Friemel, Vincent Monrow
PD-0844-15
Tex. App.Jul 9, 2015Background
- Friemel was charged with evading arrest with a motor vehicle (third-degree felony) and pled guilty at a bench trial; the court found a deadly-weapon allegation (motor vehicle) true and sentenced him to nine years' confinement.
- The deadly-weapon finding (a statutory finding separate from sentencing) made him ineligible for judge-ordered community supervision and delayed parole eligibility until he serves one-half of his sentence.
- Friemel did not have a plea bargain; the trial court gave written and oral Article 26.13 admonitions stating the applicable punishment range (2–10 years; up to $10,000 fine) and accepted his guilty plea and waiver of jury.
- On appeal to the Sixth Court of Appeals, Friemel argued the trial court erred by failing to admonish him about the effects of a deadly-weapon finding on parole and community-supervision eligibility, rendering his plea involuntary under Boykin/due process.
- The court of appeals held the Article 26.13 admonitions were sufficient (substantial compliance), that neither Article 26.13 nor due process requires a deadly-weapon/parole admonition, and affirmed the conviction and sentence.
Issues
| Issue | Plaintiff's Argument (Friemel) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether Art. 26.13 required admonition about consequences of a deadly-weapon finding (parole/community supervision) | Art. 26.13 and Boykin require advising a defendant of consequences that materially affect confinement and therefore the court should have warned about delayed parole/ineligibility for community supervision | Art. 26.13 only requires admonishment of the range of punishment; deadly-weapon consequences do not change the sentence range and thus no admonition required | Court: No. Art. 26.13 does not require admonition on deadly-weapon effects; substantial compliance with range admonition was satisfied |
| Whether failure to warn of deadly-weapon consequences renders plea involuntary under Boykin/due process | Absent a warning that the deadly-weapon finding would delay parole and bar judge-ordered community supervision, plea lacked a "full understanding" and is involuntary | Boykin does not mandate admonitions beyond those addressing constitutional rights; the record here is not silent and shows adequate admonitions and waivers, so Boykin does not apply to require a deadly-weapon/parole admonition | Court: No. Boykin presumption not triggered; due process does not require those additional admonitions |
| Whether the deadly-weapon finding affects the length of sentence (relevance to admonition requirement) | Deadly-weapon finding has a direct punitive consequence (delays parole) and should be treated as a material consequence for plea advisements | Deadly-weapon finding affects only parole/community-supervision eligibility, not the statutory sentencing range; Article 26.13 protects against understatement of the statutory range, not collateral effects | Court: Deadly-weapon finding does not alter statutory range; collateral effects do not trigger Article 26.13 admonition requirement |
| Whether the trial court assessed attorney fees against an indigent defendant | (Friemel) Concern that an order listing attorney-fee cost could become an ex parte assessment later | (State) No assessment was entered; order merely listed the cost and the record contains no finding that Friemel was able to repay; no fees were assessed | Court: No error—trial court did not assess court-appointed attorney fees against Friemel |
Key Cases Cited
- Boykin v. Alabama, 395 U.S. 238 (1969) (a plea must be voluntary and with an understanding of its consequences; silence in the record can trigger a presumption the plea was not knowing)
- McCarthy v. United States, 394 U.S. 459 (1969) (federal admonitions are designed to assist judges but are not constitutionally mandated in exact form)
- Aguirre-Mata v. State, 125 S.W.3d 473 (Tex. Crim. App. 2003) (Boykin does not require the equivalent of Article 26.13 admonishments or range-of-punishment admonition to satisfy due process)
- Davison v. State, 405 S.W.3d 682 (Tex. Crim. App. 2013) (Article 26.13 admonitions aim to ensure adequately informed pleas; Boykin operates as a default where record is silent)
- Martinez v. State, 981 S.W.2d 195 (Tex. Crim. App. 1998) (substantial compliance with Article 26.13 creates a prima facie showing that a plea is knowing and voluntary; burden shifts to defendant to show he was misled or harmed)
- Mitschke v. State, 129 S.W.3d 130 (Tex. Crim. App. 2004) (recognizes that a deadly-weapon finding has concrete consequences such as parole ineligibility)
- Cates v. State, 402 S.W.3d 250 (Tex. Crim. App. 2013) (court-appointed attorney fees may not be assessed against an indigent defendant absent a later finding that the defendant is able to pay)