TYRONE LEE SIMS II v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice Moseley

Tyrone Lee Sims II was indicted for felony murder for the death of Gladys Barrientos.   Prior to trial, the State reduced the charge to manslaughter.   Sims made a judicial confession and entered an open guilty plea.   The trial court accepted Sims's plea, found him guilty and sentenced him to imprisonment for a period of twenty years and a $3,000 fine.   In a single issue, Sims claims that the alleged plea bargain lacked valid consideration and therefore Sims's plea was entered into unknowingly.   The background and facts of the case are well known to the parties;  thus, we do not recite them here in detail.   Because all dispositive issues are settled in law, we issue this memorandum opinion.  Tex.R.App. P. 47.2(a), 47.4.   We affirm the trial court's judgment.

A plea bargain consists of a plea of guilty, the consideration for it, and the approval by the court of the agreement.  Ortiz v. State, 885 S.W.2d 271, 273 (Tex.App.—Corpus Christi 1994), aff'd 933 S.W.2d 102 (Tex.Crim.App.1996).   A prima facie showing of a knowing and voluntary plea of guilty is made when the record shows the trial court admonished the defendant.   Ex parte Gibautich, 688 S.W.2d 868, 871 (Tex.Crim.App.1985).   The trial court's admonishment is sufficient if it substantially complies with the Code of Criminal Procedure.   See Tex.Code Crim. Proc. Ann. art. 26.13(c) (West Supp.2011).   A defendant may still raise the claim that his plea was not voluntary;  however, a prima facie showing of a knowing and voluntary plea shifts the burden to the defendant to show that he did not fully understand the consequences of his plea and thus was harmed.   Ex parte Gibautich, 688 S.W.2d at 871.

Here both parties represent in their briefs that the charge was reduced because of problems with proof, and was not a part of the plea bargain.   However, the plea bargain is still valid as the prosecution waived the option of a jury trial.   Sims presented an open plea to the trial court for which he pleaded guilty and gave up the possibility of probation in exchange for avoiding a trial.   The trial court took notice of this plea bargain and advised the parties that it was accepting it.   Thus, all three elements of a valid plea bargain are present.

The record shows Sims was admonished that he was pleading guilty to a second degree felony with the full range of punishment available, including a fine and up to 20 years, and that the State was requesting that probation would not be considered.   The record also shows that the trial court properly admonished Sims of the circumstances surrounding his plea in both the plea hearing and the sentencing hearing.   Thus, when Sims entered his open plea of guilty, he was fully informed of the potential consequences.   Therefore, Sims has not met the burden of proving that he entered his open plea of guilt in any way other than knowingly and voluntarily, and correspondingly has not shown any harm.   We overrule appellant's issue.

We affirm the trial court's judgment.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

TYRONE LEE SIMS, II, Appellant

No. 05–11–01295–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 291st Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–21417–U).

Opinion delivered by Justice Moseley, Justices Morris and Myers participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered June 20, 2012.

/Jim Moseley/

JIM MOSELEY

JUSTICE

JIM MOSELEY JUSTICE