Delgado, Daniel Ventura v. State

Affirmed and Memorandum Opinion filed July 27, 2004

Affirmed and Memorandum Opinion filed July 27, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00852-CR

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DANIEL VENTURA DELGADO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 547,689

M E M O R A N D U M  O P I N I O N

On May 13, 2003, Daniel Delgado pleaded no contest to the felony offense of murder, without an agreed recommendation on punishment.  After completion of a pre-sentence investigation, the trial court found appellant guilty and sentenced him to thirty years= confinement in the Texas Department of Criminal Justice, Institutional Division.  On appeal, appellant contends (1) the trial court erred by not sua sponte withdrawing his no contest plea and entering a plea of not guilty on his behalf; and (2) the record does not affirmatively establish the written admonishments were translated to him in a language he could understand; therefore, his plea was not knowing and voluntary.  We affirm.

We first address appellant=s second issue and determine whether appellant=s plea was entered knowingly and voluntarily.  We examine the record as a whole to determine whether a guilty or no contest plea was given voluntarily.  Lee v. State, 39 S.W.3d 373, 375 (Tex. App.CHouston [1st Dist.] 2001, no pet.).  A record that recites the defendant was properly admonished is prima facie evidence that his plea was made knowingly and voluntary.  Mallett v. State, 65 S.W.3d 59, 64 (Tex. Crim. App. 2001); Solis v. State, 945 S.W.2d 300, 302 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d). The burden then shifts to the defendant to show he did not fully understand the consequences of his plea. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998).  In the absence of a clear showing to the contrary, we presume the recitations in the documents before the court were correct and the proceedings were conducted with regularity.  Breazeale v. State, 683 S.W.2d 446, 450B51 (Tex. Crim. App. 1984); Miller v. State, 879 S.W.2d 336, 338 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d). These presumptions can be overcome only when the record shows that error has occurred.  Breazeale, 683 S.W.2d at 450; Miller, 879 S.W.2d at 338.

Appellant argues his plea was involuntary because the record fails to affirmatively demonstrate an interpreter actually translated the contents of the documents.^[1]  Appellant initialed the following paragraph contained in the written admonishments:^[2]

I read and write/understand the Spanish language; the foregoing Admonishments, Statements and Waivers as well as the attached written Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession, were read by me or were read to me and explained to me in that language by my attorney and/or an interpreter, namely Marilu Flores, before I signed them, and I consulted fully with my attorney before entering this plea.

Appellant argues that without evidence the interpreter actually translated the written admonishments, the above quoted paragraph is simply evidence that he initialed and signed a document that he could not read.  We find this argument without merit. 

Appellant represented in the plea document that he understood the allegations presented against him, and he stipulated the witnesses would testify to the truth of the allegations.  Appellant also represented that he fully discussed the case with his attorney before entering his plea.  Appellant=s counsel also signed the plea document, stating that after fully discussing the case and the consequences of entering a plea with appellant, he believed appellant entered his plea knowingly and voluntarily. Thereafter, the judge signed the plea document stating that he admonished appellant and determined appellant entered his plea knowingly and voluntarily.  Additionally, the written admonishments provide that an interpreter translated the document to appellant, and appellant initialed and signed each admonishment, indicating he understood their contents. 

Given the presumptions of truthfulness and regularity, appellant=s argument that the record does not affirmatively show an interpreter was present and the interpreter actually translated the document to appellant must fail. See Reyna v. State, 993 S.W.2d 142, 145B46 (Tex. App.CSan Antonio 1999, pet. ref=d).  Appellant has not met his burden to affirmatively show he did not understand the consequences of his plea; therefore, we presume the recitations are truthful and the admonishments were translated to appellant in Spanish. Accordingly, we hold appellant knowingly and voluntarily entered his plea of no contest.  Appellant=s second issue is overruled.

Having concluded appellant=s plea was voluntary, we now determine whether the trial court erred by not sua sponte withdrawing appellant=s plea of no contest after evidence  that appellant denied committing the offense was presented in the pre-sentence investigation report.  We review a trial court=s decision whether to withdraw a plea of guilty or no contest under an abuse of discretion standard. See Aldrich v. State, 53 S.W.3d 460, 468 (Tex. App.CDallas 2001), aff=d, 104 S.W.3d 890 (Tex. Crim. App. 2003).  When a defendant pleads to the trial court and waives trial by jury, the court has no obligation to sua sponte withdraw a plea of no contest, even when evidence is adduced that reasonably and fairly raises an issue as to his guilt.  Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App. 1978); Fisher v. State, 104 S.W.3d 923, 924 (Tex. App.CHouston [14th Dist.] 2003, no pet.); Aldrich, 53 S.W.3d at 467; Solis, 945 S.W.2d at 302.  It is the trial court=s duty, as the trier of fact, to consider the evidence submitted and, based on that evidence, find the defendant guilty, guilty of a lesser-included offense, or not guilty.  Solis, 945 S.W.2d at 303.

Here, appellant expressly and voluntarily waived his right to a jury trial, stipulated the witnesses would testify to the truth of the allegations, received the required admonishments, and entered a no contest plea.  The court found appellant mentally competent, found his plea was voluntary, and found sufficient evidence to support guilt.  Additionally, appellant never requested to withdraw his plea of no contest.  Therefore, the trial court did not abuse its discretion by not sua sponte withdrawing appellant=s plea of no contest.  Appellant first issue is overruled.

Having overruled appellant=s two issues on appeal, we affirm the judgment of the trial court.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed July 27, 2004.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).                                                   

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^[1]  Appellant notes in his brief that the trial judge did not orally admonish him on the record; appellant, however, waived his right to have a court reporter at the plea hearing.  Without a record, this contention is waived.  Further, Texas Code of Criminal Procedure article 26.13(d) provides that the trial court may admonish the defendant either orally or in writing.  Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon Supp. 2004).   

^[2]  Appellant not only signed the plea and written admonishments, he also initialed eighteen separate paragraphs contained in the admonishment document.