                                    NUMBER 13-08-00632-CR

                                    COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI - EDINBURG


FRANCISCO RIVAS ZAPATA                                                     Appellant,

                                                        v.

THE STATE OF TEXAS,                                                        Appellee.


                         On appeal from the 197th District Court
                              of Cameron County, Texas.


                                MEMORANDUM OPINION

                     Before Justices Yañez, Benavides, and Vela
                      Memorandum Opinion by Justice Yañez

      Appellant, Francisco Rivas Zapata, pleaded guilty to murder, and the trial court

assessed punishment at forty years' confinement.1 By his sole issue, appellant contends

that his plea was involuntary. We affirm.


      1
          See T EX . P EN AL C OD E A N N . § 19.02(b)(1) (Vernon 2003).
                                              I. BACKGROUND

        On July 14, 2008, employees of an apartment complex in Cameron County, Texas,

found the body of Cointa Menchaca Wade, who had been stabbed with a knife

approximately twenty-seven times. After Wade's death, appellant, who was a suspect in

the murder, traveled to several states by bus.2 Appellant was eventually apprehended by

police in Georgia, where he confessed to stabbing Wade. Appellant was transported back

to Texas and charged with murder.

        On October 13, 2008, after discussing appellant's guilty plea with the trial court,

defense counsel asked, "And at that point in time [the next morning] is when we are going

to enter the plea; is that correct?" The trial court responded that the plea could be entered

"right now." Defense counsel agreed stating, "Why don't we do it [enter the plea]," and the

trial court replied, "Yes. Why don't we do that right now? We are going to enter the plea

right now and tomorrow morning we will do the jury selection."3 The State read the

indictment to appellant, and he pleaded guilty to two counts of murder. When the State

offered "the plea packet for an open plea" to the trial court, defense counsel stated, "This

is not an open plea with punishment. We are going to go to punishment. So, I don't

believe we sign the papers, unless there is something that I don't know about." The trial



          2
            The police found evidence im plicating appellant in his apartm ent and in W ade's apartm ent. In
W ade's apartm ent, Officer Manuel Lucio found a broken kitchen knife with a m issing handle underneath the
body. In appellant's apartm ent, police found a plastic bag containing a pair of gloves and the handle of the
knife wrapped in one of the gloves; one of the gloves had blood on it. The police also recovered a white m en's
t-shirt that was dam p and sm eared with blood.

        3
          It appears from the record that after appellant was to enter his guilty plea, a jury would be selected
to assess his punishm ent. However, the following day, no jury was selected, and there is nothing in the record
indicating why appellant elected for the trial court to assess punishm ent.

                                                       2
court agreed.

        The next day, on October 14, 2008, the following colloquy occurred:

        [Trial Court]: [Appellant], you and your attorney have signed a Written
                       Waiver and Consent to Stipulation of Testimony, Waiver of
                       Jury, and Plea of Guilty. Do you understand that by signing
                       this what you are telling me is that you are pleading guilty and
                       you are asking that I find you guilty? Do you understand?

        [Appellant]: Yes.

        [Trial Court]: Do you understand that the range of punishment for this
                       offense is for a term of not less than five years nor more than
                       99 years, to which the court can add a fine not to exceed
                       $10,000?

        [Appellant]: Yes.

        [Trial Court]: Sir, do you understand that there is no plea bargain between
                       your attorneys and the State?

        [Appellant]: Yes.

        [Trial Court]: You understand that back in chambers we have discussed 30
                       years TDC?4

        [Appellant]: Yes.

        [Trial Court]: Okay. And you are in agreement with that?

        [Appellant]: Yes.

        [Trial Court]: Are you a U.S. citizen?

        [Appellant]: Yes.

        [Trial Court]: Did anybody force you or coerce you into entering this plea?

        [Appellant]: No.

        [Trial Court]: Are you pleading guilty because you are guilty and for no other


        4
         There is no record of this discussion, and it is unknown who was present in the trial court's cham bers
or who suggested thirty years as punishm ent.

                                                       3
                         reason?

        [Appellant]: Yes.

        [Trial Court]: Have you ever been in a mental institution or suffered from mental
                       illness?

