Houston v. StateHouston v. State
- Reporters:
- , ,
- Before:
- J. Harvey Hudson
Lead Opinion
OPINION
J. HARVEY HUDSON, Justice.Appellant, Anton Devon Nikkyn-uebe Houston,1 was charged by indictment
In his first point of error, appellant alleges the “trial court erred in failing to withdraw his plea of guilty based upon erroneous advice from [his] attorney that he would receive probation.” Outside of this naked allegation, appellant provides no explanation of the alleged error. Rather, appellant states in his brief that if “an attorney conveys erroneous information to his client, a plea of guilty based upon that misinformation is involuntary.” This, of course, is a well established principle of law that no one disputes,3 but how it relates to the case before us is not explained. Without further analysis, appellant then concludes his argument by stating, “The trial court failed to act as a gate keeper to protect Appellant’s rights in this matter and thus abused its discretion in not authorizing the withdrawal of Appellant’s ... plea of guilty.”
Appellant has, in short, filed a superficial brief that, with very little guidance, and simply invites this court to find any kind of reversible error associated with appellant’s plea of guilty if we can find it within our creative power to do so. This court, however, is not appellant’s counsel, and a skeletal brief is an impermissible burden on the appellate process. Walker v. State, 654 S.W.2d 61, 62 (Tex.
Appellant cites authority for the proposition that misinformation supplied by counsel may lead to an involuntary plea. However, appellant does not expressly seek a reversal due to an involuntary plea. Moreover, arguments that a plea was involuntarily made on the erroneous advice of counsel are usually reviewed through a claim of ineffective assistance of counsel. Ex Parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App.1997); Ex parte Battle, 817 S.W.2d 81, 83 (Tex.Crim.App.1991); Morrow v. State, 139 S.W.3d 736, 744 (Tex.App.-Texarkana 2004, no pet.). However, appellant makes no assertion that his conviction should be reversed for ineffective assistance of counsel. Instead, appellant appears to base his claim of reversible error on his contention that the trial court abused its discretion by failing to withdraw his guilty plea. In presenting this argument, appellant claims he attempted to withdraw his plea, and the trial court refused his request.
After examining the record, we find no such attempt by appellant to withdraw his plea; rather, he insisted on pleading guilty even after he learned of counsel’s alleged misinformation. On May 11, 2004, appellant, with his counsel present, waived a court reporter, arraignment, and formal reading of the indictment. He pled guilty to the trial court without a plea bargain. Although there is no reporter’s record of the plea hearing, the clerk’s record contains a “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession” signed by appellant. In this document, appellant confessed to all facts alleged in the indictment and verified that no plea bargain existed. The trial court’s docket sheet indicates appellant was admonished about the consequences of his plea, and appellant signed the necessary written admonishments. Tex.Code CRiM. Proo. AnN. art. 26.13(d) (Vernon Supp. 2005). These admonishments disclosed the charge against appellant and indicated the appropriate range of punishment.4
The record also reflects that appellant initialed a paragraph describing the consequences of violating the conditions of deferred adjudication, should the court grant deferred adjudication.5 Appellant de-
Approximately two weeks after entering his plea, appellant filed three, handwritten, pro se motions on May 27, 2004. His first motion was entitled “Motion to dismiss court appointed counsel and appoint new counsel to act on behalf of defendant.”6 In this motion, appellant accused his court-appointed attorney of providing ineffective assistance of counsel for a variety of reasons, but one cryptic notation reads: “Misrepresentation, for as lying to me, telling I’m signing for probation, come to find out it was something different.” However, when interviewed by the probation officer who prepared the PSI report, appellant modified his accusation significantly. Appellant told the investigating officer that “his attorney told him the Judge would consider given [sic] him probation if he plead guilty.” (emphasis added).
Despite appellant’s alleged dissatisfaction with his trial attorney, he thereafter persisted on pleading guilty again. On July 21, 2004, appellant appeared with his attorney before the trial court. No court reporter was present or requested. The court’s docket sheet indicates appellant, once again, waived arraignment and a formal reading of the indictment, pled guilty a second time, and was admonished of the consequences of his plea. On this occasion, the trial court found appellant guilty and assessed his punishment.
