Opinion
NOS. 01-18-01016-CR 01-18-01017-CR 01-18-01018-CR
09-22-2020
Roberto Amaya PACAS, Appellant v. The STATE of Texas, Appellee
Roberto Amaya Pacas pleaded guilty to three indictments charging him with aggravated assault, a second-degree felony. The trial court found him guilty and assessed punishment at 16 years' imprisonment for each charge, with the sentences running concurrently. On appeal, Pacas contends that the trial court erred in accepting his guilty plea because the Texas Constitution requires a jury trial in all criminal prosecutions. He also alleges that he was assessed duplicative court costs. We modify the trial court's judgments in case numbers 1561965 and 1561966 to delete duplicative court costs and affirm the judgments as modified. We affirm the trial court's judgment in case number 1561964.
Background
In October 2017, a grand jury returned three indictments against Pacas relating to the same incident in which he shot his girlfriend and her two sons. The first accused him of aggravated assault with a deadly weapon against a family member for shooting his girlfriend with a firearm. The second and third indictments charged Pacas with aggravated assault with a deadly weapon for shooting his girlfriend's two sons.
Pacas signed and filed a "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession" in each case, in which he pleaded guilty and admitted that he committed the acts as alleged in each indictment. Pacas's trial counsel also signed the "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession" in each case, affirming that he believed that Pacas had entered his guilty plea knowingly, voluntarily, and after a full discussion of the consequences of the plea. Counsel also affirmed that he believed his client was competent to stand trial.
Pacas signed written admonishments that informed him he had been indicted for second-degree felonies and of the punishment range for each offense. See TEX. CODE CRIM. PROC. art. 26.13. He also signed a "Defendant's Waivers and Statements" in each case, affirming that he was mentally competent; understood the nature of the charge against him, the trial court's admonishments, and the consequences of his plea; and freely and voluntarily pleaded guilty. See id. He affirmed that he was satisfied with his representation and that he received effective and competent representation. He gave up his right to a jury and his right to require the appearance, confrontation, and cross-examination of witnesses; and he consented to the oral and written stipulations of evidence in the case. He also signed a non-citizen immigration admonishment acknowledging that he was freely and voluntarily pleading guilty and that he was aware of the immigration consequences of his decision.
The trial court found sufficient evidence of Pacas's guilt and found that he had entered his guilty plea in each case freely, knowingly, and voluntarily. The court accepted his guilty pleas and found him guilty of two counts of aggravated assault with a deadly weapon and one count of aggravated assault with a deadly weapon against a family member. TEX. PENAL CODE § 22.02(a). Each of the three offenses is a second-degree felony. Id. § 22.02(b). At the conclusion of a sentencing hearing, at which the State and appellant both presented evidence, the trial court sentenced him to 16 years' imprisonment in each case and ordered the sentences to run concurrently.
Pacas was ordered to pay court costs in each of the three cases. The bill of costs in the first case lists $334 in court costs. The bill of costs in the second and third cases listed $309 in costs each. The $309 costs in the second and third cases consisted of exactly the same court costs as the first, except that a $25 court cost for "Summoning Witness/Mileage" was not assessed. Pacas appeals.
Right to a Jury Trial
In his first issue, Pacas contends that his convictions should be vacated because he did not receive a jury trial. Article I, section 10 of the Texas Constitution states, "In all criminal prosecutions, the accused shall have a speedy public trial by an impartial jury." TEX. CONST. art. I, § 10. He argues that this creates an absolute requirement of jury trials in every criminal prosecution. He relies solely on the language contained in this clause to assert that he could not waive a constitutional mandate to a jury trial. We disagree.
A. Applicable Law and Standard of Review
Two provisions of the Texas Constitution address the concept of trial by jury in a criminal case. Article I, section 10 of the Texas Constitution, titled "Rights of accused in criminal prosecutions," states: "In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury." TEX. CONST. art. I, § 10. Article I, section 15, titled "Right of trial by jury," states: "The right of trial by jury shall remain inviolate" and authorizes the Legislature to "pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency." TEX. CONST. art. I, § 15 ; see also TEX. CODE CRIM. PROC. art. 1.13 ("Waiver of trial by jury"). The Sixth Amendment to the United States Constitution addresses the concept of trial by jury. It provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed...." U.S. CONST. amend. VI.