        [Appellant]: No.

        After admitting the State's evidence, the trial court found appellant guilty. The State

reserved its "[comments] until after defense['s]" arguments. Then defense counsel stated,

"I don't know what they [the prosecutors] are asking for. We've entered the plea. . . . I just

ask this court to consider the 30 years." The State argued that due to the nature of the

crime, the trial court should assess punishment at ninety-nine years' imprisonment. The

trial court responded, "My understanding is that the State was willing to work a plea bargain

for 40 years; is that correct?" The State agreed. Defense counsel responded that due to

appellant's age, "[a]ny plea is a life plea in this case." Defense counsel then asked the trial

court to consider "the 30 years" because appellant had taken responsibility for his actions

and was remorseful. After the parties debated whether defense counsel received evidence

showing that appellant committed domestic violence, the trial court called a ten-minute

recess.

        When the proceeding commenced, the following conversation occurred:

        [Trial Court]:           [Defense Counsel], before I allowed you to take a break
                                 to speak with [appellant], I told you based on what the
                                 State had stated that I would go along with the State's
                                 agreement to 40 years. I asked you to discuss that with
                                 your client, the 40 years. If not, I would give [appellant]
                                 an opportunity to have a jury trial as to the sentencing
                                 aspect of it as originally agreed upon.5


        5
           W e note that the discussion allowing defense counsel to speak to appellant regarding forty years
is not in the reporter's record.

                                                     4
       [Defense Counsel]: Yes, Your Honor, and I did. He is concerned that he
                          would get more and has decided to go along with the 40
                          years. I, however, have tried to talk him out of it. He
                          said, no, he would rather go with a plea to the court.
                          So, I'm begging you, Your Honor, to consider that if you
                          can't consider the 30, split the difference and go 35.

       [Trial Court]:             [Appellant], you understand that I asked your attorney
                                  to talk to you. The State had offered you 40 years TDC
                                  before and I will agree to the 40 years. If you do not
                                  want to take the 40 years, you have a right to go and
                                  have a jury come forward and a jury assess your
                                  punishment. What is your wish?6

       [Appellant]:               I just have one question to make. What does TDC
                                  mean?

       [Trial Court]:             Prison of the State of Texas.

       [Appellant]:               I will take it.

       [Trial Court]:             So, you understand that you are agreeing to 40 years in
                                  the state penitentiary?

       [Appellant]:               Yes, I agree.

       [Trial Court]:             And you are in agreement with that?

       [Appellant]:               I do agree.

       [Trial Court]:             All right. Then the court will give you 40 years in the
                                  Texas prison.

This appeal ensued.

                                  II. VOLUNTARINESS OF GUILTY PLEA

       By his sole issue, appellant contends that his plea was involuntary. Specifically,

appellant argues that the State is bound by the terms of the plea agreement "even though

[the offer] was made by the [trial court], and that the [trial court's] continual involvement in

       6
           There is nothing in the record showing when the State offered forty years to appellant.

                                                      5
the plea bargaining process violated his right to due process to have a [judgment] free

from the taint of involvement in the bargaining." Appellant asserts that he is therefore

"entitled to a new trial on both punishment and guilt-innocence."

A. Standard of Review and Applicable Law

        As a general rule, all non-jurisdictional defects that occur prior to the entry of the

plea are waived by a defendant who pleads guilty without the benefit of a plea bargain

agreement.7 However, a defendant is not barred from challenging the voluntariness of his

plea.8 We review the entire record in order to determine whether a plea was entered

voluntarily based on the totality of the circumstances.9                        If the trial court properly

admonished the defendant before a guilty plea was entered, there is a prima facie showing

the plea was both knowing and voluntary.10 The burden then shifts to the defendant to

show that he entered his plea without understanding the consequences and, consequently,




        7
           Jack v. State, 871 S.W .2d 741, 743 (Tex. Crim . App. 1994) (explaining the Helms rule); see Young
v. State, 8 S.W .3d 656, 666 (Tex. C rim App. 2000) ("[A] valid plea of guilty or nolo contendere 'waives' or
forfeits the right to appeal a claim of error only when the judgm ent of guilt was rendered independent of, and
is not supported by, the error."); see also Monreal v. State, 99 S.W .3d 615, 619 (Tex. Crim . App. 2003) ("The
Helms Rule was clarified in Young . . . where we held that with or without an agreed recom m endation on
punishm ent, a valid plea of guilty or nolo contendere waives or forfeits the right to appeal a claim of error only
when the judgm ent of guilt was rendered independent of and not supported by the error.").