We recognize that a guilty plea must be entered into voluntarily and freely.
Here, the defendant’s burden is compounded by the absence of a record. A defendant who waives his right to have a court reporter record the proceedings and, thereafter, challenges on appeal the volun-tariness of his plea, nevertheless retains his burden to ensure a sufficient record is presented on appeal to establish error. Lopez v. State, 25 S.W.3d 926, 928-29 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Moreover, we presume recitals in court documents are correct unless the record affirmatively shows otherwise. See Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim.App.1984).
A defendant may withdraw his plea as a matter of right, without assigning a reason, until judgment is pronounced or the case is taken under advisement by the trial court. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App.1979). If, however, a defendant desires to withdraw his guilty plea after the court has taken the case under advisement, withdrawal of the plea is within the sound discretion of the court. Jagaroo v. State, 180 S.W.3d 793, 802 (Tex.App.-Houston [14th Dist.] 2005, pet. ref‘d). After a trial court has admonished a defendant, received the plea and evidence, and passed the case for a pre-sentence investigation, the case has been taken under advisement. Id. An abuse of discretion is shown only when the trial court’s ruling lies outside the “zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh’g). Appellant does not contend that he sought to withdraw his guilty plea until after his case was taken under advisement. Therefore, he could not withdraw his plea as a matter of right.
Appellant concedes that he did not expressly request to withdraw his plea. However, he contends that, while his handwritten pro se motions were inartful, they constituted the “functional equivalent” of a motion to withdraw his guilty plea. First, we know of no authority requiring a trial court to “read between the lines” of a defendant’s pro se motion to discern his unstated intent. In fact, the trial court was not obliged to read or rule upon appellant’s pro se motions. See Meyer v. State, 27 S.W.3d 644, 648 (Tex.App.-Waco 2000, pet. ref‘d) (holding trial court is not required to consider pro se motions filed when accused is represented by counsel). Further, appellant never presented any evidence in support of his motions or obtained a ruling thereon.7 Under these circumstances we find no
Nonetheless, by accusing the trial court of failing to act as a “gate keeper,” appellant may be suggesting the trial court had a duty to sua sponte withdraw appellant’s guilty plea. A trial judge, however, is not required to sua sponte withdraw a defendant’s guilty plea, even if evidence is brought to the judge’s attention making the defendant’s innocence evident. Moon v. State, 572 S.W.2d 681, 682 (Tex.Crim.App.1978); Fisher v. State, 104 S.W.3d 923, 924 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Appellant seems to implicitly suggest, however, that the trial court had a duty to withdraw his plea because he was not eligible for deferred adjudication. Appellant cites no authority for this contention.
Certainly, Article 42.12 of the Code of Criminal Procedure excludes deferred adjudication as a possible punishment for driving while intoxicated. See
Because appellant was properly admonished by the trial court, there is a prima facie case that his plea was entered knowingly and voluntarily.10 We find appellant did not meet his “heavy burden” to prove his plea was entered involuntarily; in fact, he has presented no evidence in support of his claim. After considering the totality of the circumstances, viewed in light of the entire record, we find the trial court did not abuse its discretion in failing to withdraw appellant’s guilty plea. Appellant’s first point of error is overruled.
In his second point of error, appellant argues the trial court erred by failing to admonish him “about hybrid representation and the choice of self representation or representation by legal counsel.” When a defendant partially represents himself in a case but remains fully represented by counsel, no question of waiving the right to counsel is involved, and a trial court does not err by failing to admonish the defendant of the dangers, if any, of
Accordingly, the judgment of the trial court is affirmed.
SEYMORE, J., dissents.
Notes
. Appellant identified himself to the police as Anton N. Robertson. However, at his arraignment, he identified himself as Anton Devon Nikkynuebe Houston. A fingerprint iden tification revealed appellant has been arrested or prosecuted under at least nine different aliases.
. The pre-sentence investigation report (PSI) states that a charge against appellant for burglary with intent to commit a felony was dismissed on the same day appellant entered his plea of guilty in this case. Moreover, appellant refers at one point in his brief to the “plea bargain agreement,” but later says “there was no specific plea agreement.”
