                            NUMBER 13-12-00158-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

TIMOTHY DANIEL HERNANDEZ,                                                 Appellant,

                                            v.

THE STATE OF TEXAS,                                                       Appellee.


               On appeal from the County Court at Law No. 2
                        of Victoria County, Texas.


                         MEMORANDUM OPINION
           Before Justices Rodriguez, Benavides, and Longoria
               Memorandum Opinion by Justice Longoria

      In one issue, appellant, Timothy Hernandez, appeals his conviction, judgment,

and sentence for theft of stolen property greater than $50 but less than $500, a class B

misdemeanor.     See TEX. PENAL CODE ANN. § 31.03(e)(2)(A)(i) (West Supp. 2012).

Appellant claims his plea of guilty was invalid. We affirm.
                                     I. BACKGROUND

       Appellant was charged with misdemeanor theft. See id. Appellant signed and

filed a Waiver of Rights and Entry of Plea of Guilty with the trial court.    Appellant

represented in that document that he “understood the admonishments by the court and

is aware of the consequences of his plea and that he desires to make immediate

disposition of this case . . . by entering his plea of guilty.” Appellant’s plea was not

entered pursuant to a plea bargain. The trial court found appellant guilty and appellant

timely filed his notice of appeal.

                                      II. ANALYSIS

       A. Applicable Law

       A defendant who pleads guilty without the benefit of a plea bargain may raise

claims of error occurring at or after entry of a guilty plea. Jack v. State, 871 S.W.2d

741, 742 (Tex. Crim. App. 1994). The defendant bears the burden to show the plea

was involuntary on the face of the record. Alvear v. State, 25 S.W.3d 241, 244 (Tex.

App.—San Antonio 2000, no pet.).

       The Texas Code of Criminal Procedure states that “no plea of guilty or plea of

nolo contendere shall be accepted by the court unless it appears that the defendant is

mentally competent and the plea is free and voluntary.” TEX. CODE CRIM. PROC. ANN.

art. 26.13(b) (West Supp. 2012). However, the requirements of article 26.13 apply only

to felony cases and not misdemeanor offenses. See Gutierrez v. State, 108 S.W.3d

304, 309 (Tex. Crim. App. 2003). Article 27.14 applies to misdemeanor offenses and

provides for competency and the voluntariness of a guilty plea only when the offense

involves family violence. The court must provide oral or written admonishments under



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article 27.14(e)(1), but only when the offense involves family violence. TEX. CODE CRIM.

PROC. ANN. art. 27.14 (West Supp. 2012).

       B. Discussion

       Appellant argues that his plea of guilty was invalid or void under both state and

federal law.   Under state law, appellant first argues that the court violated article

26.13(b) of the Texas Code of Criminal Procedure because the record is silent as to any

inquiry by the trial court that appellant was competent. Id. at art. 26.13(b). Appellant

also argues that the record does not affirmatively show that he entered his plea

knowingly and voluntarily because the trial court failed to inquire whether appellant read

or understood the admonishments and the charges against him and generally failed to

admonish appellant of his constitutional rights.

       We note first that article 26.13(b) does not apply to misdemeanor offenses. See

Gutierrez, 108 S.W.3d at 309. The court must provide oral or written admonishment for

misdemeanor offenses but only when the offense involves family violence. TEX. CODE

CRIM. PROC. ANN. art. 27.14(e) (West Supp. 2012). Here, the charge involved theft.

Therefore, neither article 26.13(b) nor article 27.14(e) applies.

       In any event, the court is not required to make a specific inquiry regarding a

defendant’s competence unless that issue is raised at the time of the plea. Kuyava v.

State, 538 S.W.2d 627, 628 (Tex. Crim. App. 1976). Furthermore, in Texas all persons

are presumed to be competent unless proven otherwise by preponderance of the

evidence. TEX. CODE CRIM. PROC. ANN. art. 46B.003(b) (West Supp. 2012). “A trial

judge need not perform a competency inquiry unless evidence is presented that raises a

bona fide doubt regarding defendant’s present ability to consult with his lawyer with a



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reasonable degree of rational understanding or his rational as well as factual

understanding of the proceedings against him.” McDaniel v. State, 98 S.W.3d 704, 704

(Tex. Crim. App. 2006).           The trial court heard this case simultaneously with a

companion case. In that case, the trial court had an opportunity to determine appellant

was competent but did not see a reason for doing so.1 Because appellant did not raise

the issue of his competence either by motion or during the plea hearing and there was

no indication from the record that appellant was incompetent, the court was not required

to inquire into appellant’s competency.

       Appellant further argues that his plea was involuntary because a plea is voluntary

only if it is entered with full knowledge of the direct consequences of the plea and is not

induced by threats, misrepresentation, or by otherwise improper promises. Kniatt v.

State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) (citing Brady v. U.S., 397 U.S. 742,

755 (1970)). However, if the defendant pleads guilty to the offense charged, all of the

required elements of the offense are correctly stated in the indictment, and the record

shows that the indictment was read to the defendant, then the defendant is presumed to

have had real notice of the charge against him. Lincoln v. State, 560 S.W.2d 657, 659

(Tex. Crim. App. 1978). A plea is intelligently made when “appellant was advised by

competent counsel, appellant was aware of the nature of the charges against him, and if

nothing indicates he might be incompetent or otherwise not in control of mental

faculties.” Brady, 397 U.S. at 756. In this case, appellant was represented by counsel.

Appellant signed a document stating that appellant “understood the admonishments by

the court and is aware of the consequences of his plea and that he desires to make


       1
          In cause no. 13-12-157-CR, appellant’s counsel filed an Anders brief. We will dispose of that
case in a separate opinion under the same heading.

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immediate disposition of this case . . . by entering his plea of guilty.” His attorney

submitted a signed attorney's certificate stating that he had read or explained the court's

written admonishment to appellant, that appellant was fully aware of consequences of

his plea, and that he understood the written admonishments of the court. See id. The

record also shows appellant was informed of the punishment range he was facing and

of the rights he was giving up by pleading guilty. Based on the record, we conclude that

appellant was aware of the direct consequences of his guilty plea and of the nature of

the rights and protections he was waiving by entering the plea.

        Finally, appellant relies on Henderson v. Morgan for the proposition that his plea

was not voluntary or intelligent under the federal constitution. 426 U.S. 637, 647 (1976)

Henderson is distinguishable because appellant’s defense counsel in that case did not

advise his client of the charges against him before the appellant pleaded guilty. Id. at

637. In this case, as we have already explained, appellant was represented by counsel,

was advised in writing by the trial court of the nature of the charges he was facing, and

both appellant and his attorney signed a waiver of appellant’s rights that established he

understood the admonishments and was aware of the consequences of his plea.2 We

conclude from this that appellant’s plea was voluntarily and intelligently made.

        Appellant’s sole issue is overruled.




        2
         Appellant also cites generally to Boykin v. Alabama, See 395 U.S. 238, 238 (1969), but does not
specify what he believes that case requires in this instance. See Tex. R. App. P. 38.1(i).


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                                       III. Conclusion

       We affirm the trial court’s judgment.



                                                   _______________________
                                                   NORA L. LONGORIA
                                                   Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
18th day of July, 2013.




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