MARCIAL MICHAEL ANGUIANO v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

MARCIAL MICHAEL ANGUIANO, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–10–01219–CR

Decided: January 26, 2012

Before Justices Bridges, O'Neill, and Fillmore

OPINION

Opinion By Justice Fillmore

Without the benefit of a plea bargain, Marcial Michael Anguiano pleaded guilty to the offense of family violence assault causing bodily injury and true to the two enhancement paragraphs contained in his indictment.   Anguiano was sentenced by the trial court to forty years' imprisonment.   In two issues, Anguiano contends (1) the trial court did not comply with article 26.13 of the code of criminal procedure by failing to admonish him on the range of punishment and that, if he is not a citizen of the United States, his plea of guilty may result in deportation, and by failing to determine whether Anguiano was mentally competent and his guilty plea was freely and voluntarily entered, and (2) the trial court violated his right to due process when it failed to ensure that his plea was knowing and voluntary.   We affirm the trial court's judgment.

Analysis

Range of Punishment

In his first issue, Anguiano contends that, by failing to admonish him on the range of punishment, the trial court did not comply with article 26.13(a)(1) of the code of criminal procedure.   Although Anguiano asserts in his statement of the issue that the trial court did not admonish him regarding the range of punishment, he argues on appeal that his written Plea Agreement contains an incorrect admonishment concerning the range of punishment.   The State does not contest Anguiano's contention that the range of punishment stated in the Plea Agreement was incorrect.   This issue, therefore, involves the effect of an incorrect admonishment concerning range of punishment that is contained in a written Plea Agreement.

Anguiano pleaded guilty to the first-degree felony of aggravated assault.   See Tex. Penal Code Ann. § 22.02(b) (West 2011).   Anguiano pleaded true to two enhancement paragraphs contained in his indictment.   The record reflects that the trial court admonished him in writing that the punishment range for the charged offense was five to ninety-nine years or life imprisonment and a maximum fine of $10,000.  Tex. Penal Code Ann. § 12.32 (West 2011).   That admonishment was incorrect.   The trial court should have admonished Anguiano of the punishment range applicable to the enhanced offense.   The correct punishment range for the charged offense, as enhanced by two prior convictions, was twenty-five to ninety-nine years or life imprisonment.   See Tex. Penal Code Ann. § 12.42(d) (West 2011).   The trial court, therefore, incorrectly admonished Anguiano about the minimum punishment he could receive.   The trial court found Anguiano guilty and assessed a forty-year sentence.

On appeal, Anguiano assigns error to the trial court incorrectly admonishing him about the minimum punishment that could be imposed.   He claims it can be inferred that the incorrect admonishment caused his plea to be made unknowingly and involuntarily.   We disagree.

Article 26.13(a)(1) of the code of criminal procedure provides that before accepting a plea of guilty or nolo contendere, a trial court shall admonish the defendant on the range of punishment.   See Tex.Code Crim. Proc. Ann. art. 26.13(a)(1) (West Supp.2011);  Bessey v. State, 239 S.W.3d 809, 812 (Tex.Crim.App.2007).   An admonishment that substantially complies with article 26.13(a)(1) is sufficient.   See Tex.Code Crim. Proc. Ann. art. 26.13(c).  When the record reflects a trial court incorrectly admonished a defendant under article 26.13(a)(1), but assessed punishment within the actual and stated range for the offense, the admonishment will be deemed to substantially comply with article 26.13(a)(1), and such substantial compliance constitutes a prima facie showing that the defendant's plea was knowing and voluntary.  Robinson v. State, 739 S.W.2d 795, 801 (Tex.Crim.App.1987) (per curiam);  Skinner v. State, 334 S.W.3d 12, 15 (Tex.App.—Dallas 2008, no pet.)  (“When the trial court issues an inaccurate punishment-range admonishment but sentences the defendant within both the actual and stated range, the admonishment substantially complies with article 26.13.”);  Grays v. State, 888 S.W.2d 876, 878 (Tex.App.—Dallas 1994, no pet.).   Once it is shown a trial court substantially complied with article 26.31(a)(1) and that a defendant's plea was prima facie knowing and voluntary, the burden shifts to the defendant to show that he was unaware of the consequences of his plea and that he was misled or harmed by the trial court's admonishment.   See Tex.Code Crim. Proc. Ann. art. 26.13(c);  Robinson, 739 S.W.2d at 801;  Grays, 888 S.W.2d at 878.

