LESTER DELMER TAYLOR, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed December 30, 1996
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-94-01628-CR
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LESTER DELMER TAYLOR, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 366-80389-94 and 366-80389-94A
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O P I N I O N
Before Justices Morris, James, and Wolfe
Opinion By Justice Morris
        After entering pleas of guilty, Lester Delmer Taylor appeals his convictions for aggravated robbery and conspiracy to commit aggravated robbery. In two points of error, appellant contends the trial court improperly participated in the plea negotiations and erroneously failed to readmonish him after appellant decided to waive a jury trial for purposes of punishment. For the following reasons, we affirm the trial court's judgment.
 
 
Factual Background
        In one indictment, appellant was charged with one count of aggravated robbery and one count of conspiracy to commit aggravated robbery. Appellant informed the trial court he would plead guilty to both counts before a jury. After entering his pleas, appellant was called to testify before the court.
        Appellant testified that, after discussing his options with counsel and family members, he had rejected the State's plea bargain offer of twenty-five years' confinement. The trial court interrupted the examination and asked appellant if he was sure he wanted a jury to assess punishment. Appellant said yes. Defense counsel then asked if he could have a moment to speak with the prosecutor. The trial judge granted the request and also suggested that appellant confer with counsel one more time. The trial court told appellant he had "every right in the world" to have a jury assess punishment, but that it was possible the jury would assess punishment at life confinement.
        After a recess, counsel informed the court that appellant intended to go forward with his plea to a jury. The judge asked appellant, "You don't want anymore time to think about this?" Defense counsel then explained to the trial court that appellant wanted community supervision, and appellant's only hope for community supervision was to go to a jury for punishment. FN:1
        The trial court told appellant:
    Do you think that jury is going to give you probation with two counts and a handgun? I've been around a long time, Mr. Taylor. Look at me a minute. I want you to understand. You have got an absolute right to do this if you want to do it, but you are taking a big risk.
        Trial counsel then asked the court if appellant could have time to consult with his mother. The trial court granted defense counsel's request and warned appellant's mother that appellant was taking a terrible risk by going to a jury for punishment.
        When the proceedings reconvened, defense counsel submitted two signed plea bargain agreements to the trial court. The judge then stated:
    Mr. Taylor, you have insisted on pleading guilty to the crime of aggravated robbery and the crime of conspiracy to commit aggravated robbery, and you had asked the Court to find you guilty of both of these counts and yet to let a jury assess your punishment.
 
    It is my understanding now that you wish to change that and that you wish to accept a plea bargain agreement that's been agreed to by your attorney and the State's attorney; is that correct?
Appellant said, "Yes, sir." Appellant stated he was sure that was what he wanted to do. The trial judge sentenced appellant in accordance with the plea agreements to twenty and twenty-five years' confinement.
        After sentencing, appellant testified again. He stated that he had understood he would not have the right to appeal if he accepted the State's plea offer. He testified he made his decision to accept the plea bargain freely and voluntarily, and that he had had every opportunity to consult with counsel and express any questions or concerns he might have had.
 
