                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-07-416-CR

MAURICO M. GIBSON                                               APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE

                                   ------------

     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

                                   ------------

                                I. Introduction

     In one point, Appellant Maurico M. Gibson asserts that his due process

rights were violated because his guilty plea was involuntary. We affirm.

                       II. Factual and Procedural History

     On October 23, 2007, Gibson appeared in court and entered an open plea

of guilty to one count of aggravated robbery with a deadly weapon. This was


     1
         … See Tex. R. App. P. 47.4.
one of several cases brought against him for his actions in what, in light of the

punishment hearing testimony, amounted to a crime spree.2          Noted on his

written plea admonishments form is the statement, “[o]pen plea to the court on

this cause number only.”

      Paragraph 7 of the written plea admonishments states, “No Plea

Agreement (Open Plea): If you have plead[ed] guilty without [the] benefit of a

plea agreement, the plea proceeding is your trial. . . . Once the Court has

accepted your guilty plea, you cannot withdraw your plea without permission

from the Court.”    The following paragraphs fall under the section labeled,

“Written Waiver by Defendant—Joined by Attorney,” which states, “Comes

now the Defendant, in open Court, joined by my attorney and states:

      (A) I am able to read the English language. I fully understand each
      of the above written plea admonishments given by the Court and
      I have no questions. . . . I fully understand the entire document, as



      2
        … On December 4, 2006, Gibson and his companion, Kelvin Miller,
robbed Crystal Jones, the complainant in this case, at gunpoint at around 9:30
p.m. Gibson and Miller also robbed William Lopez at gunpoint earlier that
evening, around 5:30 or 6:00 p.m., and robbed Crystal Charon at gunpoint
around 9:00 p.m. All of the robberies took place within the same geographic
area.
       Arlington Police Officer Jose Alvarez testified that on December 4, around
9:35 p.m., after a fourth robbery was reported in the area, he stopped a vehicle
that fit the get-away car’s description. Gibson was the back seat passenger;
the police recovered a loaded 9-millimeter handgun from underneath the driver’s
seat. Officer Alvarez testified that Gibson asked him, “[S]o how many
robberies are—are y’all going to charge me with?”

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     well as each of the above written plea[] admonishments given by
     the Court and I have no questions.

           ....

     (C) I am aware of the consequences of my plea;

     (D) I am mentally competent and my plea is knowingly, freely, and
     voluntarily entered. No one has threatened, coerced, forced,
     persuaded or promised me anything in exchange for my plea;

           ....

     (I) I give up and waive all pretrial motions that may have been filed
     in connection with my case;

           ....

     (O) I give up and waive any and all rights of appeal in this case[.]

Gibson’s signature is on the line following the last paragraph of the written

waiver. His attorney signed below the following paragraph:

     I have fully reviewed and explained the above and foregoing court
     admonishments, rights, and waivers, as well as the following
     judicial confession to the Defendant. I am satisfied that the
     Defendant is legally competent and has intelligently, knowingly,
     and voluntarily waived his rights and will enter a guilty plea
     understanding the consequences thereof. . . .

     Gibson also signed under the following sworn judicial confession:

     Upon my oath I swear my true name is Maurico Gibson and I am 23
     years of age; I have read the indictment or information filed in this
     case and I committed each and every act alleged therein, . . . . All
     facts alleged in the indictment or information are true and correct.
     I am guilty of the instant offense as well as all lesser included
     offenses. . . . I swear to the truth of all of the foregoing and I

                                      3
      further swear that all testimony I give in the case will be the truth,
      the whole truth and nothing but the truth, so help me God.

      The trial court and the attorneys for both parties signed beneath the trial

court’s    acknowledgment     that   it   had   given   Gibson   the   written   plea

admonishments; that it had found Gibson mentally competent; and that his plea

was intelligently, freely, and voluntarily entered.

