Nos. 04-06-00022- CR 04-06-00023-CR.
Delivered and Filed: January 19, 2007. DO NOT PUBLISH.
Appeal from the 399th Judicial District Court, Bexar County, Texas Trial Court Nos. 2004-CR-7230 2004-CR-6801, Honorable Juanita A. Vasquez-Gardner, Judge Presiding.
Alma L. LÓpez, Chief Justice Catherine Stone, Justice Karen Angelini, Justice.
Karen Angelini, Justice.
Richard Villarreal appeals his convictions for felon in possession of a firearm and aggravated robbery, raising the following issues: the trial court erred in denying his request to withdraw his pleas of nolo contendere because they were not voluntary; and the evidence is legally insufficient to support Villarreal's conviction in Cause No. 2000-CR-7230 for felon in possession of a firearm.
Although Villarreal couches his issue on appeal in terms of both pleas, his objection below was limited to his plea regarding the offense of felon in possession of a firearm.
Factual and Procedure Background
On June 27, 2004, at approximately 1:00 a.m., two men wearing baseball caps entered the Pizza Classic restaurant at 2110 Broadway, in San Antonio. The owner of the restaurant, Robert Constantin, observed that the men had bandanas covering their faces and that one of the men, later identified as Richard Villarreal, was carrying a gun. As the men approached the counter, Constantin reached for his own weapon and fired a shot at the intruders. Villarreal dropped to the floor but the second assailant fled and was never apprehended. Constantin then held Villarreal down until the police arrived and retrieved a .45 caliber weapon from the floor. Villarreal was indicted for aggravated robbery in Cause No. 2004-CR-6801, and felon in possession of a firearm in Cause No. 2004-CR-7230. The indictments alleged that the offenses occurred on or about June 27, 2004 and included an enhancement paragraph. The cases were called for trial on Oct. 18, 2005, whereupon Villarreal was admonished regarding the full range of punishment for the offenses of aggravated robbery and felon in possession of a firearm. After further admonishments, Villarreal, who was represented by counsel, entered a plea of no contest in Cause Nos. 2004-CR-6801 and 2004-CR-7230, and stipulated to the State's evidence. He further admitted that the State's allegations and enhancement paragraphs were true and that he had not been promised anything, nor had he been threatened or coerced. A presentence investigation report was ordered and the cases were reset until November 21, 2005. On that date, the trial judge called both cases and was about to sentence Villarreal when Villarreal's court appointed attorney informed the court that Villarreal wanted to address the Court and had advised counsel that "he never intended to plead guilty." Villarreal then addressed the court and stated that he had filed a motion to fire his court appointed attorney but when asked by the trial judge whether he was asking the court to withdraw his plea, Villarreal responded, "No — no — ." The trial judge indicated she was not inclined to let him withdraw his plea but reset both cases for one week to afford Villarreal an opportunity to obtain new counsel. On November 28, 2005, the cases were once again called and the judge asked Villarreal if he had obtained other counsel. Villarreal stated he had been unable to do so, whereupon the judge proceeded to pronounce sentence, assessing forty years in Cause No. 2004-CR-6801, to run concurrently with a sentence of twenty years in Cause No. 2004-CR-7230. Villarreal now brings this appeal, initially claiming that the trial court abused its discretion in denying his request to withdraw his plea of nolo contendere because the plea was not voluntary. Voluntary Pleas
A guilty plea must be made knowingly and voluntarily before it can meet the statutory and constitutional requirements and be accepted. Tex. Code Crim. P. Ann. art. 26.13(b) (Vernon 1989 and Supp. 2006); McCarthy v. U.S., 394 U.S. 459, 466 (1969). A defendant may withdraw his guilty plea as a matter of right at any time until judgment has been pronounced or the court has taken the case under advisement. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App. 1979). When the court has admonished the defendant concerning the possible range of punishment for the crime for which he stands accused, there is a prima facie showing that the plea was made knowingly and voluntarily. Morales v. State, 872 S.W.2d 753, 754 (Tex.Crim.App. 1994), overruled on other grounds, Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997); Crawford v. State, 890 S.W.2d 941, 944 (Tex.App.-San Antonio 1994, no pet.). If a defendant decides to withdraw his guilty plea after the trial judge takes the case under advisement or pronounces judgment, the withdrawal of such plea is within the sound discretion of the trial court. Jackson, 590 S.W.2d at 515. The burden then shifts to the defendant to prove that he did not understand the consequences of the plea. Rodriguez v. State, 933 S.W.2d 702, 705-6 (Tex.App.