Richard Botello v. State

00-00058 Botello v State of Texas.wpd No. 04-00-00058-CR Richard BOTELLO, Appellant v. The STATE of Texas, Appellee From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 99-CR-6382 Honorable Mary Roman, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Catherine Stone, Justice Paul W. Green, Justice Karen Angelini, Justice Delivered and Filed: September 6, 2000 AFFIRMED Factual and Procedural Background On January 14, 2000, pursuant to a plea bargain, Richard Botello pleaded guilty to an aggravated robbery charge. The trial court sentenced Botello to sixteen years confinement in the Texas Department of Criminal Justice, Institutional Division and imposed a $1,000 fine. In two issues, Gilbert claims his plea was involuntary. We disagree with his assertions and affirm the trial court's judgment. DiscussionJurisdiction As a general rule, a defendant who pleads guilty and whose punishment does not exceed that suggested by the plea bargain is not permitted to appeal any matter without the trial court's permission, except rulings on pretrial motions and jurisdictional defects. See Tex. R. App. P. 25.2. The Texas Court of Criminal Appeals has held, however, that a plea-bargaining defendant may challenge the voluntariness of a negotiated plea. See Flowers v. State, 935 S.W.2d 131, 134 (Tex. Crim. App. 1996); Luna v. State, 985 S.W.2d 128, 129-130 (Tex. App. - San Antonio 1998, pet. ref'd). Accordingly, we have jurisdiction to review Botello's issues regarding the voluntariness of his plea. Voluntariness of Guilty Plea In two issues, Botello attacks the voluntariness of his plea. Specifically, he claims that although the trial court properly admonished him according to Texas Code of Criminal Procedure, Article 26.13, he was incapable of understanding those admonishments. Botello asserts this incapacity rendered his plea involuntary. Botello also claims that his plea was involuntary because he received a punishment greater than what he expected. A guilty plea must be entered knowingly and voluntarily. See Brady v. United States, 397 U.S. 742, 749 (1970); Estrada v. State, 981 S.W.2d 68, 70 (Tex. App. - San Antonio 1998, pet. ref'd). To assess a plea's voluntary nature, we must ask whether "the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." See Parke v. Raley, 506 U.S.20, 29 (1992). We consider the totality of the circumstances to answer this question. See Crawford v. State, 890 S.W.2d 941, 944 (Tex.App.- San Antonio 1994, no pet.). When the record reflects that the court properly admonished the defendant, a prima facie showing is made that the plea was entered voluntarily. See Rodriguez v. State, 933 S.W.2d 702, 705 (Tex.App.- San Antonio 1996, pet. ref'd). Once such a showing is made, the burden then shifts to the defendant to prove that he did not understand the consequences of his plea, and as a result, suffered harm. See Fuentes v. State, 688 S.W.2d 542, 544 (Tex. Crim. App. 1985). Before accepting a guilty plea, the trial court must admonish the defendant of: the punishment range; the fact that the State's sentencing recommendation is not binding on the court; the limited right to appeal; and the possibility of deportation. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2000). The trial court may not accept a guilty plea unless it is apparent to the court that the defendant is mentally competent and the plea was entered freely and voluntarily. See id. art. 26.13(b). In this case, the trial court properly admonished Botello in writing. The State therefore made a prima facie showing that Botello entered his plea voluntarily, and Botello now shoulders the burden of establishing his plea was involuntarily entered. To attempt to satisfy this burden, Botello contends that his ability to understand the consequences of his plea was diminished, and that the trial court erred in failing to inquire into his alleged incapacity. His contentions, however, are inadequate to rebut the presumption that his plea was voluntary. Botello offers no evidence that he lacked the ability to understand the consequences of his plea. Botello indicated to the trial court that he was voluntarily pleading guilty to the charge. Furthermore, contrary to Botello's assertion, the trial court inquired into his state of mind and his ability to understand the proceedings against him. The trial court specifically asked trial counsel whether Botello had a rational and factual understanding of the proceedings against him and whether he was able to assist in the preparation of his own defense. To each of these questions, Botello's trial counsel responded affirmatively. When asked if Botello was mentally competent, trial counsel said yes. Botello additionally attacks the voluntariness of his plea, complaining that because he "expected that he would receive the minimum amount of time in the range described by [the trial judge]," and then didn't, his plea was involuntary. His assertion, however, is without merit. It is a well-settled principle that a plea is not rendered involuntary simply because the punishment exceeds what the defendant expected. See Galvan v. State, 525 S.W.2d 24, 26 (Tex. Crim. App. 1975); Hinkle v. State, 934 S.W.2d 146, 149 (Tex. App. - San Antonio 1996, pet. ref'd). Because Gilbert did not satisfy his burden of showing his plea was involuntary, we overrule his issues. Accordingly, we affirm the trial court's judgment. Karen Angelini, Justice DO NOT PUBLISH