Opinion
No. 05-10-00735-CR
Opinion issued April 20, 2011. DO NOT PUBLISH Tex. R. App. P. 47 100735F.U05.
On Appeal from the Criminal District Court No. 5 Dallas County, Texas, Trial Court Cause No. F09-00213-L.
Before Justices MORRIS, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
Joel Pacheco pleaded guilty to murder and was sentenced to five years in prison. In two issues on appeal, he contends (1) his plea was involuntary because defense counsel failed to advise him about the probability of deportation and (2) the trial court failed to admonish him of the deportation consequences of his plea. We affirm. We determine the voluntariness of a guilty plea from the totality of the circumstances viewed in the light of the entire record. Ducker v. State, 45 S.W.3d 791, 796 (Tex. App.-Dallas 2001, no pet.). A guilty plea is generally considered voluntary if the defendant was made fully aware of the direct consequences of the plea. State v. Jimenez, 987 S.W.2d 886, 887 (Tex. Crim. App. 1999). Article 26.13 of the Texas Code of Criminal Procedure requires that prior to accepting a guilty plea, a trial court must admonish the defendant of the consequences of his plea. Tex. Code Crim. Proc. Ann. Art. 26.13(a) (West Supp. 2010). In particular, a trial court is required to admonish a defendant that "if the defendant is not a citizen of the United States of America, a plea of guilty to nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law[.]" Tex. Code Crim. Proc. Ann. Art. 26.13(a)(4) . This admonition may be made orally or in writing. Tex. Code Crim. Proc. Ann. Art. 26.13(d). When the record indicates the trial court properly admonished the defendant, a prima facie showing exists that the defendant entered a knowing and voluntary plea. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). A defendant may still raise the claim his plea was not voluntary; however, the burden shifts to the defendant to demonstrate he did not fully understand the consequences of his plea such that he suffered harm. Id. The record in this case contains a document containing the trial court's written admonishments and appellant's statements and waivers. The document is signed by appellant, his attorney, the prosecutor, and the judge. In the document, appellant was specifically admonished as follows: "If you are not a citizen of the United States, a plea of guilty or nolo contendere may, and under current Federal Immigration rules is almost certain to, result in your deportation, exclusion from admission to the United States, or denial of naturalization." Under statements and waivers, appellant represented he was competent, understood the nature of the accusation against him, and understood "that if I am not a United States citizen, a plea of guilty or nolo contendere will probably result in my deportation from the United States, exclusion from admission to the United States, or denial of naturalization under Federal law." Immediately above his signature, appellant further acknowledged he had read and understood, and his attorney had explained to him, all the admonitions and warnings regarding his plea and further acknowledged his "statements and waivers are knowingly, freely, and voluntarily made with full understanding of the consequences." Immediately above defense counsel's signature, counsel acknowledged that he had consulted with appellant on the plea, advised him of his rights, and believed him to be competent. Finally, at the time he entered his plea, appellant responded affirmatively when asked by the trial court if he had gone over all the papers he had signed with his attorney and if he understood all his rights. Based on the above, we conclude the record shows the trial court appropriately admonished appellant regarding the negative consequences of his guilty plea, specifically warning not just that deportation was a possibility but that it was "almost certain." Further, appellant acknowledged defense counsel explained the admonishments to him and that he was pleading guilty freely and voluntarily with full understanding of the consequences. By admonishing appellant in writing, the trial court established a prima facie showing that appellant's plea was made voluntarily and knowingly. Because a prima facie showing exists, appellant has the burden to show that he entered the plea without knowing its consequences and was harmed. Appellant relies on his unsworn motion for new trial as evidence that defense counsel and the trial court failed to advise and admonish him of the deportation consequences of his plea. A motion for new trial is not self-proving. Rouse v. State, 300 S.W.3d 754, 762 (Tex. Crim. App. 2009); Lamb v. State, 680 S.W.2d 11, 13 (Tex. Crim. App. 1984). Regardless, the motion does not even assert appellant was unaware of the consequences of deportation; rather, it seeks a new punishment hearing on the basis that deportation consequences would be harsh in this case. Having reviewed the record in this case, there is nothing in the record that shows appellant did not understand the deportation consequences of his guilty plea. Because appellant has not rebutted the prima facie showing of voluntariness of his plea, we overrule both issues. We affirm the trial court's judgment.