-San Antonio 1996, pet. ref'd). When the defendant states he understands the nature of the proceeding, that the allegations are true, and that no outside pressure or influences coerced him into making the plea, this burden is especially onerous. Id. at 706. In considering the voluntariness of a nolo contendere plea, we must examine the record as a whole. Id. I. Villarreal's Claim That His Plea Was Involuntarily Made The record reflects that Villarreal was duly admonished regarding the possible range of punishment for the crimes with which he was charged. He also advised the court that he had gone over the written admonishments with his attorney and understood them, and further, that he admitted he was giving up his rights and had done so voluntarily. Villarreal's trial counsel also informed the court that he had consulted with Villarreal and felt that his client was competent and had a factual and rational understanding of the charges and the proceedings against him. This is sufficient to establish a prima facie showing that Villarreal's plea of no contest was entered knowingly and voluntarily. Morales, 872 S.W.2d at 754. The burden then shifts to Villarreal to demonstrate that he did not fully understand the consequences of his plea. Rodriguez, 933 S.W.2d at 705-06. In support of his position that his plea was involuntary, Villarreal claims that he pled no contest to the weapons charge because he was in "a pretty tough spot" and felt no one would help him and further, that he had been having problems with his attorney and had filed a motion to fire him. However, the record before us reflects that Villarreal clearly stated that he understood the nature of the proceedings, that he admitted the allegations were true, and that he conceded that no outside pressure or influences coerced him into making the plea. Further, in examining the record as a whole, we find no evidence indicating that Villarreal was unaware of the consequences of his plea. Id. Accordingly, the trial court did not abuse its discretion in denying Villarreal's request to withdraw his plea of no contest. See Jackson, 590 S.W.2d at 515. Villarreal's first point is overruled. Next, Villarreal argues that the evidence is legally insufficient to support his conviction in Cause No. 2004-CR-7230 for felon in possession of a firearm. Specifically, Villarreal argues that the State did not introduce evidence of his prior felony conviction for forgery of a commercial instrument as alleged in the indictment. Article 1.15
Article 1.15 of the Texas Code of Criminal Procedure specifies the requirements for pleas and provides: No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005). Thus, when a defendant enters a guilty plea, the State must introduce evidence into the record showing the guilt of the defendant to serve as the basis for the trial court's judgment. Id. In reviewing the legal sufficiency of the State's evidence, we will affirm the trial court's judgment if the evidence embraces every essential element of the offense charged and establishes the defendant's guilt. See Stone v. State, 919 S.W.2d 424, 427 (Tex.Crim.App. 1996). A judicial confession, standing alone, constitutes sufficient evidence to support a guilty plea and thereby, satisfies the requirements of art. 1.15. See Tex. Code. Crim. Proc. Ann. art. 1.15 (Vernon 2005); Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. 1979); see also Potts v. State, 571 S.W.2d 180, 182 (Tex.Crim.App. [Panel Op.] 1978) (finding that an affirmation of the indictment as true and correct will constitute a judicial confession sufficient to support a judgment of conviction). Further, a defendant's written stipulation that the evidence admitted is true and correct qualifies as a judicial confession. Roberson v. State, 879 S.W.2d 250, 254 (Tex.App.-Dallas 1994, no pet.). II. Villarreal's Claim That The Evidence Was Legally Insufficient
The record here reflects that Villarreal pled no contest, and stipulated to evidence of his guilt in both cause numbers. Further, Villarreal signed a written judicial confession that was admitted as State's Exhibit 2, which Villarreal stipulated was true and correct. It stated: . . . on [the] 27th day of JUNE, A.D., 2004, RICHARD VILLARREAL, hereinafter referred to as defendant, did then and there intentionally and knowingly possess a firearm: and prior to the commission of said act, the said RICHARD VILLARREAL was duly and legally convicted of the felony offense of FORGERY OF COMMERCIAL INSTRUMENT/CHECK,. . . ." Therefore, we find Villarreal's stipulations and judicial confession were evidence that was legally sufficient to sustain the trial court's verdict. See Dinnery, 592 S.W.2d at 353. Villarreal's second issue is overruled. AFFIRMED Conclusion
Villarreal has not met his burden of showing that he did not understand the consequences of his plea and further, the evidence was legally sufficient to support Villarreal's conviction for felon in possession of a firearm; accordingly, the trial court's judgment is affirmed.