There are two basic kinds of plea bargains that affect punishment: (1) sentence bargaining and (2) charge bargaining. Carender v. State, 155 S.W.3d 929, 930 (Tex.App.-Dallas 2005, no pet.). Sentence bargaining may be for binding or nonbinding recommendations to the court on sentences, including a recommended “cap” on sentences and a recommendation for deferred adjudication community supervision. Id. at 931. Charge bargaining involves questions of whether the defendant will plead guilty to the offense that has been alleged or a lesser or related offense and whether the prosecutor will dismiss or refrain from bringing other charges. Id. Both sentence bargaining and charge bargaining affect punishment. Id.
Here, despite its dismissal of the burglary case, the State asserts that no plea bargain existed. Likewise, the record — including the trial court‘s judgment, appellant‘s signed “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession,” and the “Trial Court’s Certification of Defendant’s Right to Appeal” — indicates no plea bargain existed. Accordingly, we presume the State’s dismissal of the burglary charge was not part of a plea bargain agreement.
. See Ex parte Kelly, 676 S.W.2d 132, 135 (Tex.Crim.App.1984); Morrow v. State, 139 S.W.3d 736, 744 (Tex.App.-Texarkana 2004, no pet.); Burke v. State, 80 S.W.3d 82, 93 (Tex.App.-Fort Worth 2002, no pet.); Courtney v. State, 39 S.W.3d 732, 735 (Tex.App.Beaumont 2001, no pet.).
. The admonishments include a paragraph that begins: “If convicted, you face the following range of punishment” followed by a list of several “check-box” paragraphs. Each of these paragraphs was clearly marked out by hand except for one, which was circled and initialed by appellant. It reads: “if a state jail felony punishable under Section 12.35(a) of the Texas Penal Code is enhanced with two final state jail felony convictions, a term of not more than 10 years or less than 2 years in the Texas Department of Criminal Justice, and in addition, a fine not to exceed $10,000 may be assessed.” The portions underlined herein were underlined by hand.
. Appellant also initialed various provisions not applicable to him, including a statement partially underlined by hand that “the Court will permit you to withdraw your plea of guilty or nolo contendere should it reject any plea bargain agreement.” As there was no plea agreement in effect, this statement was clearly inapplicable to appellant’s case. See Tabora v. State, 14 S.W.3d 332, 334 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (stating pre-printed boilerplate form containing provisions clearly meaning to apply to a wide variety of situations did not misinform defendant, as not all paragraphs apply to every defendant). The record contains no explanation for this underlining, and we will not speculate as to its significance. Appellant argues the underlined text is significant because it is the only admonishment underlined in the document. However, we observe that another underlined portion of the same form is a statement that appellant faced a range of punishment between two and ten years.
. Appellant’s other two motions were entitled a “Motion for Hybrid Representation” and “Defendant’s Motion to Have Written Rulings on all Motions Filed by the Defendant.” In his second motion, appellant requested the trial court allow him to assist his attorney in filing “necessary pretrial motions.” Appellant’s third motion sought nothing more than its title implies.
. We observe that even if we were to construe appellant‘s pro se motions as a request to withdraw his guilty plea, a motion to withdraw a guilty plea is the equivalent of a motion for new trial. See
A party making a motion for new trial must present that motion to the trial court.
.
. After a defendant enters a guilty plea, the trial becomes a unitary proceeding, and the issues of guilt and punishment cannot be separated. State v. Kersh, 2 S.W.3d 636, 638 (Tex.App.-Houston [14th Dist.] 1999), affd, 127 S.W.3d 775 (Tex.Crim.App.2004). Thus, when a trial court defers a finding of guilt after the entry of a guilty plea, it also defers a finding of true after the entry of a plea of true to the enhancement allegations. See Washington v. State, 893 S.W.2d 107, 109 (Tex.App.-Dallas 1995, no pet.) (holding trial court did not err in refusing to allow defendant to withdraw his plea of true after the case had been taken under advisement).
.Although appellant mentions various inconsistencies between the boilerplate admonishments form and the realities of his situation, such as his waiver of indictment after an indictment had been filed, he does not argue the trial court misled him by incorrectly admonishing him. He argues only that his attorney misled him, and that the trial court should have withdrawn his plea because of this.
Dissenting Opinion
dissenting.
