Orlando T. Jordan v. The State of Texas--Appeal from Criminal District Court No. 2 of Dallas County

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ORLANDO T. JORDAN,

Appellant,

 

v.

 

THE STATE OF TEXAS,

 

Appellee.

 

 
No. 08-05-00252-CR
Appeal from

Criminal District Court No. 2

 

of Dallas County, Texas

 

(TC # F-0448339-KI)

O P I N I O N

Orlando T. Jordan, pled guilty to failure to stop and render aid. The trial court assessed punishment at forty years' confinement. Finding no error, we affirm as reformed.

FACTUAL SUMMARY

While on patrol on January 15, 2004, Officer Aleman checked the plates of a passing vehicle. He pulled the vehicle over when he learned it was reported stolen. He then approached the driver's side while his partner moved to the passenger's side. Appellant was driving and Officer Aleman asked him to step out of the vehicle. Appellant just shook his head and drove away.

The officers pursued Appellant as he drove at excessive rates of speed averaging 60 miles per hour, and even reaching 90 miles per hour in a 35 mile per hour zone. Appellant drove recklessly, swerving in and out of lanes during rush hour. He went around a median and began driving northbound in the southbound lane. A crew of four or five people working on the street began to scatter when they saw Appellant coming towards them. Appellant approached the area at a rate of speed of 75 miles per hour and struck a crewman working on the median. Appellant did not attempt to stop or swerve, and after striking the crewman, he continued driving northbound on the southbound lane. Eventually, the vehicle stopped on a grassy median. Appellant tried to get out of the vehicle through the driver's side door but it was either jammed or inoperable. Once Appellant was able to exit the vehicle, he ran about fifteen to twenty feet before Officer Aleman caught him. Appellant was indicted under two separate counts of felony murder and failure to stop and render aid. He pled guilty to both charges and the trial court assessed punishment at forty years' confinement. He brings three issues for review. (1)

ARTICLE 27.13

In his first issue, Appellant contends Article 27.13 was violated because he never entered a guilty plea to the offenses charged in the indictment, the trial court did not inquire into the voluntariness of his pleas, and the plea agreement form does not show he pled guilty to the charged offenses.

The Plea Proceedings

The following are excerpts from the proceedings:

THE COURT: You're the same Orlando T. Jordan that's charged in these two indictments, one charging you with murder, and the other failure to stop and render aid that are now pending before the Court; is that correct?

 

THE DEFENDANT: Yes, sir.

 

THE COURT: Can you read and write and understand the English language?

 

THE DEFENDANT: Yes.

 

THE COURT: You read and you understand all the paperwork you signed in connection with this case --

 

THE DEFENDANT: Yes, sir.

 

THE COURT: -- these cases?

 

THE DEFENDANT: Yes.

 

THE COURT: And Ms. Hawthorne, your attorney's gone over the indictments with you and all the paperwork, and you understand exactly what you're charged with; is that correct?

 

THE DEFENDANT: Yes.

 

THE COURT: All right. You have the right to a jury trial in each case, and, in fact, there's a jury out in the hallway. It's my understanding you wish to waive or give up that right; is that correct?

 

THE DEFENDANT: Yes, sir.

 

THE COURT: You have the right to have these cases tried separately, but as I understand, you wish to go ahead and try them together right now; is that correct?

 

THE DEFENDANT: Yes, sir.

 

THE COURT: And you understand the range of punishment for these type of offenses is from 25 years to 99 years or life in the penitentiary; is that correct?

 

THE DEFENDANT: Yes, sir.

 
* * * * *
DIRECT EXAMINATION OF APPELLANT

Q: Orlando, I've been on your case -- well, I've only been on your case for a couple of months; is that correct?

 

A: Yes, ma'am.

 

Q: But you've been in jail for about a year, and you've had a couple of other attorneys; is that correct?

 

A: Yes, ma'am.

 

Q: Okay. We were set for a jury trial today; is that correct?

 

A: Yes, ma'am.

