Opinion
No. 05-04-00367-CR
Opinion Filed May 11, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-32636-WQ. Affirmed.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
MEMORANDUM OPINION
Santos Aurelio Palma pleaded guilty to aggravated robbery, and the jury assessed punishment at fifteen years in prison and a $10,000 fine. In a single point of error, appellant contends his plea was involuntary because the trial court did not properly admonish him pursuant to article 26.13 of the Texas Code of Criminal Procedure. Because the issue in this case is well-settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We affirm. On the day of trial before a jury was selected, appellant informed the trial court he wanted to plead guilty and go to the jury for punishment. The trial court asked appellant if he had been over the indictment with his lawyer, and appellant said he had. The trial court asked appellant if he realized he had "a number of rights in connection with this case," and appellant said he did. The trial court asked appellant if he had any questions "regarding what we are about to do here," and appellant said he did not. The trial court then admonished appellant on the correct range of punishment and warned that a conviction could result in appellant's "exclusion from the United States, denial of naturalization, immigration privileges." The parties then selected a jury. At trial, the evidence showed appellant and three other men robbed a Grand Prairie pawn shop. Two female workers were in the store at the time. Both women testified at trial that appellant held a knife to either their back or neck during the robbery and tied them up with electrical cord. Thousands of dollars in jewelry and $2500 in cash were taken in the robbery. The robbery was videotaped, and the videotape was admitted into evidence. Appellant testified and admitted participating in the robbery but said he only did so because he was afraid if he did not, he would have "problems" with the others. He testified he drove the car to the pawn shop on directions from one of the other men but did not know that the men were going to commit robbery. When the robbery began, he said he did not leave because he was nervous and wanted to talk to the women but could not communicate with them. Appellant spoke Spanish, and the women had only a limited ability to understand Spanish. In his sole point of error, appellant contends his guilty plea was not knowing and voluntary because he did not receive the admonishments required by article 26.13 of the code of criminal procedure. Specifically, he complains the trial court (1) failed to admonish him regarding the deportation consequences of his plea, (2) to inform him that he had a right to plead not guilty and let the jury determine guilt or innocence, and (3) to inquire whether he was entering the plea of his own free will, and to make a finding that appellant was mentally competent. We begin with appellant's complaint regarding deportation. Article 26.13 requires a trial court to, either orally or in writing, admonish a defendant that if he is not a citizen, a conviction may result in "deportation, the exclusion from admission to this country, or the denial of naturalization under federal law[.]" See Tex. Code Crim. Proc. Ann. art. 26.13(a)(4), (d) (Vernon 1989 Supp. 2004-05). When the record shows that the trial court gave an admonishment that was incomplete or incorrect, there is a prima facie showing of a knowing and voluntary plea of guilty. Simms v. State, 783 S.W.2d 786, 788 (Tex.App.-Houston [1st Dist.] 1990, no pet.). Once a prima facie showing of voluntariness is made, the burden shifts to the defendant to show that he entered the plea without knowing its consequences and was thereby harmed. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998). Although the trial court did not specifically state that appellant could be deported, it did admonish appellant that a conviction could result in "exclusion from the United States, denial of naturalization, immigration privileges." In this instance, the trial court did not wholly fail to admonish appellant; rather, it gave an incomplete admonishment. The burden then shifted to appellant to show harm; this he has failed to do. We conclude the trial court's incomplete admonishment did not render appellant's plea involuntary. Appellant next complains that the trial court did not tell him he had the right to plead not guilty and have a jury determine his guilt or innocence. No such admonishment is required under article 26.13. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 1989 Supp. 2004-05). Regardless, the record in this case shows that, on the day of trial before the jury was selected, appellant elected to enter a guilty plea and allow the jury to determine the punishment issue. There is nothing in this record to suggest that appellant did not know that he could have the jury determine guilt-innocence, as well as punishment. This complaint is without merit. Finally, appellant complains the trial court did not specifically inquire as to whether he was entering his plea of his own free will and failed to make a finding on his mental competence. The voluntariness of a guilty plea is determined from the totality of the circumstances viewed in light of the entire record. Ducker v. State, 45 S.W.3d 791, 796 (Tex.App.-Dallas 2001, no pet.). Thus, the trial court need not specifically inquire if a plea is being given freely and voluntarily. Id. Likewise, unless an issue is made of a defendant's present mental competence at the time the plea is entered, the trial court need not specifically inquire into his mental competence. Id. A defendant is presumed competent to stand trial and shall be found competent unless proved incompetent. See Tex. Code Crim. Proc. Ann. art. 46B.003 (Vernon Supp. 2004-05). Here, appellant did not put his mental state at issue at the time the plea was entered, and there is no indication in the record that he was incompetent to enter a plea of not guilty. To the contrary, the trial court had ample opportunity to observe appellant, particularly as he testified at trial and communicated to the jury his version of the robbery. The trial court's charge to the jury provided: "It plainly appearing to the Court that the defendant is mentally competent, has been advised of the range of punishment attached to the offense, and that his plea of guilty is made freely and voluntarily, his plea is by the Court received[.]" In sum, the trial court substantially complied with the admonishments required by article 26.13. Because appellant has failed to show that he was unaware of the consequences of his plea and that he was misled or harmed by the trial court's admonishments, he has failed to rebut the prima facie case showing that his plea was knowing and voluntary. We overrule appellant's sole point of error. We affirm the trial court's judgment.