Carroll v. State

• Decision Date: 16 September 1998
• Docket Number: Nos. 935-97,936-97,s. 935-97
• Parties: Nelrie Byrd CARROLL, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 630

975 S.W.2d 630

Nelrie Byrd CARROLL, Appellant, v. The STATE of Texas.

Nos. 935-97, 936-97.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 16, 1998.

Ronald Aultman, Fort Worth, for appellant.

Jeffrey Van Horn, First Asst. State's Atty, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge, delivered the opinion of the Court, joined by MANSFIELD, KELLER, PRICE, HOLLAND and WOMACK, Judges.

Appellant entered open pleas of guilty to two indictments charging delivery of marihuana. The trial court found appellant guilty and assessed punishment in each cause at five years' imprisonment and a $5,000.00 fine.

The Fort Worth Court of Appeals reversed each conviction and remanded each cause for a new sentencing hearing. The State filed a motion for rehearing in each cause. Subsequently, the Court of Appeals withdrew its previous opinion and judgments and issued a second opinion. That opinion again reversed each conviction and remanded each cause for a new sentencing hearing.

In conjunction with the open pleas, appellant executed and filed with the trial court a document entitled "Defendant's Written Waiver of Rights," which waived appellant's right not to incriminate herself and agreed to testify if called as a witness. Appellant also generally waived all rights of form, substance or procedure given her by law under Article 1.14 of the Texas Code of Criminal Procedure.

After the guilty pleas were accepted by the trial court, the causes were recessed for the preparation of a pre-sentence investigation. When the causes were reconvened for assessment of punishment the State called appellant as a witness. The trial court asked defense counsel if he would tender his client, to which defense counsel asked if he had to. The trial court advised defense counsel that if he did not tender his client that it was going to "reflect very seriously on the court's decisions." Appellant was then offered as a witness.

The Court of Appeals held that in this case, where appellant pled guilty to a felony in open court, appellant is entitled to a bifurcated trial made up of two separate phases, guilt-innocence and punishment. The Court of Appeals then concluded that a waiver of the Fifth Amendment right not to self-incriminate at guilt-innocence does not extend to punishment. The Court of Appeals held that appellant's privilege against self-incrimination remained in full force and effect during the punishment phase of the proceeding. In its opinion, the Court of Appeals relied upon this Court's holdings in Wilkens v. State, 847 S.W.2d 547 (Tex.Cr.App.1992), cert. denied, 507 U.S. 1005, 113 S.Ct. 1646, 123 L.Ed.2d 268 (1993); Beathard v. State, 767 S.W.2d 423 (Tex.Cr.App.1989); and Brumfield v. State, 445 S.W.2d 732 (Tex.Cr.App.1969).

We find the reasoning behind the lower court of appeals' decision in this case is misplaced. In Wilkens, Beathard, and Brumfield, this Court held that a defendant has a separate Fifth Amendment privilege at punishment which is not waived by his decision to testify at guilt-innocence.

However, the case at bar can be factually distinguished from the cases relied upon by the Court of Appeals. In the instant case, appellant entered non-negotiated pleas of guilty to the felony offenses alleged in the indictment. In the cases cited by the Court of Appeals the defendant pled not guilty, but was convicted and assessed punishment by a jury in a separate punishment hearing.

This Court has previously held upon entering a plea of guilty in a non-capital felony case, a defendant is not entitled to a bifurcated trial. Thom v. State, 563 S.W.2d 618, 619 (Tex.Cr.App.1978). In fact, once the guilty plea is entered, the procedure becomes a "unitary trial" to determine the remaining issue of punishment. Ricondo v. State, 634 S.W.2d 837, 841 (Tex.Cr.App.1982)(opinion of Motion for Rehearing); Frame v. State, 615 S.W.2d 766 (Tex.Cr.App.1981). ¹ Therefore, in a unitary trial where a defendant has pled guilty there exists no per se "punishment phase." In fact, unitization of the trial, where a defendant pleads guilty to a felony charge before a jury or judge, admits the existence of all facts necessary to establish guilt and, in such cases, the introduction of testimony by the State is to enable the jury or judge intelligently to exercise discretion in the assessment of punishment. Ex Parte Williams, 703 S.W.2d 674 (Tex.Cr.App.1986), citing Williams v. State, 674 S.W.2d 315 (Tex.Cr.App.1984); Brinson v. State, 570 S.W.2d 937 (Tex.Cr.App.1978); Brown v. State, 507 S.W.2d 235 (Tex.Cr.App.1974); Renesto v. State, 452 S.W.2d 498 (Tex.Cr.App.1970); Darden v. State, 430 S.W.2d 494, 495 (Tex.Cr.App.1968). Since appellant openly pled to the offenses in the indictment she is not eligible for a bifurcated trial under Wilkens, Beathard, or Brumfield, but is instead subject to the rules of a unitary proceeding. Therefore, appellant's waiver extended to this proceeding.

