*1 DAVISON, Ray Anthony Appellant of Texas. STATE
No. PD-1236-12. Appeals of Texas. of Criminal
Court 22, 2013.
May *2 Law, Sare, Attorney at
Clint Foster TX, Bryan, for Appellant. Tatum, District
Jefferson P. Assistant *3 Hunstville, TX, McMinn, Attorney, Lisa C. Austin, Attorney, for the State. State’s OPINION PRICE, J., for a opinion delivered the unanimous Court. review, grounds appel-
In three of appeals lant contends that the court 1) to hold that error in the failure erred administer one of admonishments 26.13 of Article the Texas Code Crimi- nal Procedure was harmful under Rule Appellate Texas Rules of 2) Procedure, his claim that his involuntary therefore rendered purposes the Due Process Clause or- Fourteenth Amendment was dinary procedural default and there- by objec- fore forfeited because not raised 3) trial, any error tion at event, was, any harmless under the governs same rule that the standard for analyses statutory for claims of Article granted under 26.13.1 We discretionary pellant’s petition for review holdings. in order to all three address judgment will affirm the appeals. AND
FACTS PROCEDURAL POSTURE appellant en- On December to the offense open plea tered an building, ordinarily burglary of a a state jail felony.2 accepting plea, Prior to as appellant the trial court admonished the TexR.App. 26.13; (c)(1). 30.02(a)(1) § & art. P. 2. Tex. Penal Tex.Code Crim. Proc. Code 44.2(b). for such imposed trial court a sentence of twen- “Guilty ty years, offense. Both a written Plea the maximum for a second de- Memorandum,” gree felony, which was admitted during point fine. At no orally, any of plea proceeding,3 proceedings the trial these did the trial court ever formally admonish the appellant “[a] informed state enhanced, jail felony possible punishment charges against the ap- has pellant exposed him days to a punish- less than 180 and no more than two ment, felon, degree a second years jail facility in a of two to state fine not twenty years in the $10,000.”4 penitentiary. to exceed But also pled felony true three enhancement The appellant raised complaints two made paragraphs, susceptible him First, direct appeal. argued that *4 punishment degree as second felon.5 trial court failed to admonish him as to the applicable range punishment, as re- 1, 2009, April
On
some four months after
quired by
26.13(a)(1),
Article
since “the
accepting
appellant’s
plea,
guilty
the
the
punishment
attached
of-
punishment
trial court
the
hear-
conducted
fense” was
for a
degree
felony
second
ing.
community
The
supervision officer
rather
jail
Second,
than a
felony.7
state
pre-sentence
who
the
prepared
investiga-
argued that
the failure to admonish him
that,
report
taking
tion
testified
into ac-
with respect
the applicable
range of
count
paragraphs,
the enhancement
the
punishment
not simply
did
violate the stat-
appellant
subject
punishment
for “a
ute, but also served to
his guilty
render
degree felony.”
second
She
not speci-
did
plea
for
involuntary
purposes of the Due
fy
punishment
a range of
for that level of
Process Clause
the Fourteenth Amend-
Later, however,
offense.
just before the
ment
to the United States Constitution.
parties
their closing arguments
made
the punishment hearing,
the
court
The Eleventh Court of Appeals rejected
the
provisions
remarked that
enhancement
both contentions.8
the
Regarding
appel-
“punishable by
made the case
two to twen-
lant’s first argument,
the
ty.”
1)
He did not mention a fine or other-
held that:
the trial court
in failing
erred
arguments,
wise elaborate.6 After
closing
appellant
admonish the
prior
accept-
26.13(d)
3. See
(per-
tencing hearing, although
Tex.Code Crim. Proc. art.
judgment
the
also
mitting
long
pled
so
written admonishments
as
reflects that he
true to the enhancement
they
by
signed
are
the defendant and his
paragraphs.
appellant
Because the
was ulti-
attorney).
felon,
mately punished
degree
as a second
complaint
appeal
and
there was
12.35(a)
§
&
(b).
