Opinion
Nos. 05-04-01741-CR, 05-04-01742-CR, 05-04-01743-CR
Opinion issued March 27, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 380-82192-03, 380-82193-03, 380-82194-03. Affirmed.
Before Justices WHITTINGTON, WRIGHT, and MAZZANT.
OPINION
Robert S. Nunes appeals his convictions for aggravated robbery, aggravated assault, and aggravated kidnapping. In three issues, he claims (1) his guilty pleas are invalid because the record does not show the pleas were entered knowingly and voluntarily; (2) the trial court erred by failing to have him enter his pleas in person; and (3) the trial court should have determined whether he was mentally competent to plead guilty. We affirm the trial court's judgments.
Background
Nunes was indicted for aggravated robbery, aggravated assault, and aggravated kidnapping. During voir dire, the prosecutor and Nunes's counsel both told the jury panel Nunes would be pleading guilty at trial and that they would only determine punishment. After the jury was selected and sworn in, Nunes was arraigned on the three indictments in the presence of the jury. The prosecutor read each indictment aloud, the trial judge asked defense counsel for her client's plea, and counsel entered a plea of guilty on behalf of her client for each charge. Following a sidebar conference, the prosecutor said, in the presence of the jurors:[PROSECUTOR]: Judge, I would move to have the Defendant arraigned outside the presence of the jury in addition to the arraignment in front of the jury.THE COURT: All right.
[DEFENSE COUNSEL]: Defendant will waive said arraignment and enter a plea of guilty to all three charges, Your Honor.THE COURT: All right. The evidence at the punishment phase of the trial shows that Nunes, eighteen years-old at the time of the offense, and his girlfriend needed money to run away together and decided to steal it from another acquaintance, Charles Voigt. Nunes and four teenage accomplices held Voigt at knifepoint and restrained him with duct tape. Nunes used Voigt's automatic teller machine (ATM) card to obtain cash. Voigt was then taken to an abandoned farmhouse in rural Collin County from which he attempted to escape from Nunes and the others. During a struggle with Nunes, Voigt received a cut on his neck. Nunes then made Voigt enter the farmhouse, and Nunes and his accomplices left. Voigt waited a short time before walking to a nearby home, where he received help. Nunes and his girlfriend fled to Colorado, where they were subsequently apprehended. At the conclusion of the punishment phase, the trial judge instructed the jurors to convict Nunes as charged in the indictments. The jurors found Nunes guilty as charged in the indictments and imposed a sentence of forty years for aggravated kidnapping, thirty years for aggravated robbery, and ten years for aggravated assault.
Discussion
In his first issue, Nunes claims the guilty pleas are invalid because the record does not affirmatively show the pleas were entered voluntarily and knowingly as required by Boykin v. Alabama, 395 U.S. 238, 242 (1969). In Gardner v. State, 164 S.W.3d 393 (Tex.Crim.App. 2005), the court of criminal appeals noted there were two ways in which a plea could be involuntary under Boykin:`A plea may be involuntary either because the accused does not understand the nature of the constitutional protections that he is waiving (citation omitted), or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt. Without adequate notice of the nature of the charge against him, or proof that he in fact understood the charge, the plea cannot be voluntary in this latter sense. (Citation omitted).'Id. at 398 n. 2 (quoting Henderson v. Morgan, 426 U.S. 637, 644-45 n. 13 (1976)). Here, Nunes raises both issues. Specifically, he claims both that he did not understand the nature of the constitutional protections he was waiving when he pleaded guilty and his pleas were not intelligent admissions of guilt.
