AFFIRMED; Opinion Filed October 5, 2016.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-01386-CR
SIMON GONZALEZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F15-75819-I
MEMORANDUM OPINION Before Justices Lang, Myers, and Evans Opinion by Justice Evans
Simon Gonzalez appeals his conviction for aggravated robbery. Appellant entered an
open plea of guilty to the charge. The trial court found appellant guilty and assessed punishment
at thirty years’ confinement. We affirm.
BACKGROUND
In a single proceeding held on October 12, 2015, appellant entered a guilty plea in this
aggravated robbery case and a burglary of a habitation case in trial court cause number F15-
75789. He also entered pleas of true to the State’s motions to proceed with an adjudication of
guilt in trial court cause numbers F13-12514 and F13-12515. The trial court found appellant
guilty in all four cases and sentenced him to thirty years’ confinement in this aggravated robbery case, twenty years’ confinement in the burglary case, and ten years’ confinement in the 2013
cases. Appellant does not appeal the convictions in the burglary case or the 2013 cases.
ANALYSIS
In two issues, Appellant alleges that his guilty plea was involuntary due to incorrect and
misleading admonishments. Specifically, appellant contends that the admonishments improperly
suggest the existence of a plea bargain and sentence recommendation and provide such
conflicting information that appellant could not have been aware of the consequences of his plea.
Appellant’s arguments concern issues of both constitutional due process and Texas statutory
requirements.
The United States Supreme Court held that a violation of constitutional due process
occurs when a trial court accepts a guilty plea without an affirmative showing “spread on the
record” that the guilty plea was voluntary. See Boykin v. Alabama, 395 U.S. 238, 242–43
(1969). The Court in Boykin did not define what must be “spread on the record” to satisfy due
process other than to generally require that a guilty-pleading defendant have a “full
understanding” of what his plea connotes and its consequences. See Aguirre–Mata v. State, 125
S.W.3d 473, 475 (Tex. Crim. App. 2003). Under Boykin, no specific admonishments are
necessary. Id. As long as the record otherwise affirmatively discloses that the defendant’s guilty
plea was adequately informed, due process is satisfied. Davison v. State, 405 S.W.3d 682, 687
(Tex. Crim. App. 2013). The voluntariness of the plea may be inferred from all the relevant
circumstances surrounding it. See Brady v. U.S., 397 U.S. 742, 749 (1970).
In this case, the record shows that appellant’s guilty plea was entered voluntarily and
with awareness of its consequences and the rights being waived. In appellant’s signed plea
papers, he waived his right to a trial by jury, consented to the stipulation of the evidence, and
waived his rights against self-incrimination and the appearance, confrontation, and cross-
–2– examination of witnesses. The section titled “Defendant’s Statements and Waivers” includes the
following language: “I understand the nature of the accusation made against me, the range of
punishment for such offense, and the consequences of a plea of guilty or nolo contendere.” In
the section titled “Signatures and Acknowledgements,” appellant affirms the fact that he
understands all the admonitions and warnings regarding his rights and his plea and expressly
states that his “statements and waivers are knowingly, freely, and voluntarily made with full
understanding of the consequences.”
During the plea hearing, the trial court asked appellant if he read and understood the
paperwork he signed in connection with this case, and if his attorney explained the paperwork
and the indictment. He then advised appellant regarding the range of punishment for both the
burglary and aggravated robbery cases and correctly stated that the range of punishment for the
aggravated robbery case was confinement from five years to ninety-nine years and a fine of
$10,000. The trial court also informed appellant that this was not a plea bargain agreement and
that he had the right to appeal “no matter what happens.” The court then asked if the appellant
understood everything and appellant replied “yes.” Further, the trial court asked appellant if he
was waiving his right to a jury trial and appellant replied “yes.” The trial court informed
appellant that his attorney had entered a plea of guilty on his behalf to the aggravated robbery
and burglary indictment, and true to the motions to proceed to adjudication and asked appellant if
that was his plea and appellant replied “yes.” The trial court then asked appellant if he was
pleading guilty and true freely and voluntarily to the charges, and appellant again replied “yes.”
In addition, the judicial confession and stipulation of evidence were entered in evidence
at the plea hearing. In the judicial confession, appellant acknowledged that he was consenting to
the stipulation of the evidence and was waiving his rights against self-incrimination and the
appearance, confrontation, and cross-examination of witnesses. Further, appellant testified at the
–3– hearing that when he got “picked up” for the burglary case and was being interrogated, he
voluntarily admitted to having committed the aggravated robbery because he “felt a lot of
guilt . . . knew I was going to come to jail, and I wanted to get everything taken care of right
now.” Based on these facts, we conclude the record shows that appellant’s plea was voluntary.
Appellant contends that he could not have been aware of the consequences of his plea
because the admonishments improperly suggest the existence of a plea bargain and sentence
recommendation. To support this claim, appellant refers to the language in the document titled
“Court’s Admonitions to Defendant” in which the court informs appellant that the prosecuting
attorney’s recommendation as to punishment is not binding on the court, and makes reference to
a plea bargain by advising appellant that he could withdraw his plea if the court did not follow
any plea bargain. Appellant also refers to the trial court’s admonishment that he has no right to
appeal if the court followed the plea bargain. Appellant argues that because there was no plea
bargain in this case, these admonishments misled him into believing that the State’s prior fifteen
year plea bargain offer was the maximum punishment he could have received. Appellant’s
argument that he was confused about the range of punishment lacks merit.