4. Tex. Penal Code
appellant
validly plead
true to the
paragraphs,
accept
enhancement
we will
§
(formerly,
and
Tex. Penal Code
purposes
discretionary
that he
review
did.
appellant
as of
the date
committed his
offense,
12.42(a)(2),
§
see Acts
82nd
hearing,
6. At the
4th
December
trial court
2104-05,
Leg.,
p.
§§ &
Sept.
ch.
eff.
did admonish the
that he would be
1, 2011).
indictment
contains three "En-
$10,000
susceptible to a
maximum
fine—the
Paragraphs”
previous
alleging
hancement
se-
felony
jail
fine available
either a
state
or a
convictions,
quential burglary
and in the
degree felony.
second
Penal
Tex.
Code
"Guilty
Plea
Memorandum”
12.33(b) 12.35(b).
§§
&
"agree[d] and
confessed] that all
acts and
allegations
pleading
in said
true
are
and cor-
26.13(a)(1).
place
any
§
7. Tex. Penal Code
rect.” We cannot find
other
appellant actually
pled
in which
counts,
during
(Tex.App.-
true to the enhancement
either
8. Davison v.
fendant who
guilty entered
Article 26.13
plea understandingly
voluntarily.”18
Thus,
“when
of a
con
criminal
26.13(a)(1)
Article
mandates
by guilty plea
viction obtained
contains
“[p]rior to
accepting
plea of guilty or
evidence that a defendant knew of the
plea
contendere,
of nolo
the court shall
rights he was putatively waiving, the con
admonish the defendant of ...
viction must be reversed.”19 We have not
of punishment attached to the offense[.]”22
occasion, however,
ed on more than one
Although the
is obviously
statute
intended
“that Boykin
specifically
out
set
entry
facilitate the
in
adequately
‘spread
what
on
must
record’
pleas
contendere,23
guilty
formed
or nolo
Moreover,
comply with [its] mandate.”20
any claim that
court failed to
“Boykin clearly
pro
did not hold that due
follow the mandate of the
is sepa
statute
requires
equivalent
cess
of the Article
rate from the
plea
claim that
the guilty
26.13(a)
or an
admonishments
admonish
accepted
in violation of
process.24
due
ment
on the
So
punishment.”21
26.13(a)
Because Article
“puts
duty
on
long
affirmatively
as the record otherwise
the trial court to
sponte,”
act sua
we held
discloses that the
defendant’s
Bessey
v. State that it
a right
“creates
informed,
adequately
due process is
only.”25 Therefore,
is waivable
For
prevail
satisfied.
*6
of
may
breach
the statute
be raised for the
claim, therefore,
his constitutional
it
not
is
on
enough
appeal.26
the
first time
But
that
record is
with
this does not
unrevealing
respect to whether
he was admonished
a
mean that
violation of the statute is not
Alabama,
238, 244,
Boykin
II,
v.
17.
U.S.
Aguirre-Mata
supra,
395
89
at 475-76. See
1709,
(1969);
State,
706,
23
Aguirre-
S.Ct.
L.Ed.2d 274
also VanNortrick v.
227 S.W.3d
II, supra,
("The
pass
(Tex.Crim.App.2007)
Mata
at
observed in
708
Article 26.13
ing Aguirre-Mata
"literally
...
II that
admonishments
are not
consti-
satis
themselves
tutionally
language
quote
Boykin
required.”).
fies” the
we
from
pleading
above to admonish a defendant
charged
of "the factual
26.13(a)(1).
elements of the
22. Tex Code Crim.
art.
Proc.
rights”
crime” and the "various constitutional
waived,
necessarily
that are
"without
State,
653,
[also]
v.
980 S.W.2d
656
Carranza
admonishing
range
punish
[him] on the
of
I,
(Tex.Crim.App.1998); Aguirre-Mata
supra,
Id.
