FRANCISCO ARAGEN, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed September 23, 2008.
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00533-CR
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FRANCISCO ARAGEN, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F05-72580-NI
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OPINION
Before Justices Moseley, Bridges, and Lang-Miers
Opinion By Justice Moseley
        Francisco Aragen waived his right to a jury trial and entered a non-negotiated guilty plea to the offense of aggravated robbery. He signed both an English and Spanish version of his written plea agreement. The trial court accepted his plea, convicted him of aggravated robbery, and sentenced him to sixteen years' imprisonment. Aragen appeals, arguing in two points of error that the trial court violated his federal due process and state statutory rights by accepting his guilty plea on the basis of an un-translated foreign language document-i.e. the Spanish version of his written plea agreement. We affirm.
        Aragen's native language is Spanish. At the beginning of trial, the trial court appointed an interpreter to translate the proceedings and assist with communication between Aragen and his counsel. Aragen's trial counsel then advised the court that Aragen wanted to waive his right to a jury trial and plead not guilty. After the court explained the range of punishment and that probation would not be available on a plea of not guilty in a trial before the court, Aragen reaffirmed his desire to waive a jury trial. A waiver of jury form, written in English, was signed by the prosecutor, Aragen and his attorney, and the trial court.
        After the indictment was read, Aragen said in Spanish, “Guilty.” Aragen's attorney indicated Aragen wanted to enter an open plea of guilt. After a brief recess, the court asked Aragen's attorney if Aragen still wanted to plead guilty; she affirmed he did. The court then admonished Aragen as to the range of punishment, the possibility of deportation or denial of naturalization, and that the court was not bound by any agreement as to punishment. Aragen stated he understood the admonishments and wanted to continue with his guilty plea.
        A written plea agreement was signed by Aragen, his attorney, the prosecutor, and the trial court. Aragen and his attorney also signed a version of the plea agreement in Spanish. Aragen also signed a judicial confession (in English) tracking the language of the indictment. The judicial confession was admitted in evidence. The trial court found the evidence substantiated Aragen's guilt, but passed the case for a later hearing.
        At the subsequent hearing, a translator was again sworn to translate the proceedings for Aragen. The state presented two witnesses to the robbery who testified to the details of the offense and identified Aragen as one of the two men who robbed them at gunpoint. At the conclusion of the hearing, the trial court found Aragen guilty as charged in the indictment and set punishment at sixteen years' imprisonment.
        Aragen's points of error assert that his federal due process and state statutory rights were violated when the trial court accepted his guilty plea on the basis of an un-translated foreign language document. Both points are based on his contention that the Spanish version of the plea agreement had to be translated into English before it could be used to support the showing required by Boykin v. Alabama, 395 U.S. 238 (1969), and the Texas statutes relating to guilty pleas. See Tex. Code Crim. Proc. Ann. arts. 1.15, 26.13 (Vernon 2005, Supp. 2008). Aragen relies on Leal v. State, 782 S.W.2d 844 (Tex. Crim. App. 1989), to support this argument.
        In Leal, the court of criminal appeals concluded a tape recording of a conversation conducted in Spanish was not admissible before the jury because it had not been translated into English by a sworn interpreter. Id. at 847; see also Tex. Code Crim. Proc. Ann. art. 38.30(a) (Vernon Supp. 2008). The court of criminal appeals concluded the tape recording was analogous to when a witness who does not speak English testifies; an interpreter must be sworn to interpret for the witness. Tex. Code Crim. Proc. Ann. art. 38.30(a). It was also error to allow the State to use an unsworn English transcript of the recording as an aid for the jury. Leal, at 850.
        We conclude Leal does not support Aragen's arguments. We are not concerned with the admissibility of evidence at trial, but with whether the record shows Aragen's guilty plea was knowing and voluntary and that the statutory requirements for accepting his plea were satisfied. The record shows the trial court appointed an interpreter for Aragen's benefit throughout the proceedings. See Tex. Code Crim. Proc. Ann. art. 38.30(a). Moreover, we reject Aragon's contention that Leal requires the Spanish version of his plea agreement to be translated back into English. The plea agreement was prepared on a standard form in both English and Spanish. Aragen and his counsel signed both forms, and the prosecutor and trial court signed the English form. Both forms were file-stamped at the same time. Thus, the record contains both an English version and a Spanish version of the plea agreement. No further translations were required.
