Opinion
No. 05-03-00743-CR.
Opinion issued February 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 336th Judicial District Court Grayson County, Texas, Trial Court Cause No. 47966. Affirmed.
OPINION
The sole issue presented by appellant Richard Lee Villareal is whether the trial court, in violation of article 26.13(h), reversibly erred in not "inquiring" whether appellant's attorney had advised him of the requirement of registration as a sexual offender. Because appellant has shown neither error nor harm, we affirm. Appellant was charged in two separate indictments. In trial court cause number 48947, in two counts, appellant was charged with felony bail jumping and failure to appear. In cause number 47966, in two counts, appellant was charged with aggravated sexual assault and indecency with a child. A joint plea hearing in both cases was held on October 14, 2002 before a visiting judge. Although there was no plea agreement on punishment, there was an agreement that the State would, and did, abandon the offense of felony bail jumping and failure to appear alleged in count two of cause number 48947. The trial court accepted appellant's pleas of guilty to the remaining count of felony bail jumping and failure to appear in cause number 48947 and the two counts of aggravated sexual assault and indecency with a child alleged in cause number 47966. After admitting into evidence, without objection, certain State's exhibits and finding the evidence to be sufficient to sustain a conviction in each of the two cases, the trial court continued the cases to a later date for a punishment hearing before another judge. On January 10, 2003, the trial court conducted a punishment hearing in cause number 47966. Evidence was presented, then the hearing was continued so that another witness could be present to testify. The hearing was concluded on February 6, 2003, at which time the trial court assessed appellant's punishment at twelve years confinement in that case. On March 5, 2003, appellant filed a notice of appeal in cause number 47966. In the trial court's certification of defendant's right of appeal signed and filed on May 21, 2003, the trial court certified that the defendant had waived the right of appeal. Because the record did not support the trial court's certification, and in light of Shankle v. State, 119 S.W.3d 808 (Tex.Crim.App. 2003), we abated the appeal to allow the trial court to file a new certification that accurately reflected the record. In a supplemental clerk's record filed on December 11, 2003, the trial court certified that this criminal case is not a plea-bargain case, and the defendant has the right of appeal. We, therefore, address the merits of appellant's issue. It is important to note that appellant does not complain his plea was involuntary because he was not admonished of the registration requirements; appellant concedes, and the record reflects, he was admonished in written documents signed by appellant and his trial counsel although no oral admonishments were given. Rather, appellant's complaint is that his plea of guilty was involuntary because the trial court "failed to fully and affirmatively ascertain prior to accepting appellant's plea whether appellant's counsel had advised him of registration as a sexual offender." Appellant further contends that harm is shown because appellant will be required to register for life, even though his sentence was for twelve years, because of the specific offense for which he was convicted. The code of criminal procedure requires that before accepting a guilty plea, the trial court must admonish a defendant of: (1) the punishment range; (2) the fact that the State's sentencing recommendation is not binding on the court; (3) the limited right to appeal; (4) the possibility of deportation; and (5) the applicability of sex offender registration requirements under chapter 62 of the code. Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2004). The admonishments may be made either orally or in writing. Id. art. 26.13(d). When admonishments are made in writing, the defendant and his lawyer must file a statement that the defendant understood the admonitions and was aware of the consequences of the guilty plea. Id. The code also provides that "[b]efore accepting a plea of guilty or nolo contendere from a defendant described by Subsection (a)(5), the court shall ascertain whether the attorney representing the defendant has advised the defendant regarding registration requirements under Chapter 62." Id. art. 26.13(h) (emphasis added). To be constitutionally valid, a guilty plea must be knowing and voluntary. Brady v. United States, 397 U.S. 742, 74a (1970). Article 26.13 admonishments are to ensure the constitutional validity of a defendant's plea. Meyers v. State, 623 S.W.2d 397, 402 (Tex.Crim.App. [Panel Op.] 1981). A record that reflects the trial court properly admonished the defendant of the consequences of his plea is prima facie evidence that the defendant entered a knowing and voluntary plea. See Ex parte Williams, 704 S.W.2d 773, 775 (Tex.Crim.App. 1986). 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. