Rachuig v. State

• Decision Date: 15 July 1998
• Docket Number: No. 10-97-238-CR,10-97-238-CR
• Citation: 972 S.W.2d 170
• Parties: Leonard Dave RACHUIG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 170

972 S.W.2d 170

Leonard Dave RACHUIG, Appellant, v. The STATE of Texas, Appellee.

No. 10-97-238-CR.

Court of Appeals of Texas Waco.

July 15, 1998.

Rehearing Overruled July 29, 1998.

Jack M. Hurley, Waco, for appellant.

John W. Segrest, Crim. Dist. Atty., Laura M. Alaniz, Asst. Dist. Atty., Waco, for appellee.

Before DAVIS C.J., and CUMMINGS and VANCE, JJ.

OPINION

DAVIS, Chief Justice.

Leonard Dave Rachuig pled guilty before a jury to the offenses of intoxication assault and felony driving while intoxicated. See TEX. PEN.CODE ANN. § 49.07(a) (Vernon 1994), § 49.09(b) (Vernon Supp.1998). The jury assessed his punishment at eight years' confinement on both charges and a $10,000 fine on the intoxication assault charge. The jury also found that Rachuig used or exhibited a deadly weapon during the commission of the intoxication assault.

Rachuig presents four issues in which he claims: (1) the State's deadly weapon notice does not satisfy the due process requirements of the Texas Constitution; (2) the court's instructions concerning the deadly weapon issue are fatally defective; (3) his conviction must be reversed because the court failed to comply with the requirements of either article 26.13 of the Code of Criminal Procedure or the Fifth Amendment; and (4) the judgment must be modified to limit the deadly weapon finding to the intoxication assault charge. We will modify the judgment and affirm it as modified.

FACTUAL BACKGROUND

The first count of the indictment alleges in pertinent part that on or about December 19, 1996, Rachuig:

did then and there operate a motor vehicle in a public place while intoxicated, and did by reason of such intoxication cause serious bodily injury to another, namely Marilyn Doherty, by accident and mistake, to-wit: by failing to maintain a proper look-out while operating said motor vehicle; by failing to apply the brakes in a timely fashion to said motor vehicle that defendant was operating; and by failing to stop said vehicle that defendant was operating at an intersection in obedience to a traffic control device.

Seven days before trial, the State filed a separate notice of its intention to seek a deadly weapon finding in the case. A certificate of service in the notice recites that the State faxed Rachuig's counsel a copy of the notice ten days before trial.

At trial, Rachuig pled guilty to the allegations after the State read the indictment. Upon receiving his plea, the court permitted the State to make an opening statement, and the trial commenced. At the conclusion of the evidence, the court's charge directed the jury to find Rachuig guilty and asked the jurors to assess Rachuig's punishment and determine whether he used or exhibited a deadly weapon during the commission of the intoxication assault. The jury made the findings which are indicated above.

ARTICLE 26.13

Rachuig's third issue avers that the court did not substantially comply with the requirements of either article 26.13 of the Code of Criminal Procedure or the Fifth Amendment because the court failed to advise him of the range of punishment prior to accepting his guilty plea. See TEX.CODE CRIM. PROC. ANN. art. 26.13(a)(1) (Vernon 1989). Rachuig also contends that the court erred by failing to ask him any questions to ascertain whether his plea was free and voluntary. Id. art. 26.13(b).

ARTICLE 26.13(a)(1)

The clerk's record and the reporter's record present conflicting evidence on the extent of the court's admonishment. The clerk's record contains an "Arraignment Order" which is dated the first day of trial and provides in pertinent part that Rachuig "was duly admonished by the Court of the consequences of [his] plea of guilty." The court informed the jury in the charge that Rachuig had "persisted in entering his pleas of guilty, notwithstanding that the court, as required by law, has admonished him of the consequences." The judgment recites that Rachuig was "duly arraigned."

On the other hand, the court's notations on the docket sheet merely reflect that Rachuig "pled guilty." The docket sheet is silent regarding any admonishments. The reporter's record contains no admonishments. Moreover, the court reporter has certified by letter that the "complete reporter's record" has been filed in this cause.

Generally, "recitations in the judgment and other portions of the record are binding on an appellant in the absence of direct proof to the contrary," and "the appellant has the burden of overcoming the presumptions raised by the record in such cases." Brown v. State, 917 S.W.2d 387, 390 (Tex.App.--Fort Worth 1996, pet. ref'd); accord Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim.App.1985) (on rehearing); Creeks v. State, 537 S.W.2d 29, 30 (Tex.Crim.App.1976); see also Solis v. State, 673 S.W.2d 270, 273-74 (Tex.App.--Corpus Christi 1984), aff'd, 718 S.W.2d 282 (Tex.Crim.App.1986).