Although the trial court in this case incorrectly admonished appellant about the minimum punishment he could receive, the court nonetheless did admonish him.   The trial court also assessed punishment within both the actual range for the offense and the incorrectly stated range.   Consequently, the trial court's admonishment substantially complied with article 26.13(a)(1), and Anguiano's guilty plea was prima facie knowing and voluntary.   The burden shifted to Anguiano to show otherwise.   See Grays, 888 S.W.2d at 878.   The issue becomes, therefore, whether Anguiano has shown affirmatively that, despite the trial court's substantial compliance with article 26.13(a)(1), he was not aware of the consequence of his plea as it related to the correct range of punishment for his offense and was misled or harmed by the court's admonishment.   See id.

On appeal, Anguiano asserts the incorrect admonishment on the range of punishment “supports the inference that Mr. Anguiano did not know the punishment consequences of his guilty plea.”   A defendant cannot “make an affirmative showing by relying solely on the fact that the trial court's admonishment on the range of punishment was incorrect.”  Id. Furthermore, a trial court incorrectly admonishing a defendant about the range of punishment “does not lead necessarily to the conclusion that the defendant was misled or harmed.”  Id.

We examine the entire record to determine whether, on its face, anything in the record suggests that Anguiano was not aware of the consequence of his plea as it related to the correct range of punishment.   See Burnett v. State, 88 S.W.3d 633, 638 (Tex.Crim.App.2002).   We also may simultaneously consider record facts from which one could reasonably infer that Anguiano was not aware of the consequence of his plea as it related to the correct range of punishment.   See Burnett, 88 S.W.3d at 638.   This Court has set out what affirmative showing is required when the defendant complains he was unaware of the punishment consequence of his guilty plea due to an allegedly improper admonition concerning the range of punishment:

[W]e hold that to constitute an affirmative showing under article 26.13(c), a defendant must show by evidence grounded in a judicial record subject to review both his lack of knowledge or understanding about the punishment range for his offense and, objectively, the manner in which he was misled or harmed.

Grays, 888 S.W.2d at 878–79.   The record of the plea hearing may provide sufficient evidence to show affirmatively these circumstances.  Id. at 879.

Applying those standards to this case, we conclude Anguiano has failed to meet his burden of showing affirmatively that he was unaware of or misunderstood the range of punishment for the offense and was misled or harmed by the trial court's admonishment.   There is nothing in the record before us indicating Anguiano did not know the correct range of punishment for the offense charged.   During the plea hearing, Anguiano testified he understood the charges in the indictment, and the record contains several statements concerning the applicable range of punishment.   At the plea hearing, the State specifically referenced the range of punishment in questioning Anguiano:

Prosecutor:  And it's not until you are looking at 25 to life that you determine that you now can change?

Anguiano:  No, sir, it didn't take for this.

Anguiano's counsel also referenced the range of punishment at the plea hearing:

Anguiano's Counsel:  If for some reason the Court believed that that was not the chance that they wanted to take, then at his age, with his record, I don't believe a sentence more than what the 25 years that the law allows, that the law calls for, would be necessary.   I think the Court can still give him a 25–year sentence and still promote respect for the law and still punish him for what he did.   And anything above that, I believe, would be unnecessary in order to achieve the goal of justice.

So, Your Honor, Anguiano is asking you for that last chance in his life because he believes time is running out on him to change.   He's asking the Court for help to send him to some type of program where he could change his addictive behavior.   But if for some reason the Court believed that that was not the right thing to do, we ask that you sentence him at 25 years.

Having reviewed the record, we resolve Anguiano's complaint with regard to admonishment as to the range of punishment against him.   Anguiano has not met his burden to establish, based on the record, that he lacked knowledge or understanding about the correct punishment range for his offense and the manner in which he was misled or harmed.   See Grays, 888 S.W.2d at 878–79.

Immigration Consequences of Plea

Anguiano contends that, in violation of article 26.13(a)(4) of the code of criminal procedure, the trial court failed to admonish him that if he is not a citizen of the United States, his plea of guilty may result in deportation.   Article 26.13(a)(4) provides that, prior to accepting a plea of guilty or plea of nolo contendere, the court shall admonish the defendant of:

the fact that if the defendant is not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to the country, or the denial of naturalization under federal law.

Tex.Code Crim. Proc. Ann. art. 26.13(a)(4).   This admonition may be made orally or in writing.  Id. art. 26.13(d).

