Michael Ray Royal v. State

NUMBERS 13-00-300-CR AND 13-00-301-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ MICHAEL RAY ROYAL, Appellant, v. THE STATE OF TEXAS, Appellee. ___________________________________________________________________ On appeal from the 197th District Court of Cameron County, Texas. __________________________________________________________________ O P I N I O N Before Chief Justice Valdez and Justices Dorsey and Rodriguez Opinion by Justice Rodriguez Appellant, Michael Ray Royal, was charged with two offenses of aggravated robbery. (1) He pleaded guilty to both offenses. The court ordered a pre-sentence investigation (PSI), and subsequently assessed punishment at forty years confinement in the Texas Department of Criminal Justice for each offense, the sentences to run concurrently. By three issues, (2) appellant contends that the PSI report was used for improper purposes, and that his pleas of guilty were involuntary. We affirm. By his first issue, appellant claims the trial court improperly used the PSI report as the sole basis for determining his sentences. Article 37.07, section 3(d) of the Texas Code of Criminal Procedure provides that the court may order a PSI and, after considering it and hearing evidence offered pursuant to section 3(a), the court shall assess punishment. See Tex. Code Crim. Proc. Ann. art. 37.07 § (3)(d) (Vernon Supp. 2001). Article 37.07(3)(a) states that the State and the defendant may offer evidence as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and any other evidence of an extraneous crime or bad act. See id. at § (3)(a). Evidence submitted pursuant to article 37.07(3)(a), however, is not mandatory. See id.; Tamminen v. State, 653 S.W.2d 799, 802 (Tex. Crim. App. 1983). Furthermore, once a defendant enters a guilty plea, either to the trial court or to the jury, the proceeding in the trial court becomes a unitary proceeding and the only issue before the trial court is the punishment to be assessed. See Carroll v. State, 975 S.W.2d 630, 631-32 (Tex. Crim. App. 1998); Williams v. State, 674 S.W.2d 315, 318 (Tex. Crim. App. 1984); Ricondo v. State, 634 S.W.2d 837, 841 (Tex. Crim. App. 1982) (op. on reh'g) (en banc); Basaldua v. State, 481 S.W.2d 851, 853 (Tex. Crim. App. 1972). Additionally, the court shall allow the defendant to comment on the PSI and, with the court's approval, the defendant may introduce testimony or other information alleging a factual inaccuracy in the investigation or report. See Tex. Code Crim. Proc. Ann. art. 42.12, § (9)(e) (Vernon Supp. 2001); Stancliff v. State, 852 S.W.2d 639, 641 (Tex. App.--Houston [14th Dist.] 1993, pet. ref'd). The defendant bears the burden of proving that the information contained in a PSI report was materially inaccurate and that the judge relied on inaccurate information. See Stancliff, 852 S.W.2d at 641. In the present case, one judge presided over the entire proceeding. The court accepted appellant's pleas of guilty and imposed the sentences. When appellant pleaded guilty to the two aggravated robberies he stipulated to the truth and correctness of the State's exhibits. Exhibit two included the investigative report of Detective Richard V. Turner. (3) The exhibit also contained the affidavits of the police dispatcher and certain eyewitnesses, as well as the voluntary statements of appellant and his alleged accomplice. (4) At sentencing, the court had this evidence, in addition to the PSI report, to aid it in reaching its decision. Our review of the record reveals appellant did not attempt to offer any evidence that the PSI report was factually inaccurate or that the judge relied on inaccurate information. The record from the punishment hearing is not limited to the PSI report and there is no indication in the record that the trial court considered only the report in its determination of punishment. We conclude the PSI report was not the only basis the trial court used to determine punishment. Appellant's first issue is overruled. In issue two, appellant challenges the voluntariness of his guilty pleas. Appellant complains that his pleas were entered involuntarily because the court relied almost wholly on the written admonishments to meet the requirements of article 26.13 of the Texas Code of Criminal Procedure. Article 26.13 lists the admonishments that a court must give to a defendant upon entry of a guilty plea. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 1989 & Supp. 2001). In addition to the written admonishments, (5) about which appellant does not complain, the following exchange occurred in open court. The Court: Mr. Royal, you have signed the Admonitions of the court to the Defendant. Do you understand that in signing this what you are telling me is that you are pleading guilty and you are asking that I find you guilty? The Defendant: Yes, I do. The Court: You understand that the range of punishment is the same in both cases, and it's for a term of not less than five years nor more than 99 years and a fine not to exceed $10,000? The Defendant: Yes, I do. The Court: Are you a U.S. citizen? The Defendant: Yes, I am. The Court: Did anybody force you or coerce you into entering this plea? The Defendant: No they haven't. The Court: Are you entering this plea because you are guilty and for no other reason? The Defendant: Yes, I am. The Court: Mr. Pena, have you had sufficient time to consult with your client and is he competent to enter into this plea? Mr. Pena: Yes, Your Honor. I've had more than sufficient time to discuss this with my client, and I feel he is competent. Where the record indicates, as it does in this case, that the trial court gave an admonishment, there is a prima facie showing of a knowing and voluntary plea of guilty. See Harvill v. State, 13 S.W.3d 478, 480 (Tex. App.