Paul Daniel Turney, Appellant v. The State of Texas, Appellee

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Court of Appeals of Texas, Beaumont.

Paul Daniel Turney, Appellant v. The State of Texas, Appellee

NO. 09–14–00501–CR, NO. 09–14–00502–CR

Decided: February 24, 2016

Before McKeithen, C.J., Horton and Johnson, JJ.

MEMORANDUM OPINION

The State charged Paul Daniel Turney (Turney) in two indictments with two different offenses of unauthorized use of a motor vehicle.  In cause number 23431 he was charged with the unauthorized use of a vehicle knowing that he did not have the consent of the owner to operate the vehicle, and in cause number 23432 he was charged with the unauthorized use of a different vehicle knowing that he did not have the consent of the owner to operate the vehicle.  In each indictment the offenses were alleged to be state jail felonies enhanced to third degree felonies by allegations in each indictment of two prior felony convictions.  Turney was represented by the same attorney in both proceedings.  Turney filed motions in each cause number requesting that the trial court consolidate cause numbers 23431 and 23432 on the basis that the underlying offenses arose out of the same criminal episode.  The trial court signed orders granting the consolidation.  On October 14, 2014, the trial court held a plea hearing.  In an open plea, Turney pleaded guilty to the offenses and the trial court accepted Turney's pleas.  Turney pleaded “true” to the enhancement paragraphs contained in the indictments.  There is a written “Admonishment of Guilt[y] Plea[,]” which also contains a sworn stipulation of evidence, express waivers, and a stipulation of evidence executed by Turney, Turney's counsel, and the State's counsel.  On October 20, 2014, the trial court then held a sentencing hearing.  The trial court sentenced Turney in each case to confinement for ten years, to be served concurrently, and the trial court in each case assessed a $10,000 fine.  We affirm.

Issue on Appeal

In his sole issue on appeal, Turney argues that his pleas of guilty were not freely, knowingly, or intelligently made because the trial court “wholly failed to properly admonish” Turney “as to the range of punishment” and did not substantially comply with the statutory requirements of article 26.13 of the Texas Code of Criminal Procedure.  Tex.Code Crim. Proc. Ann. art. 26.13 (West Supp.2015).  Turney states in his brief that he “acknowledge[s] that these admonishments are not constitutionally required[.]”  Turney contends that the written admonishments he signed in cause numbers 23431 and 23432 only admonished him of the possible range for a state jail felony, and not the possible punishment range for a third degree felony, and that the error was harmful under Rule 44.2(b) of the Texas Rules of Appellate Procedure.

Applicable Law

Several federal constitutional rights are waived when there is a plea of guilty, including the protections against self-incrimination, the right to trial by jury, and the right to confront one's accusers.  Boykin v. Alabama, 395 U.S. 238, 243 (1969).  Consistent with due process of the law, we require a defendant's guilty plea to be voluntarily, intelligently, and knowingly made.  Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App.2006) (citing Boykin, 395 U.S. at 242–43)).  The guilty plea must be the expression of the defendant's own free will and must not be induced by threats, misrepresentations, or improper promises.  Id. (citing Brady v. United States, 397 U.S. 742, 755 (1970)).

Our rules of criminal procedure provide that the trial court shall make certain admonishments prior to accepting a guilty plea, including among other items an admonishment about “the range of the punishment attached to the offense[.]”  Tex.Code Crim. Proc. Ann. art. 26.13(a)(1).  “No plea of guilty ․ shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.”  Id. art. 26.13(b).  In admonishing the defendant, “substantial compliance by 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. art. 26.13(c).  The trial court may make the admonishments orally or in writing.  Id. art. 26.13(d).

It is well-settled that when the trial court errs in failing to admonish a defendant regarding the range of punishment, the error is considered to be a non-constitutional error that should be analyzed under the harm analysis set forth in Rule 44.2(b) of the Texas Rules of Appellate Procedure.  See Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App.2002) (“Failure to admonish a defendant on the direct consequences of his guilty plea is statutory rather than constitutional error.”);  see also Aguirre–Mata v. State, 125 S.W.3d 473, 476 (Tex.Crim.App.2003) (explaining that neither Boykin nor any other Supreme Court decision has held that the failure to tell a defendant the range of punishment when pleading guilty violates a constitutionally protected right).

The range of punishment for a state jail felony is confinement in a state jail for any term of not more than two years or less than 180 days.  See Tex. Penal Code Ann. § 12.35(a) (West Supp.2015).  The range of punishment for a third degree felony is imprisonment in the Texas Department of Criminal Justice for any term of not more than ten years or less than two years.  See id. § 12.34(a) (West 2011).