Appellant was convicted of a felony and sentenced to prison without a single recorded hearing before the trial court. Notwithstanding appellant’s written protests that he believed he was “signing for probation,” the majority relies on barely discernible stamps on the trial court’s docket sheet coupled with appellant’s signature on a discrepant boilerplate form to hold that appellant knowingly and voluntarily entered a plea of guilty. Because appellant’s plea is involuntary under both state law and the federal constitution, I respectfully dissent.
I. ADEQUACY OF APPELLANT’S BRIEF
The majority suggests that appellant’s state-appointed attorney on appeal failed to comply with the Rules of Appellate Procedure. See Majority Opinion at 215-16 (citing Walker v. State, 654 S.W.2d 61, 62 (Tex.App.-Austin 1983, writ refd)). Rule 38.1 of the Texas Rules of Appellate Procedure requires an appellant’s brief to include, in relevant part, a statement of facts pertinent to the issues presented and a clear and concise argument including appropriate citations to authorities. Tex. R.Ajpp. P. 38.1(f), (h).
In the statement of facts, occupying over three pages of his brief, appellant directs the court to numerous discrepancies in the trial court’s form admonishments. In the section of his brief entitled “Argument and Authorities,” appellant states “[i]t is well established that a guilty plea must be freely land (sic) voluntarily entered.” Appellant then cites cases in which courts have found pleas involuntary under both state law and the federal constitution because (1) the plea was based on misinformation or incorrect assurances from the trial court, or (2) the trial court rejected the terms of a plea bargain agreement, entitling the defendant to withdraw a plea.
Texas appellate courts have not directly addressed the question as to whether discrepant form admonishments alone are enough to show a defendant entered a guilty plea knowingly and voluntarily. Consequently, appellant cites the two lines of cases most closely analogous to the facts at issue. Courts must interpret the briefing requirements liberally and fairly. See Morales v. State, 820 S.W.2d 805, 806 (Tex.Crim.App.1991); Davis v. State, 817 S.W.2d 345, 346 (Tex.Crim.App.1991); see also
If a plea is not entered knowingly and voluntarily, it has been obtained in violation of due process and is void. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). The voluntariness of a plea is determined by considering “all of the relevant circumstances surrounding it,” and must be affirmatively shown in the record. Brady v. United States 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Erroneous information conveyed to a defendant concerning a matter such as probation will render a guilty plea based on the misinformation involuntary. Brown v. State, 943 S.W.2d 35, 42 (Tex.Crim.App.1997); Fimberg v. State, 922 S.W.2d 205, 207 (Tex.App.Houston [1st Dist.] 1996, writ ref‘d).
In order to safeguard the constitutional rights of a defendant entering a guilty plea, the trial court must leave a record “adequate for any review that may be later sought and forestalls the spin-off of collateral proceedings that seek to probe murky memories.” Boykin, 395 U.S. at 244, 89 S.Ct. 1709 (citations omitted). The trial court commits reversible error if the record does not reflect that a defendant fully understands what the plea connotes and the consequences. Id. When a defendant enters a plea of guilty, the proceedings before the trial court are unitary, and there is no separate punishment phase. Carroll v. State, 975 S.W.2d 630, 632 (Tex.Crim.App.1998). In considering whether a plea is voluntary, we examine the record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App.1998); see Boykin, 395 U.S. at 242, 89 S.Ct. 1709; Aguirre-Mata v. State, 125 S.W.3d 473, 474 (Tex.Crim.App.2003) (noting that there must be an affirmative showing “spread on the record” that a guilty plea was intelligent and voluntary).
III. ANALYSIS
In his first issue, appellant argues the trial court presented him with a preprinted admonishments form that was improperly executed by his attorney. As a result, appellant claims he mistakenly believed he was “signing for probation,” and the plea was therefore “rendered involuntary.”
A. In the absence of an on-record hearing, does appellant’s signature on a generic admonishments form “affirmatively show” a guilty plea was entered knowingly and voluntarily?
