Kwami A. Doni v. The State of Texas--Appeal from Co Crim Ct at Law No 4 of Harris County

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Doni v. State /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-93-220-CR

 

KWAMI A. DONI,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the County Criminal Court at Law No. 4

Harris County, Texas

Trial Court # 9328691

 

O P I N I O N

 

Kwami Doni was charged by an information with the unlawful appropriation of fifteen packs of cigarettes having a value over twenty dollars and under two-hundred dollars. See Tex. Penal Code Ann. 31.03 (Vernon 1989 and Supp. 1994). His written plea of guilty, approved by his attorney, was accompanied by a waiver of (a) a jury trial, (b) the right to compel witnesses to testify for him, (c) the right to confront and cross-examine the complainant, (d) the right to be arraigned and have the charge read in open court, (e) the right to remain silent, and (f) the right to the ten-day period for counsel to prepare for trial. He further requested that no pre-sentence investigation be made. The plea was entered under a plea-bargain agreement that provided for a sentence of fifteen days in jail as the recommended punishment. He entered the plea and was sentenced on July 16, 1993.

Twenty days later, he filed a motion to withdraw his guilty plea on the grounds that he only understands, speaks, reads, and writes French and Ewe, not English. Because no one in court spoke French and the proceedings were in English, he says he did not have any understanding of the proceedings and his waivers were not voluntary, intelligent waivers of his rights under the United States Constitution. His motion was accompanied by his affidavit in English. The court took no action on his motion to withdraw, and he filed a notice of appeal on August 16.

In two points Doni contends (1) that his plea was not voluntary and violated his constitutional right to due process and (2) the court erred in failing to grant the motion to withdraw his plea. In response, the State points out that we have nothing to review. Apparently, Doni's counsel at the plea hearing did not request that the proceedings be transcribed. Further, although Doni's affidavit setting forth the basis for the motion is attached to his motion for new trial, counsel apparently never requested a hearing on the motion and it was overruled by operation of law. We cannot consider the affidavit. See Stephenson v. State, 494 S.W.2d 900, 909-10 (Tex. Crim. App. 1973).

In the absence of a showing to the contrary, we must presume that the trial court's actions were correct. See Thompson v. State, 641 S.W.2d 920, 921 (Tex. Crim. App. [Panel Op.] 1982). Thus, we have no choice but to overrule his points of error. We affirm the judgment.

BILL VANCE

Justice

 

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed February 8, 1995

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