Hargrave v. State, No. 06-03-00090-CR (TX 7/13/2004)
| Decision Date | 13 July 2004 |
| Docket Number | No. 06-03-00090-CR.,06-03-00090-CR. |
| Parties | FREDDIE JEROME HARGRAVE, Appellant v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Supreme Court |
On Appeal from the 8th Judicial District Court, Franklin County, Texas, Trial Court No. 7,531.
Before MORRISS, C.J., ROSS and CARTER, JJ.
Freddie Jerome Hargrave pled guilty to forgery without a plea agreement.1 The trial court accepted the plea of guilty, finding it was freely and voluntarily made. Following the filing of a presentence investigation (PSI) report and testimony from Hargrave, punishment was assessed by the trial court at two years' confinement and restitution in the amount of $514.14. The trial court granted the State's motion to cumulate and ordered Hargrave's sentence for forgery be served consecutively with a term he was then serving for burglary of a habitation.2
Hargrave contends on appeal that (1) his guilty plea was not made voluntarily with a full understanding of its consequences; (2) he did not properly waive his right to a trial by jury; (3) the State did not introduce evidence showing his guilt as required by the Texas Code of Criminal Procedure; and (4) his trial counsel was ineffective for failing to call rebuttal witnesses during his punishment hearing.
Hargrave first contends his guilty plea was not made voluntarily with full knowledge of its consequences.3 He contends this is evidenced by his many assertions of being confused at both the plea hearing and the subsequent punishment hearing.
No plea of guilty or nolo contendere shall be accepted by a trial court unless it appears the defendant is mentally competent and the plea is free and voluntary. See TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (Vernon Supp. 2004). When reviewing the voluntariness of a guilty plea, the record is viewed as a whole. See Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975). Voluntariness of a plea is determined by the totality of the circumstances. See Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App. 1986).
A finding that a defendant was duly admonished creates a prima facie showing that a guilty plea was entered knowingly and voluntarily. Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985). Further, when a defendant indicates at the plea hearing he or she understands the nature of the proceeding and is pleading guilty because the allegations in the indictment are true, not because of any outside pressure or influence, the defendant has a heavy burden to prove on appeal that his or her plea was involuntary. Crawford v. State, 890 S.W.2d 941, 944 (Tex. App.—San Antonio 1994, no pet.).
Article 26.13(a) requires the trial court to admonish a defendant, before accepting his or her plea, of (1) the punishment range, (2) the fact that the state's sentencing recommendation is not binding on the court, (3) the limited right to appeal in cases where the court follows a plea agreement, (4) the possibility of deportation, and (5) the fact the defendant would have to register as a sex offender if the conviction was for a sex offense. TEX. CODE CRIM. PROC. ANN. art. 26.13(a) (Vernon Supp. 2004).
The purpose of the admonishments is to ensure the defendant enters his or her plea with full knowledge of the consequences. See Carranza v. State, 980 S.W.2d 653, 656 (Tex. Crim. App. 1998). The admonishments under Article 26.13(a) are not constitutionally required, and their purpose and function is to assist the trial court in making the determination that a guilty plea is knowingly and voluntarily entered. See Aguirre-Mata v. State, 992 S.W.2d 495, 498-99 (Tex. Crim. App. 1999); Alvarez v. State, 63 S.W.3d 578, 581 (Tex. App.—Fort Worth 2001, no pet.).
At the plea hearing, the trial court properly admonished Hargrave concerning all the relevant and direct consequences of his guilty plea. The trial court properly admonished Hargrave that the punishment range for the offense charged was confinement for 180 days to two years. See TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(1). In addition, although not required to do so, the court admonished Hargrave that the court had discretion in his case to make the sentence run consecutively instead of concurrently. See TEX. CODE CRIM. PROC. ANN. art. 42.08 (Vernon Supp. 2004); Simmons v. State, 457 S.W.2d 281, 283 (Tex. Crim. App. 1970). The court also admonished Hargrave on "up front" time he might be required to serve in the event he was placed on community supervision. Hargrave stated he understood all of the admonishments.
The trial court did not explicitly admonish Hargrave of the fact that the State's sentencing recommendation was not binding on the court, of the limited right to appeal in cases where the court follows a plea agreement, of the possibility of deportation, or of the fact he would have to register as a sex offender if the conviction was for a sex offense. None of these admonishments, however, were relevant to Hargrave and could not have factored in his decision to enter a plea of guilty.4 The court substantially complied with Article 26.13(a), and Hargrave had full knowledge of the relevant consequences of his guilty plea.