The preprinted admonishments form signed by appellant contained provisions waiving oral admonishments and a court reporter. Consequently, the majority holds that “the burden is on appellant to ensure a sufficient record is presented on appeal to establish error.” Majority Opinion at *6. This holding opens the door to wholesale circumvention of the requirement that the trial court leave a record “adequate for any review that may be later sought.” See Boykin, 395 U.S. at 244, 89 S.Ct. 1709.
1. Absence of Plea Colloquy
Here, the record does not indicate what inquiries, if any, were made by the trial court to determine whether appellant’s plea was entered knowingly and voluntarily. Cf. Boykin, 395 U.S. at 239, 89 S.Ct. 1709 (“So far as the record shows, the judge asked no questions of petitioner concerning his plea, and petitioner did not address the court.”). The majority appears to suggest that the trial court has no responsibility to conduct a plea colloquy when a signed preprinted admonishments form contains a provision waiving oral admonishments and a court reporter’s record.
In addition, the same standard — that “the record must show, or there must be an allegation and evidence which show,” the defendant acted intelligently and understandingly — applies to both waivers of the right to counsel and guilty pleas. See Boykin, 395 U.S. at 242, 89 S.Ct. 1709 (discussing the standard applicable to waivers of the right to counsel and concluding that the same standard must be applied to determine whether a guilty plea is voluntary). In cases involving waivers of the right to counsel, courts have concluded that a defendant’s signature on a standard, preprinted waiver form is insufficient to show the waiver was entered knowingly and voluntarily. See Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 92 L.Ed. 309 (1948) (concluding that the trial court’s cursory examination of the defendant followed by the defendant’s signing of a standard waiver form was inadequate under the circumstances to show a valid waiver); Henderson v. Frank, 155 F.3d 159, 166-67 (3rd Cir.1998) (rejecting the argument that the defendant’s signature on a preprinted waiver form was sufficient to show a valid waiver and noting “[wjhether it be a U.S. District Judge or a U.S. Magistrate Judge in a federal prosecution or a state judge in a state criminal proceeding, the trial judge must conduct a colloquy with the accused to determine
Here, the record reflects that appellant signed preprinted admonishments and waiver forms, but it does not reflect even a cursory inquiry as to whether appellant understood the forms. In the absence of any inquiry to shed light on appellant’s understanding, the record does not “affirmatively show” that the plea was entered knowingly and voluntarily.
2. Presumption of Regularity to Court Proceedings
Moreover, to the extent the majority relies on stamps on the docket sheet and conclusory assertions on the waiver and admonishments forms that appellant knowingly and voluntarily entered his plea, the reliance is misplaced. Contrary to the majority’s suggestion otherwise, a reviewing court may not rely on the presumption of regularity to court proceedings to presume a defendant’s plea was knowingly and voluntarily entered. See Majority Opinion at *6 (asserting “we presume recitals in the court documents are correct unless the record affirmatively shows otherwise”).
In cases involving both guilty pleas and waivers of the right to counsel, there must be an affirmative showing that the defendant acted intelligently and voluntarily. See Boykin, 395 U.S. at 242, 89 S.Ct. 1709. In Goffney v. State, the Criminal Court of Appeals addressed the question as to whether the “presumption of regularity” applies when the defendant waives his right to counsel. 843 S.W.2d 583, 584 (Tex.Crim.App.1992). In Goff-ney, the defendant waived a record of the proceedings, but the judgment stated the defendant “knowingly, intelligently and voluntarily waived his right to counsel.” Id. The Court held that the presumption of regularity did not apply because “[t]he focus of the analysis when a defendant asserts his right of self-representation is not solely on whether there was an actual waiver of the right to counsel, but whether the defendant was aware of the dangers and disadvantages of self-representation.” Id. at 585. Similarly, here the focus of the analysis is whether the defendant was aware of the relevant circumstances and likely consequences of his plea. See Brady, 397 U.S. at 748, 90 S.Ct. 1463; cf. Boykin, 395 U.S. at 245 & n. 1, 89 S.Ct. 1709 (Harlan, J., dissenting) (noting that, although the record stated the defendant appeared in open court with his attorney to enter a plea of guilty, the record did not reflect “what inquiries were made by the arraigning judge to confirm the plea was made knowingly and voluntarily”). Consequently, the trial court’s failure to conduct an on-record inquiry to determine whether appellant had a full understanding of the plea and its consequences violated appellant’s rights under the due process clause of the Fourteenth Amendment to the United States Constitution and rendered his plea involuntary.
