MICHAEL GABRIEL CLARK, Appellant v. STATE OF TEXAS, Appellee

REVERSE and REMAND and Opinion Filed May 6, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-01664-CR
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MICHAEL GABRIEL CLARK, Appellant
V.
STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F08-24897-L
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OPINION
Before Justices Richter, Lang-Miers, and Murphy
Opinion By Justice Richter
        Appellant pleaded no contest to robbery. The trial court found him guilty and set punishment at confinement for six years. In four issues, appellant contends his constitutional and statutory rights were violated because the trial court did not admonish him about those rights, or the range of punishment. Appellant also contends the trial court violated his rights under the statutory jury waiver procedure. The State filed a response and conceded that the trial court did not properly admonish appellant in accordance with statutory and due process requirements. Accordingly, we reverse the trial court's judgment and remand for further proceedings.
 
 
BACKGROUND
        Appellant was initially charged with aggravated robbery with a deadly weapon. The parties orally agreed in advance of the trial that they would proceed on a robbery charge. Prior to commencement of the trial the following discussion took place on the record:
 
THE COURT:
 
Mr. Clark, you've gone over all the rights that you have in court with your attorney?
 
        THE DEFENDANT:
 
Yes, sir.
 
        THE COURT:
 
The Court has before it a document entitled Waiver of Jury. Did you sign that with your attorney?
 
        THE DEFENDANT:
 
Yes, sir.
 
        THE COURT:
 
And it is your desire to waive a jury in this case and proceed with a trial before the court?
 
        THE DEFENDANT:
 
Yes, sir.
 
        THE COURT:
 
Okay. The Court will grant that Motion.
 
        The Waiver of Jury document discussed above could not be located in the court record. There were no other admonishments on the record.
        Appellant testified on his own behalf and contested the charges against him. The trial court found appellant guilty of robbery and sentenced him to six years in the Institutional Division of the Texas Department of Corrections.
ADMONITIONS
        In his first four issues, appellant contends his due process and statutory rights to enter a knowing and intelligent plea were violated by failing to admonish him about his (1) constitutional rights; (2) statutory rights; and (3) range of punishment. In his final issue, appellant contends the trial court violated his rights under the statutory jury waiver procedure. All of the issues raised by appellant relate to whether he was properly admonished by the trial court and have been addressed together by both parties. Because the issues are related, and the State has conceded error, we will briefly address the issues together.
        A plea of guilty or nolo contendere is invalid unless the record affirmatively shows that the defendant understood the nature of the constitutional due process protections he was waiving by entry of the plea and the consequences of the plea. Boykin v. Alabama, 395 U.S. 238, 243 (1969); Gardner v. State, 164 S.W.3d 393, 397 (Tex. Crim. App. 2005). When a defendant enters a plea of guilty or nolo contendere he is waiving his privilege against self incrimination, right to a jury trial, and the right to confront one's accusers. Boykin, 395 U.S. 243-44. In addition, the Texas Code of Criminal Procedure requires certain admonishments be given to a defendant entering a plea of guilty or nolo contendere. Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2009).
        At the commencement of the proceeding at issue here, appellant entered a plea of nolo contendere. Other than referring to a Waiver of Jury document that appellant allegedly reviewed with his attorney, the trial court did not admonish appellant about his rights before accepting his plea and proceeding with a trial. The Waiver of Jury document could not be found in the record. Based upon the lack of admonishments in the record, the State has conceded appellant's plea was not made knowingly, intelligently, and voluntarily as required by Boykin. Boykin, 395 U.S. 243 (court cannot presume a waiver of rights from a silent record). Accordingly, we conclude that appellant's due process and statutory rights were violated, and the judgment of the trial court is reversed. This case is remanded to the trial court for a new trial.
 
 
 
 
                                                  
 
                                                          MARTIN RICHTER
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
081664F.U05