Juan Orozco Tellez v. State

• Court: Court of Appeals of Texas
• Decided: May 6, 2010
• Docket: 01-09-00381-CR
• Status: Published

Opinion

Opinion issued May 6, 2010

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-09-00381-CR

Juan Orozco Tellez, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 1184741

MEMORANDUM OPINION

Appellant, Juan Orozco Tellez, without an agreed punishment recommendation from the State, pleaded guilty to the felony offense of assault against a family member,[1] and the trial court assessed his punishment at six years confinement.  In his sole point of error, appellant contends that the trial court “lacked subject matter jurisdiction” over his case.

          We affirm.

Background

A Harris County Grand Jury issued a true bill of indictment, accusing appellant of committing the offense of assault against a family member when he had previously been convicted of the misdemeanor offense of assault against a family member.  After the trial court admonished appellant of his legal rights,[2] he pleaded guilty to committing the offense of assaulting his wife, Imeda Chong, the complainant.  The trial court found appellant guilty and ordered a pre-sentence investigation report.  After a subsequent hearing, the trial court imposed its sentence.  Appellant then filed a motion for new trial, in which he asserted that he had “never been convicted of a prior Family Assault.”

At the hearing on his motion, appellant testified that he had not been previously convicted of the offense of assault against a family member, but he had, in fact, received deferred adjudication for the prior offense.  He explained that he had successfully completed the terms of his community supervision and the case was dismissed.  Appellant stated, “if [I] had known when [I] pled guilty to this third-degree felony . . . [I would not have] pled guilty . . . if [I] had known [I was] not convicted.”

Jurisdiction

          In his sole point of error, appellant argues that the district court “lacked subject matter jurisdiction” over this case because he in fact had no prior “conviction” of the offense of assault against a family member to support his felony conviction in this case.

In Texas, district courts have jurisdiction over felony offenses.  Tex. Code Crim. Proc. Ann. art. 4.05 (Vernon 2005).  If an indictment alleges a felony, that is sufficient to create jurisdiction in a district court.  Ex parte Sparks, 206 S.W.3d 680, 682 (Tex. Crim. App. 2006).  Even if the evidence later produced only supports a conviction of a lesser included misdemeanor offense, the district court retains jurisdiction over the case.  Id.; Tex. Code Crim. Proc. Ann. art. 4.06 (Vernon 2005). 

A person is guilty of the felony offense of assault against a family member when he “intentionally, knowingly, or recklessly causes bodily injury” to a family member and the State proves that the defendant has been previously convicted of a prior assault against a family member.  Act of May 15, 2007, 80th Leg., R.S., ch. 623, 2007 Tex. Gen. Laws 1192, 1192–93 (amended 2009) (current version at Tex. Penal Code Ann. § 22.01(a)(1), (b)(2) (Vernon Supp. 2009)).  

Here, the true bill of indictment contains all of the elements necessary to establish the felony offense of assault against a family member.  The State was not, as appellant asserts, required to prove that appellant had a prior conviction for the offense of assault of a family member to maintain jurisdiction in the district court.  See Ex parte Sparks, 206 S.W.3d at 682.

Nevertheless, appellant further argues that the evidence is legally insufficient to support his conviction because the evidence did not establish that he had previously been convicted of assault against a family member, but only that he had received deferred adjudication for that offense, and this resulted in a variance between the pleading and the proof.

Our “sufficiency” review on appeal of felony pleas of guilty to trial courts is confined to determining whether sufficient evidence supports the judgment of guilt.  Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005); Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986); Keller v. State, 125 S.W.3d 600, 605 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d).  A defendant’s judicial confession that the facts to which he stipulates are true is, by itself, sufficient to support a conviction.  Stone v. State, 919 S.W.2d 424, 426 (Tex. Crim. App. 1996).  “A ‘variance’ occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial.”  Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001).

Appellant asserts that he was “never convicted of the prior Assault of a Family Member.”  However, a prior conviction under Texas Penal Code section 22.01 includes cases where “the defendant . . . entered a plea of guilty . . . in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed.”  Act of May 15, 2007, 80th Leg., R.S., ch. 623, 2007 Tex. Gen. Laws 1192, 1192–93 (amended 2009).  Thus, appellant’s receipt of deferred adjudication for the prior offense of assault against a family member was, for purposes of section 22.01, a conviction.  Id.  Moreover, appellant’s judicial confession to all of the allegations in the indictment, including that he had previously been convicted of the offense of assault against a family member, is sufficient to sustain his conviction.  See Keller, 125 S.W.3d at 605.  The State pleaded and proved the prior conviction necessary to support the enhancement.  

Finally, to the extent that appellant asserts that his plea of guilty was not voluntary, whether a guilty plea is voluntary is determined by the totality of the circumstances.  Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App. 1986); Houston v. State, 201 S.W.3d 212, 217–18 (Tex. App.—Houston [14th Dist.] 2006, no pet.).  When the record shows that a defendant has received an admonishment on punishment, it establishes a prima facie showing that the plea was made knowingly and voluntarily.  Ex parte Williams, 704 S.W.2d 773, 775 (Tex. Crim. App. 1986); Edwards v. State, 921 S.W.2d 477, 479 (Tex. App.—Houston [1st Dist.] 1996, no pet.).  The burden then shifts to the defendant to show that he entered his plea without understanding the consequences of the plea.  Fuentes v. State, 688 S.W.2d 542, 544 (Tex. Crim. App. 1985).  Once a defendant attests that he understands the nature of his plea and that it was made voluntarily, he has a heavy burden to prove on appeal that his plea was involuntarily entered.  Edwards, 921 S.W.2d at 479.

Appellant signed an agreement to stipulate and judicial confession wherein he confessed as true all of the facts alleged in the indictment.  Appellant indicated that he understood the allegations against him, and he “confess[ed] that they [were] true” and signed an acknowledgement that the trial court had admonished him on the range of punishment and the consequences of his plea and his plea was “freely and voluntarily made.”  Although appellant asserts that he would not have pleaded guilty had he known that he had not been previously convicted of the offense of assault against a family member, he, in fact, had been previously convicted of the offense.

We overrule appellant’s sole point of error.

Conclusion

          We affirm the judgment of the trial court.

                                                                             Terry Jennings

                                                                             Justice

Panel consists of Justices Jennings, Hanks, and Bland.

Do not publish.  Tex. R. App. P. 47.2(b).

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[1]           See Act of May 15, 2007, 80th Leg., R.S., ch. 623, 2007 Tex. Gen. Laws 1192, 1192–93 (amended 2009) (current version at Tex. Penal Code Ann. § 22.01(b)(2) (Vernon Supp. 2009)).

[2]           See Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon Supp. 2009).