Tatum, Randy Lee v. The State of Texas--Appeal from 248th District Court of Harris County

Affirmedand Memorandum Opinion filed February 8, 2005.

In The

Fourteenth Court of Appeals

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NOS. 14-04-00109-CR

14-04-00110-CR

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RANDY LEE TATUM, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause Nos. 957,449;957,450

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

Appellant Randy Lee Tatum pled guilty to aggravated robbery and aggravated sexual assault. The trial court sentenced him to fifteen years for the robbery offense and to seventy-five years for the sexual assault offense. On appeal, appellant claims that an inconsistency in the plea documents rendered his plea involuntary. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.1. We affirm.

Appellant alleges that he bargained for a presentence investigation and hearing following his plea; in his plea papers, however, appellant initialed a section waiving his right to a presentence investigation report. Appellant claims that this inconsistency shows his lack of understanding of the consequences of his plea and therefore renders his plea involuntary under the standards laid out in North Carolina v. Alford, 400 U.S. 25, 31 (1970) (plea is voluntary if the record reflects that the defendant s plea is a voluntary and intelligent choice) and Ex Parte Morrow, 952 S.W.2d 530, 534 35 (Tex. Crim. App. 1997) (an accused must be fully aware of the direct consequences of the plea into which he enters).

A defendant must knowingly and voluntarily enter his guilty plea in order for the plea to be constitutionally valid. See Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon 2003); Brady v. U.S., 397 U.S. 742, 753 (1970); Flowers v. State, 935 S.W.2d 131, 133 (Tex. Crim. App.1996). In evaluating a claim of an involuntary guilty plea, an appellate court considers the entire record and the totality of the circumstances surrounding the plea. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App.1998) (per curiam); see also Ducker v. State, 45 S.W.3d 791, 796 (Tex. App. Dallas 2001, no pet.). If a defendant attests that his plea is voluntary and that he understands its nature, his burden is heavy on appeal to show that the plea was, in fact, involuntary. Jones v. State, 855 S.W.2d 82, 84 (Tex. App. Houston [14th Dist.] 1993, pet. ref'd). To prove involuntariness, an appellant must show that the court s admonishments left him unaware of the plea s consequences and that he was misled or harmed. See Tex. Code Crim. Proc. Ann. art. 26.13(c) Vernon 2003); Tabora v. State, 14 S.W.3d 332, 334 (Tex. App. Houston [14th Dist.] 2000, no pet.) (citing Ex Parte Williams, 704 S.W.2d 773, 775 (Tex. Crim. App. 1986)).

In this case, the appellant attested in writing that his plea was voluntary and that he understood its nature. Furthermore, the appellant received a presentence investigation hearing, during which the judge stated that she had received a copy of the presentence investigation and other documents from friends and family. We therefore fail to see how the appellant s initialing of the waiver of his right to a presentence investigation report in the plea admonishment documents while requesting a presentence investigation in the plea bargain itself would render his plea involuntary under Texas law. We hold that appellant has not met his burden to show that he pled guilty without understanding the consequences of his plea and consequently suffered harm. Tabora, 14 S.W.3d at 334. We thus hold that his plea was voluntary; his only point of error is therefore overruled.

We affirm the judgment of the trial court.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed February 8, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

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