Opinion
03-22-00635-CR
06-12-2024
Matthew James Wright, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE 33RD DISTRICT COURT OF BURNET COUNTY NO. 50955, THE HONORABLE J. ALLAN GARRETT, JUDGE PRESIDING
Before Byrne, Chief Justice, Smith and Theofanis Justices
MEMORANDUM OPINION
Darlene Byrne, Chief Justice.
A jury found Matthew James Wright guilty of three counts of second-degree felony sexual assault of a child and assessed sentence at eleven years in prison on each count, with two of the counts running concurrently to each other and consecutively to the third count. See Tex. Penal Code § 22.011(a)(2). Wright contends that the trial court erred by ordering him to pay court-appointed attorney's fees because he remains indigent. He also complains that the trial court's involvement in plea negotiations placed undue influence on him to go to trial and interfered with attorney-client privileged discussions. We will modify the judgment to delete the assessment of attorney's fees and affirm the judgment as modified.
The State concedes Wright's first issue urging that the trial court erred by ordering him to pay court-appointed attorney's fees associated with Count II of the indictment. We sustain this issue because Wright was found to be indigent by the trial court and should have been presumed indigent until a material change in his financial circumstances was shown. See Tex. Code Crim. Proc. art. 26.04(p); Kelly v. State, 453 S.W.3d 634, 644 (Tex. Crim. App. 2015). The State did not move for reconsideration of the indigency finding, and the court did not make any express finding that he was no longer indigent. The trial court erred by assessing attorney's fees against Wright. We sustain this issue and will delete the assessment of fees from the judgment on Count II.
Wright was acquitted on Count I (continuous sexual assault of a child) and convicted on Counts II, III, and IV (separate sexual assaults of a child).
In his second issue, Wright argues that the trial court's engagement in the plea negotiations violated his right to a neutral and detached magistrate. During a hearing a week before the trial began, the court inquired about plea negotiations. The parties and court discussed some of the terms, and the court told Wright it would not accept a plea agreement after that hearing. The court asked Wright if he understood that the punishment range included life in prison-and the State interjected that it could move to run the sentences on various counts consecutively. The court asked Wright's counsel if he knew what the last offer was, and counsel responded that the offer was "15 to do" on one count with parole eligibility at half of that time, followed by 10 years of probation on Count II. The court asked Wright if he had heard that offer. Wright said he had heard it that morning and asked for five minutes to discuss it further with his counsel. Upon returning from that conference, Wright rejected the offer.
Although Texas trial judges are not expressly prohibited by any statute or any rule of law from participating in a plea-bargaining session, the Court of Criminal Appeals has "suggested that a trial judge should not participate in any plea bargain agreement discussions until an agreement has been reached between the prosecutor and the defendant." Perkins v. Court of Appeals for Third Supreme Jud. Dist. of Tex., at Austin, 738 S.W.2d 276, 282 (Tex. Crim. App. 1987). Refraining from such participation would help "avoid the appearance of any judicial coercion or prejudgment of the defendant since such influence might affect the voluntariness of the defendant's plea." Id. The trial court's only role in the plea-bargain process is to inquire whether a plea agreement exists and to advise the defendant whether it will accept or reject the plea bargain. Moore v. State, 295 S.W.3d 329, 331-32 (Tex. Crim. App. 2009); State v. Villarreal, 418 S.W.3d 920, 925 (Tex. App.-Austin 2013, no pet.); see Tex. Code Crim. Proc. art. 26.13.
The Texas state system is distinct from the federal system in which judges are expressly forbidden from participating in discussions intended to reach a plea bargain. See Fed. R. Crim. P. 11(c); see also Perkins v. Court of Appeals for Third Supreme Jud. Dist. of Tex., at Austin, 738 S.W.2d 276, 282 (Tex. Crim. App. 1987).
Wright argues that the trial court's requiring his attorney to state the offered plea bargain on the record violated attorney-client privilege and that the discussion of his parole eligibility provided inaccurate information. He asserts that the discussions regarding parole did not include any discussion of civil commitment as a sexual predator or the effect of Texas Department of Criminal Justice policies on his mandatory release, the effect that being released erroneously would have on his sentence, and the effect of violations of the rules of parole. Further, he asserts that neither the court nor the prosecutor can control credit for good time or control the parole process. Wright argues that the trial court inaccurately discussed these issues.
Wright did not preserve this error because he did not timely object to any comment or action by the trial court. See Tex. R. App. P. 33.1(a) (stating that, to preserve error, record must show that timely complaint was made to trial court, which ruled on request or refused to rule and complaining party objected to refusal); Hallmark v. State, 541 S.W.3d 167, 170 (Tex. Crim. App. 2017) (explaining that "a defendant forfeits error if he fails to object to a trial judge's improper participation in plea negotiations"); see also Curry v. State, 186 S.W.3d 39, 42 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (concluding that due-process challenge was waived and explaining that, with exception of facial challenges to statutes or attacks on constitutionality of statute that serves as basis for conviction, "[c]onstitutional rights, including the rights of due process and due course of law, may be waived if the proper request, objection, or motion is not asserted in the trial court"); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.- Houston [1st Dist.] 1997, pet. ref'd) (observing "that almost every right, constitutional and statutory, may be waived by failing to object"). Moreover, even if he had objected, it is not clear that a constitutional-rights violation occurred. For example, the trial court in this case inquired if defense counsel knew what the terms of the plea offer were, but counsel's response disclosing terms of the State's offer did not disclose information shielded by the attorney-client privilege because that information had necessarily already been conveyed to Wright's counsel by the State's attorney. See Tex. R. Evid. 503(a) (defining attorney-client privilege as confidential communications not intended to be disclosed to third persons other than those to whom disclosure is made to further the rendition of professional legal services).
However, assuming that the comments were preserved error, we will examine the record for harmful error concerning constitutional rights-e.g., the right to due process. See Tex. R. App. P. 44.2(a) (setting standard that, for constitutional error, court must reverse unless court determines beyond reasonable doubt that error did not contribute to conviction or punishment); cf. Liteky v. United States, 510 U.S 540, 555 (1994) (to show unconstitutional bias, judge's comments must show deep-seated favoritism or antagonism that would make fair judgment impossible). We conclude that the trial court's questions and comments caused no harm. Wright asserts that the trial court's "repeated and extensive description of adverse consequences to Appellant if the plea offer was rejected were akin to the court advocating a preference for the proposed plea offer and the belief that the plea was in Appellant's best interest." Wright nevertheless rejected the plea and was not harmed by any pressure to accept the plea. See Foth v. State, No. 03-18-00085-CR, 2019 WL 1474674, at *5 (Tex. App.-Austin Apr. 4, 2019, no pet.) (mem. op., not designated for publication) (rejecting claim that trial court's pressure to accept plea offer harmed defendant because defendant rejected plea offer). Also, the record does not indicate that Wright's rejection of the plea resulted in any unfavorable treatment by the trial court at any point. We conclude beyond a reasonable doubt that any error in the trial court's interactions with Wright and his attorney regarding the plea offer did not contribute to Wright's conviction or punishment.
CONCLUSION
We modify the trial court's judgment for Count II to delete the assessment of attorney's fees and affirm the judgments in all other respects.