Roberta Taylor v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

No. 04-98-00001-CR
Roberta TAYLOR,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 97-CR-3395
Honorable Susan Reed, Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 21, 1998

AFFIRMED

Roberta Taylor was indicted for the offense of delivering cocaine and pled nolo contendere pursuant to a plea bargain with the State. The trial court denied Taylor's application for probation and deferred adjudication, and sentenced her in accordance with her plea bargain agreement--seven years confinement and a $1,000 fine. In her sole issue on appeal, Taylor maintains that her guilty plea was involuntary because it was not taken in compliance with the admonishments required by Article 26.13 of the Texas Code of Criminal Procedure.

Specifically, Taylor complains that the trial court failed to properly admonish her concerning the range of punishment, the possibility of what would occur at sentencing if probation was not granted, or any of the other requirements of Article 26.13. Furthermore, Taylor contends that the trial court proceeding was unfair and resulted in a complete miscarriage of justice.(1)

In determining the voluntariness of a plea, we examine the totality of the circumstances. See Crawford v. State, 890 S.W.2d 941, 944 (Tex. App.--San Antonio 1994, no pet.). The Code of Criminal Procedure requires the trial court to admonish a defendant prior to accepting a guilty plea. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 1989). Article 26.13 (d) provides that the court may admonish orally or in writing. See id. If the admonishments are made in writing, then the defendant and her lawyer must file a statement that the defendant understood the admonition and was aware of the consequences of her plea. See id. While admonishment on the range of punishment is required, there is no mandatory duty for a trial judge to admonish a defendant regarding her eligibility for probation. See Ex Parte Williams, 704 S.W.2d 773, 775 (Tex. Crim. App. 1986); Rodriguez v. State, 933 S.W.2d 702, 704 (Tex. App.--San Antonio 1996, pet. ref'd). A plea will be considered voluntary unless the defendant shows he was unaware of the consequences of his plea because the trial judge provided him with inaccurate information on the availability of probation, and that he was misled or harmed by the inaccurate admonishment. See Ex Parte Williams, 704 S.W.2d at 776-7.

In the instant case, Taylor complains that the trial judge failed to give her the proper admonishments. However, the record simply does not support this contention. The record indicates that Taylor and her lawyer went over the court's written admonitions, that she signed and understood them, and had no questions regarding them. Taylor stated that she was waiving her right to trial by jury and understood the nature of the charges against her. The trial judge went over the plea bargain agreement with Taylor. The plea agreement shows that the bargain was for seven years and that the State would remain silent on Taylor's application for probation and deferred adjudication. There was never a bargain or guarantee of probation. The trial court admonished Taylor orally that there was no guarantee that her application for probation would be granted. Taylor acknowledged that she understood the plea bargain and wanted to follow the agreement she entered into with the State. The record indicates that the trial court properly admonished Taylor as to the consequences of her plea.

When the record shows the trial court properly admonished the defendant as to the consequences of her plea, the record presents a prima facie showing the defendant entered a knowing and voluntary plea. See Crawford, 890 S.W.2d at 944. The burden then shifts to the defendant to show the plea was not voluntary. See id. The defendant has to show that he pled guilty without understanding the consequences of his plea and, as a result, suffered harm. See Fuentes v. State, 688 S.W.2d 542, 544 (Tex. Crim. App. 1985); Hancock v. State, 955 S.W.2d 369, 371 (Tex. App.--San Antonio 1997, no pet.).

In the instant case, the record shows that Taylor entered a knowing and voluntary plea and understood the consequences of her plea. Taylor complains she was harmed because she was confronted with the consequence of being sentenced to seven years confinement when she bargained for probation. The plea bargain agreement, however, was for seven years confinement and the trial court sentenced Taylor in accordance with that agreement. Because the punishment assessed by the trial judge was identical to that agreed to by Taylor in the plea bargain agreement, Taylor was not harmed. See Stubblefield v. State, 659 S.W.2d 496, 499 (Tex. App.--Fort Worth 1983, no pet.). Thus, we overrule Taylor's issue and affirm the judgment of the trial court.

Alma L. L pez, Justice

DO NOT PUBLISH

1. A defendant may always challenge the voluntariness of her plea on appeal. See Flowers v. State, 935 S.W.2d 131, 134 (Tex. Crim. App. 1996).

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