*1
State,
the crime.
v.
felony
of a
committed
attempted
or
commission
sion
Neff
(Tex.Crim.App.1982).
manslaughter.
than
Tex. Penal
(Vernon 1994).
19.02(b)(3)
is,
makes criminal an assault
§
As That
statute
Ann.
Code
seen,
intentionally, knowing
deigned
that is done either
legislature
can be
the state
ly,
recklessly.
from
cat-
or
only manslaughter
exclude
the
Tex. Penal
Ann.
Code
22.01(a)(1) (Vernon 1996). Thus,
the
§
egory
may
of felonies which
serve as
conviction
Nothing
any
offense.
is said of
State is entitled to secure
predicate
(and
that
the ac
alleging
proving)
later
other.
the three afore
any
cused acted with
Yet,
fíat,
judicial
the Texas
through
Nevertheless,
mens rea.
ac
mentioned
v.
in Garrett
Criminal
Neff,
alleged
the mens rea
cording to
when
State,
(Tex.Crim.App.
reference to reck
the indictment omits
1978),
legislature
did that which the state
lessness, the assault averred is not such a
is,
forego.
expanded
That
it
opted
manslaughter.
offense of
lesser included
category of crimes unavailable for use as
State,
760.
Neff v.
felony
in a
murder
predicate
offense
Next,
to,
alluded
previously
as
State
issuance, however,
its
prosecution. Since
ap-
that
alleged via the indictment
bar
opinion
that
has been honored more
its
knowing-
intentionally
“did ...
pellant
Indeed,
than in
adherence.
breach
its
felony,
a
ly
attempt
cause and
to commit
courts, including
highest
criminal court
” In oth-
Aggravated
to-wit:
Assault....
state,
distinguish
in this
endeavored to
words,
appellant
accused
er
State
it,
and,
thereby, nullify
illustrated
as
an
committing
aggravated
assault with
State,
Rodriguez v.
knowing mind set. More-
intentional and
ref'd).
— Austin
over, nothing
acting
was said of his
reck-
Johnson,
v.
And,
lessly.
it cannot be
because
(describing the incon
aggravated
assault with
said that
Garrett). Nevertheless,
history
sistent
charged
constituted a
at
with the advent of Johnson
manslaughter.
offense of
lesser included
tempt
“put
[to]
was made to
an end
Consequently, we
supra.
Neff
wrought by
opin
the troubled
confusion”
reject appellant’s
must
contention
sition that conviction underlying felony
... will not lie when the of manslaughter or a lesser included So, whether manslaughter.” fense of Id. Marcelino AGUIRRE- “merger doctrine” bars and its Garrett MATA, Appellant, felony solely murder is one’s conviction for predicate of dependent upon whether Texas, Appellee. or a lesser included manslaughter fense is STATE said, we offense thereof. Id. With No. 01-96-01147-CR. dispute turn to the before us. Texas, Court of aggravated Appellant argues (1st Dist.). Houston of man assault is a lesser included offense Sept. proposi that the slaughter. To the extent true, it is not when may generally tion be indictment, avers, through State knowingly intentionally or
that the accused *2 Aninao, Houston,
Tony for Appellant. Holmes, Houston, B. Alan Curry, John for State. COHEN,
Panel consists of Justices O’CONNOR, and ANDELL.
OPINION ON REMAND
THE
FROM
TEXAS COURT OF CRIMINAL
APPEALS
COHEN,
MURRY B.
Justice.
Appellant
charged
possession
with
grams
with intent to deliver more than 600
but,
“If a
pleaded
guilty,
of heroin.
first
of this
has direct
precedent
He
selection,
case, yet
rest
jury
application
appears
after
withdrew
jury
rejected in
pleaded
some other line
reasons
decisions,
at 99
fol-
years
then assessed
the Court
should
*3
controls,
$250,000
prison
February
directly
and a
fine. On
low
leav-
the case
1998,
5,
ing
this
reversed the
to
of over-
judgment
prerogative
Court
this Court
de
ruling
Rodriguez
the cause because we found
its own decisions.”
remanded
Inc.,
judge’s
trial
failure to
490
Quijas
Express,
total
admonish
v. Shearson/Am.