In the Plea Agreement, the trial court's written admonishments to Anguiano include admonishments about the immigration consequences of his plea.   See Tex.Code Crim. Proc. Ann. art. 26.13(a)(4), (d).1  Anguiano and his trial counsel signed the Plea Agreement.   Anguiano there acknowledged his trial counsel had explained the admonishments and that he had read and understood the admonitions.   See id. art. 26.13(d).  Anguiano's “Statements and Waivers” in the Plea Agreement, acknowledge trial court admonitions regarding immigration consequences of a guilty plea.

Moreover, the record in this case contains the Arraignment Sheet reflecting Anguiano informed the magistrate that he is a United States citizen.  “[W]hen the record shows a defendant to be a United States citizen, the trial court's failure to admonish him on the immigration consequences of this guilty plea is harmless error.   This is so because such a defendant is not subject to deportation, the threat of which could not have influenced that defendant's decision to plead guilty.”  VanNortrick v. State, 227 S.W.3d 706, 709 (Tex.Crim.App.2007).   See also Anderson v. State, 182 S.W.3d 914, 919 (Tex.Crim.App.2006) (explaining that “[w]hen courts have failed to admonish guilty-pleading defendants on the immigration consequence of conviction, we have held the error was harmless error when the record showed that a defendant was a citizen of the United States”);  Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997) (failure to admonish under article 26.13(a)(4) is subject to harmless error analysis and error is harmless beyond a reasonable doubt if the record contains evidence that the defendant is a United States citizen) (citing Matchett v. State, 941 S.W.2d 922, 929–30 (Tex.Crim.App.1996) (plurality op.)).

The trial court's written admonishments to Anguiano include admonishments about the immigration consequences of his plea.   Additionally, the record contains evidence that Anguiano is a United States citizen.   See Cain, 947 S.W.2d at 264.   We resolve against him Anguiano's complaint that the trial court failed to admonish him that if he is not a citizen of the United States, his plea of guilty may result in deportation.

Voluntariness of Guilty Plea

In his first issue, Anguiano contends the trial court erred by failing to determine his plea was freely and voluntarily entered in violation of code of criminal procedure article 26.13(b).  In his related second issue, Anguiano argues the trial court violated his right to due process when it failed to ensure Anguiano's plea was entered knowingly and voluntarily.   We examine the record as a whole with regard to Anguiano's contention that the trial court failed to determine his plea was freely and voluntarily entered.   See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App.1998) (per curiam);  see also Ducker v. State, 45 S.W.3d 791, 796 (Tex.App.-Dallas 2001, no pet.) (voluntariness of a guilty plea is determined from the totality of the circumstances viewed in the light of the entire record).2

Article 26.13(b) provides that a trial court may not accept a plea of guilty “unless it appears that the defendant is mentally competent and the plea is free and voluntary.”  Tex.Code Crim. Proc. Ann. art. 26.13(b).  To be “voluntary,” a guilty plea must be the expression of the defendant's own free will and must not have been induced by threats, misrepresentations, or improper promises.  Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App.2006).

A guilty plea constitutes a waiver of three constitutional rights:  the right to a jury trial, the right to confront one's accusers, and the right not to incriminate oneself.  Id. “The ‘overriding concern’ in reviewing the constitutional validity of a guilty plea is ‘whether a defendant has been deprived of due process and due course of law.’ ”  Holland v. State, 761 S.W.2d 307, 322 (Tex.Crim.App.1988) (quoting Ex parte Lewis, 587 S.W.2d 697, 700 (Tex.Crim.App.1979)).   To satisfy due process, a guilty plea “must be entered knowingly, intelligently, and voluntarily.”  Kniatt, 206 S.W.3d at 664;  see also Tex.Code Crim. Proc. Ann. art. 26.13(b) (requiring that guilty plea be made voluntarily and freely).

Here, the record establishes Anguiano's desire to voluntarily plead guilty.   In Anguiano's Judicial Confession, signed by Anguiano, his trial counsel, the prosecutor, and the trial court, he confessed that he committed the offense as charged in the indictment.   The record contains the following exchange between Anguiano and the trial court regarding his judicial confession:

The Court:  Yes, okay.   Sir, this is the judicial confession that you signed this morning.

Anguiano:  Yes.

The Court:  This first paragraph here, that is State's Exhibit No. 1. That's a confession to the crime charged.   This part down here is State's Exhibit No. 2. That's the two allegations of the prior convictions.

Anguiano:  Yes.

