Reis, Wesley Alan v. The State of Texas--Appeal from 337th District Court of Harris County

Affirmed and Memorandum Opinion filed August 18, 2005

Affirmed and Memorandum Opinion filed August 18, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01070-CR

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WESLEY ALAN REIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 924,605

M E M O R A N D U M O P I N I O N

Appellant, Wesley Alan Reis, was indicted for the offense of intoxication manslaughter. After the jury was selected and sworn in, appellant pled guilty to intoxication manslaughter. After a hearing on punishment, the jury found appellant guilty of intoxication manslaughter and assessed his punishment at eight years= incarceration in the Texas Department of Criminal Justice, Institutional Division. Appellant contends the trial court=s failure to admonish him of his right against compulsory self-incrimination, his right to a jury trial, his right to confront witnesses, and the range of punishment require reversal of his conviction. We affirm.

In his first three issues, appellant contends that under the United States Supreme Court=s opinion in Boykin v. Alabama, he waived his right against self-incrimination, his right to a jury trial, and his right to confront witnesses, and therefore should have been admonished of these rights. 395 U.S. 238 (1969). In Boykin, the Court stated:

Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Second, is the right to trial by jury. Third, is the right to confront one=s accusers.

Id. at 243 (citations omitted). As explained below, appellant=s arguments have been previously addressed and rejected.

In his first issue, appellant asserts the trial court erred in failing to admonish him of his right against self-incrimination or to obtain a waiver of such right. However, A[t]here is no requirement that appellant be informed of his right against self-incrimination at trial upon a plea of guilty.@ Williams v. State, 674 S.W.2d 315, 320 (Tex. Crim. App. 1984). In any event, appellant exercised his right not to incriminate himself when he chose not to testify during the punishment hearing. See Salazar v. State, 31 S.W.3d 726, 729 (Tex. App.CCorpus Christi 2000), rev=d on other grounds, 86 S.W.3d 640 (Tex. Crim. App. 2002) (stating that appellant exercised his right to refrain from testifying against himself during punishment phase of trial). Appellant=s first issue is overruled.

In his second issue, appellant complains the trial court erred in not admonishing him of his right to a jury trial or obtaining a waiver of such right. The Texas Court of Criminal Appeal has held that a plea of guilty before a jury is a trial by jury and does not constitute a waiver of trial by jury. Williams, 674 S.W.2d at 318. Appellant suggests the decision in Williams is Asquarely in conflict@ with the Supreme Court=s decision in Boykin. However, we note that, the Court of Criminal Appeals decided Williams 15 years after the decision in Boykin. As an intermediate appellate court, we are bound by pronouncements of law by the Court of Criminal Appeals, which has repeatedly and expressly rejected the contention that pleading guilty before a jury is a waiver of a jury trial. LeBlanc v. State, 138 S.W.3d 603, 606 (Tex. App.CHouston [14th Dist.] 2004, no pet.); Rodriguez v. State, 47 S.W.3d 86, 94B95 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).

Appellant further contends that Williams is inconsistent with the later Court of Criminal Appeals opinion, Matchett v. State, which, according to appellant, implies that a plea before a jury is not a jury trial because the court found it was error not to provide Article 26.13(a) admonishments[1] to a defendant who pleaded guilty to a jury in a capital murder trial. 941 S.W.2d 922 (Tex. Crim. App. 1996). To the contrary, the Matchett court reiterated the long-established rule that a plea before a jury is not a waiver of a jury trial and cited Williams in support of that rule. See id. at 930 (AWhile our language has emphasized that a plea of guilty before a jury is not a waiver of a jury trial, . . .@) (citing Holland v. State, 761 S.W.2d 307, 313 (Tex. Crim. App. 1988); Williams, 674 S.W.2d at 319)) (emphasis in original). Appellant=s second issue is overruled.

In his third issue, appellant claims the trial court erred in not admonishing him of his right to confront witnesses or obtaining a waiver of such right. A defendant, however, does not waive his right to confront and cross-examine witnesses by pleading guilty before a jury. Garcia v. State, 877 S.W.2d 809, 812 (Tex. App.CCorpus Christi 1994, pet. ref=d). In any event, the record reflects that appellant exercised his right to confront witnesses when his trial counsel cross-examined 11 of the 16 witnesses called by the State during the hearing on punishment, as well as calling four of his own witnesses. See Williams, 674 S.W.2d at 319B20 (observing that appellant exercised confrontation right during jury trial on guilty plea and on punishment); Salazar, 31 S.W.3d at 729 (stating that appellant exercised his right to confront opposing witnesses during punishment phase of trial). Appellant=s third issue is overruled.

In his fourth issue, appellant complains the trial court erred in failing to admonish him on the applicable range of punishment. Appellant contends this omission violated the Fifth and Fourteenth Amendments and that such error is Astructural error,@ requiring reversal without a harm analysis. In support of his position appellant relies again on the Supreme Court=s opinion in Boykin. However, in Aguirre-Mata v. State, the Texas Court of Criminal Appeals squarely rejected this contention. 125 S.W.3d 473 (Tex. Crim. App. 2003). The Aguirre-Mata court explained that Boykin held it was a due process violation for the trial court to accept the defendant=s guilty plea without an affirmative showing Aspread on the record@ that the plea was Aintelligent and voluntary,@ and this constitutional error in failing to make an adequate record required reversal without regard to harm analysis. Id. at 474B75 (citing Boykin, 395 U.S. at 242B44).

However, the court further explained that Boykin Adid not specifically set out what due process requires to be >spread on the record= except to say generally that state courts should make sure that a guilty-pleading defendant >has a full understanding of what the plea connotes and of its consequences.=@ Id. at 475. Moreover, ABoykin clearly did not hold that due process requires the equivalent of the Article 26.13(a) admonishments or an admonishment on the range of punishment.@ Id. at 476. The Aguirre-Mata court determined there was no Supreme Court authority holding either that due process requires an admonishment on the range of punishment on a guilty plea or that the failure to give such admonishment renders a guilty plea invalid. Id. at 475 n.7.