We assume without deciding that the conflicts in the record overcome any presumption of a valid admonishment raised by the recitations in the arraignment order, the charge, and the judgment. And thus assuming that the court failed to admonish Rachuig pursuant to article 26.13(a)(1), we will review the record to determine whether Rachuig was harmed by such failure.

At oral argument, Rachuig suggested that the total failure of the court to comply with the requirements of article 26.13(a)(1) amounts to a structural error to which no harm analysis can be applied. See Cain v State, 947 S.W.2d 262, 264 n. 5 (Tex.Crim.App.1997) ("certain federal constitutional errors labeled as 'structural' are not subject to a harmless error analysis"); see also Arizona v. Fulminante, 499 U.S. 279, 306-12, 111 S.Ct. 1246, 1263-66, 113 L.Ed.2d 302 (1991); Ex parte Fierro, 934 S.W.2d 370, 372-73 (Tex.Crim.App.1996), cert. denied, --- U.S. ----, 117 S.Ct. 2517, 138 L.Ed.2d 1019 (1997). "An error is 'structural' only if it is the kind of error that affects the framework in which the trial takes place and defies analysis by harmless error standards." Id. at 372.

The Court of Criminal Appeals has specifically rejected Rachuig's position that a total failure to admonish pursuant to article 26.13(a)(1) constitutes "structural error." High v. State, 964 S.W.2d 637, 638 (Tex.Crim.App.1998) (per curiam ); see also Cain, 947 S.W.2d at 264. In High, the First Court of Appeals had reversed the judgment without conducting a harm analysis after concluding the court did not admonish the defendant concerning the applicable range of punishment. High, 964 S.W.2d at 638. The Court of Criminal Appeals reversed for the lower court to conduct a harm analysis under Rule 44.2 of the appellate rules. The Court reaffirmed its statement in Cain that the "absence of substantial compliance" with the requirements of article 26.13 is not an error which is immune from a harm analysis. Id.; see also Cain, 947 S.W.2d at 264. Accordingly, we will conduct a harm analysis to determine whether Rachuig was harmed by the court's failure to comply with article 26.13(a)(1).

TEX.R.APP. P. 44.2

Rachuig contends in his brief that the court's failure to comply with article 26.13(a)(1) is a constitutional error subject to Rule 44.2(a). Although the State does not cite Rule 44.2(a), it argues that the court's failure to comply with article 26.13 did not contribute to Rachuig's conviction or punishment--the harmless error standard of Rule 44.2(a). See TEX.R.APP. P. 44.2(a). Rule 44.2(a) provides that in cases of constitutional error, "the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment." Id. Other courts have applied Rule 44.2(a) to article 26.13 errors. See Aguirre-Mata v. State, 962 S.W.2d 264, 266-67 (Tex.App.--Houston [1st Dist.] 1998, pet. filed); Anders v. State, 973 S.W.2d 682, 684-685 (Tex.App.--Tyler Nov.19, 1997, pet. ref'd) (on rehearing).

This Court recently considered an article 26.13 error and applied the standard of Rule 44.2(b) to assess harm. See Raney v. State, 958 S.W.2d 867, 873 (Tex.App.--Waco 1997, pet. granted). ¹ Rule 44.2(b) provides that in cases involving "other" (i.e., non-constitutional) error, such error "must be disregarded" unless it affected the appellant's "substantial rights." Id. We followed this rule for two reasons: (1) we observed without analysis that an article 26.13 error is statutory rather than constitutional in nature; and (2) we followed a federal rule which applies a similar harmless error standard in admonishment error cases. Id.; FED.R.CRIM.P. 11(h). ²

The Court of Criminal Appeals has given no direct guidance on the question of which standard should apply. The "constitutional error" standard finds its genesis in the 1967 decision of the United States Supreme Court in Chapman v. California. 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In Chapman, the Court held "that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Id. 386 U.S. at 24, 87 S.Ct. at 828. The Court of Criminal Appeals recognized that former appellate rule 81(b)(2) "was the rhetorical and semantical equivalent of the harmless error standard" set forth in Chapman. Harris v. State, 790 S.W.2d 568, 584 (Tex.Crim.App.1989). Rule 44.2(a) is identical to the former rule 81(b)(2). Thus, it represents the continuation of the Chapman standard under the new appellate rules. See Brown v. State, 960 S.W.2d 265, 271 (Tex.App.--Corpus Christi 1997, no pet.); Fowler v. State, 958 S.W.2d 853, 864 (Tex.App.--Waco 1997, pet. granted).

Rachuig suggests that because the purpose of article 26.13 is to ensure the voluntariness of a defendant's plea, a court's failure to follow its requirements is "constitutional error." He cites Boykin v. Alabama, in which the Supreme Court reversed a capital robbery conviction where the trial court accepted...