1921-22,
477, 484,
1917,
appellant of
U.S.
109 S.Ct.
104
punishment range
when
(1989).
appellant pleaded guilty was harmful un L.Ed.2d 526
The dissenters
Tex.R.App.
44.2(a) (“constitutional Rodriguez agreed. They
by
der
P.
that
declared
error”).
so,
Aguirre-Mata
Appeals
v.
962
do
of
refusing to
Court
264,
judi-
S.W.2d
in an
brand of
“engaged
266-67
indefensible
— Houston
vacated,
1998),
486,
cial
490
109
Dist.]
rors”). 992 at 499. af We now appeals “disregarded court of that the di- firm. Court,” rect of this instructions Justice Doggett “This need not declared: Court The Issue Before Us from criticism from opinions defend its rather, pre-plea The discussion is set out in our appeals; they courts of must follow opinion. first All 962 S.W.2d 265-66. pronouncements.” this v. Court’s Lofton agree judge that by 384, the trial erred not Corp., Texas 777 386 Brine (Tex.1989). telling appellant punishment range be- undoubt- principle This of law plea. fore the Tex.Code CRIm. P. Ann. See edly by followed the Texas Court would be 26.13(a)(1) (Vernon Supp.2000). art. The Appeals. of Criminal We are bound Therefore, error ordered, sole issue whether this was harm- these we rules. as 44.2(b), ful under rule the test for non- to analysis pursuant will conduct a harm 44.2(b), constitutional error. rule our despite strong belief 44.2(b) apply not not rule should and does The Court or- of Criminal has to this v. type High of error. See rule dered us conduct a harm (Tex.App 998 . —Hous analysis: “Accordingly, grant we 'd) J., (Cohen, pet. [1st ton ref Dist.] petition, judgment State’s vacate remand) (contending concurring on and remand the cause to Alabama, 238, 89 Boykin under 395 U.S. analysis pur- that court to a harm conduct (1969), L.Ed.2d a total S.Ct. 44.2(b).” to Rule As an suant intermediate failure about the to admonish appeals, to follow court of we bound that re punishment is constitutional error order, as controlling prece- well as the quires without harm to the defen reversal highest of our criminal law dents State’s controlling dant and that Texas case law court the same rule. As the imposing error). is in contrary said, Court has Supreme United States justices At anarchy prevail appeals least four court “Unless we wish within Alabama judicial precedent of have stated that system, the federal now (2) (1) issue, reversal requires this followed the lower controls this Court must be harm, conflicts misguided proof matter how without federal courts no holdings of the Texas judges may respect think it to with the those courts Davis, 370, 375, Appeals. I raised the Court of be.” Hutto v. 454 U.S. (1982). 703, 706, High, at 645- length 70 L.Ed.2d issue at 998 S.W.2d 102 S.Ct. remand). (Cohen, J., case, concurring this must show he did had, if punishment range, know the and he agreed. Ben soon Perkins Justice Grant pleaded guilty. he would not have (Tex.App.— remand). 'd) J., High, (op. at 644 (Grant, Texarkana ref dis length punishment might show senting). Justices O’Connor and Andell harm in a case when the sentence exceed- agree today. respectfully encourage We ed the admonishments. That is not the courts, including Court Crimi case here. nal and the United States Su Court, to
preme important address this Appellant’s authorities are not control- constitutional issue. ling because none concerned omitted admonishments. See *4 Menefee
Harm Rule Under (erro- 274, (Tex.App.1996) S.W.2d 281-82 convictions); prior neous admission of error, defect, “Any irregulari State, 211, McKenzie v. 617 S.W.2d ty, or variance that does not affect sub closing ar- (Tex.Crim.App.1981) (improper rights stantial disregarded.” must be Tex. State, R.App. gument by prosecutor); Irving v. 44.2(b). error, P. For this a defen 5, 573 S.W.2d 6 dant must show no more than that he was (same). consequences not aware of the of his and he was misled or harmed Appellant’s B. the Record Does Reflect admonishment the court. Carranza v. Rights Substantial Were Affected State, (Tex.Crim. 653, 980 S.W.2d Because He Did Not Understand App.1998). Range of Punishment Before His Plea? Appellant’s Arguments on Remand Nothing appel this record shows remand, On appellant claims he was lant harmed. There was no motion (1)
harmed for three reasons:
he received
trial,
appellant
for new
and
neither
(2)
the maximum punishment;
he was con-
proved
claimed nor
that he did not know
punishment
fused about the
range; and
that,
if
punishment range and
he had
by violating
mandatory
admonishment
it,
pleaded
known
he would have
statute,
judge
necessarily deprived ap-
High,
(op.
