JOHN DATES, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed October 7, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01480-CR
No. 05-07-01481-CR
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JOHN DATES, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F06-64480-UN, F07-00589-TN
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OPINION
 
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice FitzGerald
 
 
        John Dates waived a jury and pleaded guilty to evading arrest or detention while using a vehicle and robbery. The trial court assessed punishment at two years' confinement in a State jail facility for the evading arrest offense and eighteen years' imprisonment for the robbery. The judge also assessed a $10,000 fine in each case. In four points of error, appellant contends the trial court erred by failing to admonish him properly in each case, the judgment should be modified in the evading arrest case, and the trial court erred by pronouncing the sentence before finding appellant guilty in the robbery case. We affirm the trial court's judgments.
        In his first and second points of error, appellant asserts the trial court violated article 26.13 of the code of criminal procedure by failing to orally explain the punishment ranges for the offenses and the consequences of appellant's guilty pleas. The State responds the trial court properly admonished appellant in compliance with article 26.13.
        Article 26.13 of the Texas Code of Criminal Procedure requires the trial court to admonish a criminal defendant of the punishment range either orally or in writing. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (Vernon Supp. 2008). Substantial compliance with article 26.13 is sufficient unless the defendant affirmatively shows he was not aware of the consequences of his plea and that he was misled by the admonishments given. Id. art. 26.13(c). Substantial compliance creates a prima facie showing the plea was voluntary, and the burden shifts to the defendant to show he did not understand the consequences of his plea and that he was harmed or misled by the admonishment given. Id.; Aguirre-Mata v. State, 125 S.W.3d 473, 480 (Tex. Crim. App. 2003).
        The record shows the trial court properly admonished appellant in writing in each case. See Tex. Code Crim. Proc. Ann. art. 26.13(a), (c); Kirk v. State, 949 S.W.2d 769, 771 (Tex. App.-Dallas 1997, pet. ref'd). Nothing in the record shows appellant was not aware of the consequences of his guilty pleas and that he was harmed or misled by the trial court's written admonishments. We overrule appellant's first and second points of error.
        In his fourth point of error, appellant contends the trial court failed to make an oral pronouncement of guilt in the robbery case at either the plea or punishment hearing. The State responds the trial court was not required to orally pronounce guilt prior to sentencing appellant.
        The written judgment in the robbery case recites that the trial court found appellant guilty. We must presume that statement is correct in the absence of direct proof of its falsity, and there is no such proof in the record before us. See Johnson v. State, 72 S.W.3d 346, 349 (Tex. Crim. App. 2002). An express oral pronouncement by the trial judge that he found a defendant guilty is not required where the written judgment affirmatively states the trial judge found the defendant guilty. See Villela v. State, 564 S.W.2d 750, 751 (Tex. Crim. App. 1978). We overrule appellant's fourth point of error.
        In his third point of error, appellant argues the trial court's judgment in the evading arrest case should be modified to show he pleaded true to an enhancement paragraph. The State disagrees, and in a cross-point argues the judgment should be modified to show the offense is a third-degree felony rather than a state-jail felony offense.
        The indictment alleged appellant fled from a person he knew was a peace officer attempting to lawfully arrest or detain him and used a vehicle while in flight, and that appellant had been previously convicted of evading arrest. See Tex. Penal Code Ann. § 38.04(a), (b)(1) (Vernon 2003). A prior conviction for evading arrest is an element of the offense that must be proved at the guilt stage of trial, not an enhancement provision. See Calton v. State, 176 S.W.3d 231, 234 (Tex. Crim. App. 2005). Evading arrest or detention is a state-jail felony offense if a defendant has not been previously convicted of evading arrest. See Tex. Penal Code Ann. § 38.04(a), (b)(1). It is a third-degree felony offense if a defendant has been previously convicted of evading arrest or detention. Id. § 38.04(b)(2)(A).
        Although appellant was indicted for the third-degree felony offense of evading arrest or detention, appellant was admonished on the state-jail felony offense, and the trial judge expressly found appellant guilty of the “state jail felony offense of evading arrest, as included in the indictment.” Because the judgment accurately reflects the trial court proceedings, we overrule both appellant's third point of error and the State's cross-point.
        We affirm the trial court's judgment in each case.
 
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
071480F.U05