Kelvin Anthony Stinson v. The State of Texas--Appeal from 337th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-01-254-CR

KELVIN ANTHONY STINSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 337th District Court

Harris County, Texas

Trial Court # 853,935

O P I N I O N

Without a plea-bargain agreement, Kelvin Anthony Stinson pled guilty to an allegation that he possessed at least 400 grams of cocaine with intent to deliver it, a crime punishable by a minimum of fifteen years in prison. Tex. Health & Safety Code Ann. 481.112 (Vernon Supp. 2002). The court sentenced him to twenty years in prison. His single issue on appeal is that he was not properly admonished at the plea hearing about the range of punishment, as required by statute. Tex. Code Crim. Proc Ann. art. 26.13 (a)(1) (Vernon Supp. 2002). He points out that the written Admonishments he signed at the time of the plea, also signed by his attorney and the judge, referred to a drug quantity of less than 400 grams, an amount which does not carry a minimum fifteen-year sentence. Tex. Health & Safety Code Ann. 481.112. Moreover, the Admonishments stated that the range of punishment was five years to ninety-nine years unless enhanced due to a prior felony conviction (none alleged here). Stinson also says his filing a motion for probation, which could be granted only if the sentence did not exceed ten years, shows he did not realize the minimum sentence was fifteen years. Tex. Code Crim. Proc Ann. art. 42.12 3(e)(1) (Vernon Supp. 2002).

The constitutional key to validity of a guilty plea is that it be voluntary and intelligently made and, if upon advice of an attorney, that counsel be reasonably competent and render effective assistance. Meyers v. State, 623 S.W.2d 397, 401 (Tex. Crim. App. 1981) (citing inter alia McMann v. Richardson, 397 U.S. 759, 766, 90 S. Ct. 1441, 1446, 25 L. Ed. 2d 763 (1970)). The overriding concern is whether a defendant has been deprived of due process and due course of law. Id. at 401 (citing Ex parte Lewis, 587 S.W.2d 697, 700 (Tex. Crim. App. 1979)). Voluntariness includes whether or not the defendant was made fully aware of the direct consequences of the plea. State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App. 1999) (citing Brady v. United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472, 25 L. Ed. 2d 747 (1970)). In considering the voluntariness of a guilty plea, the [appeals] court should examine the record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); see Brady, 397 U.S. at 749, 90 S. Ct. at 1469 (the court should examine all of the relevant circumstances surrounding the plea).

To ensure compliance with these constitutional principles, article 26.13 of the Code of Criminal Procedure requires the trial judge to admonish the defendant concerning a number of important consequences of the plea and to determine that the plea is made freely and voluntarily. Tex. Code Crim. Proc. Ann. art. 26.13(a), (b) (Vernon Supp. 2002 & Vernon 1989); Ex parte Morrow, 952 S.W.2d 530, 534 (Tex. Crim. App. 1997). The purpose of plea admonishments was discussed in McCarthy v. United States, 394 U.S. 459, 465-66, 89 S. Ct. 1166, 1170-71, 22 L. Ed. 2d 418 (1969):

First, although the procedure embodied in Rule 11 [of the Federal Rules of Criminal Procedure] has not been held to be constitutionally mandated, it is designed to assist the district judge in making the constitutionally required determination that the guilty plea was truly voluntary. Second, the rule is intended to produce a complete record at the time the plea is entered of the factors relevant to the voluntariness determination. Thus the more meticulously the rule is adhered to, the more it tends to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous post conviction attacks on the constitutional validity of guilty pleas . . . [.] A defendant who enters a guilty plea simultaneously waives several constitutional rights, including his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be "an intentional relinquishment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). Consequently, if a defendant's guilty plea is not equally knowing and voluntary, it has been obtained in violation of the due process and is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.

Article 26.13(a) serves a purpose similar to that of Federal Rule 11. Its admonishments may be given orally or in writing; written admonishments are allowed if the court receive[s] 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. Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon 1989). Substantial compliance with the required admonishments is adequate unless the defendant affirmatively shows he was not aware of the consequences of his plea and that he was misled or harmed by the admonishments. Id. art. 26.13(c) (Vernon 1989). If the record shows the defendant was admonished, even if incompletely, on the issue he claims renders his plea unknowing and involuntary, there is a prima facie showing of a knowing and voluntary plea of guilty. E.g., Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985); Martinez, 981 S.W.2d at 197. Then the burden shifts to the defendant to demonstrate that he did not fully understand the consequences of his plea such that he suffered harm. Id. The admonishments are not of constitutional proportion, and if not properly given, the error is reviewed under a non-constitutional standard. Carranza v. State, 980 S.W.2d 653, 656 (Tex. Crim. App. 1998); Rachuig v. State, 972 S.W.2d 170, 174-75 (Tex. App. Waco 1998, pet. ref d); Tex. R. App. P. 44.2(b). //

The plea hearing was not recorded, and so there is no record of whether or not the court gave oral admonishments in addition to the written ones. The clerk s record does show that in addition to the Admonishments, Stinson, along with his attorney and the judge, signed a Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession, in which he admitted committing an offense involving at least 400 grams. But also in the record is a Motion for Probation filed on the same day, including a prayer for adult probation if the Defendant is found guilty as charged in the indictment, and the punishment does not exceed ten years.

At the sentencing hearing a month later, Stinson and four witnesses in his behalf testified, and his lawyer asked the court to favorably consider[] his application for community supervision. The State argued that deferred adjudication would not be appropriate, and that the court should assess a sentence something near the minimum penitentiary time. Somewhere in the 15- to 20-year range. The defense did not respond.

The record shows Stinson was not properly admonished about the range of punishment in the two documents he signed. However, we find there was substantial compliance, because the Admonishments informed him he could be sentenced up to 99 years, and the waiver document informed him he was pleading guilty to an offense involving at least 400 grams. Therefore, Stinson must demonstrate that (1) he did not realize the minimum sentence was fifteen years, and (2) he would not have pled guilty had he known, evidenced by the fact he attempted to be placed on probation. See Ex parte Gibauitch, 688 S.W.2d at 871; Martinez, 981 S.W.2d at 197. He fails, however, to meet that burden, because the references by the prosecutor at the sentencing hearing to deferred adjudication and to the minimum sentence being near fifteen years, both without comment by the defense, imply that, at least by then, (a) the parties understood that if Stinson was sentenced to prison, the minimum sentence would be fifteen years, (b) in that event, regular probation would be precluded, and (c) Stinson s only chance to avoid prison was deferred-adjudication probation. Whether the parties knew this all along, or whether the defense was confused at the time of the plea but learned of it by sentencing, we cannot know for sure. But defense counsel made no argument at sentencing that there had been some confusion, nor was a motion made to withdraw the plea. We conclude Stinson has not demonstrated that his plea was made without his knowledge that the minimum sentence was fifteen years.

We overrule the issue, and affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed April 10, 2002

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