Roland D. Demps v. State ( 2019 )

Opinion issued June 20, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00448-CR
———————————
ROLAND D. DEMPS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 396th District Court
Tarrant County, Texas1
Trial Court Case No. 1505983D
1
Pursuant to its docket equalization authority, the Supreme Court of Texas
transferred this appeal to this Court. See TEX. GOV’T CODE § 73.001 (authorizing
transfer of cases).
MEMORANDUM OPINION
Appellant, Roland D. Demps, pleaded guilty, without an agreed
recommendation from the State regarding punishment, to the felony offense of
driving while intoxicated (“DWI”), third or more offense.2 The indictment contained
an enhancement paragraph, alleging that appellant had been previously convicted of
the felony offense of possession of a controlled substance, namely,
methamphetamine, weighing at least 4 grams.3 The trial court found appellant guilty
of the primary offense and found the enhancement true. Following a presentence
investigation, the trial court assessed appellant’s punishment at confinement for five
years. In his sole issue, appellant contends that the trial court erred by failing to
admonish him as to the range of punishment applicable to his offense, which
rendered his guilty plea involuntary.
We affirm.
Background
Appellant was indicted for the offense of driving while intoxicated, third or
more, enhanced by a prior felony conviction for possession of a controlled substance.
On March 13, 2018, in its “Written Plea Admonishments,” the trial court
stated as follows:
2
See TEX. PENAL CODE §§ 49.04, 49.09(b)(2).
3
See TEX. HEALTH & SAFETY CODE §§ 481.102(6), 481.115(d).
2
1. You are charged with the felony offense of DWI 3rd or More.
....
3. If convicted of the above offense, you face the following range of
punishment:
....
THIRD DEGREE FELONY ENHANCED: Imprisonment for a
term of not more than 20 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.
....
OTHER: Plea true to enhancements
....
7. No Plea Agreement (Open Plea): If you have plead guilty without
[the] benefit of a plea agreement, the plea proceeding is your trial.
Should the Court find you guilty, your punishment can be set
anywhere within the range of punishment prescribed by law for the
offense.
In the same document, immediately after the plea admonishments, the
“Written Waivers of Defendant—Joined by Attorney,” reflect that appellant, in open
court and joined by his attorney, stated:
(A) . . . . I fully understand each of the above written plea
admonishments given by the Court and I have no questions. . . .
(B) I give up and waive arraignment and formal reading of the
indictment . . . . ;
(C) I am aware of the consequences of my plea;
(D) I am mentally competent and my plea is knowingly, freely, and
voluntarily entered. No one has threatened, coerced, forced,
persuaded or promised me anything in exchange for my plea;
....
(P) I give up and waive the attendance and record of a court reporter
under Rule 13.1, Texas Rules of Appellate Procedure[.]
3
Appellant and his attorney each signed the plea admonishments and waivers.
Appellant also signed a “Judicial Confession,” in which he admitted his guilt in the
primary offense, as alleged in the indictment, and that the “enhancement and habitual
allegations set forth in the indictment are true and correct.”
At the end of the document, along with the trial court’s signature, appears the
following: “The Court has given the Defendant the admonishments set out in
paragraphs numbered 1 through 17, above. In addition, the Court finds that the
defendant is mentally competent and that his plea is intelligently, freely and
voluntarily entered. . . .”
At the sentencing hearing, on May 3, 2018, the trial court stated:
Let the record reflect that on March 13th of this year [2018] the
defendant came to court, pled guilty to the offense of driving while
intoxicated-felony repetition. The Court accepted the defendant’s plea
and ordered that a Presentence Investigation Report be compiled by the
Community Supervision and Corrections Department. The defendant
also pled true to the Repeat Offender Notice in the indictment. . . .
The trial court found appellant guilty, noted that it had reviewed the presentence
report, and sentenced appellant to confinement for five years.
Plea Admonishments
In his sole issue, appellant argues that his plea was involuntary because the
trial court failed to admonish him as to the range of punishment applicable to his
offense.
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Standard of Review and Principles of Law
A defendant’s decision to forgo a jury trial and to enter a guilty plea is
afforded constitutional protections, including a requirement that the plea result from
a voluntary and knowing relinquishment of a known right. McCarthy v. United
States, 394 U.S. 459, 466 (1969); Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim.