See
attorney already had not told him the law, thing. same Under former that was A. Does the Punishment Received insufficient; only judge could admon Show Harm for This Error? fail punishment, judge’s ish about and the Appellant first contends he was harmed ure to do so was automatic reversible er punish- because he received the maximum State, 156, ror. Whitten v. 587 S.W.2d Safety ment. Tex. Health & Code 157, 159 (Tex.Crim.App.1979) (op. op. & 481.112(f) (Vernon § Supp.2000) Ann. 594, State, reh’g); v. Stewart 580 S.W.2d (range years imprison- of life or 15 to 99 Murray (Tex.Crim.App.1979); 595 $250,- mandatory ment fine not over plus State, 821, (Tex.Crim.App. 561 S.W.2d 822 000.). disagree. We 1977). longer good These cases are no by the length They We hold the law. have been overruled State, 262, does not show harm. To show harm likes of Cain v. 947 264 926
(Tex. Carranza, minimum. about the 998 S.W.2d wrong 980 Crim.App.1997), remand). 656, (Cohen, J., concurring 964 S.W.2d High 649 637, Here, contrast, (Tex.Crim.App.1998), the record reveals that at 499. See Aguirre-Mata, punishment range was stated correct Rachuig appellant’s presence in court in three times ref'd) (holding pleaded guilty, he and the state- before — Waco punishment range admonish on failure to now relies do not ments on which prosecutor pun not harmful when stated that. show he misunderstood defense counsel con range, ishment correctly had stat firmed that Mandatory By Violating the Ad- C. plea); dire before see range, ed that voir Statute, Judge monishment Did Manoy also Deprive Appellant Necessarily (holding (Tex.App. Tyler pet.) no — and There- Due Course of Law State judge harmful same error not because Necessarily Appellant’s Violate attorneys
both stated Rights? Substantial during plea); before McLaren v. voir dire (Tex.App.— argues his substan Appellant next *5 ref'd) (same); Anders pet. Beaumont necessarily under rights tial were violated 973 S.W.2d 44.2(b) because, taking appel the “By rule ref'd) (same, under rule —Tyler jury required without the plea lant’s 44.2(a)). by required admonishment punishment following responses claims his Appellant law, attendant plea lacked the state rights when he was admonished ap and caused the procedural safeguards punish- show he did not understand the involuntarily obtained pellant’s plea to be range: ment Law] [Due in violation of the Course (cid:127) me, “I Clause of the Texas Constitution.” you want to tell excuse I, §§ 19. This is an you I a favor to understand Const. art.