499;
at 475
II,
476;
ment[J”
n. 4.
Aguirre-Mata
supra,
at
at
Van
Nortrick, supra, at 708.
4,
Brady, supra,
at 747
90
n.
S.Ct. 1463.
State,
914,
24. Anderson v.
182 S.W.3d
918
Benitez,
Gardner,
398;
74,
(Tex.Crim.App.2006);
United States v.
542
supra,
U.S.
n.
at
84
10,
State,
633,
(Tex.
(2004).
124 S.Ct.
Burnett v.
Rule Harm was harmless correct simply because he later learned correct not take does issue range, he had been so aware at though looking plea. time Nor do we he entered his viola- record to determine whether entire meant to im- believe the court tion statute was admonishment . forfeiture, holding pose rule of reason, good since harmless —and with object point at some hold- has been this Court’s consistent plea prevents he his guilty after entered ing.31 argues But complaining appeal him from the lack appeals failed to the entire record examine *7 he “at time he with reveal that of admonishment the entered a view what time, contrary, at the the court of plea.”34 knew “at the the time On relevant claim guilty plea.”32 appeals appellant’s he the entertained the entered merits, error, Moreover, proceeded appeals’s he the court of on the found faults analysis. The or to the Rule harm “protest” conclusion that his failure State, 638; VanNortrick, (Tex. Burnett, supra, supra, at v. 30. Cain 710-11; Fakeye, supra, at 717 & n. 4. Crim.App.1997). at 658; I, Carranza, supra, 31. See note ante. Aguirre-Mata at 637-38; 499; Burnett, supra, supra, at at 918; VanNortrick, VanNortrick, Anderson, supra, supra, Appellant's (citing Brief at at 712). supra, at at 708. Burnett, 638; Anderson, Bessey, supra, supra, supra, at at 919; VanNortrick, 709; supra, Fakeye, at su VanNortrick, supra, pra, at 716. exhibit at the appellant’s jury charge, [t]he alarm which detailed the phase a circumstance rel- punishment range punishment, was of was read aloud in appeals’s analy- evant to the court of open court. Defense counsel did not guilty plea, sis. At the time he entered his object the charge. There no on- was notice of the appellant the had received protest the-record reaction or from in the indict- paragraphs enhancement read, pellant charge when the when ment, acknowledged he had explicitly jury the punish- returned its verdict on “Guilty in Plea Memorandum” that he the ment, appellant’s sentencing. or at Nor them they had read and that were “true did defense attempt develop counsel fact, with together and correct.” This the support record to a motion for new trial nonchalance, appellant’s later led the court on grounds the the plea was not appeals of to infer even at the time voluntary.37 knowing and must entry plea, only These not were circumstances have been aware that enhancement that led to infer us that Burnett was actu- purpose, paragraphs subjecting served a ally range aware of the punishment punishment him to a than greater range when he guilty plea despite entered his charge burglary that for the naked admonishment, absence of but cer- building, formally about which he had been tainly regarded them as relevant. While Otherwise, it admonished. would rea- the inference of actual is less awareness expect express sonable him to some compelling facts more limited or “surprise” “protest” when mention was case, available, this it is nonetheless during hearing made of a punishment not err did to follow significantly greater grade offense and our concluding lead in that the appellant’s mention, to—not by substantial not were affected when actually twenty assessed trial faulty court’s admonishment.38 year sentence. Boykin and Procedural Default reasoning similar employed
We
our own
opinion
Burnett
focus
first reason the court of
ing
comparable
gave
part upon
rejecting
least
constitu-
— at
—
post-entry-of-the-plea
circumstances.35 tional claim is that
did
There,
appellant pled guilty
preserve
objection
before a
it with a trial
motion
jury
then proceeded
proposition
to assess his
for new trial.39 For the
punishment,
required,
never
such preservation
he was
admonished
the court of
puni appeals
our
opinion
cited
Mendez v.
jury
agree
shment.36 After
the appellant,
was sworn and State.40 We
how-
ever,
guilty plea,
jury
support
Burnett entered his
that Mendez simply does not
Then,
punishment-phase
proposition.41
agree
heard
evidence.
this
also
that it
*8
Burnett, supra,
35.
at 640-41.
