PAUL DAVID KASBERG, JR., Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed August 7, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00532-CR
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PAUL DAVID KASBERG, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-00925-PW
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OPINION
Before Justices Whittington, Richter, and Mazzant
Opinion By Justice Richter
        Paul David Kasberg appeals his conviction for burglary of a habitation. See Tex. Penal Code Ann. § 32.02 (Vernon 2003). Following indictment, appellant entered an open plea of guilty. The primary offense was enhanced by two prior felony convictions. A jury found the enhancements to be true and sentenced appellant to sixty-five years in prison. In five issues, appellant asserts his plea was not voluntary, the trial court erred in failing to grant a mistrial, and the State failed to prove one of the convictions alleged for enhancement of punishment. For the reasons that follow, we affirm the trial court's judgment.
 
Background
        Mae Hailey heard someone attempting to open the screen door to her house. A minute later, she heard someone trying to open the back door and then heard a kick to the door. While Hailey was dialing 9-1-1 she heard a noise at the front door again and saw appellant attempting to enter the house with a hammer and a screwdriver. As appellant gained entry into the house, Hailey retreated to her bathroom and locked the door. The 9-1-1 operator summoned the police.
        When the police arrived, they observed an open front screen to the house and the door partially ajar. A small window in the middle of the door was smashed and there were pry marks around the deadbolt. When the officers entered the house, they observed appellant existing a back bedroom with a hammer in his hand. A screwdriver was discovered in appellant's pocket and appellant was arrested.
         Prior to trial, the State offered appellant a plea agreement for twenty years' imprisonment. Appellant rejected the offer. After arraignment, appellant entered a plea of not guilty. On April 16, 2007, a jury was selected and sworn. On the following day, appellant changed his plea to guilty, but entered pleas of not true to the enhancement allegations. Before the guilty plea was entered, the trial court admonished appellant that he faced a minimum sentence of twenty-five years' imprisonment if the State proved the enhancement paragraphs. Appellant stated he understood and still planned to enter a guilty plea. Appellant also stated he had gone over everything with his lawyer and understood everything, including the written admonishments. The indictment was read and appellant entered a plea of guilty. The plea agreement and appellant's judicial confession were admitted into evidence without objection.
        Hailey testified at the punishment hearing. Her testimony was emotional and punctuated with crying. Hailey passed out as she stepped down from the witness stand, and the jury was immediately removed from the courtroom. Appellant moved for a mistrial which the trial court denied. No curative instruction was requested or given.
        Also during the punishment hearing, the state presented evidence of two prior convictions for enhancement purposes. A sheriff testified that the fingerprints on cards attached to two judgments of conviction matched the fingerprints he had personally taken from appellant. Appellant objected to one of the prior judgments as not authenticated and the trial court overruled the objection.
        After he was convicted, appellant filed a motion for new trial asserting his plea of guilty was not knowing and voluntary because of significant misinformation conveyed to him by his trial attorney and because he had an incomplete understanding of the consequences of his plea. The trial court conducted an evidentiary hearing at which appellant and his trial counsel both testified. At the conclusion of the hearing, the trial court denied the motion for new trial. This appeal followed.
 
