Steve Jenkins v. The State of Texas--Appeal from 182nd District Court of Harris County
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Opinion issued January 13, 2011
In The
Court of Appeals
For The
First District of Texas
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NO. 01-09-00524-CR
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STEVE JENKINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Case No. 1178676
MEMORANDUM OPINION
Appellant Steve Jenkins pleaded guilty to aggravated robbery, and the trial
court assessed punishment at life in prison pursuant to the habitual offender statute.
See TEX. PENAL CODE ANN. §§ 12.42(d), 29.03 (Vernon 2003 & Supp. 2010).1 On
appeal, Jenkins argues that his guilty plea was involuntary because the trial court
improperly admonished him as to the range of punishment for aggravated robbery.
See TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(1) (Vernon Supp. 2010).
The trial court erred because the admonishments given to Jenkins indicated a
maximum sentence of 99 years rather than life in prison, and for that reason did not
substantially comply with the requirements of article 26.13(a)(1). Because Jenkins
was not harmed by the error, we affirm.
Background Facts
Jenkins was indicted for aggravated robbery. He pleaded guilty and signed a
―waiver of constitutional rights, agreement to stipulate, and judicial confession,‖ in
which he certified that he understood the allegations in the indictment and
confessed that they were true. Jenkins also acknowledged that the prosecutor had
not made a sentencing recommendation. The plea was signed by Jenkins, his
counsel, the assistant district attorney, and the trial court.
1
The habitual offender statute provides that a defendant who has previously
been convicted of two felony offenses ―shall be punished by imprisonment
in 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) (Vernon Supp. 2010). Jenkins had been convicted twice of
felony burglary of a habitation and pleaded true to both enhancement
paragraphs.
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Jenkins also signed a set of admonishments, statements, and waivers, in
which the trial court admonished him, in writing, that ―[t]he punishment range [for
aggravated robbery] is confinement in prison for 25 years–99 years TDCJ-ID and a
fine of up to $10,000.‖ Significantly for this appeal, Jenkins was 45 years old at
the time the admonishments were given. He certified that he understood the
charge against him, the nature of the proceedings, and the voluntary nature of his
plea, and he acknowledged that he understood the admonishments and the
consequences of his plea. Jenkins, his attorney, the assistant district attorney, the
deputy district clerk, and the trial court all signed the admonishment form. There
was no reporter’s record made during the plea hearing, so there is no record of
whether or how Jenkins was orally admonished before the trial court entered his
plea.
The trial court heard evidence at the sentencing phase. Jenkins explained
that he had a substance abuse problem and that he was using drugs when the
robbery occurred. He testified that he was sorry for what he had done and asked
the court to ―have mercy‖ on him. On cross-examination, Jenkins acknowledged
that the minimum sentence for aggravated robbery was 25 years. He also said, ―I
know I’m fixing to leave, and maybe I’ll never get out of prison.‖ During closing
arguments, the State argued that Jenkins deserved a life sentence but recommended
that he receive no less than 50 years’ confinement. Jenkins’s attorney argued that a
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life sentence was too long and asked the trial court to be merciful. The trial court
accepted Jenkins’s guilty plea and assessed punishment at life in prison. The
court’s judgment states that Jenkins was convicted of aggravated robbery and
sentenced to life in prison.
Analysis
In his sole issue, Jenkins argues that his guilty plea was involuntary because
the trial court improperly admonished him regarding the applicable range of
punishment. He contends that the punishment assessed by the trial court lies
outside of the punishment range stated on the admonishment form, and therefore it
does not substantially comply with the requirements of article 26.13(a)(1) of the
Code of Criminal Procedure. He complains that he was misled by the punishment
range indicated on the admonishment form, and he further contends that he would
have opted for a jury trial had he known that he could be sentenced to life in
prison.
Before accepting a guilty plea, the trial court is required to admonish the
defendant of the range of punishment attached to the offense. See TEX. CODE
CRIM. PROC. ANN. art. 26.13(a)(1).
While these admonishments are not
constitutionally required, their purpose is to assist the trial court to determine
whether the defendant knowingly and voluntarily relinquishes his rights, so as to
ensure that only a constitutionally valid plea is entered and accepted by the court.