Article 26.13 of the code of criminal procedure requires that, prior to accepting a guilty
plea or a plea of nolo contendere, a trial court must admonish the defendant regarding: (1) the
range of punishment for the offense; (2) certain aspects of the law of plea-bargain agreements;
(3) the effect a plea-bargain agreement may have on the right to appeal; (4) the effect that a
conviction might have on a non-citizen; and (5) the registration requirements for defendants
convicted of certain sex offenses. See TEX.
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AFFIRMED; Opinion Filed October 5, 2016.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-01386-CR
SIMON GONZALEZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F15-75819-I
MEMORANDUM OPINION Before Justices Lang, Myers, and Evans Opinion by Justice Evans
Simon Gonzalez appeals his conviction for aggravated robbery. Appellant entered an
open plea of guilty to the charge. The trial court found appellant guilty and assessed punishment
at thirty years’ confinement. We affirm.
BACKGROUND
In a single proceeding held on October 12, 2015, appellant entered a guilty plea in this
aggravated robbery case and a burglary of a habitation case in trial court cause number F15-
75789. He also entered pleas of true to the State’s motions to proceed with an adjudication of
guilt in trial court cause numbers F13-12514 and F13-12515. The trial court found appellant
guilty in all four cases and sentenced him to thirty years’ confinement in this aggravated robbery case, twenty years’ confinement in the burglary case, and ten years’ confinement in the 2013
cases. Appellant does not appeal the convictions in the burglary case or the 2013 cases.
ANALYSIS
In two issues, Appellant alleges that his guilty plea was involuntary due to incorrect and
misleading admonishments. Specifically, appellant contends that the admonishments improperly
suggest the existence of a plea bargain and sentence recommendation and provide such
conflicting information that appellant could not have been aware of the consequences of his plea.
Appellant’s arguments concern issues of both constitutional due process and Texas statutory
requirements.
The United States Supreme Court held that a violation of constitutional due process
occurs when a trial court accepts a guilty plea without an affirmative showing “spread on the
record” that the guilty plea was voluntary. See Boykin v. Alabama, 395 U.S. 238, 242–43
(1969). The Court in Boykin did not define what must be “spread on the record” to satisfy due
process other than to generally require that a guilty-pleading defendant have a “full
understanding” of what his plea connotes and its consequences. See Aguirre–Mata v. State, 125
S.W.3d 473, 475 (Tex. Crim. App. 2003). Under Boykin, no specific admonishments are
necessary. Id. As long as the record otherwise affirmatively discloses that the defendant’s guilty
plea was adequately informed, due process is satisfied. Davison v. State, 405 S.W.3d 682, 687
(Tex. Crim. App. 2013). The voluntariness of the plea may be inferred from all the relevant
circumstances surrounding it. See Brady v. U.S., 397 U.S. 742, 749 (1970).
In this case, the record shows that appellant’s guilty plea was entered voluntarily and
with awareness of its consequences and the rights being waived. In appellant’s signed plea
papers, he waived his right to a trial by jury, consented to the stipulation of the evidence, and
waived his rights against self-incrimination and the appearance, confrontation, and cross-
–2– examination of witnesses. The section titled “Defendant’s Statements and Waivers” includes the
following language: “I understand the nature of the accusation made against me, the range of
punishment for such offense, and the consequences of a plea of guilty or nolo contendere.” In
the section titled “Signatures and Acknowledgements,” appellant affirms the fact that he
understands all the admonitions and warnings regarding his rights and his plea and expressly
states that his “statements and waivers are knowingly, freely, and voluntarily made with full
understanding of the consequences.”
During the plea hearing, the trial court asked appellant if he read and understood the
paperwork he signed in connection with this case, and if his attorney explained the paperwork
and the indictment. He then advised appellant regarding the range of punishment for both the
burglary and aggravated robbery cases and correctly stated that the range of punishment for the
aggravated robbery case was confinement from five years to ninety-nine years and a fine of
$10,000. The trial court also informed appellant that this was not a plea bargain agreement and
that he had the right to appeal “no matter what happens.” The court then asked if the appellant
understood everything and appellant replied “yes.” Further, the trial court asked appellant if he
was waiving his right to a jury trial and appellant replied “yes.” The trial court informed
appellant that his attorney had entered a plea of guilty on his behalf to the aggravated robbery
and burglary indictment, and true to the motions to proceed to adjudication and asked appellant if
that was his plea and appellant replied “yes.” The trial court then asked appellant if he was
pleading guilty and true freely and voluntarily to the charges, and appellant again replied “yes.”