Standard of Review
The general principles governing the voluntariness of guilty pleas under Boykin are well known: A guilty plea will be accepted as constitutionally valid only with an affirmative showing that such a plea was entered voluntarily, knowingly, and intelligently. Brady v. United States, 397 U.S. 742, 748 (1970); Mitschke v. State, 129 S.W.3d 130, 136 (Tex.Crim.App. 2004). Furthermore, the record must affirmatively disclose that the defendant who pleaded guilty did so understandingly and voluntarily. Boykin, 395 U.S. at 242. When a defendant pleads guilty to a charge, he must do so with a sufficient awareness of the relevant circumstances and likely consequences. Brady, 397 U.S. at 748. The court of criminal appeals has explained that it is a due process violation for a trial court to accept a defendant's guilty plea without an affirmative showing "spread on the record" that the plea was "intelligent and voluntary." Aguirre-Mata v. State, 125 S.W.3d 473, 474 (Tex.Crim.App. 2003) (citing Boykin, 395 U.S. at 242-44). However, the Court has also noted that Boykin "did not specifically set out what due process requires to be `spread on the record' except to say generally that state courts should make sure that a guilty-pleading defendant `has a full understanding of what the plea connotes and of its consequences.'" Id. at 475. "In addition to mentioning things like the invalidity of guilty pleas induced by `terror,' Boykin mentioned three constitutional rights that a guilty plea waives: the privilege against compelled self-incrimination, the right to a jury trial and the right to confront one's accusers." Gardner, 164 S.W.3d at 399 (citing Boykin, 395 U.S. at 243-44). An appellate court cannot infer the waiver of these constitutional rights from a silent record. Boykin, 395 U.S. at 243; Aguirre-Mata, 125 S.W.3d at 474.The Record
Nunes claims the record is this case is silent concerning his knowledge and understanding of the charges against him, but careful review of the record shows otherwise. After the cases were called and both sides announced ready, the court began the process of jury selection. Although the trial court did not formally admonish Nunes on the punishment ranges for the offenses he was charged with, during jury selection, punishment ranges were discussed in his presence. After explaining the elements of each offense, the prosecutor told the venire:PROSECUTOR: Punishment is what you're here for — the 12 of you that are chosen, the range of punishment for aggravated robbery and aggravated kidnapping, the punishment range is anywhere from 5 to 99 years to life in prison, and up to $10,000 fine. That's the range of punishment you're going to be deciding on those two crimes.
Aggravated assault, you're going to hear the range of punishment in that case is a minimum of 2 years to a maximum of 20 years in the penitentiary and up to a $10,000 fine. . . .After the State and Nunes rested, the trial court read the charge to the jury, which includes the punishment ranges for each offense. Nunes did not testify during the punishment phase of the trial, but letters that he wrote to family members and friends from jail were introduced as evidence in an apparent effort to show the jurors the remorse he felt for his actions. Three of these letters, which were written to Nunes's grandmother, read in part:
I've made a long chain of bad choices and now I have to suffer the consequences, learn from them and move on.
I know this is going to be hard to live down but I'm sorry with the essence of my being and I can't go on with my guilty conscience eating me alive. Ever since I decided to tell the truth and admitted it to you I've felt clean. I'm still sorry, what I did wasn't right and there's no excuse but none the less I feel 100% better released from the pressure of the lie I was living.
I'm not going to lie any more and even though the truth isn't nice it's reality, I can't hide from what happened. I'm sorry.In another letter, he writes, in part: "I'm about to plea guilty to all four state jail felonys have 'em run it concurrent with the sentence I'm currently servin'." Still another letter reads, in part: "I have a feelin' I might end up goin' to the joint too but I prey I don't get more than 10 yearz, ya dig?" There was some testimony from defense witnesses regarding Nunes's acceptance of responsibility for his actions. Nunes's Alcoholics Anonymous sponsor testified that Nunes had "taken responsibility for his crime" and "admits that he did the crime." His testimony includes the following colloquy with the prosecutor:
Q. [PROSECUTOR]: Did he tell you about how he put the knife in Charles Voigt's neck? Did he tell you about that?A. No. We're not at that step. That's step 4.
Q. I thought you told us in your direct questioning that he told you about the details of the crime?A. He told me about the crime.
Q. But he hasn't told you about the details of the crime?A. Not all of them. Q. That would be a pretty big detail, wouldn't it? A. Yes, it would.
Q. So he hasn't taken responsibility to this point for putting a knife in some other guy's neck?
A. He's taken responsibility for his crime. He admits that he did the crime.
Q. He told you, "I put a knife in Charles Voigt's neck?"A. No, he did not. Nunes's grandmother was questioned by defense counsel regarding Nunes's acceptance of responsibility:
Q. Has Bobby in the last year and a half — at some point in the last year and a half, has he accepted — don't tell me what he said but has he accepted responsibility for the crimes he's committed?A. Yes.
