COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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MANUEL DELGADO, JR., Appellant, v. THE STATE OF TEXAS, Appellee. |
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No. 08-03-00314-CR Appeal from the Criminal District Court No. 2 of Dallas County, Texas (TC#F-9702196-TI) |
MEMORANDUM OPINION
Manuel Delgado, Jr. entered an open plea of guilty to aggravated sexual assault of a child, and was sentenced to twenty-five years in prison. In his sole issue on appeal, Delgado claims that his plea was involuntary because he was under the false impression that the trial court would place him on deferred adjudication probation. Finding nothing in the record to support this claim, we affirm.
Factual and Procedural Background
Before accepting Delgado=s guilty plea, the trial court admonished him in writing of the range of punishment for the offense. Delgado and his attorney signed the written admonishment form and Delgado acknowledged that he was aware of the consequences of his plea. At the plea hearing, the trial court asked Delgado if he understood the range of punishment, and Delgado answered that he did. He also stated that he was entering his plea freely and voluntarily. Delgado testified that he was pleading guilty because he was guilty and for no other reason. He further testified that he had never been convicted of a felony. Defense counsel asked Delgado whether he understood that the ACourt may or may not give you probation.@ Delgado answered, AYes, sir.@ When asked by the prosecutor whether anyone made him any promises in return for his guilty plea, Delgado answered, ANo, ma=am.@
The trial court accepted the plea, but did not make a finding of guilt. Instead, the court passed the case for a pre-sentence investigation and set a date for further adjudication, if any, and sentencing. Nearly six years passed before the sentencing hearing.[1]
At the sentencing hearing, Delgado presented witnesses who attested to his good behavior in the intervening six years. He also presented the testimony of his mother and the victim=s mother, who both asked that Delgado not be sent to prison. Delgado testified as to his willingness and ability to comply with the terms of probation.
Discussion
In considering the voluntariness of a guilty plea, we examine the record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). A defendant who attests at the plea hearing that his plea is knowing and voluntary bears a heavy burden to prove that he did not understand the nature and consequences of his plea. Valle v. State, 963 S.W.2d 904, 909 (Tex. App.--Texarkana 1998, pet. ref=d).
Delgado has not satisfied his burden of proving that he did not understand the nature and consequences of his plea. He testified at the plea hearing that he understood that the trial court may or may not grant him probation, and his witnesses at the sentencing hearing seemed to recognize that he may or may not receive probation. Delgado did not testify at the sentencing hearing that he thought he was going to receive deferred adjudication probation.
In short, there is nothing in the record to support Delgado=s claim that he pleaded guilty under the false impression that he would be placed on deferred adjudication probation. Therefore, we overrule his sole issue and affirm the judgment of the trial court.
SUSAN LARSEN, Justice
April 29, 2004
Before Panel No. 4
Barajas, C.J., Larsen, and McClure, JJ.
(Do Not Publish)
[1]At the commencement of the sentencing hearing on May 9, 2003, the trial judge noted, AThe defendant entered the first half of an open plea on July 23rd of 1997, and a bond was held insufficient. The warrant was misplaced or something at some point. I know that I issued another original capias in January, and the defendant has been in custody in lieu of bond ever since, and we=re here today for sentencing.@