B. If signed waiver and admonishments forms are generally sufficient to affirmatively show a plea was entered knowingly and voluntarily, were the forms sufficient in this case?
Even if signed waiver and admonishments forms are generally sufficient to prove a plea was knowing and voluntary, the improper execution of the forms in this case rendered appellant’s plea involuntary. Moreover, the record “affirmatively shows” that appellant was unaware of the consequences of his plea and was misled or harmed by the forms. Therefore, the forms are also insufficient under the Texas Code of Criminal Procedure. See Tex. Crim. Proc.Code Ann. art. 26.13(c) (providing that substantial compliance in admon
1. Discrepancies in the Forms as Applied to Appellant
Before entering the plea, appellant signed a form entitled “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession” and another form entitled “Admonishments.” Both forms were also signed by the trial court, the State’s attorney, and appellant’s attorney. Appellant initialed paragraphs in the admonishments form stating that he understood the admonishments, the applicable punishment range, the consequences of his plea, and that he “freely, knowingly, and voluntarily executed this statement in open court with the consent of and approval of [his] attorney.” The “Waiver of Constitutional Rights” form contained a statement affirming that the trial court admonished the defendant of the consequences of his plea and ascertained that the plea was entered knowingly and voluntarily. The admonishments form contained two paragraphs providing that the defendant waived “the right to have the trial court orally admonish me” and “the right to have a court reporter record my plea.” Both paragraphs were initialed by appellant. There is no court reporter’s record of the proceedings.
Appellant’s admonishments form indicates that appellant’s attorney explained the possibility of deferred adjudication pursuant to a nonexistent section 3d under article 42.12 of the Texas Code of Criminal Procedure.2 A “Motion for Community Supervision” was also filed with the forms the day of the plea. However, appellant asserts, and the State does not dispute, that he was ineligible for probation.3 Oth
As the majority notes, appellant’s PSI report indicates that the State dismissed a charge against appellant for burglary with intent to commit a felony on the same day appellant entered his guilty plea in this case. See Majority Opinion at *2 n. 2. Appellant’s PSI report also contains the following statements:
In a brief interview with the defendant, he advised this Officer he did not want to do this presentence report. He reported his attorney did not tell him the truth pertaining to this. He advised, his attorney told him the Judge would consider given (sic) him probation if he plead guilty.
Before the sentencing hearing but after he entered his plea, appellant filed three hand-written motions: (1) “Motion to Dismiss Court Appointed Counsel and Appoint New Counsel to Act on Behalf of Defendant;” (2) “Motion for Hybrid Representation,” and (3) “Defendant’s Motion to have Written Rulings on all Motions Filed by Defendant.” In appellant’s handwritten motion to dismiss court-appointed counsel, he “declar[ed] under penalty of perjury” that his attorney was “lying to me, telling I’m signing for probation, come to find out it was something different.”
Appellant’s attorney filed a “Motion To Have Official Court Reporter Make a Full Record” that included “all pretrial hearings” and “all sentencing proceedings.” However, the court reporter was not present during appellant’s sentencing hearing.
2. Appellant’s “Heavy Burden”
The Texas Code of Criminal Procedure allows the trial court to make certain admonishments orally or in writing. Tex. Crim. PROC.Code Ann. art. 26.13(c). The majority therefore concludes that the appellant was “properly admonished.” See Majority Opinion at 219.4 Further, because
The Fifth Circuit has held that a defendant’s prior attestation of voluntariness at a “
Moreover, the “heavy burden” standard arguably conflicts with a line of cases holding that a trial court has a duty to sua sponte withdraw a plea when there is evidence that indicates that plea was not made knowingly and voluntarily.5 See Co
The “heavy burden” standard also conflicts with the standard specified in the Texas Code of Criminal Procedure. Because the admonishments contained many discrepancies as applied to appellant, the forms represent, at most, “substantial compliance” with the Texas Code of Criminal Procedure. However, substantial compliance is insufficient if there is an affirmative showing that the defendant was unaware of the consequences of his plea and misled or harmed by the admonishments. Tex.Crim. Proc.Code Ann. art. 26.13(c); Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App.1998). The Code of Criminal Procedure does not place a “heavy burden” on the defendant to make this showing. See Tex.Crim. Proc.Code Ann. art. 26.13(c); Martinez, 981 S.W.2d at 197.