When interpreting our state constitution, we rely heavily on its literal text and give effect to its plain language. Republican Party of Tex. v. Dietz , 940 S.W.2d 86, 89 (Tex. 1997). We may consider "such things as the purpose of the constitutional provision, the historical context in which it was written, the collective intent, if it can be ascertained, of the framers and the people who adopted it, our prior judicial decisions, the interpretations of analogous constitutional provisions by other jurisdictions, and constitutional theory." Id. "It is well established that a reasonable construction should be given to constitutional provisions and that a provision will not be construed so as to lead to absurd conclusions, great public inconvenience, or unjust discrimination, if any other interpretation can be reasonably indulged." In re Keller , 357 S.W.3d 413, 421 (Tex. Spec. Ct. Rev. 2010).
B. Analysis
The trial court did not err by allowing Pacas to waive his right to a jury and accepting his guilty pleas. The Texas Constitution does not mandate that a defendant may not waive a jury trial in felony cases. Our analysis of article I, sections 10 and 15, our review of the history and context of the adoption of the Texas Constitution, and precedent from the Court of Criminal Appeals supports this conclusion.
1. Interpretation of the Texas Constitution
Pacas admits that article I, section 15 of the Texas Constitution articulates a waivable right to a trial by jury, while article I, section 10 provides a mandate to a trial by jury in felony prosecutions. But it is illogical to read the state constitution to simultaneously allow for the waiver of trial by jury in one provision while also mandating a trial by jury in another provision. See Keller , 357 S.W.3d at 421 (constitutional provisions should not be interpreted to lead to absurd conclusions if any other interpretation can be reasonably indulged). We construe constitutional provisions and amendments that relate to the same subject matter together and consider those amendments and provisions in light of each other. Doody v. Ameriquest Mortg. Co. , 49 S.W.3d 342, 344 (Tex. 2001).
Article I, sections 10 and 15 are in pari materia because they both articulate the right to the trial by jury. The Texas Court of Criminal Appeals has explained:
It is a settled rule of statutory interpretation that statutes that deal with the same general subject, have the same general purpose, or relate to the same person or thing or class of persons or things, are considered as being in pari materia though they contain no reference to one another, and though they were passed at different times or at different sessions of the legislature.
State v. Vasilas , 253 S.W.3d 268, 271–72 (Tex. Crim. App. 2008), (internal citations and quotations omitted). The Vasilas court explained that in para materia applies only if two statutes "have the same purpose or object, provides that where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the latter will prevail." Id. at 273, quoting 67 Tex. Jur. 3d Statutes § 133 (Supp. 2008). The guidelines applicable to the construction of statutes are equally applicable to the construction of the Texas Constitution. Tex. Bankers Ass'n v. Ass'n of Cmty. Orgs. for Reform Now (ACORN) , 303 S.W.3d 404, 408 (Tex. App.—Austin 2010), aff'd in part, rev'd in part on other grounds sub. nom. Fin. Comm'n of Tex. v. Norwood , 418 S.W.3d 566 (Tex. 2013).
Because article I, sections 10 and 15 are in pari materia , we read them in harmony, and when there is a conflict, the specific provision controls over the general provision. See Vasilas , 253 S.W.3d at 273. Article I, section 15 dictates that the right to a jury trial "shall remain inviolate," mandates that the Legislature pass laws to regulate the right of trial by jury and to "maintain its purity and efficiency," and permits the Legislature to provide for temporary commitment of mentally ill people not charged with an offense for a period of time. TEX. CONST. art. I, § 15. Section 10 of the same article lists the rights of an accused, including that he shall have "a speedy public trial by an impartial jury," the right to know the accusations against him, the right to confront witnesses, and the right to produce evidence. TEX. CONST. art. I, § 10. We read the sections together, and because they each articulate rights with respect to a jury trial, the more specific article controls. See Vasilas , 253 S.W.3d at 273. Article I, section 15, titled "Right to trial by jury" is more specific than article I, section 10, which explains the general rights of an accused in criminal prosecutions. We conclude that a harmonious reading of the Texas Constitution provisions allows for the waiver of the trial by jury.