Another distinction between the instant case and the cases relied upon by the Court of Appeals is that in this case appellant executed and filed with the trial court a document entitled "Defendant's Written Waiver of Rights," in which appellant waived her right not to incriminate herself and agreed to testify if called as a witness. In addition to the specific waiver of her Fifth Amendment privilege against self-incrimination, appellant also generally waived all rights of form, substance or procedure given her by law. Article 1.14, V.A.C.C.P. (1997). In Wilkens, Beathard, and Brumfield, the defendants did not file written waivers with the trial court.

Constitutionally protected rights may be waived if done so knowingly, voluntarily, and intelligently. Brumfield v. State, 445 S.W.2d at 735. In addition, this Court time and again has followed the classic definition of waiver: "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Robles v. State, 577 S.W.2d 699 (Tex.Cr.App.1979). Applying these principles of law to the criminal prosecution in the instant case we can conclude that appellant chose to waive the rights secured her by law. Article 1.14, V.A.C.C.P. (1997). We have a document signed by appellant and appellant's defense counsel which was filed with the trial court specifically stating:

"10. Pursuant to Article 1.14 of the Texas Code of Criminal Procedure, I waive all rights of form, substance or procedure given me by law."

"11. I waive, in accordance with Articles 1.13 and 1.15, Texas Code of Criminal Procedure, my right to a jury trial on both guilt and punishment, to appearance, confrontation and cross-examination of witnesses and agree to oral and/or written stipulations of evidence."

"12. I waive my right not to incriminate myself, agree to testify if called as a witness and judicially confess under oath that each and every allegation contained in the indictment or information which is not waived by the State is true and I am guilty of the offense as charged."

Appellant's written waiver and the record before us persuade this Court to find that appellant intentionally relinquished her Fifth Amendment right not to self-incriminate. We can also conclude that there was an indication that this waiver was done knowingly, voluntarily, and intelligently. Therefore, appellant met the requirements of Articles 1.13, 1.14 and 1.15, V.A.C.C.P., for an effective waiver of her constitutional rights.

We find that the Fort Worth Court of Appeals erred in holding that a defendant who pleads guilty to a non-capital felony is entitled to a bifurcated trial. We simply reaffirm our previous holdings and conclude that in a non-capital felony case where a defendant pleads guilty either before a judge or jury the trial becomes "unitary." And as a result, there does not exist a separate punishment phase. Therefore, we hold that appellant's written waiver of her Fifth Amendment right not to self-incriminate applied to the entire criminal adjudication proceeding including the assessment of punishment. Frame, 615 S.W.2d at 766 (Once a guilty plea has been entered, trial is not to be bifurcated, but, rather, unitary procedure is to be used, regardless of whether the guilty plea is entered before a trial judge or a jury).

We reverse and remand this case in light of the reasons set forth in this opinion.

MEYERS, J., files a dissenting opinion, joined by BAIRD, J.

OVERSTREET, J., dissents.

MEYERS, Judge, dissenting.

The trial court erred in coercing appellant from rescinding the waiver of her right against self incrimination, and the Court of Appeals should be affirmed in so holding. The majority's resolution of this case is based upon a presumption that is belied in case after case. The majority also fails to address or distinguish recent caselaw holding that a waiver of constitutional rights may be rescinded.

At issue in this case is the effect of a written waiver of rights, executed by appellant in connection with her open pleas of guilty. The Court of Appeals reasoned, in part, that because the proceeding was bifurcated, consisting of both a guilt and punishment phase, the waiver was effective as to the guilt phase but did not extend to the punishment phase of the trial. Carroll v. State, 946 S.W.2d 879, 881-83 (Tex.App.--Fort Worth 1997).

The majority's holding is based upon its conclusion that the trial was a unitary, not bifurcated, proceeding:

We find that the Fort Worth Court of Appeals erred in holding that a defendant who pleads guilty to a non-capital felony is entitled to a bifurcated trial. We simply reaffirm our previous holdings and conclude that in a non-capital felony case where a defendant pleads guilty either before a judge or jury the trial becomes "unitary." And, as a result, there does not exist a separate punishment phase. Therefore, we hold that ap...