        8
           Ramirez v. State, 89 S.W .3d 222, 228 (Tex. App.–Corpus Christi 2002, no pet.) (providing that "if
appellant's plea was involuntary, as he claim s, application of Young leads to the conclusion that the judgm ent
of guilt could not have been rendered independent of the error" and allowing the appellant, who pleaded guilty
without the benefit of a plea agreem ent with the State, to challenge the voluntariness of his plea).

        9
          Griffin v. State, 703 S.W .2d 193, 196 (Tex. Crim . App. 1981); Houston v. State, 201 S.W .3d 212,
217-18 (Tex. App.–Houston [14th Dist.] 2006, no pet.) ("W hen considering the voluntariness of a guilty plea,
we m ust exam ine the entire record."); see Garza v. State, No. 13-07-00360-CR, 2008 Tex. App. LEXIS 5117,
at *4 (Tex. App.–Corpus Christi July 3, 2008, no pet.) (m em . op., not designated for publication).

        10
          Houston, 201 S.W .3d at 217 (citing Martinez v. State, 981 S.W .2d 195, 197 (Tex. Crim . App. 1998)
(per curiam )).

                                                        6
suffered harm.11 Once an accused attests that he understands the nature of his plea and

that it was voluntary, he has a "heavy burden" to prove on appeal that his plea was

involuntary.12

        In Wayne v. State, the court of criminal appeals stated that the plea-bargain process

"requires (1) that an offer be made or promised, (2) by an agent of the State in authority,

(3) to promise a recommendation of sentence or some other concession such as reduced

charge in the case, (4) subject to the approval of the trial judge."13 The court explained that



        [p]lea bargaining is the process which implies a preconviction bargain
        between the State and the accused whereby the accused agrees to plead
        guilty or nolo contendere in exchange for a reduction in the charge, a
        promise of sentencing leniency, a promise of a recommendation from the
        prosecutor to the trial judge as to punishment, or some other concession by
        the prosecutor that he will not seek to have the trial judge invoke his full,
        maximum implementation of the conviction and sentencing authority he has,
        i.e., it is the process where a defendant who is accused of a particular
        criminal offense, and his attorney, if he has one, and the prosecutor enter
        into an agreement which provides that the trial on that particular charge not
        occur or that it will be disposed of pursuant to the agreement between the
        parties, subject to the approval of the trial judge. Put another way, plea
        bargaining is the process by which the defendant in a criminal case
        relinquishes his right to go to trial in exchange for a reduction in charge
        and/or sentence.[14]



B. Discussion


        11
           Pena v. State, 132 S.W .3d 663, 666 (Tex. App.–Corpus Christi 2004, no pet.) (citing Martinez, 981
S.W .2d at 197; Ex parte Gibauitch, 688 S.W .2d 868, 871 (Tex. Crim . App. 1985); Dorsey v. State, 55 S.W .3d
227, 235 (Tex. App.–Corpus Christi 2001, no pet.)).

        12
             Houston, 201 S.W .3d at 217.

        13
             756 S.W .2d 724, 728 (Tex. Crim . App. 1988).

        14
          Id. (citing Perkins v. Court of Appeals, 738 S.W .2d 276, 282 (Tex. Crim . App. 1987) (internal
quotations om itted)).

