Cavaliere, Jose Alfredo Jr. v. State ( 2004 )

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Opinion issued on May 27, 2004.



  In The

Court of Appeals

For The

First District of Texas

  NO. 01-02-00999-CR



____________

JOSE ALFREDO CAVALIERE, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause Nos. 891143

MEMORANDUM OPINION

          Appellant, Jose Alfredo Cavaliere, Jr., without an agreed recommendation by the State, pleaded guilty to the felony of delivery of a controlled substance, methamphetamine. After a pre-sentence investigation (PSI) report was prepared, the trial court sentenced appellant to 20 years’ confinement and a fine of $10,000.

            Appellant’s court-appointed appellate counsel filed a brief in which she expressed her opinion that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional evaluation of the record and advancing arguable grounds of error on appeal. Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969).

A copy of counsel’s brief was delivered to appellant, who filed a pro se brief.

          In four issues, appellant contends that (1) his plea was involuntary because the trial court failed to inform him of the possibility of restitution, (2) the trial court erred in ordering restitution, (3) his plea was involuntary because the State failed to comply with promises made to him regarding his plea, and (4) the trial court erred in considering his socio-economic status during the sentencing hearing. We affirm.

Background

          Appellant pleaded guilty to delivery of a controlled substance, without an agreed recommendation by the State. At a sentencing hearing, appellant was admonished of the range of punishment. The trial court informed appellant that the range of punishment for delivery of more than 200 grams and less than 400 grams of methamphetamine is confinement for life or for a term of not less than 10 years or more than 99 years and a fine not to exceed $100,000. After accepting appellant’s plea and announcing his sentence, the trial court stated that it was “[a]lso going to recommendation [sic] as a condition of parole you make restitution of $37,000 to Heidi Knight.” This recommendation was not placed in the judgment.

Voluntariness of PleaIn his first and third issues, appellant argues that his guilty plea was involuntary because (1) the trial court erred by failing to inform him of the possibility of restitution and (2) the State failed to comply with promises made to him regarding his plea.

          The voluntariness of a guilty plea is determined by the totality of the circumstances. Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App. 1986); Edwards v. State, 921 S.W.2d 477, 479 (Tex. App.—Houston [1st Dist.] 1996, no pet.). When the record shows that the defendant was properly admonished before the trial court accepted the guilty plea, a prima facie case is made that a plea was voluntarily and knowingly entered. Mallett v. State, 65 S.W.3d 59, 64 (Tex. Crim. App. 2001). The burden then shifts to the defendant to show that he entered his plea without understanding the consequences of the plea. Fuentes v. State, 688 S.W.2d 542, 544 (Tex. Crim. App. 1985). Once the defendant attests that he understands the nature of his plea and that it was voluntary, he has a heavy burden to prove on appeal that his plea was involuntary. Edwards, 921 S.W.2d at 479. A plea will be declared involuntary only if the appellant affirmatively shows that the court’s admonishments left him unaware of the consequences of his plea and that he was misled or harmed. Ex parte Williams, 704 S.W.2d 773, 775 (Tex. Crim. App. 1986).

          Appellant initialed the admonishment sheet acknowledging that (1) he was charged with delivery of a controlled substance, namely methamphetamine, weighing less than 400 grams and more than 200 grams, (2) he was mentally competent, (3) he understood the nature of the charge, (4) he understood the admonishments, (5) he understood the consequences of his plea, (6) he understood the English language, and (7) he freely and voluntarily made his plea. These statements are prima facie evidence that appellant knowingly and voluntarily entered his guilty plea. See Ex Parte Williams, 704 S.W.2d at 775. The burden is now on appellant to show that he did not understand the consequences of the plea. See Fuentes, 688 S.W.2d at 544.

            First, appellant argues that his plea was involuntary because the court failed to admonish him regarding the possibility of restitution as a condition of parole in violation of Article 26.13. We disagree.