App. 2006); Hampton v. State, 435 S.W.3d 303, 306 (Tex. App.—Houston [1st
Dist.] 2014, pet. ref’d). Texas Code of Criminal Procedure article 26.13 specifies
the admonishments that a trial court must make before accepting a guilty plea. TEX.
CODE CRIM. PROC. art. 26.13; Harrison v. State, 688 S.W.2d 497, 499 (Tex. Crim.
App. 1985). Included in those requirements is that the trial court admonish the
defendant as to the range of punishment applicable to the offense charged. TEX.
CODE CRIM. PROC. art. 26.13(a)(1). The trial court may make the admonitions either
orally or in writing. Id. art. 26.13(d). If it does so in writing, it must receive a
statement signed by the defendant and his attorney that the defendant understands
the admonitions and is aware of the consequences of his plea. Id.
Substantial compliance with the statute 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. art. 26.13(c). A
record reflecting that the statutory admonishments were given constitutes a prima
facie showing that the defendant knowingly and voluntarily entered his plea.
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Harrison, 688 S.W.2d at 499. A defendant who attests that he understands the nature
of his plea and that his plea was voluntary carries a “heavy burden” on appeal to
establish that his plea was involuntary. Edwards v. State, 921 S.W.2d 477, 479 (Tex.
App.—Houston [1st Dist.] 1996, no pet.).
An erroneous plea admonition constitutes non-constitutional error, which
requires reversal only if the failure affected the defendant’s substantial rights. See
TEX. R. APP. P. 44.2(b); Burnett v. State, 88 S.W.3d 633, 637–38 (Tex. Crim. App.
2002) (explaining substantial-rights standard in voluntariness-of-plea case). The
reviewing court must examine the entire record to determine whether, on its face, it
suggests that the defendant did not know the consequences of his plea. Burnett, 88
S.W.3d at 638. A record that is silent on the issue of the range of punishment would
reasonably support an inference that the defendant did not know the consequences
of his plea. Id. However, if a record shows that the trial court “delivered an incorrect
admonishment regarding the range of punishment, and the actual sentence lies within
both the actual and misstated maximum, substantial compliance is attained.”
Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); Mitchell v. State,
No. 01-15-00249-CR, 2016 WL 888147, at *2 (Tex. App.—Houston [1st Dist.] Mar.
8, 2016, pet. ref’d) (mem. op., not designated for publication).
Texas Penal Code section 49.04 prohibits a person from operating a motor
vehicle in a public place while in a state of intoxication. TEX. PENAL CODE
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§ 49.04(a). Generally, an offense under this section is classified as a Class B
misdemeanor. Id. § 49.04(b). However, if the State also proves that a defendant has
been twice previously convicted of an offense related to operating a motor vehicle
while intoxicated, an offense under section 49.04 is classified as a third-degree
felony. See id. § 49.09(b)(2); Gibson v. State, 995 S.W.2d 693, 695–96 (Tex. Crim.
App. 1999) (holding that “prior intoxication-related offenses are elements of the
offense of driving while intoxicated,” “define the offense as a felony,” and are
“admitted into evidence as part of the State’s proof of its case-in-chief during the
guilt-innocence stage of the trial”). The punishment range for a third-degree felony
is confinement for a term of two to ten years and a fine of up to $10,000. TEX. PENAL
CODE § 12.34.
In addition, the range of punishment may be enhanced by other prior felony
convictions. See id. § 12.42(d); Gibson, 995 S.W.2d at 696. Such prior felony
convictions are not admitted into evidence until the punishment stage of a trial, after
the defendant has been convicted of the primary felony offense. Gibson, 995 S.W.2d
at 696 (explaining that “prior intoxication-related convictions serve the purpose of
enhancing the offense in Section 49.09(b), whereas prior convictions used in Section
12.42(d) serve the purpose of enhancing punishment”).