but ask Tex. reversal, for be- as was argument and have consideration me for automatic I Stewart, I children. That’s all Murray, cause have and Whitten. the law say.” want to High, 964 longer It is no the law. See at 638. (cid:127) I want to plead guilty. “Yes. I don’t I I am the trial because know have asking I for some time Deprivation Federal Due D. Does something.” or bond or Require Reversal Without Process
(cid:127) want, just what I with “Yes. That’s Harm? judge.” to the of Criminal According (cid:127) ‘Wes, wasting I don’t want to be High, 964 no. See answer is time.” 638; at Carranza (cid:127) say guilty I’m I’m The reason “Yes. Cain, 656; I don’t is because we’re here and is with argument therefore hold this We want to have more time.” wasted im same reasons stated out merit for the (cid:127) here, “Yes, charges because the are High, mediately above. Contra deny I cannot them.” (Cohen, J., concurring on at 645-49 that appel- do not show These statements remand) to admon (concluding that failure range. lant did not know the process of federal due ish is a violation State, in High This not a case like is with requires reversal under affirmatively record showed which the harm). out of the maxi- the defendant was “unsure” affirmed. judgment The is ultimately was mum majority justices A because the defendant tutionally protected of the Court en- appellant’s voted overrule motion for “knowing” plea cannot make a without that banc consideration on remand. information; and because the error is constitutional, it should be reviewed as O’CONNOR, concurring. Justice error Texas Rule of constitutional under O’CONNOR, Justice, MICHOL 44.2(a). Procedure Appellate concurring on from remand the Texas Appeals. beyond appel- Court of Criminal It is absurd to think the equivalent lant in this case received infor- Aguirre-Mata In range mation about 495, 499 (Tex.Crim.App.1999), the Texas prosecutor’s from the voir dire statements. Court of Criminal held that range mention of the prosecutor’s admonishments required by Texas Code of 26.13(a), punishment during voir dire was not Criminal Procedure article constitutionally not an required.1 The Court substitute for admonishment reasoned that the purpose First, of the admon- judge for at least two reasons. ishments was to “assist the trial court speak does not and the appellant English, making the guilty determination that a record does disclose whether knowingly voluntarily entered.” interpreted translator the voir dire. Sec- Id. The Court concluded because the ond, interpreted, even if we do not if know admonishments are for only the benefit of heard and understood the judge, they the trial did not involve implications punishment. of the Therefore, constitutional protections. Id. The statements were not the Court held the error should be re- appellant, they directed to the were direct- viewed for non-constitutional error under panel jury. ed to the venire Neither the *6 Appellate new Texas Rule of Procedure prosecutor judge appel- nor the asked the 44.2(b). Id. lant if of range punish- he understood the I disagree with everything about the ment. (1) I analysis. Court’s believe the admon- pleaA of not guilty accepted should be regarding ishment range punish- the of the voluntary. unless it is free and Tex.Code ment constitutionally required is to ensure 26.13(b). Crim. P. art. A free and volun- that the defendant a knowing makes and tary only can made a plea by be defendant (2) voluntary plea guilty; of the of purpose appreciates who knows and the extreme the admonishment is to ensure that the consequences plea may his entail. The plea is both knowing voluntary, and and judge duty trial has the to see that the defendant, thus it is for the benefit of the (8) consequences not the defendant the judge; the admonishment understands re- garding range the of punishment pleading guilty. is eonsti- of part: 1. Article 26.13 states in (b) (a)Prior plea guilty plea accepting No of or of nolo conten- plea guilty to a of or a contendere, plea accepted by of nolo court the shall dere shall be the court unless it admonish the defendant of: appears plea that ... the is free and volun- (1) range punishment the of the attached to tary. offense; the (c) admonishing In the defendant as herein provided, compliance by substantial the the fact that if the assessed sufficient, court is the defendant af- unless does not exceed the recom- firmatively that he aware of shows was not by prosecutor agreed mended the and to by consequence plea the that was of his he attorney, the defendant and his the trial by misled or harmed the admonishment of give permission court must its to the defen- the court. prosecute may appeal dant before he an on TexCode Crim. P. art. 26.13. except matter in the case for those pri- matters raised written motions filed trial; or to ease, punishment); error ad- failing The this Stewart v. (in the trial regarding range
monish
the
be-
remarkably
punishment,
jury
is
similar to fore
of
court did
guilty,
a
on
not
pun-
the error Whitten v.
range
S.W.2d admonish defendant about
ishment).