          Article 26.13 provides that the court “shall admonish the defendant of the range of punishment attached to the offense.” Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2004). Further, when a defendant pleads guilty, a trial court only needs to advise a defendant of the direct, not the collateral, consequences of his plea. See Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997). Article 26.13 does not require the court to admonish defendants regarding possible or recommended conditions of parole that may ultimately be imposed by the Board of Pardons and Parole. Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2004) (listing admonishments required before a trial court may accept a guilty plea).

          Accordingly, we overrule appellant’s first issue.

          Next, appellant argues that his plea was involuntary because the State did not comply with certain promises allegedly made to him as a condition of his plea. We disagree.

          Appellant argues that the State promised to dismiss his delivery charge and “to take care” of his child support charges if he identified his co-conspirator and pleaded guilty. However, during the PSI hearing, when the trial court asked appellant if anyone promised, threatened, or coerced appellant to get him to plead guilty to his charges, appellant replied, “No, your honor.” The only evidence in the record thus reflects that no promises were made to appellant. Accordingly, appellant has brought forth no evidence indicating that he did not understand the consequences of his plea or requiring a separate hearing to be held regarding his plea. Appellant has failed to sustain his burden, and we overrule appellant’s third issue.

Restitution

          In his second issue, appellant argues that the trial court erred because it did not have authority to order restitution as a condition of parole, and, furthermore, “restitution did not have a factual basis within the loss of any victim of the offense charged.”

          We review challenges to restitution orders under an abuse of discretion standard. Cartwright v. State, 605 S.W.2d 287, 288 (Tex. Crim. App. 1980); Uresti v. State, 98 S.W.3d 321, 337 (Tex. App.—Houston [1st Dist.] 2003, no pet.). The court abuses its discretion when it acts in an arbitrary or unreasonable manner. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

          A trial court has no authority to order restitution as a condition of parole. Vargas v. State, 830 S.W.2d 656, 658 (Tex. App.—Houston [1st Dist.] 1992 pet. ref’d). The authority to place conditions on a defendant’s parole is solely within the purview of the Board of Pardons and Parole. Tex. Code Crim. Proc. Ann. art. 42.18 § 8(g) (Vernon Supp. 2004); Gallegos v. State, 754 S.W.2d 485, 489 (Tex. App.—Houston [1st Dist.] 1988, no pet.).

          However, here, the trial court did not order restitution as a condition of parole. The trial court orally stated that it was going to make a recommendation of restitution as a condition of parole, but the court did not enter any written order for restitution. Accordingly, the trial court did not abuse its discretion in making a recommendation as to a condition of parole. See McNeill v. State, 991 S.W.2d 300, 302 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).

          We overrule appellant’s second issue.

Socio-economic Status

          In his fourth issue, appellant contends that the trial court erred in considering his socio-economic status during sentencing.

          To preserve error on appeal, the complaining party must make a timely objection. Tex. R. App. P. 33.1(a). Here, appellant’s trial counsel objected to the PSI report because extraneous acts were included in the report and not because of any reference to appellant’s socio-economic status. Therefore, any objection to the contents of the PSI report regarding appellant’s socio-economic status is waived. See id.

          We overrule appellant’s fourth issue.

Other Issues

          Finally, by merely mentioning their possible existence in his brief, appellant attempts to present the following issues on appeal: entrapment, a violation of his allocution rights, ineffective assistance of trial and appellate counsel, and that his conviction should be overturned because “Harris County’s system for providing indigent offenders with representation ensures sub par representation at best.” However, because appellant, by his own admission, did not brief these issues, they are waived, and we do not reach them. See Tex. R. App. P. 38.1(h).

Conclusion

           We affirm the judgment of the trial court. We grant appellate counsel’s motion to withdraw. See Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); Stephens v. State, 35 S.W.3d 770, 771 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

George C. Hanks, Jr.

                                                                        Justice

Panel consists of Justices Nuchia, Alcala, and Hanks.

Do Not Publish. Tex. R. App. P. 47.4.