Analysis
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Here, the record shows that appellant was indicted for the offense of DWI,
third or more, which constitutes a third-degree felony. See TEX. PENAL CODE
§ 49.09(b)(2). In the indictment, the State presented allegations concerning
appellant’s previous DWI convictions. The State also alleged that appellant was
previously convicted of a felony offense of possession of a controlled substance,
weighing at least 4 grams. See TEX. HEALTH & SAFETY CODE § 481.115 (classifying
possession of controlled substance, weighing at least 4 grams but less than 200
grams, as second-degree felony).
With exceptions not applicable here, if it is shown on the trial of a third-degree
felony that the defendant has previously been convicted of a felony, the defendant
“shall be punished for a felony of the second degree.” TEX. PENAL CODE § 12.42.
The punishment range applicable to a second-degree felony is imprisonment for a
term of two to 20 years and a fine of up to $10,000. TEX. PENAL CODE § 12.33.
Thus, here, if convicted, appellant was subject to a punishment range of confinement
for two to twenty years and a fine of up to $10,000. See id.
The record shows that, in its “Written Plea Admonishments,” the trial court
accurately admonished appellant in writing as to the punishment range applicable to
his offense as follows: “If convicted of the above offense, you face the following
range of punishment: . . . Imprisonment for a term of not more than 20 years or less
than 2 years in the Texas Department of Criminal Justice; and in addition, a fine not
8
to exceed $10,000 may be assessed.” See TEX. CODE CRIM. PROC. art. 26.13(a)(1),
(d) (providing that trial court may admonish defendant either orally or in writing).
After the admonishments appears: “Comes now the Defendant, in open Court,
joined by my attorney and states: . . . I fully understand each of the above written
plea admonishments given by the Court and I have no questions,” and “I am aware
of the consequences of my plea.” Appellant and his attorney signed underneath.
Thus, the trial court received a signed statement that appellant understood the
admonitions and consequences of his plea. See id. art. 26.13(d) (providing that if
trial court makes admonitions in writing, “it must receive a statement signed by the
defendant and [his] attorney that [the defendant] understands the admonitions and is
aware of the consequences of his plea.”).
Appellant’s statement is followed by his Judicial Confession and additional
signature. Finally, the document states, in pertinent part: “The Court has given the
Defendant the admonishments set out in paragraphs numbered 1 through 17, above.”
And, the trial court’s signature appears. It is undisputed that the Written
Admonishments were given on the same day that appellant entered his plea.
Appellant waived his right to have a court reporter record his plea. See Cantu v.
State, 988 S.W.2d 481, 484 (Tex. App.—Houston [1st Dist] 1999, pet. ref’d)
(holding defendant who waived court reporter and received written admonishments
could not show plea was involuntary).
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Appellant argues that his plea was involuntary because the written plea
admonishment form “does not have a place for the defendant to sign to so indicate
that he has, in fact, been admonished as to the range of punishment” and “the form
does not have a place for the Judge of the trial court to sign which would show [that]
the defendant was properly apprised of the range of punishment as to the offense.”
As discussed, the record does not support appellant’s argument.
Appellant further asserts that the trial court erred by not asking him on the day
of sentencing if he “understood the punishment range” or “wished to withdraw his
plea.” “There is no requirement that the judge orally admonish a defendant when
the defendant has signed written admonishments, statements, or waivers, and it is
established that he understood them.” Willhite v. State, No. 2-08-269-CR, 2009 WL
2356998, at *2 (Tex. App.—Fort Worth July 30, 2009, pet. ref’d) (mem. op., not
designated for publication) (discussing TEX. CODE CRIM. PROC. art. 26.13(d)); see
Scott v. State, 86 S.W.3d 374, 375–76 (Tex. App.—Fort Worth 2002, no pet.); Lee
v. State, 39 S.W.3d 373, 375 n.1 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
Thus, having previously admonished appellant in accordance with article 26.13 prior
to receiving his plea, the trial court was not required to further question appellant
about the voluntariness of his plea. See Edwards, 921 S.W.2d at 480–81 (holding
that, after written admonishments given in accordance with article 26.13, trial court
10
not required to further question defendant about his understanding of
admonishments and voluntariness of plea).
We conclude that the trial court properly admonished appellant regarding the
applicable range of punishment. Because the trial court complied with the statutory
requirements, we hold that appellant has not shown that his plea was involuntary.
We overrule appellant’s sole issue.
Conclusion
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).
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