3. Substantial Compliance under the Texas Code of Criminal Procedure
“When written admonishments contain numerous errors and the record affirmatively shows the defendant suffered harm, the admonishments are not sufficient. See Tex.Grim. Pkog.Code Ann. art. 26.13(c). Here, the State relies solely on written admonishments to prove that appellant’s plea was entered knowingly and voluntarily. The admonishments form, signed by appellant and approved by appellant’s attorney, the State’s attorney, and the trial court, contains a provision in which appellant waived oral admonishments. The record does not show that the trial court addressed appellant at any time to clarify and correct the discrepancies contained in the written admonishments. Further, the trial court failed to ensure a court reporter’s presence at the sentencing hearing. See
In viewing the record as a whole, we are thus presented with uncontroverted evidence that appellant agreed to plea guilty because he thought he was “signing for probation.” Appellant’s assertions are consistent with and supported by numerous discrepancies on the face of the forms filed the day of his plea. Under these circumstances, appellant has affirmatively shown that he was misled by the trial court’s written admonishments and did not understand the consequences of his plea.
IY. CONCLUSION
Because the trial court failed to conduct a plea colloquy, the forms signed by appellant contained numerous discrepancies, and the record reflects appellant’s uncon-troverted assertions he believed he was “signing for probation,” appellant’s plea was involuntary under both state law and the federal constitution. Accordingly, I would sustain appellant’s first issue and
. At least thirty-two states and the District of Columbia have adopted procedural rules explicitly requiring the trial court to conduct an on-record plea colloquy: Alabama, Al. R.Crim. P. 14.4(c); Alaska,
Courts in at least eight states without explicit procedural rules requiring an on-record colloquy have held that an on-record plea colloquy is nonetheless required. See State v. Vaitogi, 59 Haw. 592, 585 P.2d 1259, 1265 (1978) (“at a minimum, the court should make an affirmative showing by an on-the-record colloquy between the court and the defendant”); Edmonds v. Com., 189 S.W.3d 558, 565 n. 3 (Ky.2006) (“failure to conduct a Boykin hearing on the record constitutes reversible error’’); Nelson v. State, 626 So.2d 121, 126 (Miss.1993) (holding a standardized waiver form and defendant’s attestation in open court that he understood the form insufficient; rather, the court must conduct a face-to-face exchange); State v. Arsenault, 897 A.2d 988, 992 (N.H.2006) (reminding “trial courts that a colloquy is constitutionally required when a defendant pleads guilty“); King v. State, 553 P.2d 529, 534-36 (Okla.Crim.App.1976) (requiring trial court‘s inquiry into the voluntariness of a defendant’s plea appear on the record); State v. Frazar, 822 A.2d 931, 935 (R.I.2003) (holding that a trial court must conduct an on-the-record examination of the defendant before he enters a plea); State v. Armstrong, 263 S.C. 594, 211 S.E.2d 889, 890 (1975) (determining that the “essence of Boykin was to make the requirements of
Relevant procedural rules in the remaining states are as follows: California,
. Paragraph eleven of the preprinted admonishments form was initialed by appellant and expresses, in relevant part, that the provisions of the form “were explained to me in that [the English] language by my attorney.” Paragraph seven of the form, also initialed by appellant, reads as follows:
I understand that if the Court grants me Deferred Adjudication under Article 42.12 Sec.3d(a) V.A.C.C.P. on violation of any condition I may be arrested and detained as provided by law. I further understand that I am then entitled to a hearing limited to a determination by the Court of whether to proceed with an adjudication of guilt on the original charge. If the Court determines that I violated a condition of probation, no appeal may be taken from the court’s determination and the Court may assess my punishment within the full range of punishment for this offense. After adjudication of guilt, all proceedings including the assessment of punishment and my right to appeal continue as if adjudication of guilt had not been deferred.
However, there is no section 3d(a) under Article 42.12 of the Texas Code of Criminal Procedure. See Tex.Crim. Proc.Code Ann. art. 42.12 (Vernon Supp.2005) (reserving sections 3a to3f by the notation [Blank]).
