Miguel Contreras v. State

Affirmed and Memorandum Opinion filed March 10, 2011. In The Fourteenth Court of Appeals NO. 14-10-00070-CR Miguel Contreras, Appellant v. The State of Texas, Appellee On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 1134753 MEMORANDUM OPINION Appellant Miguel Contreras[1] pleaded guilty to aggravated robbery and was sentenced by the trial court to five years’ imprisonment. In his sole issue, appellant contends that a written waiver in the plea documents rendered his plea unknowing, unintelligent, and involuntary because it gave him the false impression that a presentence investigation report would not be ordered or used by the trial court during sentencing. We affirm. I. Background Appellant pleaded guilty to the felony offense of aggravated robbery without an agreed recommendation as to punishment. The record contains a “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession” and “Admonishments, Statements and Waivers” signed by appellant. A presentence investigation report was ordered. The trial court held a sentencing hearing, at which the presentence investigation report was jointly offered by the State and appellant’s trial counsel. The trial court admitted it as Joint Exhibit 1. At the conclusion of the hearing, the trial court, having previously accepted appellant’s guilty plea, found appellant guilty and sentenced him to five years in prison. II. Analysis Appellant contends that the written waiver concerning the preparation of a presentence investigation report rendered his guilty plea unknowing, unintelligent, and involuntary because it gave him the false impression that such a report would not be ordered or used by the trial court during sentencing. In addition, appellant argues that an inconsistency in the plea documents rendered his guilty plea involuntary on its face and he is, therefore, not required to establish on appeal that his plea was involuntary. Appellant claims that he was harmed by the presentence investigation report because a reference in the report was “most likely” damaging to his request for deferred adjudication probation.[2] The waiver in question is found in the record in the “Admonishments, Statements and Waivers” document. The waiver reads: I understand that before sentence may be imposed, the Court must order a preparation of a Presentence Investigation Report by the probation officer pursuant to Article 42.12, Sec. 9 V.A.C.C.P. I have thoroughly discussed this matter with my attorney and believe that for the Court to compel me to participate in the preparation of such a report would abridge the protection provided me by the Constitution of the United States and the Constitution and laws of the State of Texas and could result in further prejudice to me. Therefore, I hereby in writing respectfully decline to participate in the preparation of a Presentence Investigation Report and request that said report not be made prior to the imposition of sentence herein. I further knowingly, voluntarily, and intelligently waive any right which I may have to the preparation of said report either under Article 42.12, Sec. 9, V.A.C.C.P. or under Article 42.09, Sec. 8, V.A.C.C.P. Appellant argues that this waiver conflicts with the “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession” form, which contains a handwritten notation of “presentence investigation requested.” It is unclear from the record who requested the report. A defendant must knowingly and voluntarily enter his guilty plea for the plea to be constitutionally valid. See Fuller v. State, 253 S.W.3d 220, 229 (Tex. Crim. App. 2008). In considering the voluntariness of appellant’s guilty plea, we examine the record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). If the trial court properly admonished the defendant before a guilty plea was entered, there is a prima facie showing that the plea was both knowing and voluntary. Id. The burden then shifts to the defendant to show that he pled guilty without understanding the consequences of his plea, and consequently, suffered harm. Houston v. State, 201 S.W.3d 212, 217 (Tex. App.—Houston [14th Dist.] 2006, no pet.). A defendant who attests during an initial plea hearing that his plea is voluntary bears a heavy burden to later establish that he entered the plea involuntarily. Id.; Jones v. State, 855 S.W.2d 82, 84 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d). Further, where, as here, a defendant waives his right to have a court reporter record the plea proceedings and, thereafter, challenges on appeal the voluntariness of his plea, he nevertheless retains his burden to ensure that a sufficient record is presented on appeal to establish error. Houston, 201 S.W.3d at 217. In this case, the record contains the written documents, initialed and signed by appellant, and showing that he was admonished with the admonitions listed in Texas Code of Criminal Procedure article 26.13. Appellant attested by his initials and signature that his plea was voluntary and that he understood its consequences. The documents were also signed by appellant’s trial counsel and the trial court. Therefore, it is appellant’s burden to establish that his plea was involuntary. Contrary to appellant’s argument, the language of the waiver in question does not create an impression that appellant can prevent the trial court from ordering or reviewing a presentence investigation report. The waiver states that appellant “declines” to participate in the preparation of the report and “requests” that the report not be made. Its language does not, however, forbid the trial court from ordering the report. In fact, the first sentence acknowledges that the trial court must order the presentence investigation report as required by the Texas Code of Criminal Procedure.[3] Furthermore, the trial judge was authorized by the Texas Code of Criminal Procedure to use the report in sentencing appellant.[4] Once the report was prepared, appellant’s trial counsel did not object to the admission of the report at the sentencing hearing. In fact, both appellant’s trial counsel and the State offered the report as Joint Exhibit 1. Under these circumstances, we conclude that appellant has not met his burden to establish that his plea was involuntary. We overrule appellant’s sole issue. III. Conclusion Accordingly, we affirm the judgment of the trial court. /s/ Adele Hedges Chief Justice Panel consists of Chief Justice Hedges and Justices Frost and Christopher. Do Not Publish — Tex. R. App. P. 47.2(b). [1] The judgment refers to appellant as Miguel Angel Contreras; the notice of appeal lists appellant’s name as Miguel Contreras. [2] Appellant filed a motion for community supervision and argued for community supervision at the sentencing hearing; the record does not indicate that appellant specifically requested deferred adjudication community supervision. Appellant was not eligible for “regular” community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g (West Supp. 2009). [3] Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a) (West Supp. 2009) (“Except as provided by Subsection (g) of this section, before the imposition of sentence by a judge in a felony case . . . the judge shall direct a supervision officer to report to the judge in writing on the circumstances of the offense with which the defendant is charged, the amount of restitution necessary to adequately compensate a victim of the offense, the criminal and social history of the defendant, and any other information relating to the defendant or the offense requested by the judge.”). Subsection (g) states that the trial court is not required to direct an officer to prepare a presentence report in a felony case if punishment is to be assessed by a jury, the defendant is convicted of or enters a plea to capital murder, the only available punishment is imprisonment, or the judge intends to follow a plea agreement in which the defendant agrees to a term of imprisonment. See id. art. 42.12, § 9(g). None applies to appellant’s case with the possible exception of the only available punishment being imprisonment. Assuming that appellant was eligible for deferred adjudication community supervision, this exception did not apply either. In that case, the trial court was required to order a report. [4] See Tex. Code Crim. Proc. Ann. art. 42.12, § 9(c) (“The judge may not inspect a report and the contents of the report may not be disclosed to any person unless: (1) the defendant pleads guilty or nolo contendere or is convicted of the offense.”).