 

Q: And I explained to you that even if you were found not guilty of the murder case, but the failure to stop and render aid, that if you were found guilty of that that you were still looking at 25 to life; is that correct?

 

A: Yes, ma'am.

 

Q: And we've talked about all your choices numerous times, and you told me this morning that you had prayed on this, and that you wanted to do an open plea; is that true?

 

A: Yes, ma'am.

 

Q: And that was, I'll say sort of against my advice; is that correct?

 

A: Yes, ma'am.

 

Q: But you know I can't guarantee you what the Judge would do or what a jury would have done. You understand that?

 

A: Yes, ma'am.

.

Q: But you understand that, you know, my investigator had gone out and found all of your other offense reports, and you understand we were ready on -- on what you've done in the past?

 

A: Yes, ma'am.

 

Q: Do you understand that?

 

A: Yes, ma'am.

 

Q: And -- but you've entered pleas of guilty to Judge Adams today. Did you do that freely and voluntarily?

 

A: I did that freely and voluntarily.

 

Q: And was that your choice because that's what you wanted to do?

 

A: That's what I wanted to do.

 
* * * * *

Q: Mr. Jordan, yesterday, you entered pleas of guilty to failure to stop and render aid and a murder; is that correct?

 

A: Yes. (2)

 
* * * * *

Q: And you told me, did you not, that you had prayed over the weekend and that you wanted to plead guilty to theses offenses?

 

A: Yes.

 

Q: Did you do that freely and voluntarily?

 

A: Yes.

 

Q: Did you plead guilty to both of these offenses because you wanted to do that?

 

A: Yes.

 

Q: And you understood that by pleading guilty and going open to the Judge that the minimum that you could be sentenced, as far as TDC time, would be 25 years?

 

A: Yes.

 

Q: In fact, you're looking at 25 years to life; is that correct?

 

A: Yes.

 

Q: On both cases?

 

A: Yes.

 
The Statute

Article 27.13 requires:

 

A plea of 'guilty' or a plea of 'nolo contendere' in a felony case must be made in open court by the defendant in person; and the proceedings shall be as provided in Articles 26.13, 26.14 and 27.02. If the plea is before the judge alone, same may be made in the same manner as is provided for by Articles 1.13 and 1.15.

 

Tex.Code Crim.Proc.Ann. art. 27.13 (Vernon 2006).

 

In support of his argument that the trial court did not specifically ask him if he were entering a plea of "guilty," Appellant directs us to Williams v. State and White v. State. See Williams v. State, 770 S.W.2d 81 (Tex.App.--Dallas 1989, no pet.); White v. State, 932 S.W.2d 593 (Tex.App.--Tyler 1995, pet. ref'd). In Williams, the Dallas Court of Appeals held that the trial court failed to comply with Article 27.13 because it failed to ascertain whether the defendant's plea was free and voluntary and it failed to question the defendant regarding his plea. Williams, 770 S.W.2d at 84. In White, the defendant entered his plea regarding cocaine possession. The indictment also alleged a second offense of possession of marijuana. White, 932 S.W.2d at 596. The State initially informed the trial court it would abandon all other paragraphs in the indictment, but it subsequently recanted and announced its intention to proceed on both offenses. Id. The trial court did not obtain a guilty plea from the defendant regarding the marijuana charge, but the court found him guilty on both charges. Id. The defendant stipulated that he knowingly possessed both cocaine and marijuana. Id. But the appellate court found a violation of Article 27.13 since the defendant never pled guilty in open court to possession of marijuana. Id. at 597.

This case is distinguishable. Unlike Williams, where the trial court spoke only with the defendant's attorney, Appellant's attorney elicited testimony from Appellant acknowledging his plea of guilty. And unlike White, the State did not recant or abandon any offenses.