41.The
in
a trial
issue
whether
Mendez
obligation,
sponte,
court
sua
to with-
has an
Id. at
640.
36.
guilty plea
draw a defendant’s
when evidence
subsequently arises
is
with
"that
inconsistent
Id. at 640-41.
guilt.”
at 336. We held that the trial
Id.
obligation,
court
no such
that the
has
and
Tex.R.App.
44.2(b).
P.
plea
defendant must seek to withdraw his
may
predicated upon the
before error
be
Davison, supra,
at 901.
Id. at
This
court’s
do so.
holding
predicated
large
(Tex.Crim.App.2004).
40. 138
334
in
on
S.W.3d
measure
as
at the trial court level
a
to hold that a claim of
awareness
be anomalous
would
predicate
complaining
to
de-
on
In-
subject
procedural
appeal.
is
to
Boykin error
stead,
fault,
considering
Boykin
that we have
we
the rule of
to
especially
regard
be
held,
that a claim based
in
a
already
Bessey,
systemic requirement,
the nature of
of the Article
duty
the absence of one
a
on the trial court to make
upon
imposing
admonishments, which are meant to
knowing
26.13
record
and
demonstrate
guilty pleas
voluntariness of
voluntary
facilitate the
quality
guilty plea.43
a
The
constitutionally re-
are
themselves
entry
but
not
system
will not tolerate the
simply
subject
forfeiture.
is not
to
quired,
plea
a
on the basis of a record
guilty
any
that the defendant
devoid
indication
operates
a rule of
Boykin
like
de
possessed
understanding
“a full
of what
appellate
record dis
fault: Unless
plea connotes and of its conse-
guilty
a defendant entered
closes that
44 Therefore,
pure Boykin
quence.”
“voluntarily
understanding^,]”
plea
to
that
say,
claim—that
is
claim
reviewing
presume that he did
court must
absolutely unrevealing
is
with re-
not,
accordingly.42
For a review
rule
spect
guilty plea
to whether a
was entered
an
ing
require
appel
court nevertheless to
not
intelligently
ordinary
to
—is
at the trial
preserve Boykin
lant to
error
principles
procedural default.45 The
this
court level would turn
that
appeals erred
extent
head,
reversing
rule of default on its
opinion may
its
read to conclude other-
all, an appellate
After
court
presumption.
wise.46
from an unre-
required
presume
that is
vealing
record that
accused
Boykin and Harmless Error
an
informed
adequately
enter
reasonably
him to
court
expect
display
cannot
The second reason the
rejected
object
appellant’s
to his lack of
constitu-
the wherewithal
Boykin,
process
prohibit
supra, at
the fact
due
does not
691 already claim was that had con- ute punishment.”51 tional to the conviction or that the improper statutory cluded admon- The court of appeals erred to avoid the ishment was harmless under the standard merits of the appellant’s process due claim 44.2(b).47 Rule of of It construed several simply because it already had found his our cases to for the that proposition stand statutorily based claim be to harmless un- this same harm determining standard 44.2(b). der Any Rule constitutional error governs Boykin-based claims as In well.48 the record reveal gov- must be this, the court appeals of was also mistak- 44.2(a). by erned Rule en.
