony showed appellant struck Helena's car with his Camaro, backed up, struck the car again, then drove away. These actions indicate appellant's conduct was not accidental, but intentional and knowing. These actions caused bodily injury to Helena during appellant's use and exhibition of a deadly weapon. See Gibbs v. State, 932 S.W.2d 256, 258-59 (Tex.App.-Texarkana 1996, no pet.) (truck used to strike bystanders caused bodily injury and was a deadly weapon). These actions also threatened imminent bodily injury to Brandon and Breeana during the use and exhibition of a deadly weapon. See St. Clair v. State, 26 S.W.3d 89, 97 (Tex.App.-Waco 2000, pet. ref'd) (car accelerating towards victim threatened victim with imminent bodily injury, even though car stopped six feet from victim); Green v. State, 831 S.W.2d 89, 92-93 (Tex.App.-Corpus Christi 1992, no pet.) (car accelerated towards pedestrian, causing pedestrian to seek shelter, sufficient to show car used as a deadly weapon). Moreover, Helena testified her children were "traumatized" as a result of appellant's Camaro striking her car. After reviewing the records, we conclude the State introduced sufficient evidence to demonstrate appellant's guilt. We essentially determined in our resolution of appellant's first issue that appellant knowingly, intelligently, and voluntarily pleaded nolo contendere. Therefore, we conclude there is sufficient evidence to support appellant's nolo contendere pleas. Accordingly, we resolve appellant's second and third issues against him. We affirm the trial court's judgments.