Brown v. State

• Citation: 943 S.W.2d 35
• Decision Date: 12 February 1997
• Docket Number: No. 356-96,356-96
• Parties: Fitzroy George BROWN, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 35

943 S.W.2d 35

Fitzroy George BROWN, Appellant, v. The STATE of Texas.

No. 356-96.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 12, 1997.

Gary A. Udashen, Dallas, for appellant.

Michael J. Sandlin, Asst. District Attorney, Dallas, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge.

We granted review in the present case to determine an issue left open by our prior decisions in Price v. State, 866 S.W.2d 606 (Tex.Crim.App.1993) and Ray v. State, 919 S.W.2d 125 (Tex.Crim.App.1996): whether the failure to give certain information required by Article 42.12 § 5(a) ¹ alone renders a defendant's guilty plea involuntary when deferred adjudication was an element of a plea agreement between the parties. The Court of Appeals held that the failure to inform the defendant of the consequences of a revocation of deferred adjudication as required by § 5(a) did not render the guilty plea involuntary under those circumstances. We will affirm.

I.

Appellant was charged by indictment with delivery of cocaine on or about December 5, 1989. On May 31, 1991, appellant entered a plea of guilty, and pursuant to a plea agreement, the trial court placed him on deferred adjudication for ten years. Before accepting the plea agreement, the trial court advised appellant that he could be sentenced to the full range of punishment for the offense if his deferred adjudication probation were revoked. The trial court also asked appellant if he fully understood the consequences of deferred adjudication, and appellant answered in the affirmative. However, the trial court did not convey to appellant all the information required by § 5(a). ² The State subsequently filed a motion to proceed to adjudication of guilt, and on February 11, 1993, the trial court adjudicated appellant guilty and imposed a sixty year prison sentence.

The Court of Appeals affirmed, holding that the statute does not require the trial court to give the § 5 information before accepting a defendant's guilty plea. Brown v. State, 915 S.W.2d 533 (Tex.App.--Dallas 1995). Because the information need not be given before acceptance of the plea, the court reasoned, the failure to give such information cannot render a guilty plea involuntary. On discretionary review, appellant claims that the failure of the trial court to give this information renders his guilty plea involuntary in violation of the statute, the Due Process clause of the Fourteenth Amendment to the United States Constitution, and the Due Course of Law clause found in Article I § 19 of the Texas Constitution.

II.

We initially note that a trial court's failure to admonish a defendant about the consequences of a violation of deferred adjudication probation does not constitute a due process violation. McNew v. State, 608 S.W.2d 166, 172-173 (Tex.Crim.App.1978); Price, 866 S.W.2d at 611. ³ The question then becomes: did the Legislature, by requiring the trial judge to impart certain information, create the basis for an involuntariness claim?

The starting point in an analysis of the meaning of any statute is, of course, the language of the statute itself. When the language of a statute is unambiguous, we must give effect to the plain meaning of the words unless doing so would lead to absurd results. Boykin v. State, 818 S.W.2d 782, 785-786 & 786 n. 4 (Tex.Crim.App.1991). When the language of a statute is ambiguous, we may look to extratextual factors for guidance in determining the statute's meaning. Id. Twice before, we have addressed the meaning of the statute under consideration primarily based upon its language and the language and effect of other relevant provisions. In Price, we held that § 5(a) did not require a misdemeanor defendant to be informed of the possible consequences of a violation of deferred adjudication probation prior to his plea. In Ray, we held that the failure to give the § 5 information to a felony defendant prior to a non-negotiated (open) guilty plea did not render the plea involuntary.

