Opinion
Nos. 05-04-00554-CR, 05-04-00555-CR
Opinion issued August 4, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-29694-SP, F03-40790-HP. Affirmed as modified.
Before Justices WRIGHT, BRIDGES, and FITZGERALD.
MEMORANDUM OPINION
Kirk Durand Thursby entered open guilty pleas to two burglary of a habitation offenses. Punishment, enhanced by one prior conviction, was assessed at twenty years' imprisonment and a $2500 fine in each case. The procedural history of the case is known to the parties, so we do not set it out in detail. In four issues, appellant asserted that the evidence was legally and factually insufficient to support the trial court's order of $19,000 restitution in each case. In our opinion of May 11, 2006, we sustained appellant's first four issues, set aside the restitution orders, and remanded to the trial court to conduct an evidentiary hearing regarding the proper amount of restitution due. We have received the reporter's record from the June 30, 2006 hearing. The parties stipulated that the State was abandoning its restitution claim in trial court no. F03-26947-SP (cause no. 05-04-00554-CR) and that $6979 is the proper amount of restitution for trial court no. F03-40790-HP (cause no. 05-04-00555-CR). The trial court accepted the stipulation and entered restitution orders in accordance with the stipulation. Accordingly, we modify the trial court's judgment in trial court no. F03-26947-SP (cause no. 05-04-00554-CR) to delete the restitution order. We modify the trial court's judgment in trial court no. F03-40790-HP (cause no. 05-04-00555-CR) to reflect that appellant must pay restitution in the amount of $6979. In his fifth and sixth issues, appellant asserts his guilty pleas were involuntary because: (1) there is no finding made by the magistrate who took the pleas that appellant entered the pleas freely and voluntarily; and (2) the admonishments did not fully inform appellant that he was subject to pay restitution for the offenses. Article 26.13 sets out the admonishments the trial court judge must give. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2005). The admonishments may be given either orally or in writing. See id. art. 26.13(d). When a trial court substantially complies with article 26.13(a), it constitutes a prima facie showing that the defendant's guilty pleas were entered knowingly and voluntarily. See Grays v. State, 888 S.W.2d 876, 878 (Tex.App.-Dallas 1994, no pet.); see also Kirk v. State, 949 S.W.2d 769, 771 (Tex.App.-Dallas 1997, pet. ref'd). The appellant then has the burden to affirmatively show he was unaware of the consequences of his plea and that he was misled or otherwise harmed by the admonishments. See Tex. Code Crim. Proc. Ann. art. 26.13(c); Grays, 888 S.W.2d at 878. In these cases, the records contain the trial court's written article 26.13(a) admonishments. Appellant not only signed the forms admitting that he was pleading guilty freely and voluntarily, he testified at the plea hearing before the magistrate that he was freely and voluntarily pleading guilty. The magistrate orally found that appellant's plea was freely and voluntarily given and the written "findings, conclusions, and recommendations" reflect that finding. At the punishment hearing, the trial court judge also found that appellant's pleas were freely and voluntarily entered. Thus, we conclude appellant's complaint in this regard is without merit. To the extent appellant complains his pleas were involuntary because he was not admonished about restitution, we likewise conclude the complaint is without merit. An admonishment regarding restitution is not required by article 26.13(a). See Tex. Code Crim. Proc. Ann. art. 26.13(a). Moreover, on remand, appellant and the State stipulated the restitution claim has been abandoned in cause no. 05-04-00554-CR and the proper amount of restitution in cause no. 05-04-00555-CR is $6979. We overrule appellant's fifth and sixth issues. We modify the trial court's judgment in cause no. 05-04-00554-CR to delete the restitution order. We modify the trial court's judgment in cause no. 05-04-00555-CR to show the proper amount of restitution is $6979. As modified, we affirm the trial court's judgments.