Untitled Texas Attorney General Opinion ( 1988 )


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    November 15, 1988
    Honorable David T. Garcia      Opinion No.   JM-980
    Brooks County Attorney
    P. 0. BOX 557                  Re: Whether a court may satis-
    Falfurrias, Texas 78355        fy the lqadmonishmenttB reguire-
    ments of article 26.13 of the
    Code of Criminal Procedure    by
    showing the defendant a video
    tape   (RQ-1554)
    Dear Mr. Garcia:
    You ask whether  a court may satisfy the admonishment
    requirements of article 26.13 of the Code of Criminal
    Procedure before accepting a plea of guilty by showing the
    defendant a video tape presentation of the judge giving the
    admonitions.
    Article 26.13 provides:
    la) Prior to accentina   a ~1   of auilty
    or a nlea of nolo contendere, th=?court shall.
    admonish the defendant of:
    (1) the range of the punishment      attached
    to the offense:
    (2) the fact that the recommendation     of
    the prdsecuting attorney as to punishment   is
    not binding on the court. Provided that the
    court shall inquire as to the existence     of
    any plea bargaining agreements   between the
    state and the defendant   and, in the event
    that such an agreement    exists, the court
    shall inform the defendant whether it will
    follow or reject such agreement in open court
    and before any finding on the plea.     Should
    the court reject any such agreement,       the
    defendant shall be permitted to withdraw   his
    plea of guilty or nolo contendere;
    p. 5003
    Honorable David T. Garcia - Page 2     (JM-980)
    (3) the fact that if the       punishment
    assessed does not exceed the       punishment
    recommended by the prosecutor and agreed to
    by the defendant and his attorney, the trial
    court must give     its permission   to   the
    defendant before he may prosecute an appeal
    on any matter  in the case except for those
    matters raised by written motions filed prior
    to trial: and
    (4) the fact that if the defendant is not
    a citizen of the United States of America,  a
    plea of guilty or nolo contendere    for the
    offense charged may result in deportation,
    the exclusion from admission to this country,
    or the denial of naturalization under federal
    law.
    (b) Ho nlea of guilty or plea of nolo
    contendere shall be aCCeDted  bv the court
    unless   it aonears that the defendant   is
    mentallv comnetent and the nlea is free and
    voluntary.
    (c) In admonishina the defendant as here-
    in nrovided.   substantial comnliance bv the
    court is sufficient,    unless the defendant
    affirmatively shows that he was not aware of
    the consequences of his plea and that he was
    misled or harmed by the admonishment of the
    court.
    Id) The court mav make the admonitions
    reouired bv this article either orallv or in
    writina.  If the court makes the admonitions
    in writina.   it must receive a statement
    sianed bv the defendant and the defendant's
    attornev that he understands the admonitions
    and is aware of the conseouences of his nlea.
    If the defendant is unable or refuses to sion
    the statement.   the court shall make the
    admonitions orally.   (Emphasis added.)
    Prior to the amendment that resulted in the addition of
    subsection (d), the statute was explicit in requiring    "the
    court shall admonish the defendant."   House Bill 95 added
    subsection (d) of article 26.13, effective August 31, 1987,
    p. 5004
    Honorable David T. Garcia - Page 3     (JM-980)
    providing that the court may make the admonitions orally   or
    in writing.  Acts 1987, 70th Leg., ch. 443, at 2021.
    In the video tape scenario you have submitted you state
    "that the court would require the defendant and his attorney
    to sign a written statement that the defendant    understood
    the admonitions  and is aware of the consequences    of his
    pleas."
    In Bovkin v. Alaba      the United States Supreme  Court
    held, "It was error, p%n     on the face of the record,   for
    the trial judge to accept petitioner's guilty plea without
    an affirmative showing that it was intelligent and volun-
    tary."   
    395 U.S. 238
    , 242.       The court emphasized    the
    importance of this stage of the plea of guilty proceeding.
    In Bovkin, the court stated:
    A plea of guilty is more than a confession
    which admits that the accused did various
    acts; it is itself a conviction:        nothing
    remains but to qive judgment and determine
    punishment.   See-Jterchevai v. United States,
    
    274 U.S. 220
    . 223. 47 s.ct. 582. 583. 
    71 L. Ed. 1009
    . .Admissibility of a 'confession
    must be based on a *reliable determination on
    the voluntariness issue which satisfies     the
    constitutional   rights of the      defendant.'
    Jackson v. Denno, 
    378 U.S. 368
    , 387, 
    84 S. Ct. 1774
    , 1786, 12 L.Ed.Zd 908. The requirement
    that the prosecution spread on the record the
    prerequisites   of a    valid waiver    is    no
    constitutional   innovation.    In C rnlev
    Cochran, 
    369 U.S. 506
    , 516, 82 S"Ct. 88::
    890, 8 L.Ed.Zd 70, we dealt with a problem of
    waiver of the right to counsel,        a Sixth
    Amendment right. We held:     'Presuming waiver
    from a silent record is impermissible.      m
    record must show. or there must be an alleaa-
    tion and evidence which show, that an accused
    was offered counsel but intelliaentlv       and
    understandinalv reiected the offer. 'Anything
    less is not waiver.'
    We think that the same standard must    be
    annlied to determinina whether a auiltv olea
    is voluntarilv made. For,  as we have said, a
    plea of guilty is more than an admission   of
    conduct:   it is a conviction.     Ignorance,
    p. 5005
    Honorable David T. Garcia - Page 4    (JM-980)
    incomprehension,  coercion,  terror,   induce-
    ments, subtle or blatant threats might be a
    perfect cover-up of unconstitutionality.   The
    question of an effective waiver of a federal
    constitutional right in a proceeding is of
    course   governed   by   federal    standards.
    Doualas v. Alabama   
    380 U.S. 415
    , 422, 
    85 S. Ct. 1074
    , 1078, 1; L.Ed.2d 934.
    Several federal constitutional riahts are
    involved in a waiver that takes Lace when a
    lea of cuiltv is entered in a state criminal
    Gial.     First, is the privilege      against
    compulsory self-incrimination   guaranteed  by
    the Fifth Amendment   and applicable   to the
    States by reason of the Fourteenth.     Wallov
    v. Hoaan,   
    378 U.S. 1
    , 
    84 S. Ct. 1489
    , 12
    L.Ed.Zd 653. Second, is the right to trial
    by jury. Duncan v. Louisiana, 
    391 U.S. 145
    ,
    