In a more recent decision, the Court of Criminal Appeals has determined that compliance with Article 27.13 depends upon a defendant's voluntary desire to plead guilty. Costilla v. State, 146 S.W.3d 213, 217 (Tex.Crim.App. 2004). In Costilla, the defendant appeared in person with his attorney who was bilingual. Id. at 214. Counsel informed the court that his client pled guilty, that he understood the range of punishment for the offense, and that he understood the signed admonishment, statements, and waiver forms. Id. at 215. At the punishment hearing, the defendant did not respond when trial counsel asked him if he had pled guilty to the offense. Id. However, the sentencing proceedings were translated and the defendant never complained the trial court failed to obtain an oral guilty plea or interact with him at the prior hearing. Id. at 216. The Court of Criminal Appeals held that any complaint regarding failure to comply with Article 27.13 should be evaluated under the particular facts of the case to determine whether the trial court complied with the article. Id. at 217. Article 27.13 does not require an oral plea. Id. Instead, the statute requires that all the facts point to a defendant's desire to plead guilty where the defendant is present and a plea is entered in open court even if only through his attorney. See id. at 217. Although the better practice is to ask the defendant what his plea is, Costilla had ample opportunity to make known that his plea was involuntary. See id.

Here, the record establishes Appellant's desire to plead guilty to the offense of felony murder. Appellant agreed with his attorney that he wanted to enter an open plea:

Q: And -- but you've entered pleas of guilty to Judge Adams today. Did you do that freely and voluntarily?

 

A: I did that freely and voluntarily.

 

Q: And was that your choice because that's what you wanted to do?

 

A: That's what I wanted to do.

 
* * * * *

Q: Mr. Jordan, yesterday, you entered pleas of guilty to failure to stop and render aid and a murder; is that correct?

 

A: Yes.

 

Because the record establishes Appellant pled guilty to the offense of felony murder, we overrule Issue One.

PLEA TO SECOND ENHANCEMENT

In his second issue, Appellant challenges the legal sufficiency of the evidence to support his plea to the second enhancement paragraph. He contends that the trial court never obtained an oral plea to the enhancement provisions, that his written pleas to the enhancement paragraphs did not indicate he pled true to the second enhancement, and that there was no written or oral evidence indicating he entered a plea of true to the State's notice of intent to enhance punishment.

Appellant was indicted for failure to stop and render aid. The indictment included an enhancement paragraph that Appellant had been convicted of the felony offense of Burglary of a Vehicle on March 21, 1989 in Cause Number F88-71848-R. Prior to trial, the State filed a notice of its intent to enhance Appellant's punishment range. It included the previously mentioned conviction of Burglary of a Vehicle, and added the felony conviction of Burglary of a Building-Enhanced on April 4, 2000 in Cause Number 0745883.

During the proceedings, the State offered Appellant's signed judicial confession that he committed the prior felony offense of Burglary of a Vehicle in Cause Number F88-71848-R. The State also offered Appellant's signed voluntary plea of true:

I, the defendant, plead true to the (second), (third), (second and third) enhancement paragraph(s) which is/are contained in the charging instrument, and judicially confess that I am the same person who was previously duly and legally convicted of the offense(s) alleged therein. (3)

 

These exhibits were admitted without objection.

In reviewing the legal sufficiency of the evidence, we must view the evidence in a light most favorable to the judgment and determine whether any rational trier of fact could have found the enhancement issue beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). When the State seeks to enhance a defendant's punishment range, the State has the burden of proof to show the defendant's prior conviction was a final conviction and that the appellant was the person previously convicted. See Wilson v. State, 671 S.W.2d 524, 525 (Tex.Crim.App. 1984). However, if the defendant, pleads true to the enhancement paragraph then the State's burden of proof is satisfied. Id. A plea of "true" is evidence and a defendant cannot complain on appeal that the evidence is insufficient to support the enhancements. See Harvey v. State, 611 S.W.2d 108, 111 (Tex.Crim.App. 1981).

