Corey Craig v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

No. 04-99-00035-CR
Corey CRAIG,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th District Court, Bexar County, Texas
Trial Court No. 97-CR-0689
Honorable Pat Priest, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Alma L. L pez, Justice

Delivered and Filed: October 13, 1999

AFFIRMED

Corey Craig appeals his conviction of aggravated assault causing serious bodily injury. In his sole point of error, Craig contends that his no contest plea violated due process because "[t]he record fails to reflect that the trial judge fully admonished" Craig of the consequences of his plea. We affirm.

I.

Craig was charged with aggravated assault in two paragraphs of the indictment. As part of a plea bargain, Craig agreed to enter a plea of nolo contendre in exchange for the State proceeding under one paragraph only. The plea bargain recommended punishment not to exceed 10 years imprisonment; the recommended fine was $1,000. Following a plea of "no contest," the trial court sentenced Craig to 10 years imprisonment in the Texas Department of Criminal Justice Institutional Division.

II.

In his sole point of error, Craig contends that the trial court failed to admonish him of his constitutional rights and range of punishment. Craig also asserts that the trial court did not advise him of the consequences of a nolo contendre plea, that is, "that he could be found guilty by the judge after making a plea of no contest and that it would operate in effect as a plea of guilty." The State responds by arguing that we should dismiss Craig's appeal for failure to comply with Texas Rule of Appellate Procedure 25.2(b)(3). The State also asserts in the alternative that Craig was fully admonished according to article 26.13 of the Texas Code of Criminal Procedure. For the purpose of this appeal, we will assume that we have jurisdiction to address the merits of Craig's claim.(1)

Article 26.13 of the Texas Code of Criminal Procedure states, in part:

(a) Prior to accepting a plea of...nolo contendre, the court shall admonish the defendant of:

(1) the range of the punishment attached to the offense;

(2) the fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court.... Should the court reject any such agreement, the defendant shall be permitted to withdraw his plea of guilty or nolo contendre; [and]

(3) the fact that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, the trial court must give its permission to the defendant before he may prosecute an appeal on any matter in the case except for those matters raised by written motions filed prior to trial.

...

(b) No plea of guilty or plea of nolo contendre shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.

(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.

(d) The court may make the admonitions required by this article either orally or in writing. If the court makes the admonitions in writing, it must receive a statement signed by the defendant and the defendant's attorney that he understands the admonitions and is aware of the consequences of his plea. If the defendant is unable or refuses to sign the statement, the court shall make the admonitions orally.

Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 1989). The Texas Court of Criminal Appeals has long held that failure to issue the appropriate admonishments is ground for reversal of the trial court's judgment of conviction. See, e.g., Williams v. State, 415 S.W.2d 917, 919 (Tex. Crim. App. 1967); Alexander v. State, 288 S.W.2d 779, 780 (Tex. Crim. App. 1956).

In the present case, the record reveals that Craig signed a document entitled "Court's Admonishment and Defendant's Waivers and Affidavit of Admonitions," prior to entering a plea of guilty, that contained the following statements:

(1) the range of punishment for aggravated assault causing serious bodily injury (at the time of the offense) is 2-20 years and the possible fine could be up to $10,000;

(2) a recommendation of the prosecuting attorney as to punishment is not binding on the trial court; and

(3) additional written admonitions as required by article 26.13(2)-(3).

The record also shows that the trial court made the following oral admonitions to Craig:

THE COURT: A person accused of any criminal offense is entitled by the Constitution and laws of Texas and the statutes of Texas to a jury trial; is entitled to confront the witnesses in open court and have them cross-examined by counsel. He has many other legal and constitutional rights that are discussed in a document called Court's Admonisments [sic] and Defendant's Waivers and Affidavit of Admonitions, which have been filed.... Did you [and your attorney] have an opportunity to go over that document?

CRAIG: Yes, sir.

THE COURT: Did you understand the document?

CRAIG: Yes, sir.

THE COURT: Did you know that if you signed the document that you would be waiving all those rights, except the right to his assistance as your lawyer?

CRAIG: Yes, sir.

THE COURT: Is this your signature?

CRAIG: Yes, sir.

THE COURT: ...If you have a plea bargain agreement with the prosecutor that includes a recommendation by the prosecutor as to your punishment, it is the law of Texas that I do not have to go along with your agreement.... Do you understand all of that?

CRAIG: Yes, Your Honor.

THE COURT: There is a document called plea bargain which is affixed to the Waivers and Affidavit of Admonition. It indicates that you have a plea bargain agreement. The agreement is if you'll plead guilty or no contest, the State will recommend that I assess no more than ten years.... Is that your understanding of the agreement...?

CRAIG: Yes, sir.

