John Gabriel v. State

Opinion

CONCURRING OPINION

No. 04-98-00143-CR

John GABRIEL, Appellant

v.

The STATE of Texas, Appellee

From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 97-CR-0984 Honorable Sid L. Harle, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Concurring opinion by: Catherine Stone, Justice

Sitting: Phil Hardberger, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: August 18, 1999

I concur with the majority decision affirming Gabriel's conviction. I write separately, however, to address Gabriel's contention that he presented uncontradicted testimony that he was misinformed by his attorney about his chances of receiving probation or deferred adjudication.

Gabriel testified at the motion for new trial that his trial counsel promised him that he would receive deferred adjudication. Trial counsel testified that although he thought Gabriel had only "a small shot at probation," he did not tell Gabriel that. Rather, he told Gabriel that he had "a few humps to get over." On appeal Gabriel contends this testimony amounts to uncontroverted evidence that trial counsel misinformed Gabriel about whether he should proceed before the judge or a jury, and about his chances of receiving probation or deferred adjudication.

Informing a criminal defendant with a lengthy history of prior criminal convictions⁽¹⁾ that he has a "few humps to get over" is perhaps not the most forthright description of the defendant's situation. Nonetheless, such comments do not rise to the level of misinformation. Cf. Flowers v. State, 951 S.W.2d 883, 886 (Tex. App.­San Antonio 1997, no pet.) (finding plea of nolo contendere involuntary where attorney erroneously informed appellant that he would not be subject to incarceration, as a condition of probation or otherwise). Regardless of counsel's mild description of Gabriel's situation, the record does not support the conclusion that Gabriel involuntarily entered his guilty plea. Gabriel signed written admonishments which informed him of the full range of punishment for the offense, and he was orally admonished by the trial judge. Evidence of these written and oral admonishments alone supports a finding that Gabriel's plea was voluntary absent proof to the contrary. See Medina v. State, 985 S.W.2d 192, 193-94 (Tex. App.­San Antonio 1998, no pet.). Accordingly, I concur in the affirmance of Gabriel's conviction and sentence.

Catherine Stone, Justice

DO NOT PUBLISH

1. The record indicates that Gabriel had nine prior convictions.