In both cases, we observed that the deferred adjudication statute fails to specify when the information must be provided. Price, 866 S.W.2d at 610; Ray, 919 S.W.2d at 127. We also recognized that the language of the provision at issue draws no relevant distinction between misdemeanors and felonies. Price, 866 S.W.2d at 611; Ray, 919 S.W.2d at 126. In Ray, we observed that the informational requirement appears in the text of the statute after language outlining the order of proceedings resulting in the placement of the defendant upon deferred adjudication probation. 919 S.W.2d at 126. We found that the order in which the language appears "supports the view that a defendant need not be informed of the § 5(b) consequences until after he is placed on probation." Id. We also pointed out that Article 26.13 dictates the admonishments required before a guilty plea may be accepted, and we noted that the Legislature could have, but did not, include deferred adjudication admonishments in Article 26.13. Id. We further explained that the deferred adjudication information does not become relevant until after a defendant is placed on deferred adjudication probation and that there is no policy reason for requiring deferred adjudication information before every plea of guilty. Id. at 126-127. Hence, in Price and Ray, we have recognized that some support exists in the language of Article 42.12 § 5 for the proposition that imparting the § 5 information is not a precondition for a voluntary plea.

But, our holdings in Price and Ray were also supported by factors peculiar to the plea situations in those cases. In Price, we explained that "germane procedural statutes" treat "preliminary and underlying proceedings" in misdemeanors differently from those in felonies. ⁴ 866 S.W.2d at 611. We held that, under the procedural statutes in effect at the time, a misdemeanor defendant need not be present during the guilty plea proceedings so long as he is represented by counsel. Id. Moreover, in Ray we explained that a felony defendant who pleads guilty without the benefit of a plea bargain faces the exact same consequences at the time of his plea as he might later face upon adjudication because he has exposed himself to the full range of punishment without a guarantee that he will be placed upon deferred adjudication. 919 S.W.2d at 127. By contrast, where deferred adjudication is an element of a plea agreement, the defendant does not face the same consequences at the time of his plea as he might face later upon adjudication: he has a guarantee that he will get deferred adjudication or be permitted to withdraw his plea. See Article 26.13(a)(2). A plea-bargaining defendant could rationally contend that he would not have pled guilty if he had known about the consequences of a revocation of deferred adjudication.

Due to analytical differences between a negotiated felony plea and the situations in Price and Ray, we cannot automatically conclude that those decisions dictate the outcome in the present case. While there is some support in the language of Article 42.12 for holding that a failure to give the § 5 information does not render a plea involuntary under any circumstances, that language is ambiguous. The statute does not specify when the information should be given nor does it explain the effect of a trial court's failure to give the information. The order in which the informational requirement appears in the text and the Legislature's failure to place that requirement within Article 26.13 are clues to the statute's meaning but are not unambiguous. Those clues strongly indicate that the § 5 information does not occupy the same status as an Article 26.13 admonishment. However, that does not foreclose the possibility that failing to give the § 5 information may render a guilty plea involuntary under some circumstances. In neither Price nor Ray did we attempt to examine the legislative history of Article 42.12 § 5, nor did we engage in much analysis beyond the language of the statutory provision except to analyze the language and effect of other statutory provisions. In those cases, such an inquiry was unnecessary and improper under Boykin because we were able to determine from the clues in the statutory language and from the nature of the pleas involved that a trial judge's failure to impart the required information would not render involuntary the types of guilty pleas that were before us. But in the present case, the nature of the plea does not preclude a finding of involuntariness. Therefore, we must look to extratextual factors to determine the effect of the statutory provision in a negotiated plea setting.

III.

The legislature has given some guidance as to the factors we may examine in construing the statute. We may consider, among other matters, the

(1) object sought to be attained;

(2) circumstances under which the statute was enacted;

(3) legislative history;

(4) common law or former statutory provisions, including laws on the same or similar subjects;

(5) consequences of a particular construction;

(6) administrative construction of the statute; and

(7) title (caption), preamble, and emergency provision.

Tex.Gov't.Code, § 311.023. ⁵

First, we shall examine the circumstances under which the statute was enacted and the legislative history. The informational requirement contained in § 5 was not always present in the statute--the language was inserted into the Code of Criminal Procedure by the Legislature in 1989. See Acts 1989, 71st Legislature, Ch. 785 § 4.17. Before this language was added to the statute, this Court had held that Article 26.13 did not require--and hence no statute required--that a defendant be informed about the consequences of a revocation of deferred adjudication. Shields v. State, 608 S.W.2d 924, 927 (Tex.Crim.App.1980); McNew, 608 S.W.2d at 177 (on rehearing); Price, 866 S.W.2d at 611. The...