Q. And Bobby has chosen to enter a plea of guilty to three aggravated felonies, is that true?A. Yes.
Q. Bobby has confessed to you that he did in fact try to take — did take, not try, excuse me, money from Charles Voigt; is that correct?A. Yes.
Q. And he has testified that he did put him in his own trunk, along with five other kids, and drive out to the country?A. Yes.
Q. And he's expressed to you that he threatened him with a knife?A. Yes.
Q. The only point of contention, as far as a confession that has been made by my client to you, is whether or not the victim was stabbed?A. Yes.
Q. But you understand and Bobby certainly understands that the law is the same, you use or exhibit a deadly weapon, that that alone is enough?A. Right.
Q. And that's why he's chosen to enter a plea of guilty to these charges?A. Right. Defense counsel referred to Nunes's guilty pleas and acceptance of responsibility throughout the punishment phase. During voir dire, she told the panel that
you've already heard from the defendant because [the prosecutor] told you first thing, she said this is going to be a plea of guilty. She said that, so in some sense the defendant has already spoken through my words, because I am his voice and I've told the prosecutors, which I don't have to do, you could all be in the dark, the State could be in the dark, the judge could be in the dark, and this could be a much longer process, but I said we intend on this case to enter a plea of guilty. Not why, but we intend to enter a plea of guilty.In her opening statement, counsel said that
Bobby Nunes has admitted guilt for using and exhibiting a deadly weapon, threatening someone with it. He has admitted guilt for taking someone's ATM card to take money so that he could run away in some Cinderella like fantasy world that he lives in. He has accepted responsibility for the kidnapping, for taking Charles Voigt and taking his car.Counsel also told jurors during her opening statement that "Nunes has accepted full responsibility." In her closing argument, counsel again emphasized that Nunes had entered pleas of guilty to the offenses and was asking the jury to impose punishment:
I'm asking you-all to look at this case as it stands. We are entering a plea of guilty to the charges. The Defendant is not coming before you asking you to decide guilt/innocence. The Defendant has come before you and admitted his guilt for this crime. What you have to do now is decide what the appropriate punishment is. . . .Discussing the aggravated assault charge, counsel said: "Bobby [Nunes] has accepted responsibility and the charging instrument to you states that he did use and exhibit a deadly weapon. That's an aggravated assault." At the end of the defense case, Nunes briefly took the stand, outside of the jury's presence, to explain that he wanted to exercise his Fifth Amendment right against self-incrimination:
Q. [DEFENSE COUNSEL]: And you know that you have the constitutional right under both the United States Constitution and the Texas Constitution to not provide any testimony which might incriminate you?A. [NUNES]: Yes, ma'am.
Q. So in regular street talk, in other words, you don't have to talk about stuff you've done?A. Right. Q. Is that fair? A. Yes, ma'am.
Q. You don't have to give the State any evidence against yourself, right?A. Yes.
Q. But, on the other hand you have an absolute right to tell the jury your side of the story.A. Yes.
Q. So in other words, if you think that there are things that the jury hasn't been able to learn through the testimony of other witnesses, you have a right to correct that?A. Right. Q. And you and I have talked about your rights? A. Yes.
Q. And you've asked my advice on this and many other topics?A. Yes.
Q. And knowing and understanding your rights, have you made a decision or an election as to whether or not you want to testify or not?A. Yes. Q. And what is your decision? A. Decided not to testify.