The trial court delivered written admonishments to Anguiano in the Plea Agreement.   See Tex.Code Crim. Proc. Ann. art. 26.13(a), (d).  Anguiano signed the written admonishments, acknowledging that his attorney explained the admonishments to him and that he had read and understood the admonitions and warnings.   Anguiano further acknowledged that his “Statements and Waivers” in the Plea Agreement were knowingly, freely, and voluntarily made.   During the plea hearing, Anguiano orally assured the trial court he understood the charge, he had reviewed the indictment with his attorney, he understood he did not have a plea bargain regarding punishment, he was pleading guilty to the charged offense and true to the enhancement paragraphs contained in the indictment, and he waived a jury trial:

The Court:  Mr. Aguiano [sic], it's my understanding that you want to enter a plea of guilty today and do what we call an open plea?

Anguiano:  Yes, sir.

The Court:  Typically in those situations when you do that, you have the Probation Department conduct an extensive presentence review.   However, in this case—or report, excuse me.   In this case. [sic] I understand that the State is going to present live testimony and your attorney is going to present live testimony on your behalf.   So we're going to do kind of an abbreviated interview.   They are going to get some information.   Are you okay with doing that?

Anguiano:  Yes, sir.

* * *

The Court:  Sir, you stand charged by indictment with a felony offense.   In addition to the allegation of the primary felony, it's also alleged that you have been twice before been convicted of felony offenses.   Have you gone over the indictment with your attorney?

Anguiano:  Yes, I have.

The Court:  Do you understand all the allegations in the indictment?

Anguiano:  Yes, sir.

The Court:  You do have the right to have the indictment read today, but you can give up that right.   Is that what you want to do?

Anguiano:  Yes.

The Court:  How do you plead to the main charge, guilty or not guilty?

Anguiano:  Guilty.

The Court:  I'll accept your plea of guilty.   Now, as to the two enhancement paragraphs, those are the paragraphs that allege prior convictions, how do you plead to those, true, or not true.

Anguiano:  True.

The Court:  In both paragraphs?

The Defendant:  Yes, sir.

The Court:  I accept your plea of true in each of the paragraphs.

* * *

The Court:  Mr. Anguiano, yesterday you appeared before me.   At that time you and your attorney, as well as the State of Texas, waived a jury trial, you entered a plea of guilty to the offense charged—the arraignment, that you entered a plea of true to the two enhancement paragraphs.   The State offered into evidence State's Exhibit No. 1, which was a signed judicial confession, and State's Exhibit No. 2, which was an admission of the two prior convictions alleged for enhancement purposes.   Do you remember all that happening, sir?

Anguiano:  Yes, sir.

In his testimony at the plea hearing, Anguiano responded to his counsel's questions regarding waiver of a jury and his voluntary plea of guilty:

Anguiano's Counsel:  Mr. Anguiano, you know you are here today because the Judge today will determine what the appropriate sentence should be in your case.   Isn't that true?

Anguiano:  Yes, sir.

* * *

Anguiano's Counsel:  At one point this case was set for a jury trial, but you indicated that you wished to plead guilty and have the Court assess punishment?

Anguiano:  Yes, I pretty much told you that from day one, at my first interview when you read over the paperwork, when you actually told me what had happened.

Where, as here, a defendant attests that he understands the nature of his plea and that it was voluntary, he has a heavy burden on appeal to show that his plea was involuntary.  Kniatt, 206 S.W.3d at 664 (stating such attestations constitute “a formidable barrier in any subsequent collateral proceedings”);  Labib v. State, 239 S.W.3d 322, 332 (Tex.App.—Houston [1st Dist.] 2007, no pet.).3

The trial court's written admonishments to Anguiano, coupled with the trial court's oral admonitions and Anguiano's assurances concerning his understanding of the consequences of his actions and voluntary plea, create a prima facie showing that he entered his plea knowingly and voluntarily.   See Martinez, 981 S.W.2d at 197;  Kirk v. State, 949 S.W.2d 769, 771 (Tex.App.—Dallas 1997, pet. ref'd).   Nothing in this record suggests Anguiano entered the guilty plea without understanding the consequences of his actions and that he was harmed as a result.   On this record, Anguiano has not carried his heavy burden of demonstrating that his guilty plea was involuntary.   See Kirk, 949 S.W.2d at 771.

We conclude the trial court did not fail to determine Anguiano's guilty plea was freely and voluntarily entered, as asserted in Anguiano's first issue.   Accordingly, we further conclude the trial court did not violate Anguiano's right to due process by failing to ensure Anguiano's plea was knowing and voluntary, as asserted in Anguiano's second issue.

