Opinion
No. 05-10-00483-CR
Opinion Filed July 12, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 194th Judicial District Court Dallas County, Texas, Trial Court Cause No. F06-22838-M.
Before Justices RICHTER, LANG, and FILLMORE.
OPINION
Appellant was charged with aggravated sexual assault of a child under 14, waived his right to a jury, and entered a "no contest" plea. The court found the evidence proved appellant's guilt, deferred adjudication of guilt, placed appellant on six years' community supervision, and assessed and probated a $2500 fine. In eight issues on appeal, appellant challenges the voluntariness of his no contest plea. Concluding appellant's arguments are without merit, we affirm the trial court's deferred adjudication order.
Voluntariness of Plea
In his first four issues, appellant asserts the trial court violated his statutory and due process rights to enter a voluntary plea because the court did not advise him that his no contest plea was the equivalent of a guilty plea and because the court did not advise him he was waiving his right to proof beyond a reasonable doubt. Appellant also complains that the court did not explain that his waiver of a jury trial resulted in a waiver of the right to confront his accusers, remain silent, and cross-examine witnesses. According to appellant,"the fact that appellant exercised those rights [under the Fifth and Sixth Amendments] . . . indicates that appellant believed he did not waive those rights." The State responds that appellant's no contest plea was constitutionally and statutorily valid, and the record demonstrates that appellant voluntarily, knowingly, and intelligently waived his right to a jury and pled no contest. We agree with the State.Under Texas law, the legal effect of a plea of nolo contendere ("no contest") is the same as that of a plea of guilty in a criminal prosecution. Tex. Code Crim. Proc. Ann. art. 27.02(5) (West 2006). The due process clause of the United States Constitution governs guilty pleas. See Boykin v. Alabama, 395 U.S. 238, 243 (1969). A defendant who pleads guilty in state court waives several federal constitutional guarantees, including the privilege against self-incrimination, the right to a trial by jury, and the right to confront his accusers. Id. at 243. Thus, to be consistent with due process, a guilty plea must be voluntarily, knowingly, and intelligently entered with sufficient awareness of the relevant circumstances and likely consequences. Brady v. United States, 397 U.S. 742, 748 (1970). A plea of guilty or nolo contendere is generally considered to be voluntarily made if the defendant was made fully aware of the consequences of his plea. State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App. 1999). A Texas court must do more than is required to meet the minimum standards of due process when a defendant pleads guilty or no contest in a criminal case. Anderson v. State, 182 S.W.3d 914, 918 (Tex. Crim. App. 2006). Article 26.13 provides that before accepting a plea of guilty or nolo contendere, the court shall admonish the defendant of five things:
(1) the applicable range of punishment; (2) certain aspects of the law related to plea agreements; (3) the effect that a plea bargain agreement will have on his right to appeal; (4) the possibility of deportation for non-citizens; and (5) the requirement that a defendant convicted or placed on deferred adjudication for a "reportable" offense will be required to register as a sex offender. Tex. Code Crim. Proc. Ann. art. 26.13(b), (d) (West Supp. 2010). The presence of article 26.13 admonishments in the record creates a prima facie showing that the plea was entered knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). When a trial court admonishes the defendant, substantial compliance is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment given. See Tex. Code Crim. Proc. Ann. art. 26.13(c) (West Supp. 2010).In the present case, the trial court admonished appellant regarding the offense charged and the applicable range of punishment, and appellant verbally confirmed his understanding of the court's admonishments. Then, the court admonished appellant as follows:
COURT: Mr. Graves, you're entitled to a jury trial. We've been dealing with your case off and on over the last few years. At one time it was going to be a no-jury trial; at another time it was going to be a jury trial. In fact, it's scheduled for a jury trial this week. But I was told Friday by your lawyer and the State's lawyer that they've decided to have a non-jury trial. Do you understand that you are entitled to a jury if you want one?
APPELLANT: Yes, sir.
COURT: Do you want a jury trial?