Admonitions required by article 26.13 are “intended to facilitate the entry of adequately informed pleas of guilty or nolo contendere[.]”  Davison v. State, 405 S.W.3d 682, 687 (Tex.Crim.App.2013).  When a defendant is admonished on an original, unenhanced, lesser punishment range and then receives a sentence under the enhanced punishment range, “ ‘[t]he risk ․ is that the defendant was induced to plead guilty by an understatement of the seriousness of the offense and having done so, was harmed by being punished more severely than the trial court held out as the maximum he or she could receive.’ ”  Friemel v. State, 465 S.W.3d 770, 774 (Tex.App.—Texarkana 2015, pet. denied) (quoting Seagraves v. State, 342 S.W.3d 176, 181 (Tex.App.—Texarkana 2011, no pet.)).

When a defendant complains about the failure of the trial court to include the statutorily required admonishment under article 26.13(a)(1), that complaint will be subject to a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure and examined to determine if the error affected substantial rights.  VanNortrick v. State, 227 S.W.3d 706, 708 (Tex.Crim.App.2007).  To determine whether the trial court's error affected substantial rights, we conduct an independent examination of the whole record.  Id. at 708–09.  Neither party has the burden to prove harm or harmlessness resulting from error.  Id. at 709.  We must examine the record as a whole and determine whether “we have a fair assurance that the defendant's decision to plead guilty would not have changed had the court admonished him[.]”  Anderson v. State, 182 S.W.3d 914, 919 (Tex.Crim.App.2006).  We draw reasonable inferences from facts in the record when conducting a harm analysis based on the trial court's failure to admonish a defendant about the consequences of pleading guilty.  VanNortrick, 227 S.W.3d at 710.

We distinguish constitutional challenges to a plea based upon due process violations from challenges based upon violations of the admonishment requirements under article 26.13.  Davison, 405 S.W.3d at 691.  If the defendant claims on appeal that the trial court's failure to admonish him of the range of punishment caused his plea to be obtained in violation of his due process rights, and we conclude that his plea was not voluntarily or knowingly made, we apply the harm analysis for “constitutional error” under Rule 44.2(a) rather than the 44.2(b).  See Tex.R.App. P. 44.2(a).  Nevertheless, merely because a trial court fails to admonish the defendant as required under article 26.13 “does not, without more, make out a constitutional claim, much less call for a constitutional harm analysis.”  Davison, 405 S.W.3d at 691, n.50 (citing Aguirre–Mata, 125 S.W.3d at 474).

Analysis

In the indictments filed on May 30, 2014, the State indicted Turney for two offenses of unauthorized use of a motor vehicle, each enhanced to a third degree felony because each indictment alleged two prior felony convictions.  Turney signed an “Admonishment of Guilty Plea” in each case.  The written admonishment in each case states that he was charged with the unauthorized use of a motor vehicle and the punishment range for the offense is “not less than ONE HUNDRED EIGHTY (180) DAYS nor more than TWO (2) YEARS confinement in the Institutional Division of the Department of Criminal Justice and a fine of up to $10,000.00[.]” The written admonishment in each case also states that Turney “desires to plead nolo contendere and waive the right of a trial by jury as to the issue of guilt in the above entitled and numbered cause, and also comes the State of Texas and consents and approves the waiver of trial by jury as to the issue of guilt.”  Under the Stipulation of Evidence section of the written admonishments that Turney signed he acknowledges:

Defendant, further, under oath, in writing and in open Court, consents to the Stipulation of Evidence in this case and in so doing, expressly waives the appearance, confrontation and cross-examination of witnesses and consents to the introduction of testimony by oral stipulations, affidavits, written statements and other documentary evidence and hereby waives all Federal and State Constitutional rights against self-incrimination and judicially confesses and stipulates that:

“I am the identical person named in the indictment in the above styled and numbered cause;  and I have read the same and hereby agree the evidence presented by the State will show all the acts and allegations in said pleading are true and correct.”

The written admonishments were executed by Paul Turney before the district clerk on October 14, 2014.

The trial court held a hearing on the guilty pleas on October 14, 2014, in which the trial court questioned Turney regarding his pleas:

THE COURT:  Mr. Turney, you are here today apparently on a plea in these two causes of action and one of the cases of action, 23,431, it's alleged that you have violated Section 31.07 of the Penal Code for unauthorized use of a motor vehicle, which is a state jail felony, in which it has been enhanced to a third degree felony.  The date that this offense allegedly occurred was March 29th of 2014.  Are you aware of those charges?

THE DEFENDANT:  Yes, sir.

THE COURT:  All right.  In Cause Number 23,432, you're alleged to have committed the offense of unauthorized use of a motor vehicle in violation of Penal Code Article 31.07 and the offense was alleged to have happened on March 22nd of 2014.  Are you aware of those charges against you?

THE DEFENDANT:  Yes, sir.

THE COURT:  Understand those?

THE DEFENDANT:  Yes, sir.

