Service Merchandise Co., Inc. v. Misti Thorpe ( 2000 )

Service Merchandise Co. Inc. v. Misti Thorpe

  IN THE

TENTH COURT OF APPEALS

No. 10-98-223-CV

     SERVICE MERCHANDISE CO., INC.,

                                                                              Appellant

     v.

     MISTI THORPE,

                                                                              Appellee

From the 74th District Court

McLennan County, Texas

Trial Court # 96-3927-3

MEMORANDUM OPINION

      On September 1, 2000, the appellant filed a letter requesting that the appeal be dismissed. We treated it as a voluntary motion to dismiss. See Tex. R. App. P. 42.1.

      In relevant portion, Rule 42.1 of the Texas Rules of Appellate Procedure provides:

(a) The appellate court may dispose of an appeal as follows:

(1) in accordance with an agreement signed by all parties or their attorneys and filed with the clerk; or

(2) in accordance with a motion of appellant to dismiss the appeal or affirm the appealed judgment or order; but no party may be prevented from seeking any relief to which it would otherwise be entitled.

Tex. R. App. P. 42.1.

      The motion states that the parties have agreed to a settlement of their dispute. The appellee has not responded to that motion. Therefore, under the authority of Rule 42.1, the cause is dismissed. Costs are taxed against the party incurring them.

                                                                                     PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Dismissed

Opinion delivered and filed October 11, 2000

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the defendant of (1) the range of punishment of the offense; (2) that the plea bargain is not binding on the court; (3) that if punishment assessed exceeds the agreement, defendant may withdraw this plea; (4) that if defendant is not a citizen he may be deported.

                  (b) No plea of guilty shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.

      The record reflects that the court orally admonished Appellant thoroughly as to all of the above; and, further, that Appellant signed a judicial confession, waived a jury, and acknowledged in writing, all of the above admonitions by the court; that his plea was made freely and voluntarily; that he waived right to appeal if the plea bargain was followed by the court; that his attorney had explained the waivers, agreements and admonitions to him; and that his plea was made voluntarily, knowingly and intelligently and the statements in his judicial confession were true.

      A voluntary plea is a plea made by "one fully aware of the direct consequences." Ex parte Griffin, 679 S.W.2d 15, 17 (Tex. Crim. App. 1984).

      Where the record shows, as here, that the trial court properly admonished the defendant, it presents a prima facie showing that the guilty plea was knowing and voluntary. Soto v. State, 837 S.W.2d 401, 405 (Tex. App.—Dallas 1992, no pet.). The burden then shifts to the defendant to show that he did not understand the consequences of his guilty plea. Ford v. State, 845 S.W.2d 315, 316 (Tex. App.—Houston [1st Dist.], no pet.). The entire record, including the written stipulations and waivers, must be examined in determining the voluntariness of the plea. Decker v. State, 570 S.W.2d 948, 950-51 (Tex. Crim. App. 1978). An affirmative showing requires more than a defendant's unsupported subjective assertion that his plea was involuntary. Grays v. State, 888 S.W.2d 876, 878 (Tex. App.—Dallas 1994, no pet.).

      Here, the record shows Appellant was properly admonished by the trial court, both orally and in writing, and there is no evidence that Appellant's plea was coerced or that he was unaware of the consequences of his plea.

      Appellant claims his guilty plea was coerced because he pled guilty after a jury was selected. This assertion contradicts his testimony at the guilty-plea hearing and is unsupported by any evidence in the record. The fact that he pled guilty after jury selection does not show that he was misinformed or coerced.

      Appellant's point is overruled. The judgment is affirmed.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Chief Justice Davis,

      Justice Cummings and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed March 25, 1998

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