APPELLANT: No, sir.
THE COURT: Are you waiving or giving up your right to a jury trial in this case freely and voluntarily?
APPELLANT: Yes, sir.Appellant then confirmed that his signature was on the waiver of jury form filed with the court, and the court addressed the issue of sex offender registration as follows:
THE COURT: Also, Mr. Graves, if you were found guilty or if I were to find the evidence proved your guilt and placed you on probation, you would be required to register as a sex offender; do you understand that, sir?
APPELLANT: Yes, sir.
THE COURT: [Counsel], have you explained to your client the obligations to register if he's guilty or placed on probation?
COUNSEL: Generally, I have Your Honor. The details, of course, would be dependent upon the Court, but generally I have informed him of his requirement of registration if he is placed on probation.After appellant confirmed that the signature on the Court's Admonition to Sex Offenders was his signature, defense counsel waived formal arraignment and entered a plea of "no contest" to the allegations in the indictment. In response, the Court stated, "There is no admission of guilt. The State has full burden of proof beyond a reasonable doubt." Although appellant raised no objection in the court below, the trial court's failure to comply with article 26.13 can be raised for the first time on appeal unless it is expressly waived. Bessey v. State, 239 S.W.3d 809, 812 (Tex. Crim. App. 2007) (defendant's right to proper admonishment under the statute is a waivable-only right). Significantly, appellant does not claim he did not understand the court's admonishments or that the court failed to provide the admonishments enumerated by the statute. Instead, appellant asserts the trial court was obligated to fully discuss the burden of proof and the federal constitutional rights he was waiving. Neither article 26.13 nor article 27.02, however, require such admonishments. See Tex. Code Crim. Proc. Ann. art. 26.13; Tex. Code Crim. Proc. Ann. art. 27.02. Moreover, a plea is not involuntary simply because the defendant "did not correctly assess every relevant factor entering into his decision." Talbott v. State, 93 S.W.3d 521, 526 (Tex. App.-Houston [14th Dist.] 2002, no pet.). Here, the trial court substantially complied with article 26.13. Under the totality of the circumstances, viewed in light of the entire record, we cannot conclude appellant's plea was involuntary under the statute. Appellant also argues that his plea was not voluntary under the federal constitution because he did not understand that a plea of no contest has the effect of a guilty plea, relieving the State of the beyond a reasonable doubt burden of proof. Appellant also argues his plea was not voluntary because he was not advised of the federal constitutional rights he would forfeit if he waived his right to a jury. To preserve a complaint for our review, 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); see Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh'g). Further, the trial court must have ruled on the request, objection, or 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); see Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). Except for complaints involving systemic requirements, or rights that are waivable only, all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a). Mendez, 138 S.W.3d at 342. "Systemic" requirements include, for example, jurisdictional issues or a penal statute's compliance with the separation of powers provision in the Texas constitution. See Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002). The voluntariness of a plea is not a systemic requirement; thus, complaints related to voluntariness must be raised in the trial court to be preserved for our review. See Mendez, 138 S.W.3d at 338-39, 350; Starks v. State, 266 S.W.3d 605, 613 (Tex. App.-El Paso 2008, no pet.); Williams v. State, 10 S.W.3d 788, 789 (Tex. App.-Waco 2000, pet. ref'd). Therefore, because he did not raise his federal constitutional complaints about the voluntary nature of his plea in the court below, appellant's complaints have not been preserved for our review. Tex. R. App. P. 33.1. But even if he had not waived his federal constitutional challenges, appellant's theory that the trial court erred by failing to advise him of a forfeiture of rights he ultimately exercised is not persuasive. Appellant correctly observes that the beyond a reasonable doubt burden of proof does not apply to guilty pleas and pleas of nolo contendere. See Tex. Code Crim. Proc. Ann. art. 1.15 (West 2005). Even though the trial court was not required to apply the beyond a reasonable doubt burden of proof to the case, the record shows the trial court did, in fact, hold the State to the higher burden. The record also establishes appellant pleaded no contest rather than "not guilty" to give the trial court the option of granting deferred adjudication probation. Indeed, appellant was actually granted deferred adjudication. Despite this benefit, the trial court also allowed cross examination of the four witnesses called by the State and held the State to the constitutional beyond a reasonable doubt burden of proof. Therefore, the record as a whole refutes appellant's argument that his plea was not knowingly and voluntarily made. Appellant's first four issues are overruled.