2. History of the Texas Constitution and Context
Our conclusion is the same when considering the constitutional history and context surrounding article I, section 10. The directive in article I, section 10 of the Texas Constitution that forms the basis of Pacas's complaint has been in every Texas Constitution since statehood, with minor variations in punctuation. See TEX. CONST. of 1845, art. I, § 8 ; TEX. CONST. of 1861, art. I, § 8 ; TEX. CONST. of 1866, art. I, § 8 ; TEX. CONST. of 1869 art. I, § 8. To understand its origins, we begin by reviewing the inception of the jury trial in English common law and the history of the Republic of Texas at the time of the adoption of the Texas Constitution. "Texas courts have often noted that the primary goal in the interpretation of a constitutional provision is to ascertain and give effect to the apparent intent of the voters who adopted it." Lanford v. Fourteenth Court of Appeals , 847 S.W.2d 581, 585 (Tex. Crim. App. 1993). When attempting to discern apparent legislative intent, "we necessarily focus our attention on the literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment." Boykin v. State , 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
i. English Common Law and the U.S. Constitution
At its inception in the English common law, trial by jury was an alternative to older methods of proof, such as trial by compurgation, ordeal, or battle. Singer v. United States , 380 U.S. 24, 27, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965) (citing I Holdsworth, A History of English Law 326 (7th ed. 1956)). Even after compurgation, ordeal, and battle had passed into disuse after the thirteenth century, defendants technically retained the right to be tried by one of them. Singer , 380 U.S. at 27, 85 S.Ct. 783. Before a defendant could be subjected to a jury trial, his "consent" was required, but the concept of "consent" at the time differed from ours today. Id. Defendants who refused to submit to jury trial were refusing "to stand to the Common law of the Land." Id. (internal quotation removed). A defendant who did so was subject to peine forte et dure by which recalcitrant defendants were tortured until death or until they "consented" to a jury trial. Id. Defendants were willing to be tortured to death rather than submit to a jury trial because of their desire to avoid a conviction, preventing forfeiture of their lands and resultant hardships for their descendants. Id. at 27 n.3, 85 S.Ct. 783. In 1772, peine forte et dure was officially abolished in England. Id. at 27, 85 S.Ct. 783.
The English colonies in America permitted waiver of jury trial. See Singer , 380 U.S. at 29–30, 85 S.Ct. 783 (explaining that in Maryland and Massachusetts defendants waived jury trials and were tried to the bench). As hostility to England grew, colonists in Massachusetts were concerned with the "question of a man's right to a jury when he asked for it, which they thought in danger." Id. (internal quotation and citation removed). These colonists emphasized their right to trial by jury, rather than their right to choose between alternate methods of trial, and gradually the ability to choose between jury and bench became a forgotten option. Id. at 29, 85 S.Ct. 783.
The U.S. Constitution "must be read in light of the common law" because the common law's principles and history were familiar to its framers. Schick v. United States , 195 U.S. 65, 69, 24 S.Ct. 826, 49 L.Ed. 99 (1904). The U.S. Constitution included from its ratification article III, section 2, mandating that "the trial of all Crimes, except in Cases of Impeachment, shall be by Jury" in the state where the crime was committed. U.S. Const. art. III, § 2. In 1930, the U.S. Supreme Court addressed jury trial waiver in federal criminal cases and the tension between article III, section 2 of the Constitution and the Sixth Amendment. See Patton v. United States , 281 U.S. 276, 295, 50 S.Ct. 253, 74 L.Ed. 854 (1930). The court concluded that article III, section 2 was not jurisdictional and was meant to "confer a right upon the accused which he may forego [sic] at his election." Id. at 298, 50 S.Ct. 253. A jury trial is a "privilege" not an "imperative requirement." Id.
ii. Mexican Rule and the Adoption of the Texas Constitution
Before declaring their independence, Texans were citizens of the Mexican state of Coahuila and Texas. Under that state's constitution, they had no right to a trial because all criminal actions were decided "by executive judgment without the form or shape of trial," with no appeal. Coahuila & Tex. Const. of 1827, art. 181, reprinted in 1 H.P.N. Gammel, The Laws of Texas, 1822-1897 , at 338 (Austin, Gammel Book Co. 1898). Other methods of proof, such as torture and compulsion, were prohibited. Id. art. 190, at 339. Article 192 of the constitution declared that "[o]ne of the main objects of attention of congress shall be to establish the trial by jury in criminal cases, to extend the same gradually, and even to adopt it in civil cases in proportion as the advantages of this valuable institution become practically known," indicating that the state's citizens were interested in expanding use of jury trials. Id. After experiencing abuse and oppression, including a prohibition on trials, inflicted on them as citizens of the Mexican government, the framers of the Constitution of the Republic of Texas insisted upon trial "by an impartial jury." Repub. Tex. Const. of 1836, Sixth Declaration of Rights, reprinted in 1 H.P.N. Gammel, The Laws of Texas 1822-1897 , at 23 (Austin, Gammel Book Co. 1898).