Gardner v. State
Citing the recent decision in Gardner v. State, 164 S.W.3d at 393, the State argues that Nunes's knowledge of his constitutional rights can be inferred from his letters, statements by defense counsel, and punishment phase testimony. The State also claims the record suggests, as in Gardner, that Nunes's plea was part of a trial strategy to persuade the jury to impose a lower sentence. Both arguments have merit. In Gardner, the defendant was charged with aggravated sexual assault in a five count indictment. Gardner, 164 S.W.3d at 393. He pleaded guilty before the jury and was admonished. Id. at 393-94. Gardner also testified during the punishment phase and admitted his guilt. Id. at 394. Defense counsel referred to Gardner's guilty plea several times during his opening statement and specifically pointed out that Gardner would testify even though he was not required to do so under the Fifth Amendment. Id. Gardner claimed his plea was involuntary "because the record d[id] not affirmatively show that appellant understood the nature of the constitutional due process protections that he was waiving when he pled guilty." Id. at 398. After examining the record, the court observed:The record in this case adequately shows that appellant understood that he was waiving these rights when he pled guilty. This may be inferred, in part, from appellant's counsel's statements during the punishment phase mentioning that appellant would testify even though he did not have to under the Fifth Amendment and that appellant's guilty plea saved the victim from having to testify and saved the jury from the "grueling experience" of determining appellant's guilt.Id. at 399; see also Henderson, 426 U.S. at 647 (appropriate to presume in most cases that defense counsel routinely explains the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit). The court also noted:
The voluntary nature of appellant's guilty plea is further shown in the record by the overwhelming evidence that appellant's guilty plea was part of a strategy (which we may also infer was done in consultation with competent counsel) to persuade the jury to grant appellant probation. Unlike this case, the record in Boykin was silent on whether the defendant's guilty plea was part of some trial strategy. See Boykin, 395 U.S. at 240, 89 S.Ct. at 1709 ("Trial strategy may of course make a plea of guilty seem the desirable course. But the record is wholly silent on that point and throws no light on it."). We further note that in Brady, the Supreme Court upheld the validity of a guilty plea accompanied by admonishments similar to those here. Brady, 397 U.S. at 743-44 n. 2, 90 S. Ct. at 1463 (noting that defendant's guilty plea was "entered in open court and before a judge obviously sensitive to the requirements of the law with respect to guilty pleas").Id. at 399 (footnote omitted).
Analysis
Like the appellant in Gardner, Nunes claims his pleas are involuntary because the record does not show he understood the nature of the constitutional due process protections that he was waiving when he pleaded guilty. Nunes tries to distinguish Gardner by pointing out he "was never even addressed by the Court or counsel regarding his plea" and there are no written admonishments and waivers in the record. But the issue is not whether Nunes was admonished. Rather, our focus is whether there is evidence in the record from which we can conclude that Nunes voluntarily waived his federal constitutional rights. See id. at 399. Those rights include the right to trial by jury, the privilege against self-incrimination guaranteed by the Fifth Amendment, and the right to confront one's accusers. Boykin, 395 U.S. at 243-44. In this case, no admonishments were necessary because Nunes did not waive his federal constitutional rights. We reach this conclusion based in part on the decision of the court of criminal appeals in Williams v. State, 674 S.W.2d 315 (Tex.Crim.App. 1984). In Williams, the court held that a plea of guilty before a jury is a trial by jury and does not constitute a waiver of a trial by jury. Williams, 674 S.W.2d at 318; Salazar v. State, 31 S.W.3d 726, 729 (Tex.App.-Corpus Christi 2000), rev'd on other grounds, 86 S.W.3d 640 (Tex.Crim.App. 2002); Garcia v. State, 877 S.W.2d 809, 812 (Tex.App.-Corpus Christi 1994, pet. ref'd). Nunes suggests Williams is in conflict with Boykin. As an intermediate appellate court, however, we are bound by pronouncements of law from the court of criminal appeals. Applying Williams, we note that the record shows Nunes pleaded guilty before the jury, that the trial judge instructed the jury to find him guilty as charged, and the jury ultimately found Nunes guilty of each charge. We therefore conclude Nunes did not waive his right to a jury trial. Because he did not waive this right, the trial court did not err in failing to admonish him. Furthermore, even if we were to conclude an admonishment was required by Boykin, Nunes's knowledge and voluntary waiver of his right to trial by jury can be inferred from the evidence presented at trial and from his trial strategy. See Gardner, 164 S.W.3d at 399. Nunes's plea of guilty to the jury and the jury's role in determining punishment was mentioned throughout the trial in Nunes's presence. His letters and the testimony of his witnesses also indicate he knew a jury would only be determining his punishment not