Opinion
No. 05-03-00926-CR.
Opinion Filed March 24, 2004. DO NOT PUBLISH.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F01-26932-TJ. Affirmed.
Before Justices WHITTINGTON, LANG, and LANG-MIERS.
OPINION
Victor Manuel Montenegro appeals his conviction for aggravated sexual assault of a child younger than fourteen years. See Tex. Pen. Code Ann. § 22.021(a) (Vernon Supp. 2004). Appellant waived a jury trial and entered a non-negotiated nolo contendere plea. After hearing evidence, the trial court found appellant guilty and sentenced him to twelve years' confinement. In two points of error, appellant contends that the trial court erred in accepting the plea from trial counsel, and that appellant's plea was involuntary. We affirm the trial court's judgment. In his first point of error, appellant argues that the trial court violated article 27.13 of the code of criminal procedure because the nolo contendere plea was entered by appellant's counsel and not by appellant. The State responds that because appellant's plea was entered in his presence and with his knowledge and understanding, the trial court substantially complied with the requirements of article 27.13. A defendant must personally make a plea of guilty or nolo contendere in open court. See Tex. Code Crim. Proc. Ann. art. 27.13 (Vernon 1989). However, a defendant may enter a guilty or nolo contendere plea in a felony case through his attorney as long as it occurs in open court, in the presence of the defendant and the circumstances are sufficient to show compliance with article 27.13. See Shields v. State, 608 S.W.2d 924, 927 (Tex.Crim. App. [Panel Op.] 1980); see also Costilla v. State, 84 S.W.3d 361, 364 (Tex. App.-Beaumont 2002, no pet.). We conclude that the trial court substantially complied with the article 27.13 requirements. See Shields, 608 S.W.2d at 927. We overrule appellant's first point of error. In his second point of error, appellant argues that his plea was involuntary because the trial court did not properly admonish him in accordance with article 26.13 of the code of criminal procedure. Appellant contends that it was not enough for the judge to advise him of the offense with which he was charged and the range of punishment, especially given the fact that there were no written plea papers and that appellant stated he did not want to plead guilty. Appellant further argues that nothing in the record indicates he was aware of or signed the sex offender registration admonishment before he entered his plea; the judge did not ask appellant if he was promised anything, threatened, or coerced into entering the plea; the judge did not ask appellant if what counsel said was what appellant wanted to do, if his plea was voluntary, or if appellant was competent. As a result, appellant argues, the trial court failed to substantially comply with article 26.13. The State responds that the trial court fully admonished appellant in accordance with article 26.13. Article 26.13 of the Texas Code of Criminal Procedure requires a trial judge to give certain admonishments before accepting a plea of guilty or nolo contendere, and the admonishments may be given either orally or in writing. See Tex. Code Crim. Proc. Ann. art. 26.13(a), (d) (Vernon Supp. 2004); Kirk v. State, 949 S.W.2d 769, 771 (Tex. App.-Dallas 1997, pet. ref'd). Substantial compliance by the trial court is sufficient unless the defendant affirmatively shows he was not aware of the consequences of his pleas, and was harmed or misled by the admonishment. See Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon Supp. 2004); Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998). A record that shows the trial court properly admonished the defendant is a prima facie showing that the defendant entered into a knowing and voluntary plea. See Kirk, 949 S.W.2d at 771. The burden then shifts to the defendant to show that he did not understand the consequences of his plea. Id.; Lee v. State, 39 S.W.3d 373, 375 (Tex. App.-Houston [1st Dist.] 2001, no pet.). During a plea hearing held on April 2, 2003, the trial judge admonished appellant on the charges in the indictment and the punishment range for the offense. Appellant stated that he understood the charges and the punishment range. After appellant told the judge that he did not want a jury trial, the judge announced that the court would reapprove a waiver of jury signed by appellant that had been previously approved at a hearing held on November 18, 2000. The judge also announced that the court had the written sex offender admonitions signed by appellant that were given to appellant at the November 18, 2000 hearing. After an off-the-record discussion, the judge stated that appellant's lawyer wanted to enter a plea of no contest. The judge admonished appellant on the consequences of a no contest plea, including possible deportation. Appellant asked the judge to explain the consequences again, and the judge gave the admonishment a second time. Appellant stated that he understood the admonishments. At no time did appellant tell the judge that he did not want to plead no contest. Moreover, the judge had the opportunity to observe appellant during the plea hearing and nothing in the record suggests competency was an issue. Unless the issue of appellant's mental competency is raised at the time of the plea, the trial court need not inquire into appellant's mental competency, and it is not error for the trial court to accept the plea. Kuyava v. State, 538 S.W.2d 627, 628 (Tex.Crim.App. 1976); Hall v. State, 935 S.W.2d 852, 855 (Tex. App.-San Antonio 1996, no pet.). We conclude that the trial court substantially complied with article 26.13 and that appellant has not shown that he was not aware of the consequences of his plea and that he was harmed or misled by the admonishments. See Martinez, 981 S.W.2d at 197. We overrule appellant's second point of error. We affirm the trial court's judgment.