Mental Competence

Anguiano asserts in his first issue that, in violation of article 26.13(b) of the code of criminal procedure, the trial court failed to determine he was mentally competent.   A defendant is incompetent to stand trial if he lacks sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or a rational, as well as factual, understanding of the proceedings against him.   Tex.Code Crim. Proc. Ann. art.   46B.003(a) (West 2006);  Luna v. State, 268 S.W.3d 594, 598 (Tex.Crim.App.2008).   The defendant is presumed competent to stand trial unless proved incompetent by a preponderance of the evidence.   See Tex.Code Crim. Proc. Ann. art.   46B.003(b).

On suggestion that the defendant may be incompetent to stand trial, the trial court shall determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial.   Tex.Code Crim. Proc. Ann. art.   46B.004(c) (West 2006).   Anguiano did not argue in the trial court, and does not argue on appeal, that he was mentally incompetent at the time of the entry of his guilty plea.   The trial court need not inquire about a defendant's mental competence unless the evidence is sufficient to create a bona fide doubt in the mind of the trial court about whether a defendant is legally competent.  Montoya v. State, 291 S.W.3d 420, 425 (Tex.Crim.App.2009);  see also Kuyava v. State, 538 S.W.2d 627, 628 (Tex.Crim.App.1976);  Manoy v. State, 7 S.W.3d 771, 777 (Tex.App.—Tyler 1999, no pet.)  (“[U]nless an issue is made of an accused's present insanity or mental competency at the time of the plea, the court need not make inquiry into appellant's mental competency, and it is not error to accept appellant's guilty plea.”) (quoting Sims v. State, 783 S.W.2d 786, 788 (Tex.App.—Houston [1st Dist.] 1990, no pet.)).

Furthermore, the trial court had an extended opportunity to observe Anguiano during the plea hearing.   Anguiano's answers to questions posed by the trial court, the prosecutor, and his trial counsel were articulate and responsive.   Under questioning by the trial court, Anguiano informed the court that he desired to plead guilty and understood that the court would determine punishment.   See Manoy, 7 S.W.3d at 778;  see also Stone v. State, 638 S.W.2d 629, 632 (Tex.App.—Houston [1st Dist.] 1982, pet. ref'd) (clear and lucid testimony of appellant is evidence of competency).4  In the “Signatures and Acknowledgments” of the Plea Agreement, Anguiano's trial counsel acknowledged that he believed Anguiano to be competent.   The trial court may rely upon written representations of competence.   See Rodriguez v. State, 850 S.W.2d 603, 606–07 (Tex.App.—El Paso 1993, no pet.).

Having reviewed the record, there is nothing to suggest Anguiano did not have sufficient present ability to consult meaningfully with his lawyer or did not have a rational, as well as factual, understanding of the proceeding against him.   We conclude there is no evidence in the record that would create a bona fide doubt that Anguiano was mentally competent to enter his guilty plea.

Conclusion

We resolve Anguiano's first and second issues against him.   Accordingly, we affirm the trial court's judgment.

FOOTNOTES

FN1. In Anguiano's appellate brief, his counsel states his copy of the written plea agreement is “unreadable as though it has been photocopied too many times.”   The copy of the Plea Agreement contained in the supplemental clerk's record is legible..  FN1. In Anguiano's appellate brief, his counsel states his copy of the written plea agreement is “unreadable as though it has been photocopied too many times.”   The copy of the Plea Agreement contained in the supplemental clerk's record is legible.

FN2. See also Wyatt v. State, No. 05–08–00883–CR, 2009 WL 1801036, at *5 (Tex.App.—Dallas June 24, 2009, no pet.) (not designated for publication)..  FN2. See also Wyatt v. State, No. 05–08–00883–CR, 2009 WL 1801036, at *5 (Tex.App.—Dallas June 24, 2009, no pet.) (not designated for publication).

FN3. See also Wyatt, 2009 WL 1801036, at *5..  FN3. See also Wyatt, 2009 WL 1801036, at *5.

FN4. See also Davis v. State, Nos. 05–00–01184–CR and 05–00–01185–CR, 2001 WL 238439, at *2 (Tex.App.—Dallas Mar. 12, 2001, no pet.) (not designated for publication)..  FN4. See also Davis v. State, Nos. 05–00–01184–CR and 05–00–01185–CR, 2001 WL 238439, at *2 (Tex.App.—Dallas Mar. 12, 2001, no pet.) (not designated for publication).

ROBERT M. FILLMORE JUSTICE

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