Rogelio Nieto Zamora, Jr. v. State ( 2010 )

NO. 12-09-00391-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
ROGELIO NIETO ZAMORA, JR.,
APPELLANT ' APPEAL FROM THE 3RD
V. ' JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS, ' ANDERSON COUNTY, TEXAS
APPELLEE
MEMORANDUM OPINION
Rogelio Nieto Zamora, Jr. appeals his conviction for delivery of a simulated
controlled substance. In his sole issue on appeal, Appellant challenges the trial court’s
failure to inquire whether he freely and voluntarily waived his right to testify during the
punishment phase at trial. We affirm.
BACKGROUND
Appellant was indicted on March 5, 2008, for the offense of delivery of a
simulated controlled substance, a state jail felony. He waived his right to a jury and
entered an open plea of guilty on October 6, 2008. The sentencing hearing was
postponed until November 16, 2009, when the trial court sentenced Appellant to two
years of imprisonment. Appellant timely appealed.
RIGHT TO TESTIFY
In his sole issue, Appellant argues that the trial court erred “when it did not
inquire as to whether [he] knew he had a right to testify.”
Standard of Review and Applicable Law
A defendant has a right to testify at his own trial, and such a right is fundamental
and personal to the defendant. Johnson v. State, 169 S.W.3d 223, 235 (Tex. Crim. App.
2005). In Johnson, the Texas Court of Criminal Appeals held, in agreement with the
majority of jurisdictions, that a trial court has no duty to inform a defendant represented
by counsel of his right to testify. Johnson, 169 S.W.3d at 235. Rather, it is the
responsibility of defense counsel to inform a defendant of his right to testify, including
the fact that the ultimate decision of whether to testify belongs to him. Id.
Discussion
In addition to the delivery of a simulated controlled substance charge in this
cause, Appellant had been indicted for other offenses in separate proceedings with
different counsel. According to trial counsel in this cause, Appellant’s counsel in those
other proceedings advised Appellant not to testify because of the other pending charges.
Specifically, after the State rested during punishment in this cause, Appellant’s counsel
stated as follows:
Your Honor, I can’t present testimony at this time, because the only person I would be
able to call is my client. And since there [are other] pending charges and his attorney is
not present, he has been advised not to testify.
Appellant was present when counsel made that statement to the trial court.
As noted above, the trial court had no duty to inform Appellant of his right to
testify. See Johnson, 169 S.W.3d at 235. Without the duty to inform Appellant of the
right to testify, it follows that the trial court had no duty to determine whether Appellant
freely and voluntarily waived his right to testify. See Bean v. State, No. 04-03-00114-
CR, 2003 WL 23095725, at *3 (Tex. App.–San Antonio Dec. 31, 2003, pet. ref’d) (mem.
op., not designated for publication).
Appellant’s sole issue is overruled.
DISPOSITION
We affirm the judgment of the trial court.
JAMES T. WORTHEN
Chief Justice
Opinion delivered October 27, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)