Opinion
No. 06-05-00159-CR
Submitted: December 7, 2005.
Decided: December 30, 2005. DO NOT PUBLISH.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court No. F00-00254-NS.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Thomas Andrew Sherrill appeals from his three convictions for aggravated sexual assault of a child and two convictions for indecency with a child. These charges, stemming from five separate indictments, were tried together. Sherrill pled nolo contendere, or no contest, to the charges. Following a bench trial, the court found him guilty of each charge and sentenced him to fifty years' imprisonment for each of the aggravated sexual assault convictions, and to twenty years' imprisonment for each of the indecency with a child convictions, and ordered all the sentences to run concurrently. Five separate appeals arising from these five convictions are presently pending before this Court. Sherrill raises identical issues and makes identical arguments in all five of the appeals. This appeal concerns a conviction for indecency with a child. Sherrill raises two points of error: 1) the trial court failed to properly admonish him within the guidelines of Article 26.13 of the Texas Code of Criminal Procedure; and 2) the pleas of nolo contendere were involuntary because counsel, rather than Sherrill, entered the pleas. We affirm.
Background Facts
The State's evidence showed that, over the course of approximately five years, Sherrill repeatedly sexually assaulted his stepdaughter, K.S., and his son, J.S., who were both under the age of fourteen years at the time of the assaults. Both K.S. and J.S. testified concerning this abuse. K.S. testified Sherrill forced her to have sexual intercourse or oral sex with him between one and three times a month. Once, Sherrill attempted to have anal sex with K.S.K.S. testified Sherrill touched her genitalia with his hand and put his tongue in her vagina on numerous occasions. When K.S. was twelve years old, she told her aunt about the abuse. J.S. testified Sherrill first forced him to touch Sherrill's penis on the outside of Sherrill's clothing, but eventually the assaults progressed to skin on skin contact. Sherrill forced J.S. to masturbate him on numerous occasions. J.S. testified that, on one occasion, Sherrill bent him face-down over the couch and forced him to have anal intercourse, which caused him considerable pain at the time and other problems for years to come. In addition, J.S. testified Sherrill touched J.S.'s genitalia "more than one time." Sherrill testified in his own behalf, and first denied abusing the children. After the court adjudged him guilty, but before assessment of punishment, Sherrill admitted committing the crimes alleged.Failure To Admonish
In his first point of error, Sherrill contends the trial court failed to admonish him in accordance with the requirements of Article 26.13 of the Code of Criminal Procedure. Article 26.13(a) requires the trial court to admonish a defendant, before accepting his or her plea, of (1) the punishment range, (2) the fact that the state's sentencing recommendation is not binding on the court, (3) the limited right to appeal in cases where the court follows a plea agreement, (4) the possibility of deportation, and (5) the fact the defendant would have to register as a sex offender if the conviction was for a sex offense. Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2005). The purpose of the admonishments is to ensure the defendant enters his or her plea with full knowledge of the consequences. See Carranza v. State, 980 S.W.2d 653, 656 (Tex.Crim.App. 1998). The admonishments under Article 26.13(a) are not constitutionally required, and their purpose and function is to assist the trial court in making the determination that a guilty plea is knowingly and voluntarily entered. See Aguirre-Mata v. State, 992 S.W.2d 495, 498-99 (Tex.Crim.App. 1999); Alvarez v. State, 63 S.W.3d 578, 581 (Tex.App.-Fort Worth 2001, no pet.). Before accepting Sherrill's plea of nolo contendere, the trial court admonished him as follows:THE COURT:. . . . Mr. Sherrill . . . you have five cases pending. You are charged with three aggravated sexual assaults and two indecency with children.The aggravated sexual assault is a first-degree felony and has a punishment range of a minimum of 5 years to a maximum of 99 years or life in the penitentiary. There can also be a fine of up to $10,000. The two indecencies are second-degree felonies and the punishment range is a minimum of 2 years to a maximum of 20 years in the Texas Department of Criminal Justice, and again there can be a fine of up to $10,000. Do you understand what you're charged with in each of these five cases?
THE DEFENDANT: Yes, sir.
