Marcelino v. the State of Texas

• Decision Date: 14 September 2000
• Docket Number: A,AGUIRRE-MAT
• Citation: 26 S.W.3d 922
• Parties: <!--26 S.W.3d 922 (Tex.App.-Houston 2000) MARCELINOppellant v. THE STATE OF TEXAS, Appellee NO. 01-96-01147-CR In The Court of Appeals For The First District of Texas Opinion issued
• Court: Texas Court of Appeals

Page 922

26 S.W.3d 922 (Tex.App.-Houston[1st Dist.] 2000)

MARCELINO AGUIRRE-MATA, Appellant v. THE STATE OF TEXAS, Appellee

NO. 01-96-01147-CR

In The Court of Appeals

For The First District of Texas

Opinion issued September 14, 2000

On Appeal from the 176th District Court Harris County, Texas Trial Court Cause No. 721,072

Panel consists of Justices Cohen, O'Connor, and Andell.

OPINION ON REMAND FROM THE TEXAS COURT OF CRIMINAL APPEALS

Murry B. Cohen, Justice

Appellant was charged with possession with intent to deliver more than 600 grams of heroin. He first pleaded not guilty, but, after jury selection, appellant withdrew that plea and pleaded guilty. The jury then assessed punishment at 99 years in prison and a $250,000 fine. On February 5, 1998, this Court reversed the judgment and remanded the cause because we found the trial judge's total failure to admonish appellant of the punishment range when appellant pleaded guilty was harmful under Tex. R. App. P. 44.2(a) ("constitutional error"). Aguirre-Mata v. State, 962 S.W.2d 264, 266-67 (Tex. App.--Houston [1st Dist.] 1998), vacated, 992 S.W.2d 495 (Tex. Crim. App. 1999). The Court of Criminal Appeals vacated our judgment and remanded the cause for a harm analysis under Tex. R. App. P. 44.2(b) ("other errors"). 992 S.W.2d at 499. We now affirm.

The Issue Before Us

The pre-plea discussion is set out in our first opinion. 962 S.W.2d at 265-66. All agree that the trial judge erred by not telling appellant the punishment range before the plea. See Tex. Code Crim. P. Ann. art. 26.13(a)(1) (Vernon Supp. 2000). The sole issue is whether this error was harmful under rule 44.2(b), the test for non-constitutional error.

The Court of Criminal Appeals has ordered us to conduct a rule 44.2(b) harm analysis: "Accordingly, we grant the State's petition, vacate the judgment of the Court of Appeals, and remand the cause to that court to conduct a harm analysis pursuant to Rule 44.2(b)." As an intermediate court of appeals, we are bound to follow that order, as well as the controlling precedents of our State's highest criminal law court imposing the same rule. As the United States Supreme Court has said, "Unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be." Hutto v. Davis, 454 U.S. 370, 375; 102 S. Ct. 703, 706 (1982). "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484; 109 S. Ct. 1917, 1921-22 (1989). The dissenters in Rodriguez agreed. They declared that by refusing to do so, the Court of Appeals "engaged in an indefensible brand of judicial activism." 490 U.S. at 486; 109 S. Ct. at 1923.

The Texas Supreme Court agrees. In re Smith Barney, 975 S.W.2d 593, 598 (Tex. 1998). In rebuking and reversing a court of appeals that "disregarded the direct instructions of this Court," Justice Doggett declared: "This Court need not defend its opinions from criticism from courts of appeals; rather, they must follow this Court's pronouncements." Lofton v. Texas Brine Corp., 777 S.W.2d 384, 386 (Tex. 1989). This principle of law undoubtedly would be followed by the Texas Court of Criminal Appeals. We are bound by these rules. Therefore, as ordered, we will conduct a harm analysis pursuant to rule 44.2(b), despite our strong belief that rule 44.2(b) should not and does not apply to this type of error. See High v. State, 998 S.W.2d 642, 646-47 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd) (Cohen, J., concurring on remand) (contending that, under Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969), a total failure to admonish about the range of punishment is constitutional error that requires reversal without harm to the defendant and that controlling Texas case law to the contrary is in error).

At least four court of appeals justices have now stated that Boykin v. Alabama (1) controls this issue, (2) requires reversal without proof of harm, and (3) conflicts in that respect with the holdings of the Texas Court of Criminal Appeals. I raised the issue at length in High, 988 S.W.2d at 645- 49 (Cohen, J., concurring on remand). Justice Ben Grant soon agreed. Perkins v. State, 7 S.W.3d 683, 689-90 (Tex. App.--Texarkana 1999, pet. ref'd) (Grant, J., dissenting). Justices O'Connor and Andell agree today. We respectfully encourage other courts, including the Court of Criminal Appeals and the United States Supreme Court, to address this important constitutional issue.