      On October 30, 2007, Gibson appeared with his attorney for the

sentencing trial. The trial court reviewed the above procedure with Gibson as

follows:

      [The Court]: . . . Mr. Gibson, you were here on October 24th
      wherein you entered a plea of guilty to the offense of aggravated
      robbery. The Court accepted the plea, deferred any findings and
      we’re going to have the case heard today. You understand?

      [Gibson]: Yes, sir.

      [The Court]: All right. This is a first-degree felony. It carries a term
      of life or any term of not more than 99 years nor less than five
      years in the Institutional Division of the Texas Department of
      Criminal Justice and a fine of $10,000 may be assessed. You
      understand that?

      [Gibson]: Yes, sir.

      [The Court]: By pleading open you’re pretty much waiving most of
      your rights. You understand that?

      [Gibson]: Yes, sir.

      [The Court]: All right. And whatever decision that I make on that
      you’re going to be living with that. Do you understand?

                                          4
[Gibson]: Yes, sir.

[The Court]: You also made a judicial confession; is that correct?

[Gibson]: Yes, sir.

[The Court]: And you entered—you state that your name is Maurico
Gibson, you’re 23 years of age, you’ve read the indictment and
everything in the indictment is true and correct, that you are guilty
of the offense and any other offenses that are included. Is that
correct?

[Gibson]: Yes, sir.

[The Court]: All right. And you actually swore to this and my clerk
at that time notarized this. And the documents were signed by
you, your lawyer, . . . myself, and the State . . . ; is that correct?

[Gibson]: Yes, sir.

[The Court]: All right. Then, [State], we will proceed.

[State]: Judge, I can’t remember, did you admonish him last time
on immigration effects, if they have them on him? I couldn’t
remember if we did that last time or not.

      ....

[Defense counsel]: For the record, I explained everything to him,
including the immigration portion that he signed. [Emphasis added.]




                                  5
      The trial court admitted into evidence without objection Gibson’s nine

prior convictions, 3 and the State read those convictions into the record. During

the punishment trial, the trial court and defense counsel also had the following

exchange:

      [Defense counsel]: Your Honor, I just want to put on the record
      that when we introduced the plea on one case last week.

      [The Court]: Yes, sir.

      [Defense counsel]: I had indicated to my client I had filed some
      pretrial motions and it’s in different—it’s in each case. And one of
      them has to do with a motion to suppress that I anticipate the
      State is going to introduce a statement that my client signed. And
      I just want to put in the record that we didn’t waive all of our
      pretrial motions. Is that correct, Mr. Gibson?

      [Gibson]: Yes, sir

      [The Court]: All right.

      [Defense counsel]: I just want to put that in the record.

      [The Court]: All right. Thank you.

      [Defense counsel]: And I explained that to him.

      [The Court]: Okay. Next witness.




      3
      … Gibson had four prior convictions for assault causing bodily injury and
one conviction each for reckless bodily injury to a child, unlawful carrying of a
weapon, terroristic threat, theft, and evading arrest.

                                       6
         The State then offered Gibson’s written confession through Arlington

Police Officer Kyle Dishko. Defense counsel responded, “No objections, Your

Honor.”        Officer Dishko read Gibson’s written confession into the record.

Gibson did not testify at trial, but he called several family members, who

testified about mitigating circumstances and their love for him. The trial court

sentenced Gibson to sixty years’ confinement. Gibson did not file a motion for

new trial. This appeal followed.

                                 III. Involuntary Plea

         In his sole point, Gibson asserts that his due process rights were violated

based on a plea rendered involuntary because he and his attorney “entered the

plea with the belief they were preserving matters raised by pretrial motions on

file.”       He argues that where a defendant pleads guilty with the erroneous

understanding that he has preserved the right to appeal the denial of pretrial

motions, the plea is not freely and voluntarily made.

         Nothing in the record shows that Gibson secured a ruling on his pretrial

motion to suppress.4 Cf. Broddus v. State, 693 S.W.2d 459, 460–61 (Tex.



