Jones, Michael Thwayne v. State ( 2005 )

Affirmed and Memorandum Opinion filed February 1, 2005

Affirmed and Memorandum Opinion filed February 1, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00154-CR

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MICHAEL THWAYNE JONES, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 955,781

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M E M O R A N D U M   O P I N I O N

Appellant, Michael Thwayne Jones, pled guilty to the offense of aggravated robbery.  In four issues, appellant contends (1) the trial court erred in accepting his guilty plea in accordance with article 1.15 of the Code of Criminal Procedure because the statute deprived appellant of his constitutional right to compulsory process, and (2) the trial court erred in finding appellant guilty where the record is silent as to waiver of his right to compulsory process.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

Background

Appellant was charged by indictment with the offense of aggravated robbery.  He waived his right to a jury trial and pled guilty to the charged offense without an agreed recommendation from the State as to punishment. After a bench trial, the trial court found appellant guilty and assessed punishment at five years= confinement and a $5,000 fine.  No court reporter was present to record appellant=s plea proceedings or assessment of punishment.

Denial of Compulsory Process

In his first and second issues, appellant contends the trial court committed fundamental error by proceeding to judgment and sentence after accepting appellant=s guilty plea pursuant to Texas Code of Criminal Procedure article 1.15.  Appellant maintains that this procedure violated both his federal and state constitutional rights to compulsory process because it required the State to produce evidence to support the judgment of guilt and prohibited the trial court from considering any evidence offered by appellant.

Compulsory process is A>the right to present a defense, the right to present the defendant=s version of the facts as well as the prosecution=s to the jury so it may decide where the truth lies.=@ Coleman v. State, 966 S.W.2d 525, 527 (Tex. Crim. App. 1998) (quoting Washington v. Texas, 388 U.S. 14, 19 (1967)).  Compulsory process is an integral component, a core interest, of due process law.^[1]  Washington, 388 U.S. at 19.  However, the right to compulsory process is not absolute.  Weaver v. State, 657 S.W.2d 148, 150 (Tex. Crim. App. 1983).

Article 1.15 provides a statutory procedure for entering a guilty plea and proceeding to trial before the bench in non-capital felony cases.  See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2004B05). The relevant portion of article 1.15 reads as follows:

No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in open court in person waived his right to trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be necessary for the State to introduce evidence in the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person be convicted upon his plea without sufficient evidence to support the same. . . .  

Tex. Code Crim. Proc. Ann. art. 1.15 (emphasis added).

Appellant contends that the portion of the statute which states, Ait shall be necessary for the State to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment . . .@ expressly precludes the court from considering evidence the defendant offers. Appellant, therefore, asserts that by following article 1.15, the trial court denied appellant his right to compulsory process.

Appellant misconstrues the purpose and effect of article 1.15, and we have previously rejected his exact argument.  See Vanderburg v. State, 681 S.W.2d 713, 717B18 (Tex. App.CHouston [14th Dist.] 1984, pet. ref=d).^[2]  The purpose of article 1.15 is to ensure that no person may be convicted of a felony on a plea of guilty without sufficient evidence being introduced to show guilt. Lyles v. State, 745 S.W.2d 567, 567 (Tex. App.CHouston [1st Dist.] 1998, pet. ref=d). The effect of the article is to maintain the burden of proof on the State even where a plea of guilty or nolo contendere has been entered by the defendant.  Thornton v. State, 601 S.W.2d 340, 344 (Tex. Crim. App. 1980), rev=d on other grounds by Bender v. State, 758 S.W.2d 278 (Tex. Crim. App. 1988).  Nothing in article 1.15 prohibits the defendant from offering evidence or prohibits the court from considering evidence offered by a defendant.  Lyles, 745 S.W.2d at 568. 

Moreover, even if article 1.15 did preclude the court from considering evidence offered by a defendant, it would not infringe upon appellant=s constitutional right to compulsory process.  As we noted in Vanderburg, a guilty plea is a conviction with nothing remaining for the court to do but render judgment and determine punishment. 681 S.W.2d at 718; see also Boykin v. Alabama, 395 U.S. 238, 242 (1969). Article 1.15 is simply an additional procedural safeguard after the defendant has waived his right to compulsory process by pleading guilty.  Vanderburg, 681 S.W.2d at 718.^[3]

Accordingly, the trial court did not violate appellant=s right to compulsory process by accepting his guilty plea, and proceeding to judgment and sentence, in accordance with article 1.15.  We overrule appellant=s first and second issues.

Waiver of Right to Compulsory Process

In his third and fourth issues, appellant contends that the trial court committed fundamental error by accepting his guilty plea because the record does not indicate whether appellant waived his federal and state rights to compulsory process.  We have also addressed and rejected this exact argument.  See Vanderburg, 681 S.W.2d at 716B17. Texas law requires an express waiver of only three rights: (1) the right to trial by jury; (2) the right to confront one=s accusers; and (3) the right not to incriminate one=s self.  Id.  There is no further requirement under Texas or federal law that a defendant expressly waive his right to compulsory process.  See id.  Therefore, the trial court did not err in failing to procure a specific waiver of appellant=s right to compulsory process.  We overrule appellant=s third and fourth issues.^[4]

Accordingly, the judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed February 1, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The right to compulsory process is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Texas Constitution.  See U.S. Const. Amend. VI.; Tex. Const. Art. I, ' 10.

^[2]  The arguments raised by appellant have also been rejected numerous times by this court in a series of unpublished opinions.  See, e.g., Morrison v. State, No. 14-00-00111-CR, 2000 WL 1785017 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).    Therefore, the State contends that this appeal is frivolous and suggests that we order appellant’s counsel to file an Anders brief.  See Anders v. California, 386 U.S.738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). However, we decline to do so.

^[3]  Appellant acknowledges this court=s holding in Vanderburg, but cites to several opinions of the Court of Criminal Appeals and interprets those cases as requiring a trial court to conduct a full trial on a guilty plea.  See Thornton v. State, 601 S.W.2d 340 (Tex. Crim. App. 1980); Dinnery v. State, 592 S.W.2d 343 (Tex. Crim. App. 1980); Moon v. State, 572 S.W.2d 681 (Tex. Crim. App. 1978); Bolton v. State, 59 S.W.2d 833 (Tex. Crim. App. 1933).  However, all of the cases cited predate Vanderburg and Lyles, and most are analyzed by the courts of appeals’ opinions in reaching the conclusion that the procedures under article 1.15 do not violate a defendant=s right to compulsory process.   

^[4]  Appellant requests that we follow the decisions of other jurisdictions which require an express waiver of a defendant’s right to compulsory process.  In Vanderburg, we acknowledged that other jurisdictions require an express waiver of a defendant’s right to compulsory process, but held that Texas does not require such a waiver.  681 S.W.2d at 717.  We once again refuse to broaden this state’s policy to require an express waiver.