...

THE COURT: ...[To Craig's attorney] You are satisfied ... that Mr. Craig has a rational as well as factual understanding of the charge and the proceeding?

DEFENSE Yes, sir, I am.

COUNSEL:

THE COURT: He's been able to assist you in preparing any potential defense?

DEFENSE Yes, he has.

COUNSEL:

THE COURT: You believe he's mentally competent, apparently, to waive these right rights [sic] and enter this plea?

DEFENSE I do.

COUNSEL:

(emphasis added). Based upon our review of the record, we conclude that the trial court admonished Craig, both orally and in writing, as to the effect of entering a plea of "no contest."

Although Craig does not complain of the voluntariness of his plea, he asserts that he did not understand the effect of his "no contest" plea. Cf. Harling v. State, 899 S.W.2d 9, 13-14 (Tex. App.-San Antonio 1995, pet. ref'd) (considering appellant's contention, who was "essentially arguing under the guise of ineffective assistance of counsel that his plea was involuntary"). In Harling, because the appellant received the necessary admonishments before the trial court accepted his plea, the appellant had the burden to establish that his plea was involuntary. See id. As we noted in Harling, a defendant who attests in the trial court that the plea is voluntary has a heavy burden on appeal to show that the plea was, indeed, involuntary. See id. In order to decide whether the plea was voluntary, we must review the entire record, "including the written stipulations and waivers". Id.

We return to the "Court's Admonishment and Defendant's Waivers and Affidavit of Admonitions." This document states, in part:

I have had my Constitutional and legal rights explained to me by my attorney, and have decided to waive my Constitutional right of trial.... I have not been threatened, coerced, or placed in fear by any person to induce me to enter my plea.... If my plea is one of NOLO CONTENDRE, it is because I have considered all aspects of my legal situation and discussed them with my attorney and have determined that the entry of such plea is in my own best interest.... I am satisfied with the advice and representation of my attorney in this case.

Craig's signature appears immediately below the latter statement.

We conclude that Craig made a voluntary plea of no contest and that he knew of the consequences of making such a plea.

III.

We affirm the entry of judgment of conviction of the trial court.

Phil Hardberger, Chief Justice

DO NOT PUBLISH

1. As this court pointed out recently, the Texas Court of Criminal Appeals has historically construed Rule 40(b)(1) to allow a defendant to attack the voluntariness of a plea on appeal. See Martinez v. State, No. 04-99-00020-CR, slip op. at 4 n.3, 1999 WL 623726 (Tex. App.-San Antonio Aug. 18, 1999, no pet. h.); see also Flowers v. State, 935 S.W.2d 131, 133-34 (Tex. Crim. App. 1996). Flowers is construed in this manner because a defendant in Texas has always been able to challenge a plea-bargained conviction on the basis that his plea was not freely and voluntarily entered; even the Helms rule allows review of such a challenge. See id. at 134; see generally Helms v. State, 484 S.W.2d 925 (Tex. Crim. App. 1972). After Flowers, an appeal governed by Rule 40(b)(1) could concern matters raised with the trial court's permission, pretrial issues raised by written motion, jurisdictional matters, as well as the voluntariness of the defendant's plea. See Elizondo v. State, 979 S.W.2d 823, 823 (Tex. App.-Waco 1998, no pet.).

Courts are divided on the issue of whether the holding of Flowers survives the 1997 revision of former Rule 40(b)(1); if Flowers did not survive the rule change, a plea-bargaining defendant would be unable to challenge the voluntariness of his plea without first obtaining permission from the trial court. At least three courts have concluded that Rule 25.2(b)(3) partially overruled Flowers. See McGinty v. State, 1998 WL 918472 (Tex. App.-Houston [1st Dist.] Dec. 23, 1998, no pet.) (not designated for publication); Elizondo v. State, 979 S.W.2d 823 (Tex. App.-Waco 1998, no pet.); Villanueva v. State, 977 S.W.2d 693 (Tex. App.-Fort Worth 1998, no pet.). By contrast, as least four courts have held that the promulgation of Rule 25.2(b)(3) did not partially overrule Flowers. See Minix v. State, 990 S.W.2d 922 (Tex. App.-Beaumont 1999, pet. filed); Moore v. State, No. 14-97-00920-CR, 14-97-00921-CR, 1999 WL 33653 (Tex. App.-Houston [14th Dist.] Jan. 28, 1999, no pet.); Johnson v. State, 978 S.W.2d 744 (Tex. App.-Eastland 1998, no pet.); Session v. State, 978 S.W.2d 289 (Tex. App.-Texarkana 1998, no pet.). We assume, without deciding, that the holding in Flowers survives the 1997 rule change.