Chrissy Ann Lozano v. The State of Texas--Appeal from 25th Judicial District Court of Guadalupe County

No. 04-96-00818-CR
Chrissy Ann LOZANO,
Appellant
v.
The STATE of Texas,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 96-0185-CR
Honorable Dwight E. Peschel, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 7, 1998

AFFIRMED

Chrissy Ann Lozano pled guilty to aggravated robbery as part of a plea agreement under which the State agreed to dismiss the charges of attempted capital murder and robbery and recommend a forty-year cap on punishment. Upon receiving the plea, the trial judge found Lozano guilty of aggravated robbery and sentenced her to thirty-two years in prison without probation. Lozano appeals, contending the trial court erred in considering her written confession because it was involuntary and in refusing to probate her sentence. We affirm.

Factual and Procedural Background

Fifteen-year old Lozano was arrested on suspicion of aggravated robbery and attempted capital murder. Later that day Lozano waived her right to remain silent and her right to an attorney and admitted to participating in the alleged crimes. Thereafter, the juvenile district court in Guadalupe County relinquished jurisdiction over Lozano and transferred the case to adult criminal district court. Lozano was then indicted for attempted capital murder, aggravated robbery, and robbery.

Before trial, Lozano moved to suppress her confession, alleging she made it involuntarily, under coercion, and without sufficient warning of her constitutional rights. Before this motion was heard or ruled on by the trial court, however, Lozano entered into a plea agreement with the State in which she agreed to plead guilty to aggravated robbery and the State agreed to dismiss the other counts and recommend that her punishment not exceed forty years. At the plea hearing, Lozano was admonished orally and in writing by the trial court regarding (1) the possible range of punishment for the offense, (2) the nonbinding effect of the State's punishment recommendation, and (3) Lozano's ability to withdraw her plea if the court did not go along with the plea bargain. Lozano was repeatedly asked if she understood the plea agreement and the "Waivers, Stipulations and Admonishments for Plea of Guilty or No Contest," which she had signed and in which she represented she freely and voluntarily entered her plea and she was mentally competent at the time the plea was entered. Lozano replied she did understand and had no questions. At the end of the hearing, Lozano's guilty plea was accepted and she was advised her case would be set for sentencing after a pre-sentence investigation could be completed.

After the pre-sentence report was completed, a sentencing hearing was held and, while Lozano brought forth several witnesses, the State introduced no evidence. Instead, the State simply urged the court "to take in mind the Defendant's statement that she gave." Lozano did not object to the State's statement. At the end of the hearing, the trial court stated as follows:

If that is all, I have also reviewed the pre-sentence investigation and I have previously found sufficient evidence to find you guilty of the offense of aggravated robbery and I will do so at this time and assess your punishment at 32 years' confinement in the Institutional Division of the Texas Department of Criminal Justice.

In its judgment, the trial court found Lozano had used a deadly weapon during the commission of the robbery. The trial court granted Lozano permission to appeal.

Voluntariness of the Plea

In her first point of error, Lozano argues her plea was involuntary. We disagree.

The standard of review when an appellant contends her plea was not voluntarily given requires us to consider the totality of the circumstances surrounding the entry of the plea. Gonzales v. State, 963 S.W.2d 844, 846 (Tex. App.--San Antonio 1998, no pet.); Crawford v. State, 890 S.W.2d 941, 944 (Tex. App.--San Antonio 1994, no pet.). We must therefore review the entire record surrounding entry of the plea, including the written stipulations and waivers. Harling v. State, 899 S.W.2d 9, 13 (Tex. App.--San Antonio 1995, pet. ref'd). "When the record reflects that the trial court appropriately admonished the defendant, a prima facie showing that the defendant's guilty plea was knowing and voluntary is established." Rodriguez v. State, 933 S.W.2d 702, 705 (Tex. App.--San Antonio 1996, pet. ref'd) (citations omitted). "The burden then shifts to the defendant to prove that he did not understand the consequences of his plea." Id. at 706 (citations omitted). This burden is a particularly heavy one when the defendant states he understands the nature of the proceeding and his plea is voluntary. Id. (citations omitted); see also Harling, 899 S.W.2d at 13.

Here, the court properly admonished Lozano both orally and in writing, and Lozano repeatedly indicated she understood the nature of the proceeding and she was pleading voluntarily. However, Lozano argues her plea was nonetheless involuntary because she assumed she would receive community supervision. This may be true, but a plea is not involuntary simply because it does not meet a defendant's expectations. See Crawford, 890 S.W.2d at 945. There is no indication in the record the court or Lozano's counsel promised or even mentioned the possibility of community supervision. Under these circumstances, there is no basis for holding Lozano's plea was involuntary.

Consideration of the Confession

Under her first point of error, Lozano also argues the trial court erred in considering her involuntary written confession during sentencing. When the appellant alleges the trial court wrongly considered a matter during sentencing, the appellant bears the burden of showing "that the trial court 'relied on or even considered' improper evidence in determining punishment." Batts v. State, 673 S.W.2d 666, 667 (Tex. App.--San Antonio 1984, no pet.) (quoting Angelle v. State, 571 S.W.2d 301, 303 (Tex. Crim. App. 1978)). Lozano points to nothing in the record that indicates the trial court considered the confession during sentencing. Indeed, as noted above, the State never offered the confession into evidence, but only encouraged the court "to take in mind the Defendant's statement," and the trial court never indicated it considered Lozano's confession in sentencing her. "We will not presume prejudicial error." Vela v. State, 915 S.W.2d 73, 75 (Tex. App.--Corpus Christi 1996, no pet.). We therefore overrule Lozano's first point of error.

Community Supervision

In her second point of error, Lozano argues the trial court erred in failing to place her on community supervision. We disagree.

A trial court cannot consider a defendant eligible for community supervision if the defendant was adjudged guilty of aggravated robbery. Tex. Code Crim. Pro. Ann. art. 42.12, 3g(a)(1)(F) (Vernon Supp. 1998). Lozano pled guilty to and the trial court adjudged her guilty of aggravated robbery. Therefore, Lozano was not eligible for community supervision. See id. Accordingly, the court had no choice but to deny community supervision, and we overrule Lozano's second point of error.

Sentencing for the Wrong Crime

In her final point of error, Lozano argues the trial court erred in sentencing her for the crime of attempted capital murder when she only pled guilty to aggravated robbery. In support of her argument, Lozano points to "information" sent by the trial court to the Texas Department of Prisons and Parole that reports she was sentenced for attempted capital murder. However, this information is not included in the record. Rather, the record indicates the trial court found Lozano guilty of aggravated robbery and based her sentence on this finding. Nothing in the record indicates Lozano was sentenced for the crime of attempted capital murder. See Tex. R. App. P. 38.1(f). We therefore overrule each of Lozano's points of error and affirm the trial court's judgment.

Sarah B. Duncan, Justice

Do not publish

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