THE COURT: Now Mr. Sherrill, you have a right to a jury trial. I know you've gone over all of these rights with your lawyer, but the law requires that I make sure you understand your rights.
Do you understand, sir, that you do have a right to a jury trial in each case if you wish a jury trial?
THE DEFENDANT: Yes, sir.
THE COURT: I've been told by your lawyer that you want to waive or give up your right to a jury trial in each case and have me decide your guilt or innocence; is that true, sir?
THE DEFENDANT: Yes, sir.
THE COURT: Are you waiving your right to a jury trial in each case freely and voluntarily?
THE DEFENDANT: Yes, sir.
THE COURT: Now Mr. Sherrill, I understand that you're going to enter a plea of no contest?
THE DEFENDANT: Yes, sir.
THE COURT: If you enter a plea of no contest, you can still be found guilty on that plea if the evidence proves your guilt. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: There is no admission of guilt, which means the State has the full burden of proof. They must prove you guilty beyond a reasonable doubt.But if they do so, I can find you guilty and sentence you anywhere within that 2 to 20-year range in two cases and anything within the 5 to 99-year or life range in the other three. Or I could defer a finding of guilt if I believed you were guilty and place you on probation for up to 10 years. I also can do any combination in between, meaning I might find you not guilty on some of the cases, guilty on some, not guilty on all of them, guilty on all of them. There are five separate cases. There will actually be five separate trials, even though we're hearing all the cases together. Do you understand that, sir?
THE DEFENDANT: Yes, sir.
THE COURT: And do you agree for us to hear all five cases together?
THE DEFENDANT: Yes, sir.
THE COURT: Also sir, I had you fill out some documents entitled "Court's Admonition to Sex Offenders." If I find you guilty or if the evidence proves your guilt and I place you on probation, you will be required to register as a sex offender. Do you understand that?
THE DEFENDANT: Yes, sir.
. . . .
THE COURT: And his plea in each case?
[DEFENSE COUNSEL]: No contest.
THE COURT: We will proceed with that plea.It is apparent the trial court orally admonished Sherrill concerning the range of punishment, the right to a jury trial, and the requirement to register as a sex offender if found guilty. In addition, the record contains a written admonishment concerning sex offender registration that was signed by Sherrill and the trial court. The record affirmatively establishes Sherrill received and signed the written sex offender admonishments before entering his no contest pleas. The record also contains a written waiver of the right to a jury trial. Nothing in the record indicates Sherrill did not understand the consequences of his waivers or did not desire to plead nolo contendere. We note, however, that the trial court did not explicitly admonish Sherrill of the fact that the State's sentencing recommendation was not binding on the court, of the limited right to appeal in cases where the court follows a plea agreement, or of the possibility of deportation. Any error concerning the Article 26.13 admonishments is nonconstitutional error which is subject to a Rule 44.2(b) harm analysis. Gardner v. State, 164 S.W.3d 393, 397-98 (Tex.Crim.App. 2005); Aguirre-Mata, 992 S.W.2d at 498-99; see Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997). Under Rule 44.2(b), we are to disregard the error unless it affects an appellant's substantial rights. See Tex.R.App.P. 44.2(b). A substantial right is affected when the error had a substantial injurious effect or influence on the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Neither party has the burden of proof in harmless error analysis. Trevino v. State, 100 S.W.3d 232, 241 (Tex.Crim.App. 2003); Ovalle v. State, 13 S.W.3d 774, 787 (Tex.Crim.App. 2000). None of these omitted admonishments were relevant to Sherrill and could not have factored in his decision to enter a plea of nolo contendere. The record indicates no plea agreement existed. Further, the record indicates Sherrill was born in the United States and is a United States citizen. Any error in failing to admonish Sherrill that the State's sentencing recommendation was not binding on the court, of the limited right to appeal in cases where the court follows a plea agreement, or of the possibility of deportation clearly did not affect Sherrill's substantive rights and is therefore harmless. The trial court properly admonished Sherrill concerning his right to a jury trial, the range of punishment, and the requirement to register as a sex offender if found guilty. Although the trial court failed to admonish Sherrill of the fact that the State's sentencing recommendation was not binding on the court, of the limited right to appeal in cases where the court follows a plea agreement, or of the possibility of deportation, any error was harmless. We overrule Sherrill's first point of error. Plea by Counsel In his second point of error, Sherrill contends the trial court erred in accepting a plea of nolo contendere from trial counsel contrary to Article 27.13 of the Code of Criminal Procedure. That Article reads as follows, in relevant part:
A plea of "guilty" or a plea of "nolo contendere" in a felony case must be made in open court by the defendant in person; and the proceedings shall be as provided in [Article] 26.13. . . . If the plea is before the judge alone, same may be made in the same manner as is provided for by Articles 1.13 and 1.15.Tex. Code Crim. Proc. Ann. art. 27.13 (Vernon 1989). Although "the better practice is to inquire of the defendant personally what his plea is," Article 27.13 can be complied with even if the attorney enters the formal plea. A defendant may enter a guilty plea or nolo contendere plea in a felony case through his or her attorney so long as it occurs in open court, in the presence of the defendant, and the circumstances are sufficient to show compliance with Article 27.13. See Shields, 608 S.W.2d at 927; see also Costilla, 146 S.W.3d at 217. "[A]ny complaint arguing deviation from Article 27.13 should be evaluated under the particular facts of that case to determine whether the trial court complied with the applicable law." Costilla, 146 S.W.3d at 217. In Shields, the trial court had accepted a nolo contendere plea entered by counsel and not personally by appellant. Shields, 608 S.W.2d at 927. After defense counsel had stated the defendant pled nolo contendere, the trial court asked Shields whether anyone had promised him anything in order to make him enter the plea, to which he responded "no," and asked him whether he was entering the plea voluntarily, to which he answered "yes." Id. The Texas Court of Criminal Appeals held that the dialogue between the trial court and Shields indicated "a compliance not only with the spirit but with the letter of Article 27.13." Id. The facts of this case indicate the trial court complied with Article 27.13. While mere presence of the defendant during the plea is not sufficient to comply with the statute, there was sufficient interaction between the trial court and the defendant to constitute compliance with Article 26.13. Sherrill contends the trial court should have questioned him as to whether the pleas were his actual pleas. The trial court, though, did inquire into whether Sherrill desired to plead no contest. Before the formal plea, the trial court asked Sherrill: "Now Mr. Sherrill, I understand that you're going to enter a plea of no contest?" Sherrill answered, "Yes, sir." The trial court then explained the significance of a nolo contendere plea, and Sherrill affirmatively stated he understood its significance. Sherrill affirmatively answered the trial court's question as to whether he understood the five charges against him and his right to have a trial by jury, whether he had waived the right freely and voluntarily, whether he understood the punishment ranges for each offense, and whether he understood the sex offender laws. Nothing in the record indicates the defense counsel entered the plea without Sherrill's knowledge, understanding, and consent or that Sherrill was confused about his rights, the proceedings, or his plea. The facts show compliance with Article 27.13. We overrule Sherrill's second point of error.
Conclusion
The trial court properly admonished Sherrill concerning the range of punishment, the right to a jury trial, and the requirement to register as a sex offender if found guilty. Any error in failing to give the remaining admonishments under Article 26.13 is harmless. The facts of the case indicate the trial court complied with Article 27.13. Accordingly, we affirm the judgment.Sherrill became romantically involved with K.S.'s mother when K.S. was approximately one year old. During the time the assaults occurred, K.S. did not have contact with her biological father and believed Sherrill was her father. After Sherrill and K.S.'s mother separated, both K.S. and J.S. visited Sherrill every other weekend.
We note that the trial court did not sua sponte withdraw Sherrill's plea of nolo contendere despite Sherrill's testimony that he did not commit the acts alleged. When a defendant has waived his or her right to a jury trial, the trial court is not required to make a sua sponte withdrawal of the defendant's plea of guilty or nolo contendere. See Aldrich v. State, 104 S.W.3d 890, 893 (Tex.Crim.App. 2003).