. The majority suggests that appellant was properly admonished as to deferred adjudication. See Majority Opinion at *8. However, there are three different forms of probation available under article 42.12 of the Texas Code of Criminal Procedure: (1) judge ordered community supervision; (2) deferred adjudication probation; and (3) the state boot camp program, or “shock” probation. See Tex.Crim. Proc.Code Ann. art. 42.12 (Vernon Supp.2005) The term “probation” is used interchangeably to refer to each form. Rodriguez v. State, 939 S.W.2d 211, 220 (Tex.App.Austin 1997, no pet.). Here, because the admonishments form referenced a nonexistent section of the Code of Criminal Procedure concerning deferred adjudication, but a “motion for community supervision” was filed with the trial court, it is unclear for which form of probation appellant was admonished. Driving while intoxicated with a child passenger is a state jail felony punishable under section 12.35 of the Texas Penal Code.
. The admonishments specified under the Code of Criminal Procedure are not constitutionally required. See Aguirre-Mata, 125 S.W.3d at 475 (noting that “Boykin” did not specifically set out what due process requires to be “spread on the record”). By focusing solely on whether technical compliance with the Code of Criminal Procedure was achieved, the majority perverts the due process inquiry. No rote recitation is sufficient in every case to satisfy due process requirements; rather, the focus of the due process inquiry is on the particular defendant’s understanding of the plea and its consequences. See id; see also McCarthy, 394 U.S. at 467 n. 20, 89 S.Ct. 1166 (noting that the nature of the plea inquiry will necessarily vary from case to case and “matters of reality, not mere ritual should be controlling”). Providing a defendant with virtual copies from the Code of Criminal Procedure does not show that the defendant has an understanding of the law as it applies to him. By relieving the trial court of any responsibility to inquire as to the defendant‘s understanding, the majority threatens one of the last remaining bulwarks protecting constitutional rights against systemic pressures on a defendant to enter a guilty plea. A system which allows an individual to be imprisoned solely on the basis of a signature on misleading and inaccurate government forms is offensive to fundamental notions of justice. The majority not only sanctions this practice, but also effectively immunizes such convictions from meaningful review. Cf. McCarthy, 394 U.S. at 468, 89 S.Ct. 1166 (commenting on the subjective nature of the inquiry, and noting that a defendant will “rarely, if ever” be able to corroborate his own allegations that he did not understand the nature of the charge).
. The majority states that “a trial judge is not required to sua sponte withdraw a defendant’s guilty plea, even if evidence is brought to the judge’s attention making the defendant’s innocence evident.” See Majority Opinion at 219. However, evidence that a defendant is not guilty is not necessarily also evidence that a guilty plea was not made knowingly and voluntarily. See North Carolina v. Alford, 400 U.S. 25, 37-39, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (declining to hold that a trial court should have rejected a defendant’s guilty plea to a lesser-included offense because the defendant maintained his innocence and noting that “prohibitions against involuntary or unintelligent pleas should not be relaxed, but neither should an exercise in arid logic render these constitutional guarantees counterproductive and put in jeopardy the very human values they were meant to preserve”).
In order to ensure that a guilty plea was entered knowingly and voluntarily, Texas courts formerly had an affirmative duty to sua sponte withdraw a guilty plea entered before the court or jury when the evidence reasonably and fairly raised an issue concerning the accused’s innocence. See Griffin v. State, 703 S.W.2d 193, 196 (Tex.Crim.App.1986); Moon v. State, 572 S.W.2d 681, 682 (1978). In Moon, the Court of Criminal Appeals abrogated the requirement that a trial court sua sponte withdraw a guilty plea entered before the court when evidence raises a question concerning the defendant’s innocence. 572 S.W.2d at 681. However, courts have held Moon inapplicable in cases when the evidence raised directly concerns the voluntariness of the plea. Coronado v. State, 25 S.W.3d 806, 808-09 (Tex.App.-Waco 2000, pet. ref‘d) (citing Owens v. State, 836 S.W.2d 341, 344 (Tex.App.-Fort Worth 1992, no writ) (per curiam)).