In addition, the judicial confession and stipulation of evidence were entered in evidence
at the plea hearing. In the judicial confession, appellant acknowledged that he was consenting to
the stipulation of the evidence and was waiving his rights against self-incrimination and the
appearance, confrontation, and cross-examination of witnesses. Further, appellant testified at the
–3– hearing that when he got “picked up” for the burglary case and was being interrogated, he
voluntarily admitted to having committed the aggravated robbery because he “felt a lot of
guilt . . . knew I was going to come to jail, and I wanted to get everything taken care of right
now.” Based on these facts, we conclude the record shows that appellant’s plea was voluntary.
Appellant contends that he could not have been aware of the consequences of his plea
because the admonishments improperly suggest the existence of a plea bargain and sentence
recommendation. To support this claim, appellant refers to the language in the document titled
“Court’s Admonitions to Defendant” in which the court informs appellant that the prosecuting
attorney’s recommendation as to punishment is not binding on the court, and makes reference to
a plea bargain by advising appellant that he could withdraw his plea if the court did not follow
any plea bargain. Appellant also refers to the trial court’s admonishment that he has no right to
appeal if the court followed the plea bargain. Appellant argues that because there was no plea
bargain in this case, these admonishments misled him into believing that the State’s prior fifteen
year plea bargain offer was the maximum punishment he could have received. Appellant’s
argument that he was confused about the range of punishment lacks merit.
Article 26.13 of the code of criminal procedure requires that, prior to accepting a guilty
plea or a plea of nolo contendere, a trial court must admonish the defendant regarding: (1) the
range of punishment for the offense; (2) certain aspects of the law of plea-bargain agreements;
(3) the effect a plea-bargain agreement may have on the right to appeal; (4) the effect that a
conviction might have on a non-citizen; and (5) the registration requirements for defendants
convicted of certain sex offenses. See TEX. CODE CRIM. PROC. ANN. art. 26.13(a) (West Supp.
2016). These admonitions may be made orally or in writing. Id. at art. 26.13(d).
The record reflects that the trial court complied with the admonishment requirements of
article 26.13. In addition to the admonitions pertaining to appellant’s rights if there was a plea
–4– bargain agreement, the written admonitions, signed by both appellant and his counsel, also
advised appellant that if he entered a guilty plea without a plea bargain, the court could assess his
punishment anywhere within the range allowed by law. The trial court correctly advised
appellant of the range of punishment both orally and in writing. The trial court also orally
advised appellant that this was not a plea bargain agreement. As previously noted, appellant
signed plea papers which included language expressly stating that he understand the range of
punishment for the offense and the consequences of his plea of guilty. At least two other
documents contained in the record and executed by appellant, his attorney, and the trial court
judge, also indicate that appellant was advised that this was not a plea bargain agreement. The
appellant’s written waiver of jury, contains a statement regarding the nonexistence of a plea
bargain agreement and indicates that this was an open plea. The “Trial Court’s Certification of
Defendant’s Right of Appeal” specifically states that this was not a plea bargain case. The
record reflects that the plea hearing and the execution of the written admonitions occurred on the
same date and that appellant told the court that he understood both the written admonitions and
the oral admonitions. Appellant’s claim is further undermined by his own testimony at the plea
hearing. Appellant testified that he had been offered a fifteen year plea bargain but that the offer
was taken off the table because he did not want to accept it. Appellant then testified about his
drug problem and asked the trial court to place him on deferred adjudication and send him to
drug treatment.
Finally, when the record reflects a trial court admonished a defendant under article
26.13(a)(1), and assessed punishment within the actual and stated range for the offense,
substantial compliance will be deemed to have occurred, and there is a prima facie showing that
the defendant’s plea was knowing and voluntary, even if the admonishment itself was incorrect.
Grays v. State, 888 S.W.2d 876, 878 (Tex. App.—Dallas 1994, no pet.). Once substantial
–5– compliance with article 26.13(a) has been shown, the burden shifts to the defendant to
affirmatively show both that he was unaware of the consequences of his plea and that he was
misled or harmed by the trial court’s admonishment. See TEX. CODE CRIM. PROC. ANN. art.
26.13(c) (West Supp. 2016). An affirmative showing requires more than a defendant’s
unsupported, subjective assertion that he was confused about the punishment range. Grays, 888
S.W.2d at 878. Based on this record, we cannot find that appellant has met his burden in
showing he was harmed or misled by the admonishments of the trial court. There is no evidence
in the record indicating that appellant believed that the punishment which could be assessed was
limited to fifteen years confinement as a result of the State’s prior plea bargain offer. As already
noted, appellant’s testimony during the hearing clearly dispels any such notion.
CONCLUSION
We conclude appellant knowingly and voluntarily pleaded guilty and resolve the issues
against him. We affirm the trial court’s judgment.
/David Evans/ DAVID EVANS JUSTICE
Do Not Publish TEX. R. APP. P. 47 151386F.U05
–6– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SIMON GONZALEZ, Appellant On Appeal from the Criminal District Court No. 2, Dallas County, Texas No. 05-15-01386-CR V. Trial Court Cause No. F15-75819-I Opinion delivered by Justice Evans, Justices THE STATE OF TEXAS, Appellee Lang and Myers participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 5th day of October, 2016.
–7–