THE COURT:  You understand that that's why we're here today?

THE DEFENDANT:  Yes, sir.

THE COURT:  And in regards to those two charges, in Cause Number 23,431, unauthorized use of a motor vehicle, how do you plead?  Guilty or not guilty?

THE DEFENDANT:  Guilty.

THE COURT:  And in regards to Cause Number 23,432, unauthorized use of a motor vehicle, how do you plead?  Guilty or not guilty?

THE DEFENDANT:  Guilty.

THE COURT:  Are you pleading guilty freely and voluntarily?

THE DEFENDANT:  Yes, sir.

THE COURT:  Are you pleading because anyone's promised you anything at all?

THE DEFENDANT:  No, sir.

THE COURT:  Are you pleading guilty because someone's threatened you or made you –

THE DEFENDANT:  No, sir.

The trial court continued to question Turney regarding whether he knew he was waiving his right to a jury trial (as well as other rights as outlined in the documents he signed), if his attorney had explained the documents to him, and if he understood, to which Turney responded “[y]es, sir.”  The trial court also asked Turney if he was satisfied with the representation of his attorney, to which Turney responded “[y]es, sir.”

The trial court did not orally apprise the defendant of a range of punishment at the plea hearing.  At the conclusion of the plea hearing, the trial court signed orders in each case approving Turney's waiver of jury trial, admonishment of guilty plea, and stipulation of evidence.  At the sentencing hearing six days later, after receiving evidence and arguments from the parties, the trial court sentenced Turney to confinement for ten years on each cause, to be served concurrently.  The trial court assessed a $10,000 fine in each case.

The State concedes that in both cause numbers the trial court's written admonishment stated that the range of punishment was not less than 180 days nor more than two years of confinement and a fine up to $10,000.  The written admonishments did not include the range of punishment for a third degree felony, which is imprisonment in the Texas Department of Criminal Justice for any term of not more than ten years or less than two years.  See id. § 12.34(a).  The State also concedes that there is no indication that the trial court verbally admonished Turney as to the correct punishment range.  Although the sentences assessed are within the actual range of punishment for a third degree felony, the sentences fall outside the range for a state jail felony, the punishment range that was included within the written admonishment signed by Turney in each case.  The trial court erred in failing to include an admonishment that stated the correct range of punishment for a third degree felony.

Turney argues that the failure of the trial court to properly admonish him pursuant to article 26.13 on the correct range of punishment makes his plea involuntary, and not knowingly and intelligently made.  Turney did not cite to Davison.  Nevertheless, we find Davison instructive.  Unlike the defendant in Davison, Turney does not specifically argue that his plea was made in violation of his due process rights, nor does Turney argue, as the defendant did in Davison, that we should apply a constitutional harm analysis.1

However, like the defendant in Davison, in each cause number Turney entered an open plea of guilty to an offense that would ordinarily be a state jail felony.  See Davison, 405 S.W.3d at 684.  Turney's indictment and notice of enhancement in each cause number was to a third degree felony, and in Davison the defendant had received notice of an enhancement to a second degree felony.  See id. at 684–85.  In Davison, as in the record now before us, there was an admonishment from the trial court in the record on the range of punishment for a state jail felony (180 days to two years) before the guilty plea.  See id. at 684–85.  However, at no point in any of the proceedings did the trial court admonish Davison that the charges, as enhanced, exposed him to a range of punishment as a second degree felon.  Id. at 685.  Similarly, at no point in our record did the trial court admonish Turney as to the range of punishment for a third degree felony.

In Davison, the Court of Criminal Appeals noted that Davison had received notice when he entered his guilty plea that his charge was being enhanced in the indictment, and he acknowledged that he had read the indictments and they were true and correct.  Id. at 689.  That fact, together with Davison's “nonchalance” later in the process, properly led to the inference that Davison was aware of the enhancement paragraphs and that he would be subjected to a greater range of punishment.  Id. Notably, Davison did not express any surprise or protest when the trial court explicitly referred to a second degree felony during the punishment phase.  Id. Accordingly, “the court of appeals did not err ․ in concluding that [Davison]'s substantial rights were not affected by the trial court's faulty admonishment.”  Id. With respect to the procedural waiver, the Court stated that “a pure Boykin claim—that is to say, a claim that the record is absolutely unrevealing with respect to whether a guilty plea was entered intelligently—is not subject to ordinary principles of procedural default.”  Id. at 690.  The Court concluded that the court of appeals erred in avoiding the merits of the due process challenge and if the defendant has been denied due process, the court should apply the harm analysis outlined in Rule 44.2(a) rather than Rule 44.2(b).  Id. at 691.  But, the Court decided to examine the due process claim and concluded that Davison “failed to establish the merits of his due process claim.”  Id. at 692.  Therefore, the Court affirmed the ruling of the court of appeals.

