Bingham, Carla v. State

NUMBER 13-99-134-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ CARLA BINGHAM , Appellant, v. THE STATE OF TEXAS , Appellee. ___________________________________________________________________ On appeal from the 319th District Court of Nueces County, Texas. ____________________________________________________________________ O P I N I O N Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Rodriguez Carla Bingham, appellant, entered a plea of nolo contendere to the offense of possession of cocaine. See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.115(a) & (b) (Vernon Supp. 2000). The trial court accepted her plea, deferred adjudication, and placed her on community supervision for five years. By a single issue, appellant challenges the voluntariness of her plea. We affirm. Appellant was charged by indictment with unlawful possession of cocaine. Appellant waived her right to trial by jury, and without the benefit of a plea bargain agreement, entered a plea of nolo contendere to the charge. At the plea hearing, the trial court noted that there was a jury panel waiting. Appellant was advised of her rights by the trial court and indicated she understood them and elected to waive them. Appellant stated she pleaded nolo contendere freely and voluntarily and that no one promised her anything to enter into the plea. The trial judge informed appellant that "[a]t any time you so choose, you could choose to withdraw your plea and proceed to jury trial. You understand that?" Appellant responded affirmatively. After the trial court accepted appellant's plea, the State introduced appellant's judicial confession and stipulation of evidence without objection. In her sole issue, appellant contends her plea was involuntary because the trial judge misinformed her that she had a right to withdraw her plea at any time and have a jury trial. Article 26.13 of the Texas Code of Criminal Procedure lists the admonishments a court must give a defendant upon entry of a guilty plea. Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 1989 & Supp. 2000). When the record shows that the trial court gave an admonishment, there is a prima facie showing of a knowing and voluntary plea of guilty. See Ex parte Gibauitch, 688 S.W.2d 868, 878 (Tex. Crim. App. 1985); Garcia v. State, 960 S.W.2d 151, 154 (Tex. App.--Corpus Christi 1997, no pet.). The burden then shifts to the defendant to show she pleaded guilty without understanding the consequences of her plea and, consequently, suffered harm. See Medina v. State, 985 S.W.2d 192, 193 (Tex. App.--San Antonio 1998, no pet.); see also Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon 1989). Even if the court errs in making the required admonishments, substantial compliance is sufficient unless the defendant affirmatively shows that she was not aware of the consequences of her plea and that she was misled or harmed by the admonishment of the court. See Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon 1989); Lopez v. State, 996 S.W.2d 893, 894 (Tex. App.--Corpus Christi 1999, no pet.). A defendant may withdraw her guilty plea until judgment is pronounced or the case is taken under advisement. See Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979). Thus, the trial court's statement that appellant could withdraw her plea at any time was technically incorrect. Appellant asserts she labored under the misunderstanding that she would retain the right to a jury trial, and entered the plea accordingly. During the plea hearing, defense counsel questioned appellant on direct-examination as follows: Defense counsel: It was your decision this morning to go ahead and enter this open plea. Is that correct? Appellant: Yes, sir. Defense counsel: You and I talked about it and what the options and what could happen and all the other things that are associated with this case here. Is that correct? Appellant: Yes, sir. Defense counsel: And you knew that we had a jury available, and we could have gone to trial today. Appellant: Yes, sir. Appellant did not ask to withdraw her plea at any point, and there is no evidence that appellant believed she could do so. Appellant did not file a motion for new trial alleging her plea was involuntary. Because appellant did not ask to withdraw her plea, and the trial court did not deny such a request, no harm is shown. Cf. Hinkle v. State, 934 S.W.2d 146, 149 (Tex. App.--San Antonio 1996, pet. ref'd) (plea was not involuntary where defendant had ample opportunity to withdraw his own plea, but chose not to do so). This case is distinguishable from Rivera v. State, 952 S.W.2d 34, 35-36 (Tex. App.­San Antonio 1997, no pet.). In Rivera, the court of appeals found a plea involuntary after defense counsel incorrectly told the defendant that he had an automatic right to withdraw his plea prior to sentencing. Significantly, the defendant in Rivera filed a motion to withdraw his plea, which the trial court denied. The Rivera court concluded the trial court abused its discretion in denying the motion to withdraw only after reviewing substantial evidence developed in the hearing on the motion that the defendant believed he could withdraw his plea. In this case, by contrast, appellant did not attempt to withdraw her plea, and did not provide a record indicating her belief or reliance on the judge's statement. Appellant has failed to demonstrate that she "relied on the incorrect portion of the admonishment in choosing to enter a plea of guilty." Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). Appellant also complains that the written admonishment did not state that a defendant entering an open plea would not have a right to withdraw her plea and proceed with a jury trial. The written admonishment, however, tracks the language of article 26.13 of the Texas Code of Criminal Procedure, and is therefore not erroneous. Finally, appellant contends her plea was involuntary because, according to appellant, although the trial judge asked her whether she understood she had a right to jury trial and a right to give up all her rights, the judge did not ask if she wished to give up those rights. The record reveals the judge asked appellant whether she understood she had a right to a jury trial, and she responded that she did understand. Thereafter, the court asked her whether she wished to waive the rights discussed, and she stated, "Yes, I do." We hold that appellant entered a voluntary plea of nolo contendere. Appellant's sole issue is overruled and the judgment of the trial court is AFFIRMED. NELDA V. RODRIGUEZ Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 1st day of June, 2000.