            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
 NOs. PD-0942-17, PD-0943-17, PD-0944-17, PD-0945-17, PD-0946-17, PD-0947-17



                           ANDREY MARTINEZ, Appellant

                                             v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE THIRTEENTH COURT OF APPEALS
                           HIDALGO COUNTY

              K EEL, J., delivered the opinion for a unanimous Court.

                                      OPINION

       Appellant was charged in six indictments with thirteen counts of state jail felony

burglary of a building. Tex. Penal Code § 30.02(c)(1). The judge sentenced him to the

maximum of two years on each of the six causes, with three of the sentences to run

consecutively. The court of appeals reversed the judgments on grounds that Appellant’s

guilty pleas were involuntary because the trial court incorrectly admonished him that his

sentences could be stacked. Martinez v. State, No. 13-16-00456-CR, 2017 Tex. App.
                                                                             Martinez–Page 2

LEXIS 7059 (Tex. App.–Corpus Christi July 27, 2017) (mem. op., not designated for

publication).

       We granted the State Prosecuting Attorney’s petition for discretionary review to

determine whether a trial court’s misstatements about the potential for sentence stacking

are enough to render a defendant’s plea involuntary without any evidence of what the

defendant knew or why he pleaded guilty. Meanwhile, Appellant has abandoned his

involuntary plea claim in this Court, and he seeks only the deletion of the improper

cumulation orders.

       Because the record does not support Appellant’s involuntary plea claim we reverse

the judgment of the court of appeals and modify the trial court’s judgments to delete the

improper cumulation orders.

                                      The Guilty Plea

       The prosecution and the defense engaged in lengthy plea negotiations partly

captured on the record. Over the course of several hearings before several different

judges, the parties discussed possible plea agreements. All of the judges warned that they

would stack the sentences or mentioned the possibility of doing so.

       At the final hearing Appellant entered an open plea of guilty; he was advised of

and waived his rights to a jury trial, to remain silent and to confront the witnesses against

him. He stated orally and in writing that his plea was voluntary and that he understood its

consequences. His attorney stated his belief that Appellant was aware of the
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consequences of his plea and understood the court’s admonishments, and the judge found

that the plea was voluntary.

       Regarding punishment, the judge correctly admonished Appellant as to the range

but incorrectly admonished him about the possibility of stacking the sentences:

       It’s not a plea bargain case. It’s an open case court–open plea to the Court.
       Then I need to advise you that the range of punishment in a state jail is still
       the same, six months to two years and up to a $10,000 fine. But because
       this is a plea to the Court, you have six different cases. I can run all of the
       cases together at the same time or I can stack all the cases, one upon the
       other. So if I gave you two years on one, for all practical purposes, you
       would end up with twelve years in the penitentiary if I decided to stack
       them; do you understand that?

Appellant answered that he understood and entered guilty pleas to nine counts of burglary

of a building.

       The trial court erred in admonishing Appellant about cumulative sentencing and in

stacking some of the sentences because the offenses were part of the same criminal

episode, and Appellant was prosecuted in a single criminal action; under those

circumstances his sentences had to run concurrently. See Tex. Penal Code §3.03.

                                     Court of Appeals

       On appeal the State agreed with Appellant that his sentences should not have been

stacked and asked the court of appeals to modify the trial court’s judgments. The court of

appeals, however, determined that the case was “more complicated” than that. Martinez,

2017 Tex. App. LEXIS 7059 at *19. Instead the court of appeals considered whether

Appellant’s plea was involuntary because his “decision to plead guilty was taken while he
                                                                              Martinez–Page 4

was under the false impression that, were he to plead not guilty and be convicted at trial,

cumulation of sentences would be a lawful option for the trial court.” Id. at *20. The

court of appeals concluded that Appellant’s “pleas were involuntary because they were

based, at least in part, on the misconception that the trial court could validly order his

sentences to run consecutively.” Id. at *22. Setting aside the guilty pleas as involuntary,

the court of appeals reversed the trial court’s judgments and remanded the cases for

further proceedings. Id.