Instead, the court observed that McCarthy v. United States, which was decided during the same term as Boykin, stated the admonishments in the federal equivalent of Article 26.13(a) have A>not been constitutionally mandated= and that these admonishments are >designed to assist the district judge in making the constitutionally required determination that the guilty plea was truly voluntary.=@ Id. at 475B76 (citing McCarthy v. United States, 394 U.S. 459, 465 (1969)).[2] Appellant=s fourth issue is overruled.

In his fifth issue, appellant complains the trial court erred in failing to admonish him on the range of punishment pursuant to Article 26.13(a) of the Texas Code of Criminal Procedure before accepting his guilty plea. The failure to admonish a defendant on the range of punishment pursuant to article 26.13 prior to accepting a guilty plea is non-constitutional error; therefore, the harm analysis is to be conducted under Rule 44.2(b) of the Texas Rule of Appellate Procedure. Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002) (citing Aguirre-Mata v. State, 992 S.W.2d 495, 499 (Tex. Crim. App. 1999)); see also Tex. Rule App. P. 44.2(b). For complaints involving non-constitutional error, the reviewing court should not overturn a conviction unless, after examining the record as a whole, it concludes the error had a substantial influence on the outcome of the proceeding. Burnett, 88 S.W.3d at 637 (quoting Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988)). In other words, if the reviewing court has Aa grave doubt@ that the result was free from the substantial influence of the error, then it must treat the result as if that were the case. Id. at 637. A>Grave doubt= means that >in the judge=s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.=@ Id. at 637B38 (quoting O=Neal v. McAninch, 513 U.S. 432, 433B36 (1995)).

In our review, we must examine the record for indications that appellant was not aware of the consequences of his plea and whether the trial court=s failure to admonish him of the punishment range misled or harmed him. Id. at 638. Thus, to warrant a reversal, the record must support an inference that appellant did not know the consequences of his plea. Id. A silent record will support such an inference. Id. We may, however, also consider facts from which it could reasonably be inferred that appellant knew the consequences of his plea or was actually aware of the range of punishment. Id.

Here, appellant entered his guilty plea after the jury was selected and sworn in. During voir dire, the trial court explained several times that the felony offense of intoxication manslaughter may be punished by incarceration for a term of years not less than 2 nor more than 20 years and a $10,000 fine, and that the jury must be able to consider the full range of punishment. Similarly, when the prosecutor was allowed to question the voir dire panel, she emphasized several times that the jury would have to be able to consider the full range of punishment, reiterating the range of punishmentC2 to 20 years= incarceration or probation.

After both the State and appellant had rested, the trial court read the charge to the jury, which stated the range of punishment. In his closing argument, appellant=s trial counsel referred to the range of punishment, while the prosecutor, in her closing argument, asked for a term of 20 years=incarceration.

We find no evidence supporting any inference that appellant did not know the consequences of his plea, but, instead, find evidence showing that he knew the range of punishment. See id. at 641 (concluding, after examining entire record, there was no evidence to support an inference that defendant did not know consequences of his plea, but, instead, there was Aa great deal of evidence@ demonstrating that defendant was aware of range of punishment, and failure to admonish neither misled nor harmed defendant).[3] Therefore, the trial court=s error in failing to admonish appellant on the range of punishment under article 26.13(a) was harmless. Appellant=s fifth issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed August 18, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2004B05).

[2] Also in support of this contention, appellant relies on a dissenting opinion in Aguirre-Mata, Aguirre-Mata v. State, 125 S.W.3d 473, 484 (Tex. Crim. App. 2003) (Johnson, J., dissenting) (stating complete failure to admonish under Article 26.13(a)(1) is due process violation, which, under Boykin, is structural error immune from harm analysis), and two courts of appeals concurring opinions, Aguirre-Mata v. State, 26 S.W.3d 922, 927 (Tex. App.CHouston [1st Dist.] 2000), aff=d, 125 S.W.3d 473 (Tex. Crim. App. 2003) (O=Connor, J., concurring on remand) (stating admonishment on range of punishment is constitutionally required to ensure defendant makes knowing and voluntary guilty plea, such admonishment is constitutionally protected, and as constitutional error, it should be reviewed under Texas Rule of Appellate Procedure 44.2(a)); High v. State, 998 S.W.2d 642, 646B47 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d) (Cohen, J., concurring on remand) (stating that under Boykin, failure to admonish on range of punishment is constitutional error, error occurs when constitutionally required admonishments are spread upon record, and absence of such record requires reversal without allegation or proof of harm). However, the Court of Criminal Appeal=s majority opinion in Aguirre-Mata is our controlling authority and we, accordingly, decline to follow the dissenting and concurring opinions cited by appellant. See LeBlanc, 138 S.W.3d at 606; Rodriguez, 47 S.W.3d at 94B95.

[3] Appellant asks this court to adopt a Rule 44.2(b) (non-constitutional) harm analysis under which there is harm if there is no direct evidence that a guilty-pleading defendant understood the range of punishment. The Court of Criminal Appeals has rejected this analysisCAthat the record must clearly show that appellant knew the consequences of his plea.@ Burnett, 88 S.W.3d at 638. Instead, the correct test is whether anything suggests the defendant Adid not know the consequences of his plea.@ Id. (emphasis in original); see also Aguirre-Mata, 125 S.W.3d at 476B77 (observing that record contained references to correct punishment range and that nothing in record showed appellant was unaware of consequences of his guilty plea or that he was misled or harmed).