                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


                                                  §
 PATRICIA JOANN STOKES,                                           No. 08-09-00206-CR
                                                  §
                   Appellant,                                        Appeal from the
                                                  §
 V.                                                                194th District Court
                                                  §
 THE STATE OF TEXAS,                                            of Dallas County, Texas
                                                  §
                   Appellee.                                      (TC# F-08-51381-M)
                                                  §

                                                  §

                                           OPINION

       Patricia Joann Stokes appeals from the trial court’s order adjudicating her guilty of

prostitution and revoking her community supervision. In a single point of error, Appellant

asserts that the trial court rendered her plea of true involuntary by rejecting the State’s sentencing

recommendation without allowing Appellant to withdraw her plea of true.

       On March 13, 2008, in Cause No. F-08-51381-M, Appellant pled guilty to a felony

prostitution offense pursuant to an open plea agreement in which the State agreed to deferred

adjudication and community supervision. The court followed the plea agreement and placed

Appellant on ten years’ of community supervision.

       On March 31, 2009, the State filed a motion to adjudicate guilt alleging Appellant

committed a new prostitution offense and violated the conditions of her community supervision.

Pursuant to a second plea bargain, in exchange for the State’s punishment recommendation of

three years’ imprisonment, Appellant entered a plea of true for violating her community
supervision and a plea of guilty for prostitution. Prior to accepting her pleas at the adjudication

hearing, the court found Appellant voluntarily entered both pleas.

         With regard to sentencing for the new prostitution offense, the court accepted the

State’s plea bargain recommendation of three years’ imprisonment. However, with regard to

Appellant’s violation of community supervision, the court rejected the State’s recommendation

and imposed a concurrent sentence of five years’ imprisonment.

         In her sole point of error, Appellant contends that the trial court rendered her plea of true

involuntary when it rejected the sentencing recommendation of the State without allowing

Appellant to withdraw her plea of true. We review a ruling on a motion to adjudicate guilt using

an abuse of discretion standard. See Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App.

2006).

         The Texas Code of Criminal Procedure Article 26.13 states that before a trial court

accepts a plea of guilty it must admonish the defendant of:

         [T]he fact that the recommendation of the prosecuting attorney as to punishment
         is not binding on the court. Provided that the court shall inquire as to the
         existence of any plea bargaining agreements between the state and the defendant
         and, in the event that such an agreement exists, the court shall inform the
         defendant whether it will follow or reject such agreement in open court and before
         any finding on the plea. Should the court reject any such agreement, the
         defendant shall be permitted to withdraw his plea of guilty or nolo
         contendere . . . .

TEX .CODE CRIM .PROC.ANN . art. 26.13(a)(2)(Vernon Supp. 2009).

         When a trial court admonishes a defendant according to Article 26.13 of the Code of

Criminal Procedure even if the admonishment is incomplete or incorrect, such admonishment is

prima facie evidence establishing the knowing and voluntary nature of the guilty plea. Ex parte



                                                  -2-
Gibautich, 688 S.W.2d 868, 871 (Tex.Crim.App. 1985). Once the defendant has been

admonished pursuant to Article 26.13, the burden shifts to the defendant to prove the

involuntariness of the plea and to show harm. Id. A guilty plea is not rendered involuntary

because the actual sentence imposed exceeds the defendant’s expectations. See West v. State,

702 S.W.2d 629, 633 (Tex.Crim.App. 1986). We review the voluntariness of a plea of true in

light of the totality of the circumstances. See Griffin v. State, 703 S.W.2d 193, 196

(Tex.Crim.App. 1986). In revocation proceedings, a trial court is under no obligation to allow a

defendant to withdraw a plea of guilty if the court rejects the plea bargain agreement. Gutierrez

v. States, 108 S.W.3d 304, 309-10 (Tex.Crim.App. 2003).

       Appellant argues that the trial court abused its discretion by rendering her plea of true

involuntary when it decided not to follow the plea bargain agreement, imposed a sentence that

exceeded the plea bargain agreement, and failed to provide Appellant with an opportunity to

withdraw her plea of true. In support of her argument, Appellant relies on the fact that the plea

bargain specifically states, “The prosecuting attorney’s recommendation as to punishment is not

binding on the Court. You will be permitted to withdraw your plea if the court rejects any plea

bargain made in this case.”

       The record demonstrates that Appellant reviewed and read the written admonishments

with her attorney before accepting the State’s second plea bargain. Appellant testified that she

understood the admonishments and the consequences of her pleas. She also testified that she

freely and voluntarily signed the written Judicial Confession and Stipulation of Evidence.

Furthermore, when the court asked if she was forced, made promises, or coerced into entering

into her plea, she replied, “No, sir.” Appellant testified that she understood that if she persisted


                                                 -3-
in pleading true, she could be sentenced up to ten years’ imprisonment.

       The record clearly shows that the court admonished Appellant that if it chose not to

follow the plea bargain, the court would allow her to withdraw her plea and have her case set for

a jury trial. In the revocation matter, the court found that Appellant violated her community

supervision and in accordance with Article 26.13 stated, “I will not follow the plea bargain

agreement in this case, and I am sentencing the defendant to five years confinement in the

Institutional Division of the Texas Department of Criminal Justice.” When the court asked, “Is

there any reason at law, Counsel, why your client should not be sentenced at this time?”

Appellant’s counsel answered, “No, your Honor.”

       Under the totality of the circumstances, it is clear that Appellant’s plea of true was

voluntary. See Griffin, 703 S.W.2d at 196. Here, the record establishes the prima facie evidence

of the voluntariness of Appellant’s plea. See Ex parte Gibautich, 688 S.W.2d at 871. Appellant

has failed to meet her burden of proving that her plea was involuntary and that she suffered

harmed. Id.

       Appellant testified that she understood she would be allowed to withdraw her plea of true

if the plea bargain was not followed. However, the record shows that neither Appellant’s

attorney nor Appellant requested or attempted to withdraw Appellant’s plea of true, despite

having the opportunity to do so. Accordingly, having found no abuse of discretion, we find

Appellant’s sole point of error to be without merit. We overrule Appellant’s sole point of error.

       We affirm the judgment of the trial court.




                                                -4-
September 8, 2010
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)




                                               -5-
