Michael Timothy Sullivan v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

No. 04-00-00082-CR
Michael Timothy SULLIVAN,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 1998-CR-6873
Honorable Sam Katz, Judge Presiding (1)

Opinion by: Karen Angelini, Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: February 28, 2001

DISMISSED IN PART; AFFIRMED IN PART

Factual & Procedural Background

Sullivan pleaded nolo contendere in response to a charge of driving while intoxicated, felony offense. (2) He received sentencing three months later in compliance with his plea bargain. At the plea proceeding the prosecutor recited the agreement which contained a specific provision disallowing application for probation. Sullivan confirmed the plea bargain. The trial court sentenced him to five years confinement. He later filed a notice of appeal. Sullivan brings two issues on appeal. First, he argues ineffective assistance of counsel. In the second issue, Sullivan alleges his conviction is invalid because his plea was involuntary.

Jurisdiction

In his first issue, Sullivan claims defense counsel failed to render effective assistance due to his failure to file a sworn application for community supervision. Under Rule 25.2(b)(3), we lack jurisdiction to consider this issue. Tex. R. App. P. 25.2(b)(3); Herrera v. State, 12 S.W.3d 607, 609 (Tex. App.-San Antonio 2000, no pet.). Sullivan pleaded nolo contendere and received the punishment suggested in the plea bargain. After sentencing, he filed a general notice of appeal. Accordingly, since this is not a jurisdictional question, he may appeal this issue only under Rule 25.2(b)(3). Herrera, 12 S.W.3d at 609. Therefore, Sullivan may not appeal this specific issue without a truthful statement in his notice of appeal that the trial court granted him permission to appeal this specific claim or proof he raised the issue in a pre-trial motion. Id. Since Sullivan submitted a general notice of appeal, we lack jurisdiction to address this issue. Therefore we dismiss the first issue.

Voluntariness

However, a plea-bargaining defendant is entitled to challenge the voluntariness of a negotiated plea. Flowers v. State, 935 S.W.2d 131, 133 (Tex. Crim. App. 1996)(en banc) (construing the previous appellate rule and cases controlling appeal of issues in convictions where the accused pleaded guilty or nolo contendere); Brunson v. State, 995 S.W.2d 709, 712 (Tex. App.-San Antonio 1999, no pet.)(finding the voluntariness of a plea can be addressed through a general notice of appeal). Sullivan contends the trial court failed to comply with Texas Code of Criminal Procedure Article 26.13, rendering his plea involuntary. Rodriguez v. State, 933 S.W.2d 702, 704 (Tex. App.-San Antonio 1996)(discussing the accuracy required of admonishments as established in Ex parte Williams, 704 S.W.2d 773, 775 (Tex. Crim. App. 1986)). Therefore, we may consider his second point of error. Brunson, 995 S.W.2d at 712; Gorham v. State, 981 S.W.2d 315, 317 (Tex. App.-Houston [14th Dist.] 1998). But see Elizondo v. State, 979 S.W.2d 823, 824 (Tex. App.-Waco 1998)(holding voluntariness of bargained plea may not be challenged under a general notice of appeal as a result of the promulgation of new appellate rules).

Admonishments

Article 26.13 of the Texas Code of Criminal Procedure requires a court to admonish a defendant on the range of punishment as well as other matters before accepting a plea of guilty or nolo contendere. Tex. Crim. Proc. Code Ann. art. 26.13(a) (Vernon Supp. 2000). However, the trial court has no duty to admonish the defendant about his community supervision eligibility. Ex parte Williams, 704 S.W.2d 773, 775 (Tex. Crim. App. 1986); Rodriquez, 933 S.W.2d at 704. But if the trial court broaches the community supervision subject, it must accurately explain the defendant's options. Rodriquez, 933 S.W.2d at 704.

The record in this case shows Sullivan received full admonishments. The following exchange establishes that the trial court called Sullivan's attention to the admonishments before accepting his plea.

Court: Okay. Mr. Sullivan, I am going to show you what - - the instrument I have here before the Court and that is the Court's Admonishments and Defendant's Waiver and Affidavit of Admonishments. Is that your signature here on this instrument?

Defendant: Yes, sir.

Court: You understand when you signed this instrument that is telling me that either you read or had read to you this instrument and that you understand all the contents of this instrument. Is that correct?

Defendant: Yes, sir.

The record also contains the Court's Admonishments and Defendant's Waivers and Affidavit of Admonitions which Sullivan signed. Section one of the instrument sets forth the range of punishment and section five, discussing deferred adjudication and community service, is marked out. Clearly, the testimony and the signed instrument establish Sullivan received notice of the range of punishment, the proposed sentence and that deferred adjudication, along with community supervision, was not available to him. Furthermore, written admonitions signed by the defendant and the court reporter's record showing the defendant's oral representations to the court he understood the admonitions constitute a prima facie showing the plea was voluntary. Fuentes v. State, 688 S.W.2d 542, 544 (Tex. Crim. App. 1985); Cantu v. State, 993 S.W.2d 712, 717 (Tex. App.-San Antonio 1999, pet. ref'd). Sullivan bears the burden of proving he failed to understand the consequences of his plea. Cantu, 993 S.W.2d at 717.

Sullivan complains the trial court assumed a duty to properly admonish him about community supervision through its statements at the sentencing hearing. At that hearing, the trial court allowed Sullivan to voice his desire to apply for community supervision. After discussing the circumstances with Sullivan's counsel, the trial court adhered to the plea bargain signed and agreed to by Sullivan. In challenging his plea, Sullivan attempts to identify this case with Williams which granted habeas relief based on an involuntary guilty plea. See Ex parte Williams, 704 S.W.2d at 778. However, Williams involved a vastly different set of facts. In Williams, the court granted habeas relief due to the trial court's misstatement concerning the defendant's eligibility for probation. Id. at 777-78. However, the court's comments were made to Williams before accepting his plea. Id. at 777. In contrast to Willillams which involved inaccurate information given before accepting the defendant's plea, Sullivan complains about comments which occurred during the sentencing phase of the trial three months after he pleaded nolo contendere.

Sullivan's contention asserting the trial court created an affirmative duty to correctly advise him on the availability of community supervision is without merit. The trial court did not discuss this alternative at plea proceedings but, rather, entertained Sullivan's comments during the sentencing phase held three months after he entered his plea. Considering these facts, we find Sullivan entered his plea voluntarily.

Conclusion

As previously discussed, we lack jurisdiction to address Sullivan's ineffective assistance of counsel issue and dismiss his claim. Additionally, we find Sullivan entered his plea voluntarily and affirm the trial court's judgment.

Karen Angelini, Justice

DO NOT PUBLISH

1. Honorable Phil Chavarria presided over the plea proceedings.

2. He had previously been convicted of driving while intoxicated in April 1987 and again in February 1989.