Harm Under Rule 44.2(b)

"Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." Tex. R. App. P. 44.2(b). For this error, a defendant must show no more than that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court. Carranza v. State, 980 S.W.2d 653, 657-58 (Tex. Crim. App. 1998).

Appellant's Arguments on Remand

On remand, appellant claims he was harmed for three reasons: (1) he received the maximum punishment; (2) he was confused about the punishment range; and (3) by violating the mandatory admonishment statute, the judge necessarily deprived appellant of state constitutional due course of law, which deprivation also necessarily affected his substantial rights. Appellant also claims the error deprived him of federal due process, which deprivation requires reversal without regard to harm. We address these arguments in order.

A. Does the Punishment Received Show Harm for This Error?

Appellant first contends he was harmed because he received the maximum punishment. See Tex. Health & Safety Code Ann. § 481.112(f) (Vernon Supp. 2000) (range of life or 15 to 99 years imprisonment plus mandatory fine not over $250,000.). We disagree.

We hold the length of punishment does not show harm. To show harm in this case, appellant must show he did not know the punishment range, and if he had, he would not have pleaded guilty. See High, 998 S.W.2d at 644 (op. on remand). The length of punishment might show harm in a case when the sentence exceeded the admonishments. That is not the case here.

Appellant's authorities are not controlling because none concerned omitted plea admonishments. See Menefee v. State, 928 S.W.2d 274, 281-82 (Tex. Crim. App. 1996) (erroneous admission of prior convictions); McKenzie v. State, 617 S.W.2d 211, 220-21 (Tex. Crim. App. 1981) (improper closing argument by prosecutor); Irving v. State, 573 S.W.2d 5, 6 (Tex. Crim. App. 1978) (same).

B. Does the Record Reflect Appellant's Substantial Rights Were Affected Because He Did Not Understand the Range of Punishment Before His Plea?

Nothing in this record shows appellant was harmed. There was no motion for new trial, and appellant neither claimed nor proved that he did not know the punishment range and that, if he had known it, he would have pleaded not guilty. See High, 998 S.W.2d at 644 (op. on remand).

During voir dire, the prosecutor three times correctly stated the punishment range. Nothing shows that appellant did not hear and understand that, that his interpreter was not present, or that his attorney had not already told him the same thing. Under former law, that was insufficient; only the judge could admonish about punishment, and the judge's failure to do so was automatic reversible error. Whitten v. State, 587 S.W.2d 156, 157, 159 (Tex. Crim. App. 1979) (op. & op. on reh'g); Stewart v. State, 580 S.W.2d 594, 595 (Tex. Crim. App. 1979); Murray v. State, 561 S.W.2d 821, 822 (Tex. Crim. App. 1977). These cases are no longer good law. They have been overruled by the likes of Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997), Carranza, 980 S.W.2d at 656, High v. State, 964 S.W.2d 637, 638 (Tex. Crim. App. 1998), and Aguirre-Mata, 992 S.W.2d at 499. See Rachuig v. State, 972 S.W.2d 170, 176 (Tex. App.--Waco 1998, pet. ref'd) (holding failure to admonish on punishment range not harmful when prosecutor stated punishment range, and defense counsel confirmed that prosecutor had correctly stated that range, in voir dire before plea); see also Manoy v. State, 7 S.W.3d 771, 777 (Tex. App.--Tyler 1999, no pet.) (holding same error not harmful because judge and both attorneys stated punishment range during voir dire before plea); McLaren v. State, 996 S.W.2d 404, 406 (Tex. App.--Beaumont 1999, pet. ref'd) (same); Anders v. State, 973 S.W.2d 682, 685 (Tex. App.--Tyler 1997, pet. ref'd) (same, under rule 44.2(a)).

Appellant claims his following responses when he was admonished of other rights show he did not understand the punishment range:

"I want to tell you that to excuse me, but I ask you a favor to understand and have consideration for me because I have children. That's all I want to say."

"Yes. I plead guilty. I don't want to have the trial because I know I am guilty. I was asking for some time or bond or something."

"Yes. That's what I want, just with the judge."

"Yes, I don't want to be wasting time."

"Yes. The reason I'm say I'm guilty is because we're here and I don't want to have more wasted time."

"Yes, because the charges are here, and I cannot deny them."

These statements do not show that appellant did not know the punishment range.

This is not a case like High v. State, in which the record affirmatively showed that the defendant was "unsure" of the maximum punishment and ultimately was wrong about the minimum. 998 S.W.2d at 649 (Cohen, J., concurring on remand). Here, in contrast, the record reveals that the correct punishment range was stated in court in appellant's presence three times before he pleaded guilty, and the statements on which appellant now...