No. 01-04-00839-CR
Opinion issued on March 16, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.4.
On Appeal from the 184th District Court, Harris County, Texas, Trial Court Cause No. 932931.
Panel consists of Justices TAFT, KEYES, and HANKS.
GEORGE C. HANKS, JR., Justice.
Appellant, Joe Louis Rodriguez, was charged by indictment with the felony offense of indecency with a child. He pleaded "no contest" without an agreed recommendation, and the court found that there was sufficient evidence to substantiate appellant's guilt. After the preparation of a pre-sentence investigation (PSI) report, the trial court found appellant guilty and sentenced him to 14 years' confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant presents five issues on appeal. In his first issue, appellant argues that the trial court erred in accepting his plea of no contest, where the trial court could not assess probation as punishment. In his second and third issues, appellant argues that the trial court erred in considering the PSI report prior to a formal finding of guilt. In his fourth and fifth issues, appellant argues that the trial court erred in assessing his punishment at 14 years' confinement because the punishment violates his federal and state constitutional rights against cruel and unusual punishment. We affirm.
Involuntary Plea
In his first issue, appellant contends that his plea of "no contest" was involuntary and constitutionally invalid, because he mistakenly believed that the trial court could assess community supervision probation as a sentencing option. A trial court may not accept a plea of guilty or no contest unless it appears that the plea is made voluntarily and intelligently. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon 2005); Brady v. United States, 397 U.S. 742, 747-48, 90 S. Ct. 1463, 1468-69 (1970). We determine the voluntariness of an appellant's guilty plea by the totality of the circumstances, viewing the record as a whole. Griffin v. State, 703 S.W.2d 193, 196 (Tex.Crim.App. 1986) (utilizing totality of the circumstances test); Lee v. State, 39 S.W.3d 373, 375 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (citing Williams v. State, 522 S.W.2d 483, 485 (Tex.Crim.App. 1975) (voluntariness determined by reviewing record as a whole)). A finding that a defendant was duly admonished creates a prima facie showing that his guilty plea was entered knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998). A defendant may still raise the claim that his plea was not voluntary; however, the burden shifts to the defendant to demonstrate that he did not fully understand the consequences of his plea such that he suffered harm. Id. Accordingly, once an accused attests that he understands the nature of his plea and that it was voluntary, he has a heavy burden to prove on appeal that his plea was involuntary. See id. In this case, appellant entered a plea of no contest at trial. Appellant also filed a "Waiver of Constitutional Rights, Agreement to Stipulate and Judicial Confession" and a second document entitled, "Admonishments." The fact that appellant was duly admonished creates a prima facie showing that his guilty plea was entered knowingly and voluntarily. See id. Moreover, the record shows that the trial court advised appellant on the range of punishment and informed him that the judge was entitled to consider the full range as an appropriate punishment. See id. At the end of the PSI hearing, the trial court also asked appellant whether anyone had promised or assured him that he would receive deferred adjudication or community supervision. Appellant answered "no." The trial court then asked whether there were any strong hints or suggestions that he ought to expect to receive deferred adjudication or community supervision, and, again, appellant answered "no." Appellant now argues that his plea was involuntary because he mistakenly believed that the trial court could assess community supervision as a sentence option. Pursuant to Texas Code of Criminal Procedure article 42.12 section 3g(1)(c), the trial court cannot assess community supervision as a sentencing option. See Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(1)(c) (Vernon 2005). However, until a formal finding of guilt has been made, the trial court may place a defendant on deferred adjudication. See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(a) (Vernon 2005). Community supervision requires a finding of guilt and formal assessment of punishment, while deferred adjudication does not. See Tex. Code Crim. Proc. Ann. art. 42.12, sec. 2(2) (Vernon 2005). Thus, appellant could have been sentenced to deferred adjudication before the court entered a formal finding of guilt. It was only after this finding that the deferred adjudication sentencing option became unavailable. See West v. State, 702 S.W.2d 629, 635 (Tex.Crim.App. 1986) (holding that defense counsel's advice that court would assess lower punishment and that defendant was eligible for deferred adjudication did not render defendant's guilty plea unknowing or involuntary.). Viewing the record as a whole, we hold that appellant has failed to overcome the burden to demonstrate that his plea was involuntary. We overrule appellant's first issue. Review of PSI Report
In his second and third issues, appellant contends that his due process rights were violated and that his conviction is void under both the United States and Texas Constitutions because the trial judge reviewed the PSI report prior to a formal finding of guilt. See U.S. Const. amend. V, XIV; Tex. Const. art. I., § 19. Appellant cites State ex rel. Turner v. McDonald, 676 S.W.2d 375 (Tex.Crim.App. 1984) and State ex rel. Bryan v. McDonald, 662 S.W.2d 5 (Tex.Crim.App. 1983) for the proposition that a conviction is void when the trial court reviews a defendant's PSI report prior to making a formal finding of guilt. Turner, 676 S.W.2d at 379, Bryan, 662 S.W.2d at 7-8. Unlike in Turner and Bryan, here, appellant pleaded no contest. The Code of Criminal Procedure provides that a trial court may not inspect a PSI report and the contents of the report may not be disclosed to any person unless: (1) the defendant pleads guilty or nolo contendere or is convicted of the offense or (2) the defendant, in writing, authorizes the judge to inspect the report. Tex. Code Crim. Proc. Ann. art. 42.12, sec. 9(c)(1) (Vernon 2005). Because appellant pleaded no contest, the court's review of the PSI report was not error. See Wissinger v. State, 702 S.W.2d 261, 263 (Tex.App.-Houston [1st Dist.] 1985, pet. ref'd). Accordingly, we overrule appellant's second and third issues. Cruel and Unusual Punishment
In his fourth and fifth issues, appellant contends that, in violation of his federal and state constitutional rights against cruel and unusual punishment, the trial court committed reversible error in assessing his punishment at 14 years' confinement. Appellant did not raise these complaints in the trial court and, thus, has failed to preserve them for appellate review. See Tex.R.App.P. 33.1(a)(1); Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App. 1995) (cruel and unusual punishment complaint not preserved). We overrule appellant's fourth and fifth issues. Conclusion
We affirm the judgment of the trial court.