In
(Tex.Crim.App.1979).
both cases
Id.
initially pled
the defendant
changed
Nothing has
about
substan-
In
at 157.
both eases the
men-
tive
of the
regarding
law
admonishments
punishment range
tioned
voir dire.
Court
range
since the
In
Id. at 157.
both cases
defendant
Whitten,
Criminal
decided
changed
pled guilty
his mind after he
and McDade, Fuller,
Only
two
Stewart.
begun.
trial had
Id. at 157.
In neither
things
changed;
membership of
have
judge
ad-
case did
trial
remember to
adoption
new
the Court and the
Court’s
regarding
monish
defendant
to review trial
appellate
new
standard
punishment.
Only
Id. at 157.
the re-
Tex.R.App.
error. See
P. 44.2.
obvi-
of the
are
In
sults
two cases
different.
ous
standard is to
purpose of
new
Whitten,
Appeals—
the Court of Criminal
reduce the number of cases reversed on
26.13(c),
relying
requires
Article
appeal by making most errors non-review-
if no
given—
reversal
admonishment
is
able,
by making the few that
re-
case,
reversed.
Id.
In this
viewable non-reversible.
Appeals relying
Court
—
court,
The issue then is
a state
whether
to apply
Rule
us
—instructs
proce-
changing
appellate
its rules of
analysis,
error”
“other
harm
which com-
dure,
the United
Consti-
trump
can
States
pels affirmance.
I do not think
tution and a state statute.
pur
The Whitten Court held
it
Rights that
States Su-
can.
the United
pose of this admonishment
is
assure
preme
and an
of Crim-
earlier Court
that the
his plea
defendant entered
with
inal
have held to be constitutional-
knowledge
consequences.
full
of its
Whit
ly protected
protection
cannot lose their
ten,
voluntary. Aguirre-Mata, 992 S.W.2d at
Appeals
opinion
relies is its
in
however,
McCarthy,
498-99.
did not in-
in
Cain. The admonishment
issue
Cain
issues;
any
volve
McCarthy
constitutional
involved the failure to warn a United
involved Federal Rule of Criminal Proce-
be
States citizen
non-citizens could
dure 11.
Supreme
The United States
(as
case)
deported, not
this
the failure to
specifically
avoiding any
said it was
range
punishment.
admonish about
regarding
constitutional
issue
admonish- Cain, 947
at 264. The failure to
ments:
deportation in
admonish about
Cain was
This decision is
solely upon
based
our
obviously harmless. There is no constitu-
construction of Rule 11 and is made
right
tional
deportation.
be told about
pursuant to
supervisory power
our
over
Jimenez,
State v.
courts;
the lower federal
we do not
(Tex.Crim.App.1999). By comparison, the
reach
argu-
the constitutional
right to be
range
told the
petitioner urges....
ments
pleading guilty
constitutionally
when
is
at
U.S.
stand what talking
about when he mentioned
punishment. If the appellant could have
preserved error making a record of the understand,
fact that he did not hear or *8 Boykin 2. Most Thereof, scholars believe the case set- mine that He is Advised 97 A.L.R.2d regarding duty tled the issue (1964), the trial court’s was discontinued because the to admonish the defendant about the conse- largely decision "has settled the sub- quences of his or to determine if he has ject matter of this annotation.” After the example, been advised others. As an Appeal’s Court of Criminal decision in this Reports' the American Law "Later Case Ser- case, starting A.L.R. should consider Texas- vice,” annotation, it states that the Court’s only supplement for that otherwise out of date Duty to Advise or Admonish Accused as to annotation. Consequences Guilty, Plea or to Deter-