We have taken care in our case law to
Boykin Error
upon
appellate
differentiate
claims based
a
The court
appeals
did not de
statutory
violation
admonishment
opinion
termine
its
whether Boykin
requirement
appel-
of Article 26.13 from
actually
case,
error
occurred in this
pre-
late claims
due
a
based
—that
termiting
analysis with its faulty
involuntary
inade-
because
any
conclusions that
such error was for
cases,
In
quately informed.49
none of our
and,
event,
in any
feited
harmless under
including
expressly
two
cited
44.2(b).52
Rule
Ordinarily, we would re
of appeals,50
have we ever
that a
held
mand a cause to the lower appellate
harm
non-constitutional
standard
court when our
rejection
its basis for
apply
plea
should
to a
that a guilty
claim
disposition gives rise
another
“issue
was so
as to
ill-informed
render it involun-
raised
[that was]
tary
[now
nec
becomes]
under the Due Process
Nor
Clause.
we,
essary
final disposition
ap
could
consistent
Texas Rule
53
peal!,]”
44.2(a),
which the court of
Appellate
man-
Procedure
addressed,
already
has not
dates
so
“the
since in our
long
appellate
discretionary
court,
as a
capacity
criminal
review
case reveals constitutional
we
error
error
review “decisions” of the courts
app
harmless
review,
exceptions
But
must reverse a
there are
to this
eals.54
judgment
of conviction or
un- practice, and when the proper resolution
beyond
clear,
less
court determines
remaining
reason-
issue is
we will
able doubt that
did not contrib-
dispose
sometimes
the case
Davison,
either,
supra,
at 901.
holding
harm there
instead
that a
failing
claim that the trial court erred in
required by
admonish
Article 26.13
does
not,
more,
without
make
aout
constitutional
claim, much
less call for
See
notes 23 & ante.
analysis.
at 474.
S.W.3d
I,
Aguirre-Mata
50. See note
ante.
In
Tex.R.App.
44.2(a).
P.
apply
declined
constitutional harm
expressly
"Appellant
standard
because
Davison, supra,
at 901.
appeal
claim
direct
that the trial court's
pun
him
admonish
of the
P.
47.1.
Tex.R.App.
ishment caused
to be
obtained
violation of the Due Process
Clause
State,
applicable
Fifth
E.g.,
Amendment made
v.
323 S.W.3d
Benavidez
through
States
the Fourteenth
(Tex.Crim.App.2010);
Amendment.”
183 & n. 20
Zuliani v.
State,
reading
992 S.W.2d at
And a
(Tex.Crim.App.2011);
careful
S.W.3d
Aguirre-Mata
pur
II
reveals
we did not
Fuller
589 n. 30
(Tex.
port
App.2012).
evaluate a constitutional claim for
Crim.
*10
economy.55
part
identified as
of its
regard
We
judicial
name of
case,
analysis),
a
for the reasons to
from the rec
this
such
Rule
as
may
ord as a whole it
be inferred
follow.
guilty plea
was
although
appellant’s
“Guilty Plea Memoran
In the
not
in
open,
negotiated,
plead
not
he did
dum,”
he
appellant signed,
which the
ignorance
applicable range
pun
respect
to each of the
admonished
Thus, the
case
ishment.
record
this
particular
mentioned
Boykin’s appellate pre
to engage
fails
a
Boykin
pleading guilty
defendant
process
due
was violated
sumption that
necessarily
by jury,
waives—trial
confron
because the
entered
unintelli
appellant
tation,
self-in
privilege against
gent
Nor does the record
guilty plea.
Thus, the
is not
crimination.
record
alto
inference,
affirmatively
deriving
refute
respect
whether the
gether silent with
to
to
appellant’s
protest
from the
failure
consequences
appellant understood
greater punishment range
when
II,
plea.
Aguirre-Mata
In
have
“[w]e
his
during
punishment pro
was mentioned
...