Discussion
        We first address the State's contention that this appeal should be dismissed for want of jurisdiction because appellant failed to comply with the specific notice requirements of rule 40(b)(1) of the rules of appellate procedure. See Tex. R. App. P. 40(b)(1). In Flowers v. State, the court of criminal appeals held that an appellant may challenge the voluntariness of his negotiated plea despite noncompliance with the specific notice requirements of rule 40(b)(1). Flowers v. State, No. 1431-95, slip op. at 5 (Tex. Crim. App. Oct. 30, 1996). Both of appellant's complaints assert that error in the trial court rendered his plea involuntary. Consequently, we have jurisdiction to decide this appeal.
        In his first point of error, appellant contends the trial court erroneously injected itself into the plea negotiation process. He complains that the trial court's comments persuaded him to change his decision to go to the jury for punishment and thereby rendered his plea involuntary.
        A trial judge should carefully avoid participation or the appearance of participation in plea negotiations until such time as an agreement has been reached. Ex parte Shuflin, 528 S.W.2d 610, 617 (Tex. Crim. App. 1975). This is to avoid the appearance of judicial coercion or prejudgment of the defendant by the court. Perkins v. Court of Appeals, 738 S.W.2d 276, 282 (Tex. Crim. App. 1987). If a judge improperly participates in plea negotiations, we do not reverse if the record indicates beyond a reasonable doubt that appellant's plea was voluntary and not a result of judicial coercion. See Shuflin, 528 S.W.2d at 615; see also Tex. R. App. P. 81(b)(2).
        Even if we assume, which we do not decide, that the trial judge improperly participated in the plea negotiations, it is clear from the record before us that appellant's guilty plea and his decision to accept the State's offer were voluntary and not the result of judicial coercion. There is no evidence the trial judge coerced or misled appellant into pleading guilty. The judge only warned appellant about electing a jury as fact finder at punishment, and these warnings were tempered by his statements that appellant had every right to do so. It was defense counsel who twice asked the court for time to consult privately on the matter and ultimately convinced appellant to accept the State's plea offer. Appellant's testimony reflects that appellant changed his mind only after being given the opportunity to confer with counsel and with his mother and that appellant's decision was the voluntary and knowing product of reasoned, careful consultation.
        Although appellant had hoped a jury would recommend community supervision, he could not be certain it would have. Instead, appellant chose to accept a known sentence and testified that he did so freely and voluntarily. The fact that appellant now, in hindsight, thinks he should have risked going to a jury does not warrant the conclusion that appellant's decisions were involuntary at the time they were made. Based on the record before us, we conclude appellant's decision to enter a negotiated plea was not a product of judicial coercion. We overrule appellant's first point of error.
        In his second point of error, appellant contends the trial court should have "readmonished" him after he waived a jury for purposes of punishment. Appellant does not complain of nor cite to any particular deficiency in an article 26.13 admonishment. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 1998 & Supp. 1997). Rather, appellant complains in general that, when he was brought back to court after agreeing to waive a jury for purposes of punishment, he was not "readmonished" as to what rights he was waiving. Appellant asserts this rendered his guilty plea involuntary because, at the time his rights were initially waived, appellant was under the hope and expectation of receiving community supervision. Appellant acknowledges that he signed a written waiver of rights but argues he should have been given the opportunity to waive those rights again after he had accepted the State's plea offer.
        We presume appellant's plea was voluntary. See State v. Vasquez, 889 S.W.2d 588, 590 (Tex. App.--Houston [14th Dist.] 1994, no pet.). Appellant bears the burden to overcome this presumption. Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986). When a defendant agrees to the terms in a plea bargain agreement, he is deemed to have entered into the agreement knowingly and voluntarily unless he shows otherwise. Ex parte Williams, 637 S.W.2d 943, 947 (Tex. Crim. App. 1982), cert. denied, 462 U.S. 1108 (1983). A valid, intelligently made plea does not become "vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision." Vasquez, 889 S.W.2d at 590 (quoting Ex parte Evans, 690 S.W.2d 274, 277 (Tex. Crim. App. 1985)). Appellant's attestation of voluntariness at the plea hearing imposes a heavy burden on him to show later a lack of voluntariness. See Jones v. State, 855 S.W.2d 82, 84 (Tex. App.--Houston [14th Dist.] 1993, pet. ref'd).
        Appellant waived, in writing, his right to arraignment, his right not to testify, his right to testify, his right to confront and cross-examine witnesses, his right to subpoena witnesses, his right to a jury trial at the guilt phase, and his right to a presentence investigation. Appellant cites no authority and articulates no cognizable argument for his assertion that these waivers are ineffective because they were made when he had the hope and expectation of receiving community supervision. There is no evidence that appellant's waiver of these rights was conditioned on appellant's hope that a jury would recommend community supervision, such that his decision to enter a negotiated plea vitiated the waivers. Appellant does not claim that he would have withdrawn the waivers if given the chance.
        Even if we assume the waivers were rendered ineffective when appellant changed his punishment election, appellant fails to express how the lack of an opportunity to re-waive his rights retroactively rendered his otherwise voluntary plea unknowing and involuntary. Appellant's decision to plead guilty never wavered; he changed his mind only with respect to whether he would enter a plea agreement on punishment. Appellant does not contend that he did not get what he anticipated from the plea bargain agreement. We find no merit to appellant's general and unsupported complaint that the trial court's failure to "readmonish" appellant with respect to what rights he was waiving rendered his guilty plea involuntary. Appellant has not met his burden to overcome the presumption that his plea was voluntary.
        Liberally construing appellant's second point of error, appellant also complains he did not, after accepting the State's offer, waive his right to a jury trial at punishment. A jury waiver must be made in writing with the consent and approval of the court and the prosecutor. See Tex. Code Crim. Proc. Ann. art. 1.13 (Vernon Supp. 1997). Appellant's first written jury trial waiver was premature as to the punishment phase because it was made while appellant still intended to go to the jury for punishment. Appellant, however, made a second written jury trial waiver that is contained in the plea bargain agreement itself. This waiver is signed by appellant, defense counsel, the prosecutor, and the judge, and thus, satisfies the requirements of article 1.13. We overrule appellant's second point of error.
        We affirm the trial court's conviction.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
941628F.U05
 
FN:1 A trial court cannot grant community supervision for aggravated robbery. Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(1)(F) (Vernon Supp. 1997). And although the trial court could have placed appellant on deferred adjudication community supervision, Tex. Code Crim. Proc. Ann. art. 42.12, § 5(d) (Vernon Supp. 1997), the State apparently refused to waive its right to a jury trial in this case.
File Date[12-30-96]
File Name[941628F]