4
Aguirre-Mata v. State, 125 S.W.3d 473, 474 n.4 (Tex. Crim. App. 2003) (AguirreMata II); Carranza v. State, 980 S.W.2d 653, 656 (Tex. Crim. App. 1998).
Consistent with the requirements of the Fifth and Fourteenth Amendments, a guilty
plea is valid only if it represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant. See, e.g., North Carolina v.
Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 161 (1970); Kniatt v. State, 206 S.W.3d
657, 664 (Tex. Crim. App. 2006). If a plea is entered after a defendant is made
fully aware of the plea’s direct consequences, it is considered voluntary. State v.
Jiminez, 987 S.W.2d 886, 888 (Tex. Crim. App. 1999).
But if the plea is
involuntary, it must be set aside. Boykin v. Alabama, 395 U.S. 238, 244, 89 S. Ct.
1709, 1713 (1969); Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App.
1975).
I.
Lack of substantial compliance
―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) (Vernon Supp. 2010).
Accordingly, an incorrect or incomplete admonishment will not result in reversible
error, provided that: (1) the trial court undertakes to admonish the defendant as to
the range of punishment, either orally or in writing; (2) it assesses punishment
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within the range prescribed by law; and (3) the defendant fails to affirmatively
show that his plea was involuntary. Ramos v. State, 928 S.W.2d 157, 160 (Tex.
App.—Houston [14th Dist.] 1996, no pet.).
If the record shows that the trial court gave an incorrect admonishment
regarding the range of punishment but the actual sentence is less than both the
misstated maximum and the statutory maximum, then substantial compliance with
article 26.31(a)(1) is attained. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim.
App. 1998) (finding substantial compliance when defendant was admonished that
punishment range was 2 to 10 years’ confinement, or life, but actual statutory
range was 2 to 10 years).
When, however, the defendant receives a greater
sentence than the court informed the defendant was possible, the admonishment
does not substantially comply. See Weekley v. State, 594 S.W.2d 96, 97 (Tex.
Crim. App. 1980), abrogated on other grounds by Aguirre-Mata v. State, 992
S.W.2d 495 (Tex. Crim. App. 1999) (Aguirre-Mata I). That is what happened
here. The admonishments did not substantially comply with the requirements of
article 26.13(a)(1) because Jenkins received a greater sentence—life—than the
maximum sentence the court informed him was possible—99 years.
II.
Non-constitutional harm analysis
When an admonishment does not substantially comply with the requirements
of section 26.13(a)(1), the court must analyze harm under Rule 44.2(b) of the
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Texas Rules of Appellate Procedure to determine if the trial court’s noncompliance
caused the plea to become involuntary. Burnett v. State, 88 S.W.3d 633, 637 (Tex.
Crim. App. 2002); Aguirre-Mata I, 992 S.W.2d at 499. The court must disregard
any error unless it affects the appellant’s substantial rights.
TEX. R. APP.
P. 44.2(b); Burnett 88 S.W.3d 633, 637. An improper admonishment affects the
appellant’s substantial rights only if the record shows that the appellant’s plea was
involuntary, i.e., that he was not aware of the consequences of his plea and that he
was misled or harmed by the improper admonishment. Anderson v. State, 985
S.W.2d 195, 198 (Tex. Crim. App. 1998) (citing Carranza, 980 S.W.2d at 657–
58). Accordingly, the court should affirm unless, considering the record as a
whole, it does not have a fair assurance that the defendant’s decision to plead
guilty would not have changed had the defendant been properly admonished. Id. at
198; see VanNortrick v. State, 191 S.W.3d 490, 492 (Tex. App.—Dallas 2006, pet.
ref’d).
Relying on Weekley v. State, 594 S.W.2d 96 (Tex. Crim. App. 1980),
Jenkins argues that the defendant need not demonstrate harm when the sentence
imposed is outside the range of punishment referenced in the admonishments.
Id. at 97. Jenkins also contends that his plea was involuntary because the written
admonishments were misleading and that he would have sought a jury trial had he
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known that he could be sentenced to life in prison as opposed to a maximum of 99
years.
