Esparza, Rigeoberto Sanchez v. The State of Texas--Appeal from 177th District Court of Harris County

Affirmed and Memorandum Opinion filed July 31, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-01117-CR

____________

RIGEOBERTO SANCHEZ ESPARZA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 893,403

M E M O R A N D U M O P I N I O N

Appellant pleaded guilty to a felony offense of possession of a controlled substance, and the trial court assessed twenty-two years= confinement in the Texas Department of Criminal Justice, Institutional Division, and a one thousand dollar fine. On appeal, appellant complains that his guilty plea was made involuntarily and that, as a result, the trial court erred in denying his motion for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant pleaded guilty to the offense of delivery of a controlled substance weighing at least four hundred grams, and did so without a plea agreement from the State regarding his sentence. After the pre-sentence investigation hearing, the trial court sentenced appellant to twenty-two years= confinement and a one thousand dollar fine.

Appellant delivered a pro-se motion for new trial, which was then transferred to the district court and filed almost two weeks later. After conducting a hearing, the trial judge denied appellant=s motion for new trial.

In his sole point of error, appellant contends that his guilty plea was made involuntarily. In making this contention, he claims that his trial counsel improperly promised him that he would be sentenced to the minimum sentence (15 years) if he pleaded guilty without an agreed recommendation as to punishment.

DISCUSSION

A defendant=s guilty plea must be made freely, voluntarily, and knowingly. Ex parte Evans, 690 S.W.2d 274, 276 (Tex. Crim. App. 1985). In determining whether a guilty plea is voluntary, this Court considers the totality of the circumstances. George v. State, 20 S.W.3d 130, 135 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).

Before accepting a guilty plea, a trial court must admonish the defendant in accordance with article 26.13 of the Code of Criminal Procedure, either orally or in writing, to assure that the defendant understands the charges against him and the consequences of his plea. Ex parte Gibauitch, 688 S.W.2d 868, 870 (Tex. Crim. App. 1985); Tex. Code Crim. P. Ann. Art. 26.13 (Vernon 1989).

Proper admonishment by the trial court establishes a prima facie showing that the defendant entered into a knowing and voluntary plea. George, 20 S.W.3d at 135. A defendant may, of course, still raise the claim that his plea was not voluntary, but the burden shifts to him to demonstrate that he did not fully understand the consequences of his plea. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). Further, when a defendant affirmatively indicates at the plea hearing that he understands the proceeding=s nature and is pleading guilty because the allegations in the indictment are true, not because of any outside pressure or influence, he has a heavy burden to prove that his plea was involuntary. George, 20 S.W.3d at 135.

Here, appellant was admonished, in writing, by the court. Appellant signed those admonishments, which included the range of punishment, the waiver of trial by jury, representations that he understood the consequences of his plea, that he was mentally competent, that he made his plea freely and voluntarily, and that he was satisfied with his counsel=s representation. The record is silent as to any deviation from the proper admonishment procedures, and there is nothing in the plea papers to indicate that the plea was involuntary. As such, the trial court=s admonishments substantially complied with the requirements of the Code of Criminal Procedure, and, therefore, there is a strong presumption that appellant=s plea was voluntary. And since appellant affirmed that he understood the nature of the hearing and plea, he has a heavy burden to show that the plea was involuntary.

The only evidence appellant has presented of any misrepresentation is a hand-written affidavit in which he described the alleged promises that trial counsel made to him.[1] Appellant=s affidavit states that [h]e told me I would not get no more than 15 years. And according to appellant=s account, counsel also threatened to walk out on the case if appellant did not sign the guilty plea.

Appellant=s story is in direct conflict with that of his trial counsel, who filed his own sworn affidavit. In his affidavit, counsel explains that he had numerous conversations with appellant, in which he explained appellant=s options and the risks involved with each option, as well as the full range of punishment. Furthermore, trial counsel goes on to say that he never made any promise to appellant about a specific amount of penitentiary time. And that he informed appellant, on more than one occasion, that the judge could sentence appellant anywhere within the full range of punishment. Based on these conversations with appellant, trial counsel believed that appellant had a full understanding that the judge could sentence him to any number of years within the punishment range.

In this case, there is much direct as well as circumstantial evidence to indicate that the plea was entered freely and voluntarily. Given the conflicting affidavits, and the totality of the circumstances, the trial judge could have reasonably decided that appellant=s guilty plea was made knowingly and voluntarily. See Evans, 690 S.W.2d at 276. As such, the appellant has not met his high burden to show that the plea was involuntary, and, therefore, we hold that the trial court did not abuse its discretion in denying appellant=s motion for a new trial.

We overrule appellant=s issue and affirm the judgment of the trial court.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed July 31, 2003.

Panel consists of Chief Justice Brister, Justices Hudson and Fowler.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] The State argues that this affidavit is untimely, and therefore a nullity. But since appellant delivered his motion for new trial on October 16th, and any delay was the fault of the court, the October 29th filing date does not render the affidavit a nullity. Harris v. Borne, 933 S.W.2d 535, 537B38 (Tex. App.CHouston [1st Dist.] 1992, no writ).