The trial court also inquired into Hargrave's competency. Hargrave stated that he knew what was going on in the courtroom, that he knew the date, and that he was able to talk with his attorney and understand the advice he was given. Hargrave also stated that he was pleading guilty because he was guilty and for no other reason, that he was pleading guilty freely and voluntarily, and that no one had coerced him into entering a guilty plea.
Hargrave contends his guilty plea was not made voluntarily with full knowledge of its consequences and asserts this is evidenced by the confusion he displayed at the pretrial hearing. Hargrave made several assertions he was confused and did not understand the proceedings. Each time, however, his questions were answered and the nature of the proceedings explained to him.5 At the end of the plea hearing, Hargrave stated he understood the proceedings and was entering his guilty plea freely and voluntarily. Hargrave is not specific as to what he was confused about and fails to state the specific consequences of which he was not made aware. The record contains no evidence tending to indicate that Hargrave was misled into making his guilty plea or harmed thereby. Based on the totality of the circumstances and the proceedings as a whole, Hargrave has not shown that his plea was involuntary.
Hargrave next contends he did not waive his right to trial by jury in writing, in open court, and therefore the judgment and sentence against him must be reversed.
The Code of Criminal Procedure requires that, to waive the right to a trial by jury, a defendant must make such waiver in person and in writing, in open court, with the consent and approval of the court and the attorney representing the state. TEX. CODE CRIM. PROC. ANN. art. 1.13(a) (Vernon Supp. 2004). In this case, the State concedes there was no written waiver of a jury trial. We therefore find there was error and consider now whether such error was harmful.
The failure to have a written waiver of the right to a jury trial is subject to harm analysis. Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997); Salinas v. State, 987 S.W.2d 922, 923 (Tex. App.—Corpus Christi 1999, no pet.). This is a statutory error, not a constitutional error. Ex parte Sadberry, 864 S.W.2d 541, 543 (Tex. Crim. App. 1993). Therefore, where no waiver of jury trial has been secured, the reviewing court must determine whether the defendant's substantial rights have been affected. Salinas, 987 S.W.2d at 923. If no substantial rights have been affected, the error must be disregarded. TEX. R. APP. P. 44.2(b). A number of our sister courts have chosen to adopt the federal jury waiver test in cases where no written waiver appears in the record. Lopez v. State, 71 S.W.3d 511 (Tex. App.—Fort Worth 2002, no pet.); Whitmire v. State, 33 S.W.3d 330 (Tex. App.—Eastland 2000, no pet.); Loveless v. State, 21 S.W.3d 582 (Tex. App.—Dallas 2000, pet. ref'd). The federal jury waiver test provides that a defendant's substantial rights are affected unless the record clearly reflects that the defendant personally gave express consent in open court, intelligently and knowingly. Lopez, 71 S.W.3d 511. The Texas Court of Criminal Appeals has recently rejected this test, finding that the ordinary harm analysis standard under TEX. R. APP. P. 44.2(b) should be applied, without the presumption of harmfulness which the federal test imparts. See Johnson v. State, 72 S.W.3d 346, 348 (Tex. Crim. App. 2002); Garza v. State, 77 S.W.3d 292, 292 (Tex. Crim. App. 2002);see also Jackson v. State, 76 S.W.3d 798, 801 (Tex. App.—Corpus Christi 2002, no pet.). In Johnson, 72 S.W.3d at 348-49, the Texas Court of Criminal Appeals held that the lack of a written jury waiver is not harmful when the record reflects the defendant was aware of his or her right to a jury trial and waived that right.
The trial court informed Hargrave he was entitled to a jury trial. Therefore, Hargrave was aware of his right to a jury trial. The trial court then inquired whether Hargrave wanted a jury trial. Hargrave stated he wanted a trial before the court four different times. This desire and request for a trial before the court was never denied, repudiated, withdrawn, or complained of by Hargrave before, during, or after the proceedings. Even on appeal, Hargrave does not complain that he did not know of his right to a jury trial or that he was deprived of his right to trial by jury. He also does not claim on appeal that he wanted a jury trial or that he did not intend to waive a jury trial. Accordingly, the record reflects that Hargrave was aware of his right to a jury trial...
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