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998). The record does not affirmatively reflect the trial court failed to ascertain that defense counsel had properly informed appellant of the registration requirements; it is simply silent on that issue. Appellant, however, appears to contend that the trial court must make an oral inquiry of counsel. There is no such requirement in subsection (h). We note, however, that subsection (e) does state the court "shall inquire." Compare Tex. Code Crim. Proc. Ann. art. 26.13(e) with art. 26.13(h). We conclude the differing language is not inadvertent but, rather, is because the determination required in subsection (h) is one that could be ascertained from information contained within the court's file, whereas the determination required in subsection (e) is one which could not. We further conclude, therefore, the trial court can fulfill its duty to "ascertain" without making an oral "inquiry" if there is sufficient information contained within the file from which to do so. Because the record is silent on the issue, we examine the record to determine if there is evidence from which the trial court could have "ascertained" that defense counsel did so inform appellant of the registration requirements. If there is, we will presume the regularity of proceedings. On appeal, we presume the regularity of the proceedings in the trial court, and the defendant bears the burden of overcoming this presumption. Nicholas v. State, 56 S.W.3d 760, 770 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (citing Dusenberry v. State, 915 S.W.2d 947, 949 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd)). State's Exhibit 1 was admitted into evidence without objection. That exhibit consists of pages 1 through 16 and is entitled "Plea Papers." The "Judge's Admonishment" portion of that exhibit is on pages 1 through 4. Specifically, in paragraph 16 on page 3, appellant was admonished in writing: "If you are convicted of an offense listed in Article 62.01(5) and Article 62.01(6) of the Code of Criminal Procedure, you will be required to register as a sex offender and will be subject to the registration requirements of Chapter 62 of the Code of Criminal Procedure." The "Defendant's Acknowledgment and Waiver of Rights" portion of that exhibit is on pages 5 through 9. Specifically on page 6 of State's Exhibit 1 the following appears:
I, the undersigned defendant in the above entitled and numbered cause, having read the above and foregoing admonitions, statement of my rights and explanation of the consequence of my plea of guilty in this case and having had same explained to me by my attorney, do hereby acknowledge that I have in open court received the above in writing from the Judge of this court; that I fully understand same; and that I am fully aware of the consequences of my plea of guilty in this case.(Emphasis added). The "Attorney's Certificate and Approval" portion of State's Exhibit 1 is on pages 9 through 10. In paragraph (1) on page 9, appellant's counsel stated: "I have read the `Judge's Admonishment," Defendant's Acknowledgment and Waiver of Rights,' and the' Defendant's Agreement to Stipulate Evidence and Defendant's Stipulation' in the above-numbered and styled cause and have fully explained each to the defendant." (Emphasis added.) The signature of appellant's counsel appears on page 10. Thus the record provides information from which the trial court could have ascertained that appellant had been informed by defense counsel of the registration requirements. Because the record contains evidence from which the trial court could have ascertained that defense counsel had informed appellant of the sex offender registration requirements, and because we assume the regularity of proceedings, appellant has failed to meet his burden and no error is shown. Moreover, even if error should be deemed to have occurred, appellant cannot show harm. There is nothing in the record to show that appellant was unaware of the consequences of his plea or that the trial court's failure to ascertain whether counsel advised appellant of the registration requirements misled or harmed him in any way. We, therefore, resolve appellant's sole issue against him. We affirm the trial court's judgment.
Although appellant inaccurately phrases the issue as not "inquiring" of appellant's attorney, in argument under the issue appellant accurately phrases the issue as "failed to . . . ascertain." Article 26.13(h) of the Texas Code of Criminal Procedure states, "Before accepting a plea of guilty or nolo contendere from a defendant described by Subsection (a)(5), the court shall ascertain whether the attorney representing the defendant has advised the defendant regarding registration requirements under Chapter 62 (emphasis added)." We note, by way of contrast, that the language of article 26.13(e) of the code concerning victim impact statements states "shall inquire." The verb "ascertain" means "to find out for certain; to make sure." Webster's Dictionary 19 (1989). On the other hand, the verb "inquire" means "to ask a question; to make an investigation." Webster's Dictionary 145 (1989).
The State's exhibits admitted were State's Exhibit 1 (multiple pages of the plea papers in cause number 47966) and State's Exhibit 2 (multiple pages of the plea papers in cause number 48947). The trial court later reconvened and admitted defense exhibits 1 and 2 concerning certain rejected plea bargain offers made by the State.
Although the record is not clear why regarding why there was no punishment hearing in cause number 48947, we surmise there was an agreement on punishment in that case. In any event, cause number 48947 is not before us in this appeal.
The notice of appeal is dated February 10, 2003, but is file marked March 5, 2003.
Appellant complains, however, that those documents were never approved by the trial judge.
Subsection (e) concerns information about whether a victim impact statement has been returned to the attorney for the State.