                                                      7
        Here, it is undisputed that the trial court admonished appellant in writing.15 Appellant

answered affirmatively when the trial court asked (1) if he understood that by signing the

written waiver and consent to stipulation of testimony, waiver of jury, and plea of guilty, he

was asking the trial court to find him guilty, and (2) if he was entering his plea because he

was guilty and not due to force or coercion. Furthermore, appellant acknowledged by

signing the written waiver and consent to stipulation testimony, waiver of jury, and plea of

guilty that he was pleading guilty "voluntarily." Because the trial court properly admonished

appellant before he pleaded guilty, there is a prima facie showing the plea was both

knowing and voluntary and the burden shifts to appellant to show that his plea was

involuntary.16

        Appellant first argues that he agreed to plead "guilty" based on an agreement that

the trial court would assess a punishment of thirty years' imprisonment. Appellant relies

on the trial court's asking him if he understood that "back in chambers we . . . discussed

30 years" and whether appellant agreed with that. Appellant asserts that the trial court was

asking him if he agreed with a punishment of thirty years' imprisonment. Appellant claims



          15
             Appellant signed a written waiver and consent to stipulation of testim ony, waiver of jury, and plea
of guilty wherein he acknowledged, am ong other things, the following: (1) he was "voluntarily and freely"
pleading guilty as charged in the indictm ent; (2) he understood that if he was not a citizen of the United States,
that pleading "guilty" for the charged offense m ay result in deportation; (3) if he "persist[ed] in pleading Guilty
and the evidence show[ed] that [he was] guilty, the Court [would] have no alternative but to find [him ] guilty";
(4) he was not pleading guilty out of fear or by reason of persuasion; (5) he was pleading guilty because he
was "guilty"; (6) he understood that if the trial court found him guilty, it would assess punishm ent as prescribed
by law for the charged offense; (7) the punishm ent prescribed for the offense to which he pleaded guilty was
"confinem ent in the Texas Departm ent of Crim inal Justice Institutional Division (Texas Departm ent of
Corrections) for a term of years not less than five years or m ore than ninety-nine years"; (8) that his plea was
"cold"; and (9) he understood that the trial court was not bound to accept a plea bargain and if the trial court
rejected a plea bargain, appellant was entitled to withdraw his plea of guilty. Before finding appellant guilty,
the trial court orally adm onished appellant that there was no plea agreem ent in his case, and that the range
of punishm ent for the offense of m urder was no less than five years or no m ore than ninety-nine years.

        16
             See Pena, 132 S.W .3d at 666.

                                                         8
that this "offer" by the trial court induced him to plead guilty and argues that we should

conclude that the trial court entered an "implied in fact" contract binding the parties.

        Although the trial court's statement is ambiguous, nowhere in the record did the trial

court ask appellant to plead guilty in exchange for a thirty-year sentence. It appears more

likely, based on the entire record, that the trial court was asking appellant if he concurred

with the trial court's description of what had occurred in chambers, and not if appellant

"agreed" to plead guilty in exchange for a thirty-year sentence. Moreover, before asking

the complained-of question, the trial court informed appellant that there was no plea

bargain with the State, and that the range of punishment was between five years and

ninety-nine years. When the State later argued that the trial court should impose the

maximum punishment of ninety-nine years' imprisonment, defense counsel did not argue

that there was a plea agreement for thirty years or that the trial court had approved the

terms of a plea agreement; instead, defense counsel urged the trial court "to consider"

thirty years. When the trial court informed appellant that it would impose a sentence of

forty years' confinement as offered by the State in an earlier plea negotiation, defense

counsel did not assert that there was an agreement of thirty years or object to the trial

court's imposition of forty years, but asked the trial court to consider "split[ting] the

difference" and giving appellant thirty-five years.

        Finally, appellant had already decided to plead guilty before the exchange with the

trial court occurred.17 In a proceeding on the previous day, appellant indicated that he was




        17
          See Rouse v. State, No. PD-1533-08, 2009 Tex. Crim . App. LEXIS 1737, at *24 (Tex. Crim . App.
Dec. 9, 2009) (stating "we do not see how any 'plea-bargaining' by the trial court concerning appellant's
punishm ent could have influenced appellant's decision to enter an 'open' plea of guilty the day before").