his guilt. When evidence of Nunes's trial strategy is considered together with the other evidence in the record, it supports an inference that Nunes understood that pleading guilty involved waiving his right to have a jury determine his guilt. Turning to the right against self-incrimination, the Texas Court of Criminal Appeals has observed there is no requirement that a defendant be admonished of his privilege against self-incrimination in a trial before a jury on a plea of guilty. See Williams, 674 S.W.2d at 320; see also Salazar, 31 S.W.3d at 729; Garcia, 877 S.W.2d at 812. The record shows that Nunes exercised his Fifth Amendment right not to incriminate himself when he chose not to testify during the punishment hearing. Because this right was not waived, no admonishment was required. But even if we were to assume an admonishment was required by Boykin, the record clearly indicates Nunes was aware of the Fifth Amendment privilege against self-incrimination. A defendant does not automatically waive his right to confront and cross-examine witnesses by pleading guilty before a jury. Garcia, 877 S.W.2d at 812. The record shows Nunes exercised his right to confront witnesses when his trial counsel cross-examined ten of the eleven witnesses called by the State during the hearing on punishment and called six of his own witnesses. See Williams, 674 S.W.2d at 319-20 (appellant exercised confrontation right during jury trial on guilty plea and on punishment); Salazar, 31 S.W.3d at 729 (appellant exercised his right to confront opposing witnesses during punishment phase of trial). Consequently, the right to confrontation was not waived. Because Nunes did not waive his federal constitutional rights and because the record contains ample evidence and testimony indicating he understood his rights, we conclude the pleas were intelligent and voluntary. In reaching this conclusion, we reject Nunes' contention that the pleas cannot stand as intelligent admissions of guilt. The record shows his attorney entered guilty pleas to each of the charges as stated in the indictments after each indictment was read to Nunes, and there were no substantive challenges to the indictments. The record, therefore, does not support a conclusion that Nunes' guilty pleas "cannot stand as an intelligent admission of guilt." See Gardner, 164 S.W.3d at 398 (citing Henderson, 426 U.S. at 649-50 n. 2) (in cases where court read indictment to defendant at arraignment or at time of plea, defendant's guilty plea may well be deemed factual admission that he did what he is charged with doing); McGowin v. State, 912 S.W.2d 837, 839 (Tex.App.-Dallas 1995, no pet.) ("if the defendant pleads guilty to the offense as charged in the indictment, all of the required elements of the offense are correctly stated in the indictment, and the record shows that the indictment was read to the defendant, then the defendant is presumed to have had real notice of the charge against him."). We overrule Nunes's first issue.Nunes's Second and Third Issues
In his second issue, Nunes claims the trial court erred by allowing his guilty pleas to be entered by defense counsel without any confirmation from him. Nunes cites article 27.13 of the Texas Code of Criminal Procedure which provides: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; and the proceedings shall be as provided in Articles 26.13, 26.14, and 27.02. If the plea is before the judge alone, same may be made in the same manner as provided for by Articles 1.13 and 1.15.Tex. Code Crim. Proc. Ann. art. 27.13 (Vernon 2005). Nunes has not preserved this issue for appellate review. There is no indication he objected in the trial court based on article 27.13, and the issue was not raised in a motion for new trial. In order to preserve issues for review, an appellant must timely and specifically object and also obtain an adverse ruling. See Tex.R.App.P. 33.1(a); Mendez v. State, 138 S.W.3d 334, 341 (Tex.Crim.App. 2004) ("Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only, . . . all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)."). Nunes's second issue is waived. Nunes's third issue claims the trial court committed reversible error by accepting his guilty pleas without first determining that he was mentally competent and the pleas were free and voluntary as required by article 26.13(b) of the Code of Criminal Procedure. Article 26.13(b) provides that "[n]o plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary." Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon 2005). The record shows that Nunes's attorney filed a pre-trial motion requesting the appointment of a psychiatrist to evaluate her client's competency. Counsel also filed a motion asking the court to appoint a psychologist to evaluate Nunes and provide possible testimony for the punishment phase of the trial. The trial judge granted the first motion and appointed a psychiatrist to evaluate Nunes. The judge also granted the second motion and agreed to pay an expert witness up to $2,500. The record does not indicate the results of these evaluations or whether they took place. Nunes has again failed to preserve this issue for appellate review. He did not object or raise any argument in the trial court concerning competency. Accordingly, the issue has been waived. See Tex.R.App.P. 33.1(a); Mendez, 138 S.W.3d at 341. We affirm the trial court's judgments.