We note Sherrill also argues that, because he was not adequately admonished, his plea was not made freely or voluntarily. Sherrill's brief fails to specify whether his involuntary plea argument is based on statutory requirements or an allegation of constitutional due process violations. The Code of Criminal Procedure requires that the plea be made freely and voluntarily. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2005). When a plea of guilty is entered in a criminal trial, the defendant waives "the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment," the right to trial by jury, and "the right to confront one's accusers." Boykin v. Alabama, 395 U.S. 238, 243 (1969). Due process of law requires that "[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748 (1970). Sherrill makes this argument in conjunction with his other arguments. Whether a plea is not made intelligently and voluntarily in violation of the Due Process Clause is a separate issue from whether the trial court properly admonished a defendant under Article 26.13. Gardner, 164 S.W.3d at 398. Because this issue was not raised by a separate point of error nor argued separately, Sherrill's argument is patently multifarious. See, e.g., Harris v. State, 133 S.W.3d 760, 764 n. 3 (Tex.App.-Texarkana 2004, pet. ref'd). In addition, Sherrill provides no authority independent of his other arguments in support of his argument that the plea was not made knowingly or voluntarily. Therefore, this issue is inadequately briefed. See Tex.R.App.P. 38.1; see, e.g., Vuong v. State, 830 S.W.2d 929, 940 (Tex.Crim.App. 1992). Nonetheless, the record indicates Sherrill freely, knowingly, and voluntarily pled nolo contendere. When reviewing the voluntariness of a guilty plea, the record is viewed as a whole and voluntariness of a plea is determined by the totality of the circumstances. See Griffin v. State, 703 S.W.2d 193, 196 (Tex.Crim.App. 1986); Williams v. State, 522 S.W.2d 483, 485 (Tex.Crim.App. 1975); Ybarra v. State, 960 S.W.2d 742, 745 (Tex.App.-Dallas 1997, no pet.). Under the totality of the circumstances, the record indicates Sherrill knowingly, intelligently, freely, and voluntarily pled nolo contendere.
Articles 1.13 and 1.15 of the Code of Criminal Procedure refer to a defendant's waiver of trial by jury. See Tex. Code Crim. Proc. Ann. arts. 1.13, 1.15 (Vernon 2005).
Costilla v. State, 146 S.W.3d 213, 217 (Tex.Crim.App. 2004) (plea entered in open court in presence of bilingual attorney on behalf of a non-English speaking defendant); Shields v. State, 608 S.W.2d 924, 927 (Tex.Crim.App. [Panel Op.] 1980) (plea occurred in presence of defendant and record contained sufficient interaction between trial court and indicated defendant fully understood proceedings and plea); Manoy v. State, 7 S.W.3d 771, 778 (Tex.App.-Tyler 1999, no pet.) (appellant's affirmative responses when asked whether it was his understanding that he was "pleading guilty" and to other questions indicated compliance); Adkison v. State, 762 S.W.2d 255, 258-59 (Tex.App.-Beaumont 1988, pet. ref'd) (substantial interaction between trial court and defendant indicated defendant fully understood proceedings and plea). But see Williams v. State, 770 S.W.2d 81, 84 (Tex.App.-Dallas 1989, no pet.) (record did not indicate sufficient interaction to constitute compliance); Mendez v. State, 892 S.W.2d 81, 83 (Tex.App.-Texarkana 1994), rev'd on other gounds, 914 S.W.2d 579 (Tex.Crim.App. 1996) (mere presence not sufficient to show compliance when record contained no response that could be interpreted as accepting plea or agreeing with statement by defendant's counsel).
We note that, in Costilla, the Beaumont Court of Appeals interpreted Shields to hold that "Article 27.13 is complied with, regardless of who actually speaks, so long as it occurs in open court, in the presence of the defendant, who acknowledges the plea as his." 84 S.W.3d 361, 364 (Tex.App.-Beaumont 2002), aff'd, 146 S.W.3d 213 (Tex.Crim.App. 2004). The Texas Court of Criminal Appeals affirmed the decision of the Beaumont court, but specifically noted that Shields could not be construed so broadly. Costillo, 146 S.W.3d at 216.
Mendez, 892 S.W.2d at 83.