We do not agree with Pacas that the framers of the Texas Constitution meant to prohibit guilty pleas and concomitant waiver of trial in declaring that all felony trials would be by jury. This view overlooks that guilty pleas existed in Texas even before the adoption of the constitution. See Crow v. State , 6 Tex. 334, 334 (1851) (a guilty plea is "nothing more than an acknowledgement of the facts charged" and whether those facts constitute an offense is left for the court to decide); see also Lanford , 847 S.W.2d at 585 (stating that courts must ascertain and give effect to the intent of the voters who adopted the constitution). A guilty plea before a jury admitted the existence of all facts necessary to establish guilt. Fairfield v. State , 610 S.W.2d 771, 776 (Tex. Crim. App. 1981) (quoting Crow , 6 Tex. at 334 ).
By statehood, Texas enacted a system where the jury assessed punishment in all felony cases. Act of April 30, 1846, 1st Leg. R.S., 1846 Tex. Gen'l Laws 161, 161, reprinted in 2 Gammel, The Laws of Texas 1822-1897 , at 1467; see also Johnson v. State , 39 Tex. Crim. 625, 627, 48 S.W. 70 (Tex. Crim. App. 1898) (stating that after the court accepts a defendant's guilty plea, "there must be a jury impaneled to assess his punishment and evidence submitted to enable them to decide thereon"). The Sixth Legislature adopted the original 1856 Code of Criminal Procedure that created statutory requirements for guilty pleas. For example, the Code stated that "[t]he defendant to a criminal prosecution for any offence may waive any right secured to him by law, except the right of trial by jury when he has pleaded not guilty." 1856 Code of Criminal Procedure, 6th Leg., Adj. S., § 1, art. 26. Shortly after, in Saunders v. State , 10 Tex. App. 336 (1881), the court reiterated that there were three statutory requirements for a defendant who pleaded guilty: "1. He shall be admonished by the court of the consequences. 2. It must plainly appear that he is sane. 3. It must plainly appear that he is uninfluenced by any consideration of fear, or by any persuasion or delusive hope of pardon." 10 Tex. App. at 338. The court explained that a plea was an "admission by record of the truth of whatever is well alleged in the indictment." Id. at 339.
For misdemeanors, a guilty plea could be made by either the defendant or his counsel in open court, and the defendant or his counsel could waive a jury. If the defendant did so, the court assessed punishment either with or without evidence, at the discretion of the court. Johnson v. State , 39 Tex.Crim. 625, 627, 48 S.W. 70 (1898).
Even when a defendant pleaded guilty, the jury still heard evidence to assess punishment. "A plea of guilty, without its concomitants, is not good." Johnson , 39 Tex.Crim. at 627, 48 S.W. 70 ; see also Evers v. State , 32 Tex.Crim. 283, 22 S.W. 1019, 1020 (1893) (requiring evidence to be submitted to jury for punishment and requiring court to admonish the defendant so that he was "uninfluenced by any considerations of fear, or by any persuasion, or delusive hope of pardon, prompting him to confess his guilt"). Submitting evidence to the jury to decide punishment after a plea was mandatory because it not only benefitted the defendant but "more especially, [protected] the interests of the State by preventing aggravated cases of crime to be covered up by the plea of guilty so as to allow the criminal to escape with the minimum punishment fixed by law." Harwell v. State , 19 Tex. App. 423, 423 (1885). Failure to present evidence to the jury was fundamental error. Id. Relatedly, a defendant could withdraw his guilty plea before the jury began deliberating, and in so doing, reimpose the State's burden of proof as to guilt. Fairfield , 610 S.W.2d at 776. Therefore, the right to withdraw a guilty plea was derived directly from the right to trial by jury. Id.
Even though article I, section 10 established that all felony cases would be tried by jury, this did not equate to a prohibition of pleas. "It was an utterly ‘alien notion in both the days of the Republic and the early days of statehood that a citizen be convicted of a felony offense other than by verdict of a jury, there being no procedural method whatever for waiver of jury in the trial of a felony until 1931.’ " State ex rel. Turner v. McDonald , 676 S.W.2d 371, 373 (Tex. Crim. App. 1984) (quoting Fairfield , 610 S.W.2d at 776 ). In 1931, after the U.S. Supreme Court's decision in Patton , Texas allowed a defendant to waive the entry of his plea before a jury, effectively waiving his jury trial right, and conditioned the effectiveness of the waiver upon consent and approval by the State and the trial court. Thornton v. State , 601 S.W.2d 340, 346 (1979), overruled by Ex parte Martin , 747 S.W.2d 789 (Tex. Crim. App. 1988). A judge could accept a guilty plea without impaneling a jury to hear it.
