Trellis Dale Moses v. The State of Texas--Appeal from 351st District Court of Harris County

Opinion issued March 31, 2005.

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-01066-CR

__________

TRELLIS MOSES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 961899

MEMORANDUM OPINION

Without an agreed recommendation, appellant, Trellis Moses, pleaded guilty to aggravated assault with a deadly weapon. The trial court sentenced appellant to 10 years in prison. In his sole point of error, appellant contends that the trial court failed to determine whether appellant s guilty plea was voluntary. We affirm.

Background

Appellant was originally indicted for the felony offense of attempted capital murder of Houston Police Department Officer C. Massey. The attempted capital murder case was dismissed, and appellant was re-indicted in the same case for the felony offense of aggravated assault with a deadly weapon. Appellant pleaded guilty to the charge of aggravated assault with a deadly weapon. He waived his right to trial by jury, his right to have witnesses testify in that trial, and his right against self-incrimination. The trial court sentenced appellant to 10 years in prison and granted him the right to appeal.

Voluntariness of Plea

In his sole point of error, appellant contends that the trial court failed to determine that his guilty plea was truly voluntary and also failed to produce a complete record relevant to the voluntariness determination at the time of the plea. Standard of Review

The voluntariness of a guilty plea is determined by the totality of the circumstances. Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App. 1986); Lee v. State, 39 S.W.3d 373, 375 (Tex. App. Houston [1st Dist.] 2001, no pet.). Once an accused attests that he understands the nature of his plea and that it was voluntary, he has a heavy burden to prove on appeal that his plea was involuntary. Edwards v. State, 921 S.W.2d 477, 479 (Tex. App. Houston [1st Dist.] 1996, no pet.). When the record shows that the defendant received an admonishment on punishment, it is a prima facie showing that the plea was knowing and voluntary. Ex parte Williams, 704 S.W.2d 773, 775 (Tex. Crim. App. 1986); Forcha v. State, 894 S.W.2d 506, 509 (Tex. App. Houston [1st Dist.] 1995, no pet.). The burden then shifts to the defendant to show that he entered his plea without understanding the consequences. Forcha, 894 S.W.2d at 509.

Before accepting a guilty plea, the trial judge must admonish the defendant of the range of punishment, as well as the plea s potential affect on the defendant s citizenship. Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon 1989). However, there is no requirement that the judge orally inquire about the voluntariness of a plea after the defendant and trial counsel have signed written admonishments, statements, or waivers, and the judge has established that the defendant has read and understood them. Edwards v. State, 921 S.W.2d 477, 479 (Tex. App. Houston [1st Dist.] 1996, no pet.). The Court of Criminal Appeals states that the admonishments under Texas Code of Criminal Procedure article 26.13(a) are not constitutionally required because their purpose and function is to assist the trial judge in making the determination that a guilty plea is knowingly and voluntarily entered. Aguirre-Mata v. State, 992 S.W.2d 495, 499 (Tex. Crim. App. 1999).

Determination of the Voluntariness of the Plea

A determination of voluntariness considers the entire record. Ford v. State, 845 S.W.2d 315 (Tex. App. Houston [1st Dist.] 1992, no pet.). Here, the record reflects that the admonishments given to appellant contained the following language:

Joined by my counsel, I state that I understand the foregoing admonishments and I am aware of the consequences of my plea. I am mentally competent to stand trial and my plea is freely and voluntarily made. . . . Joined by my counsel, I waive and give up my right to a jury in this case and my right to require the appearance, confrontation and cross examination of the witnesses. I consent to oral and written stipulations or evidence in this case. I have read the indictment and I committed each and every element alleged.

(Emphasis added.)

Appellant argues that, because the trial court failed to admonish him concerning the range of punishment, his plea was not voluntary and his due process rights were violated. Appellant bases this contention on the fact that his initials appear next to each admonishment except the one addressing the range of punishment. There is a check mark next to the paragraph, but appellant did not initial the paragraph.

The appellate record reflects that appellant expressly acknowledged that his plea was given freely and voluntarily by initialing the section of the admonishments that indicated that the plea was entered into freely and voluntarily, and he also signed the document, as did the attorneys and the presiding judge. Additionally, the record indicates that appellant expressly admitted that his plea was not the result of a promise, threat, or coercion. The record shows that appellant made his guilty plea knowingly and voluntarily.

Appellant also argues that, based on the prima facie standard in Forcha, he should prevail. 894 S.W.2d at 509. We disagree. In Forcha, we held that, where the record shows that the defendant received an admonishment on punishment, it is a prima facie showing that the plea was voluntary, and the burden then shifts to the defendant to show that he entered his plea without understanding the consequences. Id. Here, the clerk s record contains two indications that appellant was aware of the range of punishment: 1) the paragraph containing the range of punishment for a second degree felony was checked and bracketed and 2) appellant s signature appears at the end of the document. This constitutes a prima facie showing that appellant was admonished regarding the range of punishment, so the burden shifted to appellant to show his lack of understanding of the consequences. Considering the totality of the circumstances, appellant has not met his heavy burden of proving that his plea was involuntary. See Griffin, 703 S.W.2d at 196; Edwards, 921 S.W.2d at 479.

We overrule appellant s sole point of error.

Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).