With respect to Turney's challenge based upon the failure of the trial court to admonish him properly under article 26.13, after examining the record as a whole, we find nothing in the record to show that Turney was unaware of the range of punishment.  To the contrary, the record in each cause number contains an indictment that specifically includes the enhancement allegations and indicates he is charged with a third degree felony, references by the trial court at the plea hearing that the charges were enhanced to a third degree felony, affirmative statements by Turney in his letters to the trial court prior to his plea, along with his silence during the punishment phase, which when taken together demonstrate sufficient circumstances from which we can reasonably infer that Turney was aware of the range of punishment when he entered his guilty pleas.  See id. at 689;  Burnett, 88 S.W.3d at 640.

More specifically, Turney's indictments included the following before alleging the specific prior felony convictions:  “STATE JAIL FELONY ENHANCEMENT – 3RD DEGREE FELONY NOTICE[.]”  Included in the clerk's record for cause numbers 23431 and 23432 is a letter to the trial court filed on August 24, 2014, signed by Turney and stating, “As you know this charge is a state jail felony but because of my extensive record the Grand Jury has enhanced my charge to a 3 rd degree felony[.]  ․ To my understanding their [sic] was a four year offer ․ that offer was withdrew [sic] ․ can you please put the four year offer back on the table[.]”  Also included in the clerk's record for cause numbers 23431 and 23432 is a letter dated October 5, 2014, nine days prior to the plea hearing, addressed to the trial court and signed by Turney, wherein Turney states he has “decided to plead guilty” and that he “feel[s] 10 years is a bit excessive for the crime [he] ha[s] committed.”  The reporter's record for the plea hearing reveals that the trial court explained to Turney that each offense was “a state jail felony, in which it has been enhanced to a third degree felony.”  Turney responded that he understood and that he was aware of the charges.  The reporter's record from the sentencing hearing reflects that the parties discussed that the prior felony convictions alleged in the indictments would enhance the state jail felonies to third degree felonies, and then Turney pleaded “true” to the enhancement allegations in the indictments.  At the sentencing hearing and prior to the trial court's pronouncement, defense counsel stated the following:

Your Honor, these are two cause numbers․  It's two state jail felonies, unauthorized use of a motor vehicle and he plead [sic] guilty and then they've alleged prior state jail felonies for purposes of enhancement.  He pled true to the prior state jail felonies for purposes of enhancement.  So you now have two third—punished as third degree felonies, minimum to maximum ten in each case but because they are tried together in one continuing transaction, they can't be stacked.  So you have two to ten in each case.

There is no indication in the record that Turney protested the references to the two ten-year sentences.  See id.

The record indicates that in each cause number Turney received notice of the additional enhancements and pleaded true to the additional enhancements.  The record further indicates that during the sentencing hearing his defense counsel stated the correct range of punishment, and that in each cause number Turney was aware that the punishment could exceed the written admonishment and that he could potentially receive a ten-year sentence.

We conclude that Turney's substantial rights were not affected by the trial court's failure to substantially comply with article 26.13.  Davison, 405 S.W.3d at 689.  And, we have fair assurance that Turney's pleas would not have been different had the trial court given the correct admonishment.  See Anderson, 182 S.W.3d at 919.

Even if we liberally construe Turney's brief on appeal to include a constitutional challenge that his pleas were involuntary and not knowingly made in violation of his due process rights, based on the record before us we further conclude Turney has failed to establish the merits of a due process claim.  If the record affirmatively discloses that appellant's guilty plea was adequately informed, due process is satisfied.  Davison, 405 S.W.3d at 687.  For Turney to prevail on a constitutional claim that his pleas were involuntary and not knowingly made, it is not enough for him to simply say that the trial court erred in failing to admonish him on punishment.  Turney would have to show that the record is also silent with respect to whether he otherwise was provided, or nevertheless was aware of, the requisite information to render his guilty pleas voluntary and intelligent.  Id. As previously discussed, the record affirmatively indicates that in each cause number Turney did not plead guilty in ignorance of the applicable range of punishment;  he was aware of the enhancements and of a potential ten-year sentence, and he affirmatively stated that his “guilty plea” was knowingly and voluntarily made.  Therefore, we conclude that Turney has failed to establish the merits of a due process claim.  Id. at 691.

We affirm the trial court's judgments.

AFFIRMED.

FOOTNOTES

1.   Davison made two complaints on direct appeal:  1) that the trial court failed to admonish him of the applicable range of punishment, as required by article 26.13(a)(1), and 2) that the failure to admonish him with respect to the applicable range of punishment did not simply violate the statute, but it also served to render his guilty plea involuntary for purposes of the Due Process Clause of the Fourteenth Amendment.  Davison v. State, 405 S.W.3d 682, 685 (Tex.Crim.App.2013).

LEANNE JOHNSON, Justice