Reviewing the right to a jury trial in context, giving effect to the intent of the constitutional adopters, we note that the state constitutional provisions regarding jury trials were adopted to protect the jury trial as the chosen method of proof, as opposed to other methods. Given that historically a jury decided punishment, even if the defendant pleaded guilty, we cannot say that article I, section 10 of the Texas Constitution prohibits a guilty plea.
3. Applicable Texas Precedent
Finally, our conclusion is supported by precedent. "As an intermediate court of appeals, we are bound to follow the precedent of the court of criminal appeals." Ervin v. State , 331 S.W.3d 49, 53 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) ; see TEX. CONST. art. V., § 5(a) (court of criminal appeals is final authority for criminal law in Texas). The Court of Criminal Appeals has stated that "there is no significant textual difference between" article I, section 10 of the Texas Constitution and the Sixth Amendment to the United States Constitution that "indicate[s] that different standards of protection should be applied" to criminal defendants under either constitution. See Jacobs v. State , 560 S.W.3d 205, 210 (Tex. Crim. App. 2018) (internal quotations omitted). The people of Texas have the authority to provide greater protections to criminal defendants than those provided in the federal constitution. They have chosen not to in the context of the right to the trial by jury in criminal cases. See id. In other words, "the right in the [Texas] [C]onstitution is no greater than that recognized in the Sixth Amendment." Uranga v. State , 330 S.W.3d 301, 304 (Tex. Crim. App. 2010). Although article I, section 10 is expressed in mandatory terms as an indispensable feature of the system, the Court of Criminal Appeals has held that the constitutional provision "conferred a right to the accused which could not be impaired without his consent, as authorized by the Legislature." Delrio v. State , 840 S.W.2d 443, 445 n.2 (Tex. Crim. App. 1992). Article I, section 10 gives a defendant a right to a trial by jury, which he may waive at his election with the consent of the State.
Additionally, the Court of Criminal Appeals has rejected Pacas's exact argument on appeal. See Dabney v. State , 124 Tex.Crim. 21, 60 S.W.2d 451, 451 (1933) ; see also Farris v. State , 581 S.W.3d 920, 924 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (rejecting same argument, noting Dabney ).
We overrule Pacas's first issue.
Duplicative Court Costs
In his second issue, Pacas argues that he was assessed duplicative court costs across his three convictions. Specifically, he contends that he was overcharged $618 because he was ordered to pay duplicative court costs in two of his three judgments arising from the same criminal incident.
The State concedes that court costs in two of the cases are duplicative of costs assessed in a third. When there are multiple convictions arising from the same criminal episode, assessing multiple court costs is prohibited. TEX. CODE CRIM. PROC. art. 102.073(a).
We modify the judgments to assess no court costs in trial court case numbers 1561965 and 1561966.
Conclusion
We modify the trial court's judgments in case numbers 1561965 and 1561966 to assess no court costs and affirm the judgments as modified. We affirm the trial court's judgment in case number 1561964.
Justice Goodman, dissenting.
DISSENTING OPINION
Gordon Goodman, Justice
Roberto Amaya Pacas pled guilty to three charges of felony assault. The trial court accepted his pleas, found him guilty of all three charges, and sentenced him to 16 years' confinement for each charge, with the sentences to run concurrently.
On appeal, Pacas argues that his convictions should be vacated because the charges were not tried by a jury. Pacas grounds his argument in the text of Article I, section 10 of the Texas Constitution, which states, "In all criminal prosecutions, the accused shall have a speedy public trial by an impartial jury." Pacas contends that the mandatory language of Article I, section 10 creates an absolute requirement that all prosecutions of felony offenses be tried by a jury and that the trial court therefore erred in accepting his pleas.
Tex. Const. art. I, § 10 (emphasis added).
See Proenza v. State , 541 S.W.3d 786, 797 (Tex. Crim. App. 2017) ("When it comes to non-forfeitable rights, the legal responsibility of assuring compliance with these rights falls squarely upon the trial judge."); see also Grado v. State , 445 S.W.3d 736, 739 (Tex. Crim. App. 2014) (explaining that "absolute rights" are "widely considered so fundamental to the proper functioning of our adjudicatory process that they cannot be forfeited by inaction alone" (quotations and ellipses omitted)); Marin v. State , 851 S.W.2d 275, 280 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State , 947 S.W.2d 262 (Tex. Crim. App. 1997) (explaining that "absolute requirements and prohibitions ... are to be observed even without partisan request [and] can't lawfully be avoided even with partisan consent").