While the trial court’s admonishment as to the range of punishment did not
substantially comply with article 26.13(a)(1), Jenkins misstates the applicable
standard. The Court of Criminal Appeals in Aguirre-Mata v. State, 992 S.W.2d
495 (Tex. Crim. App. 1999), recognized the abrogation of Weekley and other
similar cases that suggested harm is presumed whenever the trial court’s
admonishments do not substantially comply with article 26.13(a)(1).
See 992
S.W.2d 497 n.2, 498–99. Instead, we now determine whether the trial court’s
failure to substantially comply with article 26.13(a)(1) affected the appellant’s
substantial rights; that is, did the improper admonishment render Jenkins’s plea
involuntary? Aguirre-Mata II, 125 S.W.3d at 473; see VanNortrick, 191 S.W.3d at
492; Anderson, 985 S.W.2d at 198. When reviewing the voluntariness of a guilty
plea, the record is viewed as a whole and the voluntariness of a guilty plea is
determined by the totality of the circumstances. Martinez v. State, 981 S.W.2d
195, 197 (Tex. Crim. App. 1998); Griffin v. State, 703 S.W.2d 193, 196 (Tex.
Crim. App. 1986); Edwards v. State, 921 S.W.2d 477, 479 (Tex. App.—Houston
[1st Dist.] 1996, no writ).
Jenkins complains that his plea was involuntary because he was improperly
admonished as to the range of punishment, and he contends that he would not have
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pleaded guilty if he had understood the consequences of plea. However, he neither
argues nor explains why knowing he was subject to the possibility of a life
sentence would have resulted in him making a different decision than the one he
made knowing he was subject to a possible sentence of 99 years. Jenkins certified
that he was mentally competent, that his plea was given freely and voluntarily, and
that he understood the charges against him and the nature of the proceedings. He
also acknowledged that he understood the consequences of his plea. Nothing in
the record suggests that Jenkins did not understand a maximum sentence of 99
years to be functionally equivalent to a maximum sentence of life imprisonment.
Indeed, during the punishment hearing, Jenkins, who was 45 years old at the time,
acknowledged that he may ―never get out of prison.‖ Without more, the mere
contention that he would not have pleaded guilty does not demonstrate harm for
the purpose of establishing that the plea was involuntary or unknowing because a
guilty plea may be voluntary and intelligent even if the defendant was misled or
confused about the sentence he could receive. Ex parte Gibauitch, 688 S.W.2d
868, 872 (Tex. Crim. App. 1985); see also Aguirre-Mata II, 125 S.W.3d at 474 n.4
(concluding that admonishments required by art. 26.13(a) are not constitutionally
mandated but are designed to assist district judge in determining whether guilty
plea is truly voluntary).
9
Moreover, Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463 (1970), and
its progeny require only that the defendant be aware of the direct consequences of
his guilty plea. See 397 U.S at 755–57, 90 S. Ct. at 1472–74. The only practical
difference between a sentence of 99 years and life in prison relates to parole
eligibility, which is a collateral consequence of the defendant’s guilty plea. Bell v.
State, 256 S.W.3d 465, 469 (Tex. App.—Waco 2008, no pet.) (citing Ex parte
Young, 644 S.W.2d 3, 4 (Tex. Crim. App. 1983), overruled on other grounds by Ex
parte Evans, 690 S.W.2d 274, 279 (Tex. Crim. App. 1985)); see also Hill v.
Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1985) (holding that State is not
constitutionally required to furnish defendant with information about parole
eligibility in order for defendant’s guilty plea to be voluntary); Bustos v. White,
521 F.3d 321, 325 (4th Cir. 2008) (―the majority of circuits deciding the issue have
concluded that parole ineligibility is only a collateral consequence‖). The record
reflects that Jenkins understood that he might never get of prison. Accordingly, we
conclude that his guilty plea was not involuntary or unintelligent because he was
incorrectly admonished that the maximum punishment was for 99 years.
Conclusion
Because the record shows that Jenkins was aware of the consequences of his
plea, we conclude that the trial court’s failure to properly admonish him regarding
the possibility of a life sentence did not mislead or harm him.
10
See Burnett,
88 S.W.3d at 641. In the absence of any evidence that Jenkins’s decision to plead
guilty would have changed if the trial court had given a different admonishment,
we hold that there is no evidence of harm and we overrule his sole issue.
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Bland and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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