A defendant is entitled to notice of the prior convictions that the State intends to use for enhancement. Brooks v. State, 957 S.W.2d 30, 33 (Tex.Crim.App. 1997). While it is the preferable method for providing notice, the State is not required to allege enhancements solely in the indictment, rather they must simply be pled in some form. See id. at 33-34. Notice must be provided to the defendant so that he is aware "a greater penalty is to be sought than for a first offense, and to enable him to take issue thereon, and if possible show there is a mistake in identity, or that there was no final former conviction or the like." Hollins v. State, 571 S.W.2d 873, 876 (Tex.Crim.App. 1978), quoting Palmer v. State, 128 Tex.Crim.R. 293, 81 S.W.2d 76, 79 (1934).

Appellant argues that, at best, he pled true to one enhancement paragraph--the conviction for burglary of a vehicle which was contained in the indictment. The trial court's judgment recites that he pled true to the one enhancement paragraph in the indictment and does not reference the State's notice. Appellant thus contends that the applicable punishment range for the offense of failure to stop and render aid was between two to twenty years and an optional $10,000 fine. See Tex.Penal Code Ann. 12.42(a)(3)(Vernon Supp. 2006); Tex.Penal Code Ann. 12.33(Vernon 2003). (4)

The record establishes that Appellant pled true to both enhancement paragraphs.

THE COURT: And you are the same Orlando T. Jordan that was here before the Court yesterday --

 

THE DEFENDANT: Yes, sir.

 

THE COURT: -- is that correct, on these two -- a failure to stop and render aid case and a murder case?

 

THE DEFENDANT: Yes, sir.

 

THE COURT: And you entered a plea of guilty to each case, and I believe you entered a plea of true to the enhancement paragraphs; is that correct?

 

THE COURT [sic]: Yes, sir.

 

The Court also admitted Exhibit 10 without objection. Exhibit 10 contains Appellant's stipulation that he was the same person convicted of the two offenses alleged by the State in its notice of enhancement. The record also shows that Appellant understood the State sought to enhance his punishment under both paragraphs:

Q: And I explained to you that on the murder case -- on the original murder case without any paragraphs, you were looking at 5 to 99 years or life; is that correct?

 

A: Yes.

 

Q: And then the State did do enhancement paragraphs, which bumped it up to 25 to life; is that correct?

 

A: Yes.

 

Q: Failure to stop and render aid was also -- the paragraphs were used on the failure to stop and render aid which also made it 25 to life; is that correct?

 

A: Yes.

 

Without objection, the Court also admitted Exhibit 2, the part of the plea agreement form where Appellant acknowledged he pled true to the second and third enhancement paragraphs that were contained in the charging instrument. Had Appellant contended at the hearing that Exhibit 2 only alleged one enhancement paragraph, as he does on appeal, a proper objection should have been raised. See Tex.R.App.P. 33.1. In viewing the evidence in the light most favorable to the trial court's ruling, the record is sufficient to show Appellant entered a plea of true to the second enhancement paragraph. However, while the judgment reflects the trial court only found the second enhancement to be true, its oral pronouncement indicated that the court found both enhancement paragraphs to be true: "The Court is going to go ahead and find the defendant guilty of the offense of murder and failure to stop and render aid and find the enhancement paragraphs true and assess a sentence of 40 years confinement in the penitentiary." Pursuant to the applicable appellate rules, we reform the trial court's judgment to reflect a finding of true to both enhancement paragraphs. See Tex.R.App.P. 43.2(b). Issue Two is overruled.

VOLUNTARINESS OF PLEA

In his third issue, Appellant complains that his plea was involuntary. He contends the trial court erred in failing to adequately ask him about the voluntariness of his plea and failed to properly admonish him of the range of punishment.

"No plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary." Tex.Code Crim.Proc.Ann. art. 26.13(b)(Vernon Supp. 2006). In admonishing the defendant, "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." Tex.Code Crim.Proc.Ann. art. 26.13(c). The court may admonish the defendant either orally or in writing. Tex.Code Crim.Proc.Ann. art. 26.13(d). If the court admonishes the defendant 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. Id. "A finding that a defendant was duly admonished creates a prima facie showing that a guilty plea was entered knowingly and voluntarily." Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998). However, a defendant may still claim his plea was involuntary. Id. The burden then shifts to the defendant to demonstrate that he suffered harm since he did not fully understand the consequences of his plea. Id.

