Opinion
No. 04-17-00392-CR
05-09-2018
Kenneth MCGRAW, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR4930
Honorable Frank J. Castro, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Irene Rios, Justice AFFIRMED
The Honorable Frank J. Castro presided over the sentencing hearing and signed the judgment. The Honorable Philip Kazen presided over the plea hearing.
Kenneth McGraw pled guilty to the offense of theft and was sentenced as a habitual offender to forty years' imprisonment. On appeal, McGraw challenges the sufficiency of the evidence to support one of the enhancement allegations in the indictment. We affirm the trial court's judgment.
BACKGROUND
McGraw was indicted for two counts of theft. The first count was a third degree felony, and the second count was a state jail felony. The indictment also contained two enhancement allegations.
On October 24, 2016, McGraw signed a plea bargain agreement pursuant to which he pled guilty to the first count in the indictment and true to the first enhancement allegation in exchange for a sentence of fifteen years' imprisonment and a $1,500 fine. In addition, the plea bargain agreement stated, "If defendant fails to show up to court for sentencing, defendant pleads true to the second enhancement allegation as alleged in the indictment, and is subject to full range of punishment as a habitual offender on the third-degree felony, 25 years to 99 years or life."
At the hearing on the plea agreement that same day, the trial court emphasized the last term of the agreement, admonishing McGraw as follows:
You're also — this last part is — it's all very important, but this is particularly important. As part of your plea bargain, you're agreeing to an understanding [of] the following: That if you fail to show up to the court for sentencing, that you will automatically be deemed to have pled true to the second enhancement allegation as alleged in the indictment. And that if that's true, you will then be subject to the full range of punishment as a habitual offender on Count 1, which is the underlying offense for which is a third degree felony.The trial court then asked if that was McGraw's understanding of the plea agreement, and McGraw responded, "Yes, Your Honor."
What that means is that if you don't show up for sentencing, that you will be deemed to have pled either guilty or no contest to the offense in Count 1 of the indictment. You will be deemed to have pled true to both enhancement allegations. You will then be subject to the full range of punishment as a habitual offender, which is a minimum of 25 years to a maximum of 99 years or life.
After the admonishments, McGraw pled no contest to Count 1 of the indictment and true to the first enhancement allegation. The State offered an exhibit which the trial court found to be sufficient to establish a finding of guilt. The trial court then reset the cause for sentencing, and further admonished McGraw as follows:
All right. I stress again, Mr. McGraw, this is very important. You got to — a specific amount of time that the State has agreed to and that you have agreed to, but all bets will be off the table if you for whatever reason fail to show for your sentencing hearing, then you will still have entered a plea of no contest. And at that point, the Court will, I assume pursuant to the plea bargain, enter a plea of true to the second enhancement allegation. You will then be subject to the full range of punishment as a habitual offender. So it's very important that you cooperate with probation. It's very important that you show up for sentencing. Very.Despite acknowledging the trial court's admonishment, McGraw did not show up for sentencing but instead absconded.
After McGraw was subsequently arrested, he was brought before the trial court for a sentencing hearing on May 9, 2017. At the beginning of the hearing, the trial court reviewed the terms of the plea agreement and noted the following:
McGraw was arrested in January of 2017 for two new offenses.
The other part of the agreement was, if defendant fails to show up to court for sentencing, defendant pleads true to the second enhancement allegation as alleged in the indictment and is subject to the full range of punishment as a habitual offender on the third degree felony, 25 years to 99 years or life.At the hearing, McGraw admitted he failed to show up for sentencing, cut off his GPS monitoring device, and became a fugitive. At the conclusion of the hearing, the trial court sentenced McGraw to forty years' imprisonment. The trial court signed a certification acknowledging the case was a plea bargain case but giving McGraw permission to appeal.