       The court of appeals erred in reversing the trial court’s judgments because the

record does not show that the incorrect admonishment about stacking caused Appellant to

plead guilty. The court also erred to speculate that Appellant believed his sentences could

have been stacked if he had pleaded not guilty and gone to trial; the record is silent about

his belief in that regard. Given the state of the record, we reverse the judgment of the

court of appeals.

                                 Involuntary Plea Claims

       An involuntary plea claim requires examination of all the relevant circumstances

surrounding the plea. Brady v. United States, 397 U.S. 742, 749 (1970); Ex parte

Barnaby, 475 S.W.3d 316, 323 (Tex. Crim. App. 2015). All of those circumstances will

seldom be revealed by the record on direct appeal. See Cooper v. State, 45 S.W.3d 77, 82

(Tex. Crim. App. 2001) (involuntary plea claims “may be supported by information from

sources broader than the appellate record” when raised in context of motions for new trial
                                                                           Martinez–Page 5

or writs of habeas corpus).

       A valid guilty plea depends on an affirmative showing that the plea was entered

knowingly and voluntarily. See Boykin v. Alabama, 395 U.S. 238, 243 (1969). Without

such a showing the conviction will be reversed unless the reviewing court can say beyond

a reasonable doubt that the error did not contribute to the conviction or punishment.

Aguirre-Mata v. State, 125 S.W.3d 473, 475-76 (Tex. Crim. App. 2003), citing McCarthy

v. United States, 394 U.S. 459, 465 (1969); Tex. R. App. P. 44.2(a).

       In the face of admonishments given under Texas Code of Criminal Procedure

Article 26.13, the defendant bears the burden of showing that he was not aware of the

consequences of his plea and that he was misled or harmed such that his plea was

involuntary. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (citing Ex

parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985). The burden shifts even if

the admonishment is incomplete or incorrect.

       [W]hen the record shows that the trial court gave an admonishment that was
       incomplete or incorrect, there is a prima facie showing of a knowing and
       voluntary plea of guilty. The burden then shifts to the defendant to show
       that he entered the plea without understanding the consequences of his
       action and thus was harmed.

Gibauitch, 688 S.W.2d at 871 (citations omitted).

                                         Analysis

       Although the trial judge was mistaken about his authority to stack the sentences, he

correctly advised Appellant about the range of punishment and the consequences of his
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plea. Thus, Appellant had to show that he was misled into pleading guilty and harmed by

the inaccurate stacking admonishment. Martinez, 981 S.W.2d at 197; Gibauitch, 688

S.W.2d at 871. But the record does not show that the trial court’s erroneous

admonishment about stacking played any part in Appellant’s decision to plead guilty.

         The court of appeals considered it significant that Appellant decided to plead

guilty while he was under the impression that his sentences could be stacked if he was

convicted at trial. This was speculation because the record does not show what Appellant

thought about stacking in the event of a trial. One exchange between the prosecutor and

the trial judge indicates that they thought stacking was always permissible, but there is no

evidence that Appellant thought so, too. Furthermore, the possibility of stacking would

have existed if the cases had been tried separately. Ex parte Pharr, 897 S.W.2d 795, 796

(Tex. Crim. App. 1995) (per curiam). Thus, even if the record did show that Appellant

had believed his sentences could be stacked after trial, that would not necessarily have

been a false belief and without further elaboration would not support an involuntary plea

claim.

                                         Conclusion

         The record does not show that Appellant was misled or harmed by the trial judge’s

incorrect admonishment, and the court of appeals erred in holding that Appellant’s plea

was involuntary. But the trial court’s cumulation orders were improper. We reverse the

judgments of the court of appeals and reform the judgments in Cause Numbers CR-1443-
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16-I, CR-1485-16-I, and CR-1486-16-I to delete the cumulation orders. See Tex. R. App.

P. 78.1(c) (this Court may reverse a lower court’s judgment and render the judgment that

the lower court should have rendered.)


Delivered: December 12, 2018
Do Not Publish