--Corpus Christi 2000, no pet.) (citing Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985)). The burden then shifts to the defendant to show that he entered the plea without understanding the consequences of his action and consequently suffered harm. See Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon 1989); Harvill, 13 S.W.2d at 480. Appellant has not established that he pleaded guilty without understanding the consequences of his plea and, thereby, suffered harm. Since the trial court substantially complied with the requirements of article 26.13 and appellant has failed to show that he was harmed by the admonishment of the court, we conclude appellant's pleas were not involuntary on this basis. Appellant also asserts his plea was involuntary because the court failed to properly admonish him prior to his pleas of guilty pursuant to the factors outlined in Boykin v. Alabama, 395 U.S. 238, 243 (1969). Appellant contends that the following Boykin factors must be shown on the record: (1) waiver of his constitutional right against self-incrimination; (2) waiver of his right to trial by jury; (3) waiver of his right to confront witnesses against him; (4) a clear indication that appellant understood his rights; and (5) a clear indication that waiver of these rights was voluntary and freely made. See Boykin, 395 U.S. at 243. The record does establish that the court addressed the first three factors in appellant's written waiver and consent to stipulation of testimony, waiver of jury, and plea of guilty. Furthermore, the above analysis of the requirements of article 26.13 establishes the final two factors. Appellant's second issue is overruled. By his third issue, appellant complains that his pleas were rendered involuntary because he did not understand and was not informed of the parole consequences of his plea. However, article 26.13(a) does not require such a disclosure. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 1989 & Supp. 2001). Furthermore, parole eligibility is a collateral consequence of the entry of a plea of guilty, and a trial court is not required to admonish a defendant regarding his eligibility for parole. See Ex parte Young, 644 S.W.2d 3, 4-5 (Tex. Crim. App. 1983) overruled in part on other grounds by Ex Parte Evans, 690 S.W.2d 274, 279 (Tex. Crim. App. 1985); Harvill, 13 S.W.3d at 480; see also Ex parte Hairston, 766 S.W.2d 790, 791-92 (Tex. Crim. App. 1989) (speculative nature of parole attainment is such as to discount its legal importance on subject of voluntariness of guilty plea). However, a guilty plea may be found to be involuntary if appellant establishes that his attorney gave incorrect advice or the trial judge incorrectly admonished on parole eligibility and parole eligibility was an affirmative part or element of the plea bargain. See Ex parte Trahan, 781 S.W.2d 291, 293 (Tex. Crim. App. 1989). Under Young, appellant was not entitled to be informed of parole eligibility by the trial court. Although appellant contends he did not understand the parole consequences of his pleas, he does not assert that either his attorney incorrectly advised him or that the trial court incorrectly admonished him about his eligibility for parole. Nor can he contend that parole eligibility was a part of his plea agreement because he pleaded guilty without entering into an agreement. Appellant's sole complaint is that the court did not admonish him regarding his eligibility. Accordingly, we overrule appellant's third issue. The trial court's judgments are AFFIRMED. NELDA V. RODRIGUEZ Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this 16th day of August, 2001. 1. See Tex. Pen. Code Ann. § 29.03(a) (Vernon 1994). 2. Appellant brings two appeals, one from cause number 99-CR-1250-C and the second from 99-CR-1251-C. Because the issues are identical, we will address both appeals in one opinion. 3. Detective Turner's report included, inter alia, a description of appellant's voluntary statement and reference to appellant having been "arrested and charged in six robberies, with a dangerous weapon." 4. Both statements included information regarding appellants' prior criminal record, his general reputation, his character, and the circumstances of the offense for which he was being tried. 5. "The court may make the admonitions required by this article either orally or in writing." Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon 1989).