Discussion
The Guilty Plea
        In his first three issues, appellant challenges the voluntariness of his plea. Specifically, appellant claims his guilty plea was involuntary because he did not have a complete understanding of the charge against him and the consequences of the guilty plea. Appellant further contends the record does not affirmatively show the plea was entered voluntarily and knowingly.
        A guilty plea will be accepted as constitutionally valid only with an affirmative showing that such a plea was entered knowingly, intelligently, and voluntarily. See Brady v. U.S., 397 U.S. 742, 748 (1970); Mitschke v. State, 129 S.W.3d 130, 132 (Tex. Crim. App. 2004). The record must affirmatively demonstrate that a defendant who pleaded guilty did so understandingly and voluntarily. Boykin v. Alabama, 395 U.S. 238, 242 (1969). We determine the voluntariness of a plea of guilty from the totality of the circumstances viewed in light of the entire record. Drucker v. State, 45 S.W.3d 791, 796 (Tex.App.-Dallas 2001, no pet.). Under article 26.13 of the Texas Code of Criminal Procedure, the trial court must admonish the defendant of the applicable range of punishment before accepting his guilty plea. Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2007-08); Kirk v. State, 949 S.W.2d 769, 771 (Tex.App.-Dallas 1999, pet ref'd). The trial court's substantial compliance with article 26.13 establishes a prima facie showing that a defendant entered a knowing and voluntary plea. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curium). Once we determine the trial court's substantial compliance, the burden shifts to the defendant to show that he entered a plea without knowing its consequences and was thereby harmed. Id. Here, the trial court substantially complied with article 26.13 by orally admonishing appellant of the appropriate range of punishment. Appellant also received written admonishment in the plea agreement. With this prima facie showing, the question becomes whether appellant met his burden to show the plea was not voluntary.
         The appellant stated he had a complete understanding of his plea and signed a written judicial confession. When an accused attests that he understands the nature of his plea and that it was voluntary, he has a heavy burden to establish otherwise on appeal. See Edwards v. State, 921 S.W.2d 477, 479 (Tex. App.-Houston [1st Dist.] 1996, no pet.). Despite his written judicial confession, appellant testified at the hearing on the motion for new trial that he was unaware of the elements of the offense the state was required to prove. Appellant testified he did not intend to burglarize the house and did not steal anything. According to appellant, he entered the residence in an attempt to locate a man named Rex to recover a stolen ring. Appellant argues he would not have entered a guilty plea if he had been aware the State was required to prove either an intent to commit theft or the commission or attempted commission of theft. See Tex. Penal Code Ann. § 30.02 (Vernon 2003).          Nonetheless, the indictment and the judicial confession both stated appellant entered a habitation without the consent of the owner with the intent to commit theft. The indictment was read before the entry of the plea. Appellant signed the judicial confession and affirmed his understanding of everything, including the written admonishments, in open court. Appellant also stated he went over everything with his lawyer. Appellant's trial counsel testified he discussed the elements of the offense with appellant. Appellant did tell him the story about breaking into the house to find Rex. But counsel warned appellant if he testified to that effect, the State could introduce evidence of an incriminating statement in the police report. According to the police report, appellant stated upon arrest “I am in the house to steal stuff because I am a crack addict.”
        Appellant also insists he would not have pled guilty if he had known he was exposed to a range of punishment of twenty-five to ninety-nine years or life in prison. Yet on cross-examination, appellant admitted the judge advised him that with the enhancements, he faced a punishment range of twenty-five to ninety-nine years or life.
        Appellant also testified he originally planned to plead not guilty, but trial counsel advised him if he pled guilty the State would not pursue any enhancements and the maximum sentence he would face was twenty years. Appellant further testified counsel told him the State would not present any evidence if he chose not to testify. A plea of guilty based on misinformation is involuntary. Boykin, 395 U.S. at 244. But a defendant's claim he was misinformed by counsel, standing alone, is not enough to hold his plea was involuntary. In cases where a guilty plea was held to have been involuntary, the record contains confirmation of the misinformation by counsel or documents augmenting the defendant's testimony that reveal the misinformation and show its conveyance to the defendant. Fimberg v. State, 922 S.W.2d 205, 208 (Tex.App.-Houston [1st Dist.] 1996, pet ref'd) (citations omitted). There is no such corroboration here.         Contrary to appellant's assertions, the record does demonstrate appellant had an affirmative understanding of his plea. Although appellant testified concerning the involuntary nature of his plea, his testimony conflicted with the testimony of his counsel and appellant's own actions and admissions. The trial judge was able to evaluate the credibility of the witnesses and denied the motion for new trial. We are not in a position to disturb that ruling absent an abuse of discretion. See Webb v. State, 232 S.W.3d 109, 111 (Tex. Crim. App. 2007). Viewing the totality of the circumstances, we conclude appellant failed to rebut the prima facie showing of voluntariness. Appellant's first three issues are overruled.
The Motion for Mistrial
        In his fourth issue, appellant claims the trial court erred in denying his motion for mistrial following Hailey's collapse in the presence of the jury. We disagree.
        A mistrial is only appropriate for highly prejudicial and incurable errors. See Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). It may be used to end trial proceedings when faced with error so prejudicial that expenditure of further time and expense would be wasteful and futile. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). We review a trial court's denial of a mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim App. 1999). In so doing, we view the evidence in the light most favorable to the trial court's ruling and uphold the ruling if it is within the zone of reasonable disagreement. See Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable. See Webb v. State, 232 S.W.3d at 111.
        Appellant argues he was entitled to a mistrial because Hailey's collapse was prejudicial and the assessment of the sixty-five year sentence was not certain but for the collapse. But there is no support in the record for these speculative assertions. The length of the sentence, in itself, does not suggest it results from anything other than the evidence presented. The jury found the enhancements to be true and the sentence assessed was within the range of punishment. Moreover, the trial judge was best situated to evaluate the effect of the incident and any potential for prejudice, and there is no indication her determination was arbitrary or unreasonable. Therefore, we conclude the trial court did not err when it refused to grant a mistrial. Appellant's fourth issue is overruled.
Proof of Enhancement Offense
         In his fifth issue, appellant argues the State failed to prove the offense alleged in the first enhancement paragraph of the indictment beyond a reasonable doubt. The first enhancement paragraph of the indictment alleged appellant had been previously convicted of the offense of burglary of a habitation in cause number F-91-007-B in Denton County, Texas on March 8, 1991 (the Denton burglary). The State offered a certified copy of a penitentiary packet (pen packet) that included a judgment in cause number F-91-007-B styled “The State of Texas v. Paul David Kasberg.” A fingerprint card from the Texas Department of Corrections was attached to the judgment. The card had Kasberg's name at the top and a signature purporting to be Kasberg's near the center. Appellant objected to the introduction of the pen packet because the judgment did not include appellant's thumb print or birth date. The trial court overruled the objection. Consequently, Appellant contends the state failed to prove appellant was the same person previously convicted for the Denton burglary.
         In addition to the certified copy of the pen packet, the State presented the expert testimony of the Dallas County Deputy Sheriff who had taken appellant's fingerprints in connection with this charge. The Deputy testified that the fingerprints in the pen packet were the same as the fingerprints he had personally taken from appellant. Appellant did not offer any controverting evidence. It is well-settled that a prior conviction alleged for enhancement may be established by certified copies of a judgment and sentence and authenticated copies of the Texas Department of Criminal Justice records, including fingerprints, supported by expert testimony matching them to the known prints of the defendant. Beck v. State, 719 S.W.2d 205, 209 (Tex.Crim.App.1986). Viewing the evidence in the light most favorable to the jury's finding, we conclude the evidence supports the conclusion that appellant was previously convicted for the Denton burglary as alleged in the first enhancement paragraph. Appellant's fifth issue is overruled.
        Having resolved all of appellant's issues against him, we affirm the judgment of the trial court.
                                                                                                                                                             
                                                          MARTIN RICHTER
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070532F.U05