         4
        … To preserve a complaint for appeal, a party must have presented to
the trial court a timely request, objection, or motion that states the specific
grounds for the desired ruling if they are not apparent from the context of the
request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983
S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.
1070 (1999). And the trial court must have ruled on the request, objection, or

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Crim. App. 1985) (reversing when trial court denied motion to suppress and

defendant entered open guilty plea on the misunderstanding, held by all parties

and the trial court, that he could appeal that denial). But even if Gibson had

secured a ruling, when a defendant affirmatively asserts during trial that he has

“no objection” to the admission of such complained-of evidence, he waives any

error in the admission of the evidence, despite the pretrial ruling. See Moraguez

v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986); Lemons v. State, 135

S.W.3d 878, 882 (Tex. App.—Houston [1st Dist.] 2004, no pet.). During the

middle of the punishment hearing, with regard to “one case last week,” Gibson

testified that he did not waive all pretrial motions. However, when the State

offered what appears to be the statement at issue into evidence, defense

counsel stated, “No objections, Your Honor.” And during closing argument,

defense counsel appeared to acknowledged the statement, stating, “You

heard—he pled guilty last week. The statement is—is some—it’s something

you have in evidence. The question on a case like this [is] does he get five or

does he get ten?”




motion, either expressly or implicitly, or the complaining party must have
objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez
v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).

                                       8
      Furthermore, when the record reflects that a defendant was properly

admonished, it presents a prima facie showing that the guilty plea was given

voluntarily and knowingly. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.

Crim. App. 1998); Jackson v. State, 139 S.W.3d 7, 14 (Tex. App.—Fort Worth

2004, pet. ref’d); see also Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim.

App.) (stating that a defendant’s sworn representation that his guilty plea is

voluntary “constitute[s] a formidable barrier in any subsequent collateral

proceedings”), cert. denied, 549 U.S. 1052 (2006). There is no claim, nor

evidence, that Gibson was not properly admonished, and it is his burden to

demonstrate a lack of understanding as to the consequences of his plea. See

Jackson, 139 S.W.3d at 14. A review of the record shows that both Gibson

and his attorney clearly and unequivocally “g[a]ve up and waive[d]” all pretrial

motions by signing the written plea admonishments and that Gibson understood

what he was doing when he signed it.

      Additionally, it is unclear from the record whether Gibson’s reference to

a plea introduced in “one case last week” was, in fact, this case.       During

sentencing, the trial court and defense counsel had the following dialogue:

      [The Court]:     Mr. Gibson, you’ve committed six aggravated
      robberies with deadly weapons. . . . I’m amazed that nobody was
      killed during any of these six aggravated robberies.




                                       9
      [Defense counsel]: Your Honor, if I may[,] the evidence is only of
      four. There was no evidence of two of them.

      [The Court]: I got six cases ahead of me here.

      [Defense counsel]: True. But there was no evidence on two of
      them.

      [The Court]: All right. But the Court is taking [j]udicial notice that
      we do have six cases that are filed. All right.

      [Defense counsel]: Yes. That is correct.

A review of the record does not show with any certainty that this case is the

case to which counsel referred to when he talked about “some pretrial motions”

he had discussed with his client. Further, as Gibson filed no motion for new

trial, there is no evidence, other than the plain language of the written plea

admonishments and Gibson’s counsel’s broad statement at the beginning of the

hearing that he explained “everything” to Gibson, as to what exactly was

explained to Gibson and what he understood regarding the plea and its effect.

Cf. Christal v. State, 692 S.W.2d 656, 656–58 (Tex. Crim. App. 1981)

(reversing when transcript of hearing on motion for new trial demonstrated that

defendant’s plea was involuntary). Therefore, Gibson has failed to overcome

the “formidable barrier” presented by the written plea admonishments. We

overrule Gibson’s sole point.




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                               IV. Conclusion

     Having overruled Gibson’s sole point, we affirm the trial court’s judgment.


                                          PER CURIAM

PANEL: MCCOY, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 19, 2009




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