Supreme
holding
found no
Court case
actually
him at
ceedings
imposed
court’s
admonish
sentencing, that he must have been aware
guilty-pleading
range
defendant on the
susceptibility
greater
of his
to that
punishment
guilty plea
invali
renders
of the time he
his
range
entered
that a
assuming
d.”56 But even
silent
—even
inac
guilty plea despite the trial court’s
respect
record with
—
curate admonishment.
awareness of the
trigger Boykin’s appel
alone
sufficient
short,
rea-
essentially
In
the same
late
in this
presumption, the record
case is
that the court of
found that
sons
not
totally
respect
appel
“silent” with
any constitutional violation was harmless
knowledge
applicable range
lant’s
(albeit
wrong
Rule
under the
subsection of
plea.57
he
his
punishment when
entered
44.2),
and therefore declined
reach
proceeding
At
Boykin,
“[s]o
claim,
we now
merits
his due
showfed],
far
the judge
record
conclude that the
has failed
[Boykin]
asked
questions
concerning
no
due process
establish
merits of his
plea,
[Boykin]
his
address
claim.60
Moreover,
court.”58
“the record [was]
wholly
light
silent
on”
[and threw]
CONCLUSION
may
strategy
whether some trial
have
reasons,
played
Boykin’s
a role
plead
foregoing
although
decision
For
(and
Here,
guilty.59
reject
aspects
contrast
as the
certain
of the court of
E.g.,
allege
prove
facts
Johnston v.
that he
be able to
224 (Tex.Crim.App.2004).
beyond
appellate
revealed in the
rec-
what is
that are sufficient to establish to our
ord
n. 7.
On
courts
into
incor
“harmless error” is a
incorrect
conclusion reached
terminology,
rect
termi
by
analytic
cannot,
process
then
in the case
there-
nology
becomes imbedded
bedevil,
fore,
Thereafter,
analysis.
it
law.
continues
And,
confuse,
problem
and mislead.
if the
When the courts of appeals consider a
court,
superior
arises in a
use
the incor
error,
claim harmful
step
first
is
terminology
rect
forced
lower
analytic
process that
this Court has
example,
For
courts.
the United States
prescribed, they determine whether there
Supreme Court has declared
certain
they
was error.
If
determine that
are
persons
classes
“not
of the
err,
If,
analysis
ends.
how-
“actually
are
penalty,”
death
i.e.
innocent
ever, they
err,
find that the trial court did
or
penalty,”
age
the death
reason
they
step
analyt-
move to
the second
disability,
apparently
mental
when what it
ic process and consider what
error
kind of
persons
is that
means
those classes of
are
(TRAP 44.2(a))
it is: constitutional
or stat-
ineligible
imposition
penal
of the death
(TRAP 44.2(b)).
utory
Based on
reso-
See,
ty.
e.g.,
Virginia,
Atkins v.
536 U.S.
lution
question,
courts of
318, 321,
304,
2242,
122 S.Ct.
153 L.Ed.2d
peals then
step
move
third
(the
(2002)
forbids capital
Constitution
process and
analytic
consider whether the
mentally
retarded offend
claim harmful error meets the require-
ers,
mentally
categorically excluding
Then,
ments
the applicable standard.
execution); Roper
retarded from
v. Sim
then,
only
error
can
be said that an
mons,
578, 125
543 U.S.
S.Ct.
was harmful or harmless.
(2005) (the
161 L.Ed.2d
Constitution for
process operates
correctly
deter-
imposition
penalty
bids
of the death
mine the
of a
of harmful
merits
claim
age
who
under
of eigh
offenders
were
It might appropriately
error.
be called
committed);
teen when their crimes were
analysis
analysis
error
because
333, 340,
Sawyer Whitley, 505 U.S.
347-
that is what
it “harmless
happens. To call
(1992)
2514, 120
112 S.Ct.
L.Ed.2d 269
however,
analysis,”
to both inaccu-
is
(discussing
petitioner
claim
rately
process
describe what the
does and
“actually
penalty,”
innocent of the death
process
make
vulnerable
assertions
focusing on the elements which render
emphasis
that the
is to find
eligible
penalty);
defendant
the death
many
possible
errors as
harmless.
386, 393-94, 124
Haley,
Dretke v.
541 U.S.
(2004) (dis
S.Ct.
cussing claim of “actual innocence” of the
sentence). immune; Court has not
This been
among other stated that things, have
rights were “waived” when those