WILLIAM ISAAC CHAVEZ v. THE STATE OF TEXAS--Appeal from 24th District Court of Victoria County

NUMBER 13-06-00526-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

WILLIAM ISAAC CHAVEZ, Appellant,

 

v.

 

THE STATE OF TEXAS, Appellee.

 

On appeal from the 24th District Court of Victoria County, Texas.

 

MEMORANDUM OPINION

 
Before Chief Justice Valdez and Justices Benavides and Vela
Memorandum Opinion by Chief Justice Valdez

Appellant William Isaac Chavez appeals his conviction of aggravated robbery with a deadly weapon. Tex. Penal Code Ann. 29.03 (Vernon 2003). In a single point, Chavez contends that the trial court committed reversible error by accepting an involuntarily entered guilty plea. We affirm.

I. BACKGROUND

Chavez was indicted for robbing Jesus Rea using a firearm. He plead guilty in exchange for a recommendation of deferred adjudication by the State. See generally Tex. Code Crim. Proc. Ann. art. 42.12 (Vernon 2006). Chavez executed a plea memorandum that included a paragraph titled, "free and voluntary plea" and a warning that the punishment range for a first degree felony was a prison term of not more that 99 years. The trial court also admonished Chavez as the consequences of violating community supervision terms by stating, "This is a serious matter. You need to follow the rules or you could be arrested and you['ll] [sic] be looking at a wide range of time . . . minimum calendar time is 5 years. You'll need to straighten up."

After admonishing Chavez, the trial court found that he had used a firearm during the robbery, deferred adjudication for ten years, placed Chavez on community supervision, and ordered him to pay a fine, courts costs, and restitution. Approximately two years later, the State filed a motion to adjudicate guilt, which alleged that Chavez had violated numerous community supervision requirements.

A hearing was held on June 15, 2006. Chavez pled true to (1) leaving the county without permission, (2) failing to pay court costs, (3) failing to perform community service hours, and (4) not entering a drug rehabilitation program. Chavez pled not true to failing to meet with his probation officer and to failing to pay supervisory fees. At the hearing, Chavez testified that none of the evidence against him for the aggravated robbery charge was true and that he plead guilty out of fear of receiving a stiff sentence.

On June 15, 2006, the trial court found that Chavez had violated all six of the community supervision requirements that the State alleged he had violated. It entered an adjudication of guilty and sentenced Chavez to 20 years in prison. Chavez timely filed a motion for new trial asserting that his initial plea of guilty was involuntary; the motion for new trial was denied by operation of law. A notice of appeal was filed on September 22, 2006. (1)

II. DISCUSSION

Chavez's sole point of error is that the guilty plea he entered in exchange for deferred adjudication was involuntary. See Tex. Crim. Proc. Code Ann. art. 26.13(b) (Vernon Supp. 2006) (providing that no plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary).

In his first sub-point, Chavez argues that he "didn't know anything about a gun" and that this lack of knowledge negates the deadly weapon element of aggravated robbery. The only case cited by Chavez is Payne v. State, 790 S.W.2d 649, 652 (Tex. Crim. App. 1990), which he argues supports his involuntariness argument. We disagree.

In Payne, the defendant pled guilty to aggravated robbery. Id. at 650. At the sentencing hearing, Payne, for the first time, stated that he used a toy gun to commit the robbery. Id. at 651. Until that point in the proceedings, Payne did not know that there was a difference in the severity of charges or punishment range if he had used a real gun verses a toy gun. Id. The trial court denied Payne's motion to withdraw his guilty plea. Id. The court of criminal appeals held that Payne's surprise testimony raised a serious fact issue as to his guilt of aggravated robbery and served to undermine the factual validity of his signed confession. Id. at 652. It reversed the trial court's judgment of conviction and remanded the case. Id. at 652.

Chavez's reliance on Payne is misplaced. Payne is distinguishable because the defendant in that case timely moved to withdraw his guilty plea - before sentencing - while Chavez never moved to withdraw his plea and only now argues that the trial court erred by entering an involuntary plea. Aldrich v. State, 53 S.W.3d 460, 467 (Tex. App.-Dallas 2001), aff'd, 104 S.W.3d 890 (Tex. Crim. App. 2003). Chavez's first sub-point lacks merit.

Chavez also contends that his plea was involuntary because he was afraid of receiving a stiff sentence and therefore pled guilty to a crime that he did not commit. When the record shows that a defendant was properly admonished, it presents a prima facie showing that the guilty plea was knowing and voluntary. Ex parte Williams, 704 S.W.2d 773, 775-76 (Tex. Crim. App. 1986); Richard v. State, 788 S.W.2d 917, 920 (Tex. App.-Houston [1st Dist.] 1990, no pet.). The burden then shifts to the defendant to establish that he did not understand the consequences of his plea. Id. Any complaints about extrinsic matters should be raised in a motion for new trial. McMillan v. State, 769 S.W.2d 675, 676 (Tex. App.-Dallas 1989, pet. ref'd). The trial court is the appropriate forum to present evidence that may warrant a new trial and to make a record for appellate review. Id.

In the instant case, Chavez filed an unverified motion for new trial asserting that his plea of guilty was involuntary. However, a hearing on Chavez's motion for new trial was never held. The only evidence concerning the involuntariness of Chavez's plea is his testimony before the trial court at the hearing on the State's motion to adjudicate guilt, where he stated that he plead guilty merely to avoid a long prison term.

A review of the record reveals that Chavez was properly admonished before the trial court on September 29, 2004, when he entered a plea of guilty in exchange for deferred adjudication. The clerk's record contains a plea memorandum that includes a paragraph titled, "free and voluntary plea," which was executed by Chavez. We hold that Chavez has not meet his burden of establishing that he did not understand the consequences of his plea. See Richard, 788 S.W.2d at 920. Chavez's second sub-point also fails.

We overrule rule Chavez's sole point of error.

III. CONCLUSION

The judgment of the trial court is affirmed.

ROGELIO VALDEZ

Chief Justice

 

Do not publish.

Tex. R. App. P. 47.2(b).

 

Memorandum Opinion delivered and filed

this the 9th day of August, 2007.

1. We note that the record contains two trial court certifications of Chavez's right to appeal. The first is dated September 29, 2004, and states that the case is a plea-bargain case and that the defendant has no right to appeal. The second is dated June 15, 2006, and states that it is not a plea-bargain case and that the defendant has the right to appeal. Accordingly, we conclude that we have jurisdiction to hear Chavez's appeal, subject to Texas Code of Criminal Procedure article 42.12 5(b). Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App. 2006); see also Tex. R. App. P. 25.2(a) (providing that in a plea bargain case a defendant may appeal only those matters that were raised by written motion filed and ruled on before trial or after getting the trial court's permission to appeal).