DISCUSSION
In his brief, McGraw contends the evidence is insufficient to support the trial court's finding that he was convicted of the second enhancement allegation, arguing "no 'true plea,' certified court record, or other circumstantial evidence was ever offered at the plea hearing to prove-up that second 'habitual-offender' allegation in the indictment," and "[t]he record developed at sentencing on May 9, 2017 is no better." The State responds McGraw pled true to the second enhancement allegation, asserting, "based on the terms of his plea agreement, by not appearing for sentencing appellant pled true to the second enhancement allegation — a consequence that he was very aware of based on his colloquy with the plea judge." In his reply brief, McGraw asserts, "the State has offered no authority for its position that an executed plea agreement, coupled with an admission that a defendant remained silent on a subsequent sentencing date, may be construed as the legal equivalent of entering an actual plea of 'true' to an enhancement provision."
The only law cited in the State's brief is this citation "Hopkins v. State, 487 S.W.3d 583, 586 (Tex. Crim. App. 2016) (internal quotation marks omitted) (citing Roberson v. State, 420 S.W.3d 832, 838 (Tex. Crim. App. 2013); Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006))," to support the following sentence, "Moreover, as appellant acknowledges, if 'a defendant pleads true to an enhancement paragraph, that relieves the State of its evidentiary burden to prove the enhancement allegations, unless the record affirmatively reflects that the enhancements were improper."
"In reviewing the sufficiency of the evidence to support a finding that an enhancement is 'true,' we consider all the evidence in the light most favorable to the trial court's finding and determine whether a rational trier of fact could have found the essential elements beyond a reasonable doubt." Wood v. State, 486 S.W.3d 583, 589 (Tex. Crim. App. 2016). "A plea of 'true' will satisfy the State's burden of proving an enhancement allegation, but there must be affirmative evidence in the record showing that the defendant entered a plea of 'true." Id. at 587-88. A prior conviction may also be proven by stipulations or the judicial admission of a defendant. Beck v. State, 719 S.W.2d 205, 209 (Tex. Crim. App. 1986). If a defendant judicially admits to a prior conviction, the defendant "'waive[s] his right to put the government to its proof on that element'" and "cannot complain on appeal that the State failed to prove [the prior conviction]." Bryant v. State, 187 S.W.3d 397, 402 (Tex. Crim. App. 2005) (quoting Harrison v. U.S., 204 F.3d 236, 240 (D.C. Cir. 2000)).
A judicial admission is a "clear, deliberate, and unequivocal statement" which "bars a party from disputing a fact and relieves his adversary from having to present proof of the fact." Benton v. State, 336 S.W.3d 355, 360 (Tex. App.—Texarkana 2011, pet. ref'd); see also Spradlin v. State, 100 S.W.3d 372, 380 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (same). Judicial admissions have also been described as "formal concessions" in pleading or stipulations, an "express waiver" conceding the truth of a fact for purposes of trial, and as "a substitute for evidence, in that it does away with the need for evidence." Bryant, 187 S.W.3d at 400 (quoting 2 John W. Strong, et al., MCCORMICK ON EVIDENCE § 255 (5th ed. 1999); 9 WIGMORE ON EVIDENCE § 2588 (3d ed. 1940)).
In this case, McGraw executed the plea agreement stating if he failed to show up to court for sentencing, he "pleads true to the second enhancement allegation." Thus, in signing the plea agreement, McGraw unequivocally stated or judicially admitted that his failure to show up to court for sentencing would be the equivalent of a plea of true to the second enhancement. Therefore, in choosing to not show up to court for sentencing, McGraw pled true to the second enhancement, thereby satisfying the State's burden of proof. See Wood, 486 S.W.3d at 587-88. And, because McGraw's plea of true was in the form of a judicial admission, he cannot complain on appeal that the State failed to prove the second enhancement allegation. See Bryant, 187 S.W.3d at 402.
CONCLUSION
The judgment of the trial court is affirmed.
Sandee Bryan Marion, Chief Justice DO NOT PUBLISH