Acknowledgment of Plea
In his fifth issue, appellant asserts the trial court erred in accepting his plea because he did not personally make the plea, and the trial court's pre-plea interaction with him was not sufficient to show that defense counsel "correctly represented" his plea to the court. The State responds that the record demonstrates appellant's desire to enter the no contest plea. A plea of guilty or a plea of nolo contendere must be made "in open court by the defendant in person." See Tex. Code Crim. Proc. Ann. art. 27.13 (West 2005). The purpose of article 27.13 is to establish "that the accused voluntarily desires to plead guilty." Castillo v. State, 146 S.W.3d 213, 217 (Tex. Crim. App. 2004). A defendant may enter a plea of guilty or nolo contendere through his attorney as long as the particular facts establish the defendant's desire to enter the plea. Id. Here, although appellant did not sign plea papers or verbally acknowledge the plea counsel entered on his behalf, he was present when his attorney entered his plea and voiced no objection. Moreover, the court referenced that it had accepted appellant's plea at the subsequent punishment hearing, and again, appellant voiced no objection. Although appellant claims his "mere presence and participation in the proceedings" is insufficient to demonstrate "any" compliance with article 27.13, there is nothing in the record to affirmatively demonstrate appellant did not desire to enter the plea. Although "the better practice is to inquire of the defendant personally about what his plea is," see id., on this record, we conclude the trial court substantially complied with article 27.13. Appellant's fifth issue is overruled.Voluntariness of Jury Waiver
In his sixth, seventh, and eighth issues, appellant asserts the trial court violated his statutory and due process rights to a voluntary jury waiver. Again, appellant complains about the trial court's failure to admonish him concerning the standard of proof and his waiver of the right to confront his accusers and cross-examine witnesses, and asserts that he "mistakenly believed that his jury waiver operated in concert with his no contest plea to allow him to contest his guilt." Relying on article 42.12 of the code of criminal procedure, appellant further contends the trial court failed to admonish him that the purpose of the waiver was to facilitate eligibility for deferred adjudication community supervision. We have already concluded appellant's constitutional challenges have been waived and his plea was voluntary. Therefore, we consider only appellant's statutory challenge to the jury waiver. Article 42.12 provides that after a plea of guilty or nolo contendere, hearing the evidence, and finding that the evidence substantiates guilt, the trial court "may defer further proceedings without entering an adjudication of guilt, and place a defendant on community supervision." See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(a) (West Supp. 2010). The statute does not require the court to instruct a defendant that by pleading no contest he will remain eligible to receive deferred adjudication community supervision. See id. In addition, in the presence of competent counsel, appellant verbally expressed his desire to waive a jury and acknowledged his signature on the written jury waiver form. The confusion appellant now professes does not equate to error. "A trial court is not required to instruct the accused on every aspect of the law even when he pleads guilty. It is not the court's function to act as legal counsel for appellant." Manoy v. State, 7 S.W.3d 771, 778-79 (Tex. App.-Tyler, no pet.). The trial court did not err by not instructing appellant under the statute and the record reflects appellant's jury waiver was voluntary. Appellant's sixth, seventh, and eighth issues are overruled. Having resolved all of appellant's issues against him, we affirm the trial court's deferred adjudication order.Although the trial court did not admonish appellant regarding the potential for deportation, neither appellant's citizenship nor the court's failure to give this admonishment are at issue here. See also, Anderson v. State, 182 S.W.3d 914, 919 (Tex. Crim. App. 2006) (failure to admonish defendant of consequence that does not apply is harmless).