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## 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

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## MEMORANDUM OPINION
Before Justice s Rodriguez, Benavides , and Longoria Memorandum Opinion by Justice Longoria In one issue, appellant, Timothy Hernandez, appeals his conviction, judgment , and sentence for theft of sto len property greater than $50 but less than $500 , a class B misdemeanor. See T EX

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. § 31.03(e)(2)(A)(i) (West Supp. 2012). Appellant claims his plea of guil ty was invalid. We affirm.2 I. B ACKGROUND Appellant was charged with misdemeanor theft. See id

. A ppellant signed and filed a Waiver of Right s 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 g uilty.” Appellant’s plea was not
entered pursuant to a plea bargain. The trial court found appellant guilty and a ppellant
ti mely filed his notice of appeal.
II. A NALYSIS 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. Stat e, 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 st ates 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.” T EX

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. art. 26.13(b) (West Sup p. 2012). However , th e requirements of a rticle 26.13 apply only to felony cases and not misdemeanor offenses

. See Gutierr ez 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 o f a guilty plea only when the offense involves family violence

. The court must provide oral or written admonishment s under3

a rticle 27.14(e)(1 ) , but only when the offense involves family violence. T EX

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. 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 a rticle 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 a ffirmatively show that he entered his plea knowingly and voluntarily because the trial court failed to inquire wheth er appellant read or understood the admonishme nts 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 Gu tie r rez , 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. T EX

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. art. 27.14(e) (West Supp. 2012)

. Here, the charge invol ved theft. Therefore, neither article 26.13(b) nor a rticle 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. T EX

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. A NN . art. 46B.003(b) (West Supp. 2012). “A trial judge need not perform a competency inquiry unless e vidence is presented that raises a bona fide doubt regarding defendant’s present ability to consult with his lawyer with a4

reasonable degree of rational understanding or his rational as well as factual understanding of the proceedings against him.” McDani el 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 B ecause appellant did not raise the issue of his competence either by mo tion 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.
A ppellant 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

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. 742, 755 (1970)). However, if the defendant pleads gui lty to the offense charged, all of the required elements of the offense are correctly stated in the indictment, and the reco rd 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 advis ed 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, appel lant was represented by c ounsel. 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 c ause n o

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- CR , a ppellant’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 at torney 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 an d of the nature of the rights and protections he was waiving by entering the plea

. Finally, a ppellant 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 (197 6)
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 c ase requires in this instance. See Tex. R. App. P. 38.1(i).6 III. Conclusion We affirm the trial court’s judgment.

_______________________ NORA L. LONGORIA Justice Do not publish. T EX

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. Delivered and filed the 18th day of Ju ly , 2013

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