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-

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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

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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

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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.




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