Paul Raymond Trujillo v. State ( 2005 )

NO. 07-03-0402-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 26, 2005

______________________________



PAUL R. TRUJILLO, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

NO. A13170-9809; HONORABLE ED SELF, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Appellant Paul R. Trujillo appeals from a judgment revoking community supervision and imposing sentence pursuant to conviction for possession of marihuana in an amount more than five pounds but less than fifty pounds. We affirm.

In accordance with a plea bargain, appellant entered a plea of guilty to a charge of possession of marihuana. The judge of the 64th District Court of Hale County (the trial court), found that the evidence substantiated appellant's guilt, accepted the guilty plea, found appellant guilty, and sentenced appellant to confinement for seven years and a fine of $1,400. The confinement portion of the sentence was suspended and appellant was placed on community supervision for seven years.

The State filed a motion to revoke appellant's community supervision. The motion was heard on August 16, 2002. Appellant pled true to three of the four violations alleged as the basis for the motion. The trial judge found that appellant violated terms of his probation, modified appellant's community supervision, and extended appellant's probation for an additional three years.

The State filed another motion to revoke appellant's community supervision which was heard on September 5, 2003. Appellant again pled true to one of the violations alleged as the basis for the motion. The trial judge found that appellant violated his probation terms, revoked the order placing appellant on community supervision, and ordered that appellant serve the confinement portion of his sentence in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a general notice of appeal from the revocation.

Counsel for appellant has filed a Motion to Withdraw and a Brief in Support thereof. In support of the motion to withdraw, counsel has certified that, in compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), the record has been diligently reviewed. In so certifying, counsel has identified three possible issues for appellate review and discussed why, under the controlling authorities, there is no reversible error in the trial court proceedings or judgment. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978). Counsel has expressed his opinion that the record reflects no reversible error or grounds upon which a non-frivolous appeal can arguably be predicated.

Counsel has attached exhibits showing that a copy of the Anders brief and Motion to Withdraw have been forwarded to appellant, and that counsel has appropriately advised appellant of appellant's right to review the record and file a response to counsel's motion and brief. Appellant has not filed a response to counsel's motion and brief.

We have made an independent examination of the record to determine whether there are any arguable grounds for appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such grounds. We agree that the appeal is frivolous.

Accordingly, counsel's Motion to Withdraw is granted. The judgment of the trial court is affirmed.

Phil Johnson

Chief Justice

Do not publish.

or purposes of punishment on the day of the plea of guilty and thereby harming appellant by increasing the punishment that appellant was facing. In each of these cases, the trial court sentenced appellant to 20 years confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant has couched his arguments in terms of a violation of appellant's due process rights as a result of inadequate notice provided by the State of its intention to seek an enhanced punishment.

However, before we can consider the merits of appellant's argument, we must first determine if appellant's complaint is properly before us. In order to complain on appeal about the action of the trial court, appellant must properly preserve the issue for appeal. Tex. R. App. P. 33.1(a). This is true even when appellant couches his arguments in terms of a constitutional argument. Ex Parte Alakayi, 102 S.W.3d 426, 434-35 (Tex.App-Houston [14^th Dist.] 2003, pet ref'd) (citing Saldano v. State, 70 S.W.3d 873, 887 (Tex.Crim.App. 2002)).

A complete review of this record reveals that at no time did appellant ever complain about the lack of notice of the State's intent to use his prior convictions for enhancement purposes on the seven state jail felonies. He neither objected to the use nor did he request any continuance alleging surprise. Further, appellant filed a motion for new trial and could have preserved the error by raising the issue in said motion. However, he failed to do so. Objections or motions promote the prevention of and/or correction of errors and thereby promote overall efficiency in the administration of justice. See Saldano, 70 S.W.3d at 887. Appellant has waived his complaint and presents nothing for our review.

Admonishments Prior to Pleas

Appellant next complains about the lack of proper admonishments prior to entering his pleas of guilty. A review of appellant's complaint reveals that his allegations of improper admonishment are aimed at the oral admonishments given by the trial court. Appellant points to several errors made by the trial court and an alleged total failure to admonish the appellant as to one of the pleas. However, appellant's contentions overlooks one important factor. Along with the oral admonishments, appellant executed written admonishments in all nine cases. Appellant makes no complaint about these admonishments being incomplete, inaccurate or wholly lacking. Appellant and his counsel signed all of the written admonishments and thereby acknowledged that they read and understood the consequences of the pleas of guilty being entered into. Further, the written admonishments stated that appellant waived the requirements of any oral admonishments. After reviewing the written admonishments, we have determined that they meet the requirements of article 26.13 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp 2005), see Ruffin v. State, 3 S.W.3d 140, 144-45 (Tex.App.-Houston [14^th Dist.] 1999, pet. ref'd). Once it has been established that the trial court complied with the statutory mandate on admonishments, the burden shifts to the appellant to affirmatively show that he was not aware of the consequences of his plea. Id. Having reviewed the entire record, we do not find any indications that appellant lacked knowledge of the consequences of his plea. See Burnett v. State, 88 S.W.3d 633, 638 (Tex.Crim.App. 2002) (reviewing court must review entire record to determine if anything suggests that appellant did not know the consequences of his plea). Accordingly, there is no error in the admonishments of appellant shown in the record. Appellant's issue is overruled.

Article 1.15 Texas Code of Criminal Procedure

Appellant's final complaint is that the trial court committed error when it did not enter an order of acquittal because the evidence was insufficient on the issue of mens rea under article 1.15 of the Texas Code of Criminal Procedure. Article 1.15 provides:

. . . it shall be necessary for the state to introduce evidence into the recordshowing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. The evidence may be stipulated if the defendant in such cases consents. . . .

Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005). Appellant was charged by indictment with the offense of Fraudulent Use or Possession of Identifying Information. Tex. Pen. Code Ann. § 32.51 (Vernon 2005). At the time of his arrest for the instant offense, appellant was in possession of the identification for one "Daniel Vidales." Appellant contends that, although he confessed to using certain counterfeit checks in the name of "Daniel Vidales," the state failed to produce the alleged victim at trial or otherwise prove that "Daniel Vidales" failed to consent to the use of identification or that he was even a real person. According to appellant's theory, this failure of evidence leads to the conclusion that the evidence was insufficient and, accordingly, to the requirement that the trial court enter an order of acquittal.

At the time of appellant's plea, he not only entered a plea of guilty to the offense, but he also signed a written judicial confession. The judicial confession signed by appellant provides in part, "I understand the foregoing allegations and I confess that they are true . . . ." This court has had the opportunity to address allegations similar to appellant's before. In an unpublished opinion, we have held that a written confession admitting the veracity of the allegations is sufficient to establish guilt. Overton v. State, 2006 Tex. App. LEXIS 397 (Tex.App.-Amarillo Jan. 18, 2006, no pet.) (not designated for publication) (relying on Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. [Panel Op.] 1980) (op. on reh'g)). We see no reason to alter our position and, accordingly, overrule appellant's contention.

Conclusion

Having overruled appellant's issues, the judgments of the trial court are all affirmed.

Mackey K. Hancock

Justice

Do not publish.