        We reject Aragen's due process arguments because the record as a whole shows his guilty plea was knowing and voluntary. See Boykin, 395 U.S. at 242; Fuller v. State, 253 S.W.3d 220, 229 (Tex. Crim. App. 2008) (stating due process requires affirmative showing “spread on the record” that guilty plea was intelligently and knowingly made); Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) (noting guilty plea waives three constitutional rights: right to a jury trial; right to confront one's accusers; and right not to incriminate oneself). The record shows Aragen had the benefit of a court-appointed interpreter for all proceedings. Both the trial court and his counsel explained the consequences of Aragen's waiving his right to a jury trial, including that the trial court could not give him probation. Thereafter Aragen again stated he wanted to waive a jury trial. After the indictment was read, Aragen plead guilty to the charge in Spanish. The trial court admonished Aragen that the court was not bound to follow any agreement as to punishment, and advised him of the punishment range for the offense, the risk of deportation, and he was waiving his right to a jury trial. Aragen stated he understood and he still wanted to plead guilty. See Briones v. State, 595 S.W.2d 546, 547-48 (Tex. Crim. App. 1980) (record showed defendant knowingly and intelligently waived right of confrontation and cross-examination where trial court asked defendant's attorney to translate plea proceedings for defendant).
        Additionally, Aragen's signed plea agreement contained a judicial confession to the offense as charged in the indictment and stated that Aragon understood and waived his right to a jury trial, his right to remain silent, and his right to confront and cross-examine witnesses against him. The plea agreement also stated Aragen was mentally competent, understood the charges against him, the range of punishment, and the consequences of his plea. It stated his plea and judicial confession were freely and voluntarily made and not influenced by fear, persuasion, or hope of pardon or parole.
        Based on the entire record, we conclude the record affirmatively shows Aragen entered his guilty plea knowingly and voluntarily. See Boykin, 395 U.S. at 242; Aguirre-Mata v. State, 125 S.W.3d 473, 475 (Tex. Crim. App. 2003); Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). We overrule Aragen's first point of error.
        We also reject Aragen's statutory arguments. See Gardner v. State, 164 S.W.3d 393, 398 (Tex. Crim. App. 2005) (compliance with Article 26.13 and compliance with Boykin are two separate issues). Before accepting a guilty plea, the trial court must admonish the defendant either orally or in writing. See Tex. Code Crim. Proc. Ann. art. 26.13. Substantial compliance by the trial court is sufficient unless the defendant affirmatively shows he was unaware of the consequences of his plea and was harmed or misled by the admonishment. Tex. Code Crim. Proc. Ann. art. 26.13(c). Substantial compliance with article 26.13 is a prima facie showing the guilty plea was knowing and voluntary and shifts the burden to the defendant to show he entered the plea without knowing the consequences. Martinez, 981 S.W.2d at 197. The oral proceedings and the written plea agreement and other documents signed by Aragen show the trial court substantially complied with the requirements of article 26.13 and Aragen has not shown he was unaware of the consequences of his plea or was harmed by the admonishments given.
        The record also contains sufficient evidence embracing the elements of the offense to support the guilty plea. Tex. Code Crim. Proc. Ann. art. 1.15. When a defendant pleads guilty, the State must introduce sufficient evidence into the record to support the plea and show the defendant is guilty, and the evidence must be accepted by the court as the basis for its judgment. See Id.; Ex parte Martin, 747 S.W.2d 789, 792-93 (Tex. Crim. App. 1988). We affirm the trial court's judgment if the evidence introduced embraces every essential element of the offense charged and is sufficient to establish the defendant's guilt. See Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996); Wright v. State, 930 S.W.2d 131, 132 (Tex. App.-Dallas 1996, no pet.).         The indictment alleged the elements of the offense, including venue and that the prosecution was within the statute of limitations-elements which Aragen claims on appeal were not shown by witness testimony. The indictment was read aloud and translated for Aragen, after which he plead guilty to the charge. See Gardner, 164 S.W.3d at 398 (where indictment is read to defendant at arraignment or at time of plea, defendant's guilty plea may be deemed a factual admission that he did what he is charged with doing). Further, in the plea agreement Aragen judicially confessed to the offense “exactly as alleged in the charging instrument.” A judicial confession admitted into evidence and contained in the clerk's record is sufficient to prove appellant's guilt. See Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim. App. 1996).
        We conclude the evidence embraces all of the essential elements of the offense charged, and is sufficient to support appellant's conviction. See Stone, 919 S.W.2d at 427; see also Barfield v. State, 63 S.W.3d 446, 450 (Tex. Crim. App. 2001). We overrule Aragen's second point of error.
        We affirm the trial court's judgment.
 
 
        
 
 
 
 
 
 
 
 
 
        
 
 
 
 
 
JIM MOSELEY
 
 
 
        
 
 
 
 
 
JUSTICE
 
 
 
Do Not Publish
Tex. R. App. P. 47.2
070533F.U05