                                                    9
entering a plea of guilty.18 The next day appellant signed the written waiver and consent

to stipulation of testimony, waiver of jury, and plea of guilty.                      Before making the

complained-of statement, the trial court asked appellant if he understood that by signing

the paperwork, appellant was "telling [the trial court] that [he was] pleading guilty

and . . . asking that [the trial court] find [him] guilty." Appellant answered "Yes." In the

written waiver, appellant acknowledged that he was entering a "cold plea." A cold plea is

equivalent to an open plea,19 which is a plea of guilty without the benefit of an agreement

with the state.20 Therefore, based on this record, we cannot conclude that the trial court

entered a plea agreement with appellant to assess a thirty-year sentence if appellant

pleaded guilty.21

        Next, appellant argues that the trial court violated his due process rights because

of its continual involvement in the plea-bargaining process. Appellant entered an open

plea of guilty. There was no plea agreement between appellant and the State. There is

evidence in the record that the State had previously offered forty years in exchange for

appellant's plea of guilty; however, there is no record of these plea negotiations or of any



        18
          W e note that appellant com plains that his plea of guilty the day before sentencing was "worthless
because the trial judge did not follow any statutory requirem ent for entry of a plea, nor give him any required
adm onishm ents." However, appellant states that the "second plea of guilty was correctly done, without a jury,
in which proper adm onishm ents were m ade"; therefore, appellant is not "press[ing] [the issue] further [on
appeal]."

        19
           Ramirez, 89 S.W .3d at 226 (providing that this Court's "understanding [is that] the term "cold plea"
[is] equivalent to the m ore fam iliar term "open plea").

        20
          Bowie v. State, 135 S.W .3d 55, 70 n.11 (Tex. Crim . App. 2004) (defining an "open plea"as "a guilty
plea entered without any previous agreem ent with the governm ent"); Ramirez, 89 S.W .3d at 226.

        21
          By our disposition, we do not m ean to condone a trial court's involvem ent in the plea negotiation
process. A trial court m ust avoid participation in the plea negotiation process until an agreem ent has been
reached between the prosecutor and the defendant in order to "avoid the appearance of any judicial coercion
or prejudgm ent of the defendant." Perkins, 738 S.W .2d at 282.

                                                      10
involvement by the trial court. Assuming arguendo, that after the trial court accepted

appellant's plea of guilty, it engaged in the plea-bargaining process when it stated, "The

State had offered you 40 years TDC before and I will agree to the 40 years. If you do not

want to take the 40 years, you have a right to go and have a jury come forward and a jury

assess your punishment,"22 there is no evidence that appellant relinquished his right to go

to trial in exchange for this sentence. In fact, the trial court had already accepted

appellant's guilty plea.

       This case is analogous to Rouse v. State.23 In that case, after the defendant

pleaded guilty, the trial court "offered [the defendant] a ten-year prison sentence 'pretty

much in the nature of a plea bargain agreement' and stated that, if [the defendant] did not

accept this offer, then it would be necessary 'to go forward with the enhancement

counts.'"24 The defendant argued on appeal that his plea was involuntary because the trial

court engaged in plea negotiations. The court of criminal appeals concluded "that any

'plea-bargaining' by the trial court concerning appellant's punishment could [not] have

influenced appellant's decision to enter an 'open' plea of guilty the day before."25 Here, the

trial court's alleged "plea-bargaining" concerning the punishment occurred after appellant

had already pleaded guilty; therefore, like the Rouse court, we cannot conclude that the

trial court's actions influenced appellant's decision to plead guilty.26

       Therefore, after reviewing the entire record and based on the totality of the


       22
            See W ayne, 756 S.W .2d at 728 (explaining what a plea bargain entails).

       23
            Rouse, 2009 Tex. Crim . App. LEXIS 1737, at *24.

       24
            Id. at **4-6.

       25
            Id. at *24.

       26
            See id.

                                                     11
circumstances, we conclude that appellant's guilty plea was voluntary.27 We overrule

appellant's sole issue.

                                          III. CONCLUSION

        We affirm.



                                                                _________________
                                                                Linda R. Yañez,
                                                                Justice
Do not publish.
TEX . R. APP. P. 47.2(b).

Delivered and filed
the 21st day of January, 2010.




       27
         See Griffin, 703 S.W .2d at 196; Houston, 201 S.W .3d at 217-18; see also Garza, 2008 Tex. App.
LEXIS 5117, at *4.

                                                  12
