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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