Lopez v. State

25 S.W.3d 926, 2000 WL 1230658

• Court: Court of Appeals of Texas
• Decided: September 21, 2000
• Docket: 01-99-01354-CR
• Status: Published

Opinions

OPINION

MARGARET GARNER MIRABAL, Justice.

Appellant Eunice Lopez pled guilty, in accordance with a plea bargain, to the felony offense of tampering with a governmental record. After finding appellant guilty of the offense, the trial court assessed punishment at confinement for 120 days. We affirm.

In four issues, appellant attacks the jurisdiction of the trial court and the volun-tariness of her plea, contending: (1) the conduct described in the charging instrument is not a crime; (2) if criminal conduct is described, appellant was charged with conduct constituting a class A misdemean- or, rather than a felony; (3) appellant was not admonished that if she was not a citizen of the United States, a plea of guilty could result in her deportation; and (4) appellant received ineffective assistance of counsel.

APPELLATE JURISDICTION

As a threshold matter, the State challenges our jurisdiction over this appeal because appellant’s “general” notice of appeal does not comply with the requirements of Rule 25.2(b)(3) for appeals of judgments rendered on a plea of guilty pursuant to a plea agreement. See Tex. R.App. P. 25.2(b)(3).

Appellant’s issues three and four attack the voluntariness of her plea of guilty, and thus we have jurisdiction to consider those issues. See Davis v. State, 7 S.W.3d 695, 697 (Tex.App.— -Houston [1st Dist.] 1999, no pet.). Further, we have jurisdiction to consider appellant’s issues one and two, which challenge the jurisdiction of the trial court. See Martinez v. State, 5 S.W.3d 722, 725 (Tex.App.—San Antonio 1999, no pet.) (because any action taken by a court without jurisdiction is void, jurisdictional issues may always be reached — at any time — whether raised by the parties or by the court); Luna v. State, 985 S.W.2d 128, 130 (Tex.App.—San Antonio 1999, pet. refd).¹ We overrule the State’s jurisdictional challenge.

FAILURE TO ADMONISH

In her third issue, appellant asserts that her plea was involuntary because she did not initial the admonishment that states if an individual is not a citizen of the United States, a plea of guilty may result in deportation.

The voluntariness of a guilty plea is determined by the totality of the circumstances. Fimberg v. State, 922 S.W.2d 205, 207 (Tex.App.—Houston [1st Dist.] 1996, pet. refd). There is a presumption of regularity of the judgment and the proceedings, and the burden is on the defendant to overcome this presumption. Dusenberry v. State, 915 S.W.2d 947, 949 (Tex.App.—Houston [1st Dist.] 1996, pet. ref'd). When, as in this case, the defendant waives a court reporter at the plea hearing, the burden is nonetheless on the defendant to see that a sufficient record is presented on appeal to show error. Montoya v. State, 872 S.W.2d 24, 25 (Tex.App.—Houston [1st Dist.] 1994, pet. ref d).

Here, the judgment provides:

The Defendant waived [her] right of trial by jury, and pleaded as indicated above. Thereupon, the Defendant was admonished by the Court as required by law. It appearing to the Court that the Defendant is mentally competent to stand trial, that the plea is freely and voluntarily made, and that the Defendant is aware of the consequences of [her] plea; the plea is hereby received by the Court and entered of record.

In the absence of an affirmative showing to the contrary, the foregoing recitation in the judgment is entitled to a presumption of regularity. See Dusenberry, 915 S.W.2d at 949.

The record contains a “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession,” signed by appellant, her attorney, the prosecutor, and the trial judge. The record also contains a form titled, “Admonishments, Statements and Waivers of Defendant,” signed by appellant, her attorney, and the prosecutor. Appellant complains the written admonishments were not sufficient because appellant did not initial the citizenship admonishment paragraph.

There is no requirement in article 26.13 that the defendant initial each written admonishment paragraph. See' Tex.Code CRiM. P. Ann. art. 26.13 (Vernon 1989 and Supp.2000). Both the Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession” and the judgment recite that the judge admonished appellant of the consequences of her plea. Appellant has not shown that her failure to initial the citizenship admonishment paragraph means that she was not fully admonished as required by law.² Accordingly, we overrule appellant’s third issue.

CHARGING INSTRUMENT

In issue one, appellant asserts the charging instrument did not allege a criminal offense because it described conduct that is not an offense under Texas Penal Code section 37.10. In issue two, appellant asserts that, if an offense is charged by the charging instrument, it is only a class A misdemeanor, not a felony offense. The information reads, in relevant part, as follows:

FELONY CHARGE: TAMPERING GOVERNMENTAL RECORD

[[Image here]]

EUNICE LOPEZ ... on or about September 13, 1999, did then and there unlawfully, intentionally and knowingly possess a governmental record, namely, a social security card attached hereto as Exhibit A, with the intent that it be used unlawfully.

The language of the information tracks the relevant language of the Texas Penal Code, which provides: “A person commits an offense if he possesses ... a governmental record ... with intent that it be used unlawfully.” Tex. Penal Code § 37.10(a)(4) (Vernon Supp.2000). A social security card is a “certificate issued by the United States,” and, therefore, it is a “governmental record” as defined by Texas Penal Code section 37.01(2)(c). Because the governmental record described in the information is a certificate issued by the United States, the offense charged is a felony of the third degree. See Tex. Penal Code Ann. § 37.10 (c)(2) (Vernon Supp. 2000).

Accordingly, because the information charged appellant with a felony offense, the district court had jurisdiction. We overrule issues one and two.

INEFFECTIVE ASSISTANCE OF COUNSEL

In her fourth issue, appellant asserts that her trial counsel was ineffective because: (1) he did not explain to her the meaning of the deportation admonishment; and (2) he allowed her to plead guilty to a state jail felony when she had not been charged with a crime, or at the most, had been charged with only a misdemeanor.

We have already determined that the information charged appellant with a third degree felony. Further, the record does not show that appellant’s counsel did not explain to her the meaning of the deportation admonishment; as already discussed, appellant’s failure to initial the admonishment does not establish that she was not admonished.

It is the defendant’s burden to prove ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.—Houston [1st Dist.] 1996, no pet.). A claim of ineffective assistance of counsel must be firmly supported by the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996). An appellate court will not make a finding of ineffectiveness based on speculation. Gamble, 916 S.W.2d at 93. Appellant has not met her burden.

We overrule issue four.

We affirm the judgment.

1 . We are aware there is a split among the intermediate appellate courts on this latter jurisdictional issue. See Trollinger v. State, 987 S.W.2d 166, 167 (Tex.App.—Dallas 1999, no pet.) (interpreting Rule 25.2(b)(3) strictly so as not to allow jurisdictional challenges unless indicated in the notice of appeal); Hernandez v. State, 986 S.W.2d 817, 819 (Tex.App.—Austin 1999, pet. refd) (in dicta) (same).

2 . There was no hearing on appellant’s motion for new trial, and there is no reporter's record from the plea hearing.