The trial court admonished Appellant both in writing and orally at the plea proceeding. The plea agreement form provided a section titled "Court's Admonitions to Defendant," which included the court's admonitions and a section titled "Defendant's Statements and Waivers" that stated, "I am the accused in the charging instrument and am mentally competent. I understand the nature of the accusation against me, the range of punishment for such offense, and the consequences of a plea of guilty or nolo contendere." The agreement was signed by Appellant, his attorney, and the Assistant District Attorney. Above Appellant's signature appears the following acknowledgment:

I, the defendant herein, acknowledge that my attorney has explained to me, and I have read and I understand, all the foregoing admonitions and warnings regarding my rights and my plea, and that my statements and waivers are knowingly, freely, and voluntarily made with full understanding of the consequences. I request that the Court accept all my waivers, statements, agreements, and my plea.

 

During the plea proceedings, the trial court admonished Appellant that the range in punishment for his offenses was from twenty-five years to ninety-nine years or life, that he had the right to a jury trial, and he had the right to have his cases tried separately. Reviewing the record as a whole, the trial court's admonishments created a prima facie showing that Appellant's guilty plea was knowingly and voluntarily entered. Martinez, 981 S.W.2d at 197.

Appellant must now demonstrate that his plea was involuntary and that he has suffered harm since he did not understand the consequences of his plea. Id. The record reflects through Appellant's own testimony that he freely and voluntarily entered his plea of guilty.

 

Q: And you told me, did you not, that you had prayed over the weekend and that you wanted to plead guilty to these offenses?

 

A: Yes.

 

Q: Did you do that freely and voluntarily?

 

A: Yes.

 

Q: Did you plead guilty to both of these offenses because you wanted to do that?

 

A: Yes.

 

Thus, based on the record, Appellant has not established his plea was involuntary.

 

We also conclude that inasmuch as Appellant pled true to the second enhancement, the trial court did not err in admonishing him of the punishment range of twenty-five years to ninety-nine years or life. See Tex.Penal Code Ann. 12.42(d)(Vernon Supp. 2006). (5) We overrule Issue Three and affirm the judgment of the trial court as reformed.

 

August 16, 2007

ANN CRAWFORD McCLURE, Justice

 

Before Chew, C.J., McClure, and Carr, JJ.

 

(Do Not Publish)

1. Appellant has raised the same issues on appeal from his guilty plea to the charge of felony murder. See Jordan v. State, No. 08-05-00251-CR, --- S.W.3d --- (Tex.App.--El Paso August 16, 2007, no pet. h.). This appeal and No. 08-05-00251-CR have been consolidated.

2. Following a brief direct examination of Appellant on May 16, 2005, the trial court recessed the proceedings until May 17, 2005.

3. "[S]econd and third" were circled.

4. The offense of failure to stop and render aid is a third degree felony. See Childress v. State, 784 S.W.2d 361, 364-66 (Tex.Crim.App. 1990); Ramirez v. State, 90 S.W.3d 884, 885-86 (Tex.App.--San Antonio 2002, pet. ref'd). Section 12.42(a)(3) states, "If it is shown on the trial of a state jail felony punishable under Section 12.35(c) or on the trial of a third-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a second-degree felony." Tex.Penal Code Ann. 12.42(a)(3)(Vernon Supp. 2006). Section 12.33 states:

 

(a) An individual adjudged guilty of a felony of the second degree shall be punished by imprisonment in the institutional division for any term of not more than 20 years or less than 2 years.

 

(b) In addition to imprisonment, an individual adjudged guilty of a felony of the second degree may be punished by a fine not to exceed $10,000.

 

Tex.Penal Code Ann. 12.33(Vernon 2003).

5. Section 12.42 states, "If it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years." Tex.Penal Code. Ann. 12.42(d).