    88 S. Ct. 1444
    , 20 L.Ed.Zd 491. Third, is the
    right to confront one's accusers.   Pointer
    Texas,   
    380 U.S. 400
    , 85 s.ct. 1065, 7;
    L.Ed.2d 923. We cannot presume a waiver     of
    these three important   federal rights from a
    silent record.
    What is at stake for an accused      facing
    death or imnrisonment    demands the utmost
    solicitude of which courts are CaDable      in
    canvassina the matter with the accused to
    make sure he has a full understandina of what
    the nlea connotes and of its consecuence.
    When the iudae discharaes that function. he
    leaves a record adecuate for anv review that
    mav be later souaht (Garner v. Louisiana   
    368 U.S. 157
    , 173, 
    82 S. Ct. 248
    , 256, 7 L.;d.zd
    207; Svecht v. Patterson, 
    386 U.S. 605
    , 610,
    87 s.ct. 1209, 1212, 
    18 L. Ed. 2d 326
    ), and
    forestalls the snin-off of collateral     oro-
    ceedinas that seek to nrobe murkv memories.
    (Emphasis added.)
    Bovkin, 
    395 U.S. 238
    , 242-44.
    The **substantial compliance" provision  of subsection
    (c), of article 26.13 has been applied to the sufficiency of
    the language used rather than the method of giving       the
    admonitions.  Whitten v. State, 
    587 S.W.2d 156
    (Tex. Crim.
    p. 5006
    Honorable David T. Garcia - Page 5       (JM-980)
    APP. 1979). In Whitten, the state urged that the defendant
    had heard the prosecutor give a portion of the admonitions
    that had been omitted by the judge. On rehearing, the court
    cited Bovkin and concluded that the statute then in force
    and due process mandated   the judge's participation.   
    587 S.W.2d 156
    , 158-59.
    The importance of the court's actual participation  in
    the admonitions is reflected in Iucero v. State 502 S.W.Zd
    750 (Tex. Crim. App. 1973). In Lucero four casks were tried
    together before the court upon pleas of guilty. On appeal
    it was urged that the court had failed to determine     the
    mental  competence  of the appellant    in each case.    In
    rejecting the appellant‘s contention, the court stated:
    In the instant cases the court        once
    inquired of     appellant's  counsel   as   to
    appellant's sanity, was able to observe him
    .rn onen court. to hear him sneak and to note
    his demeanor.   and to enaaae in a collocluy
    1
    with him re ardin                            ‘S
    pleas. At no time was the issue of appel-
    lant's sanity ever raised.    In light of the
    circumstances of these particular cases, the
    pleas being     taken together,         cannot
    conclude the court failed to s%sfy         the
    requirements   of   Article  26.13,   Vernon's
    Ann.C.C.P. . . . (Emphasis added.)
    Lucero, 
    502 S.W.2d 750
    , 753.
    While the foregoing cases predated the 1987 amendment,
    they reflect the importance the courts have placed on the
    judge's participation in determining that the defendant has
    a full understanding of what the plea connotes and of its
    consequences.
    Without addressing the validity of the 1987 amendment,
    we conclude that the video tape showing of the judge giving
    the admonitions  is not the functional equivalent    of the
    written procedure allowed by subsection   (d) - The  written
    admonitions allow time for study and reflection      and an
    opportunity for the defendant to identify for his lawyer and
    the judge any words or phrases he does not understand.
    Further, the Court of Criminal Appeals has demonstrated    a
    reluctance to approve any method of giving the admonitions
    not authorized  by article 26.13. The utilization of the
    P. 5007
    Honorable David T. Garcia - Page 6         (JM-980)
    video presentations   does not    satisfy the         requirements   of
    article 26.13.
    SUMMARY
    A court may not satisfy the requirements
    of article 26.13 of the Code of Criminal
    Procedure before accepting  a plea of guilty
    or nolo contendere by showing the defendant a
    video tape presentation  of the judge giving
    the admonitions.              1
    JIM     MATTOX
    Attorney General of Texas
    MARYKELLER
    First Assistant Attorney General
    MU MCCREARY
    Executive Assistant Attorney General
    JUDGE ZOLLIE STEARLEY
    Special Assistant Attorney General
    RICK GILPIN
    Chairman, Opinion Committee
    Prepared by Tom G. Davis
    Assistant Attorney General
    p. 5008