Herbert Aubrery Johnson v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00195-CR
___________________________
HERBERT AUBRERY JOHNSON, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 396th District Court
Tarrant County, Texas
Trial Court No. 1362700D
Before Kerr, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
Appellant Herbert Aubrery Johnson made an open plea of guilty to aggravated
assault causing serious bodily injury and received a ten-year sentence. See Tex. Penal
Code Ann. §§ 12.33, 22.02. He filed a motion for “shock probation,” which the trial
court granted, and the trial court suspended his sentence and placed him on ten years’
community supervision. Seven years later, the State sought to revoke Johnson’s
community supervision, alleging that he had failed to report, had left Tarrant County
without authorization, and had failed to charge his electronic monitor.1 The trial
court’s judgment reflects that Johnson pleaded “true” to these allegations and
received a ten-year sentence.
In a single point, Johnson complains that the trial court erred by accepting
pleas from his counsel instead of requiring him to enter his own pleas, relying on
Code of Criminal Procedure Article 27.13. Because Article 27.13 does not apply to a
plea of “true” in a revocation proceeding, we affirm.
II. Discussion
Article 27.13 states in pertinent part that “[a] plea of ‘guilty’ or a plea of ‘nolo
contendere’ in a felony case must be made in open court by the defendant in person.”
Tex. Code Crim. Proc. Ann. art. 27.13. At the revocation hearing, the trial court
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The State also alleged a failure to pay supervision fees, but the trial court did
not consider this ground.
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asked Johnson whether each of the State’s allegations was true or not true, and
Johnson’s counsel replied that they were true “with extenuating circumstances.”
Johnson then testified that he had failed to report because he had been depressed
after his father died, acknowledged having been out of state without permission, and
agreed that he had failed to charge his electronic monitor.
In Tindel v. State, the Court of Criminal Appeals stated that “[b]y its terms,
[Article 27.13] relates to pleas of ‘guilty’ or ‘nolo contendere’ in felony cases,” and not
to pleas of “true” to enhancement allegations. 830 S.W.2d 135, 136–37 (Tex. Crim.
App. 1992). The appellant’s trial counsel had entered a plea of “guilty” (which should
have been a plea of “true”) to an enhancement allegation during the trial’s punishment
phase, and at the subsequent proceeding after presentence investigation, no one
objected when the trial court noted that the appellant had pleaded “true” to the
enhancement allegation. Id. at 136 & n.1. The intermediate court remanded for a
new punishment trial, reasoning that under Article 27.13, no plea had been entered
when trial counsel entered the plea, the trial court made no inquiry of the appellant
after counsel gave the plea, and no other evidence on the enhancement allegation was
adduced. Id. at 136.
The Court of Criminal Appeals determined otherwise, explaining that Article
27.13’s personal-plea requirement does not apply to pleas of “true” to enhancements
both because the statute’s plain language does not address pleas of “true” and because
of the difference between guilty pleas and enhancement-allegation pleas. Id. at 136–
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37. The court concluded that the record was sufficient to show that the appellant had
pleaded “true” because (1) he had been present in open court when the State read the
allegation and the trial court asked for the plea, (2) his counsel had authority to act on
his behalf and to respond to the trial court’s inquiries, and (3) no one objected to the
trial court’s noting that the appellant had pleaded “true” to the enhancement when
the proceedings resumed. Id. at 137. The court also stated that there was “nothing in
the record to show[,] and appellant d[id] not contend[,] that he did not want to plead
‘true’ to the enhancement allegation when it was presented by the State.” Id. at 137
n.2; see also Costilla v. State, 146 S.W.3d 213, 217 (Tex. Crim. App. 2004) (holding that
Article 27.13 does not require an oral guilty plea and that a complaint arguing a
deviation from Article 27.13 should be evaluated factually). 2
Although we have not previously addressed the issue of a “true” plea by
counsel at a revocation hearing, our sister courts have done so in unpublished
opinions that, while not precedential, are persuasive. See Winters v. State, No. 06-09-
2
While the better practice is to inquire of the defendant personally what his plea
is, the lack of an oral plea from the defendant himself may not render it involuntary.
Costilla, 146 S.W.3d at 217. In Costilla, the appellant was represented by a bilingual
attorney who entered a guilty plea on his behalf. 146 S.W.3d at 214. The appellant
also submitted plea documents in which he stipulated to the evidence, admitted guilt,
and acknowledged that he understood the plea admonishments. Id. at 215. The
appellant answered, in English, “Probation,” when asked, “What do you want the
Judge to do with you?” Id. In his motion for new trial, he did not refer to the trial
court’s failure to obtain an oral guilty plea from him. Id. at 216. The court noted,
“[A]ll the facts point to [his] voluntary desire to plead guilty: [he] was present, the
plea was entered in open court by [him], albeit through his bi-lingual attorney. That is
all the statute requires.” Id. at 217.
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00169-CR, 2010 WL 1555503, at *3 (Tex. App.—Texarkana Apr. 19, 2010, no pet.)
(mem. op., not designated for publication) (relying on Tindel’s reasoning); see also Carr
v. State, No. 07-13-00159-CR, 2014 WL 950137, at *2 (Tex. App.—Amarillo Mar. 6,
2014, no pet.) (mem. op., not designated for publication) (relying on Winters for the
proposition that Article 27.13’s requirements do not apply to revocation proceedings).
At the community-supervision revocation hearing in Winters, the trial court
asked, “What are we pleading true to and what are we pleading not true to?” and her
counsel listed the pleas of true and not true; the trial court never directly inquired of
the appellant, who was present, whether she concurred in her attorney’s pleas or
whether she understood their ramifications, and she did not testify and never spoke at
the hearing. 2010 WL 1555503, at *1–2. On appeal, she complained that there was
insufficient evidence that she had voluntarily pleaded “true” and argued that the court
should apply Article 27.13. Id. The court instead found Tindel’s reasoning analogous,
particularly because there was no indication that her plea was not voluntarily entered,
and it held that Article 27.13 does not apply to pleas of “true” in a revocation
proceeding. Id. at *3. The court also noted, “[T]here is nothing in the record [that]
indicates that the announcement of ‘true’ by [the appellant’s] attorney was done
without her express consent.” Id. at *3 n.9.
We agree that Article 27.13’s plain language and Tindel compel that conclusion:
Article 27.13 does not apply to a plea of “true” in a revocation proceeding and, in the
absence of a showing that a “true” plea is entered without the defendant’s express
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consent, trial counsel has the authority to respond to the trial court’s inquiries. See
Tindel, 830 S.W.2d at 137 & n.2; Winters, 2010 WL 1555503, at *3 & n.9.
Here, the record shows that Johnson pleaded “true” because he was present in
open court when the trial court listed the State’s allegations and asked for his plea,
which counsel gave under his authority to act on Johnson’s behalf. See Tindel, 830
S.W.2d at 137. Further, the record reflects that Johnson testified about the
allegations’ truth, and there is nothing to show that he did not want to plead true or
that his counsel acted without his consent. See id. at 137 n.2; see also Costilla, 146
S.W.3d at 217; Winters, 2010 WL 1555503, at *1–3 & n.9. We overrule Johnson’s sole
point.
III. Conclusion
Having overruled Johnson’s sole point, we affirm the trial court’s judgment.
/s/ Dabney Bassel
Dabney Bassel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: April 6, 2023
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