In its opinion, the majority construes Article I, section 10 not as an absolute requirement that must be met in every case, but rather as a right that may be waived so long as certain conditions are met. I respectfully disagree.
As I have previously written, when construed according to its plain meaning and historical context, Article I, section 10 imposes an absolute requirement that cannot be forfeited or waived. It requires that all prosecutions for Old Code felonies be tried by a jury—even if the defendant affirmatively seeks to enter a plea of guilty or otherwise waive his right to a trial by jury. I stand by my dissent in Farris , and its reasoning is dispositive here. I write separately today to make a few additional comments in the spirit of the late Justice Louis Brandeis, whose famous brief marked a turning point in how we think about and decide important constitutional issues through the use of economic and sociological data, historical experience, and expert opinion as extratextual support for legal propositions. And in this case, such data makes clear that, in addition to being legally erroneous, the majority's construction of Article I, section 10 has contributed to and exacerbated one of the principal problems plaguing our criminal justice system—the proliferation of the plea bargain and the resultant scourge of mass incarceration.
Farris v. State , 581 S.W.3d 920, 925, 929–30 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (Goodman, J., dissenting).
Id.
As the United States Supreme Court recently observed, "Only the written word is the law, and all persons are entitled to its benefit." Bostock v. Clayton Cty., Georgia , ––– U.S. ––––, 140 S.Ct. 1731, 1737, 207 L.Ed.2d 218 (2020). Article I, section 10 means exactly what it says: "In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury." Tex. Const. art. I, § 10 ; see also Tex. Gov't Code § 311.016(2) (" ‘Shall’ imposes a duty.").
See , e.g., Martha Minow, Foreword: Justice Engendered, 101 HARV. L. REV. 10, 88–89 (1987) (describing Brandeis Brief as "mark[ing] a creative shift for the Court"); see also Brown v. Bd. of Ed. of Topeka, Shawnee Cty., Kan., 347 U.S. 483, 494 n.11 (citing famous "Doll Tests" as support for holding de jure racial segregation in public education is inherently unequal and thus unconstitutional)..
A. The rise of the plea bargain
Our criminal justice system is no longer the system of trials that the Founders envisioned. Instead, it is a system of plea bargaining, "negotiated behind closed doors and with no judicial oversight." The story of how our criminal justice system evolved into a system of plea bargains is long and complex, but I will try to provide a brief summary.
See Jed S. Rakoff, Why Innocent People Plead Guilty , The New York Review of Books , Nov. 20, 2014, available at https://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-guilty/ (hereinafter "Rakoff").
Id.
Before the Civil War, plea bargains were exceedingly rare. After the Civil War, things changed. As waves of displaced Americans and immigrants moved to cities, crime rates rose, and the plea bargain became a convenient response to mounting caseloads: "by pleading guilty to lesser charges in return for dismissal of the more serious charges, defendants could reduce their prison time, while the prosecution could resolve the case without burdening the system with more trials."
Id.
Id.
Id.
Courts were initially skeptical of plea bargains. But they eventually came to approve of them "as an exercise in contractual negotiation between independent agents (the prosecutor and the defense counsel) that was helpful in making the system work." Academics were likewise initially skeptical, but they too eventually "came to approve of plea bargaining as a system somewhat akin to a regulatory regime." Thus, by the early 1950s, over 80 percent of criminal cases were resolved by plea bargains.
Id.
Id.
Id.
Id.
Id.
Another important development occurred in the 1960s, when the United States Supreme Court issued a series of opinions establishing more robust protections for criminal defendants. These rulings had the unintended effect of making trials lengthier and more burdensome, further incentivizing the use of plea bargains.
See, e.g., Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (holding that Fifth Amendment right against self-incrimination requires law enforcement officials to advise suspects interrogated in custody of right to remain silent and right to attorney); Gideon v. Wainwright , 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (holding that Sixth Amendment right to counsel is fundamental right that applies to States though Fourteenth Amendment's Due Process Clause).
Emily Yoffe, Innocence Is Irrelevant , The Atlantic , Sept. 2017, available at https://www.theatlantic.com/magazine/archive/2017/09/innocence-is-irrelevant/534171/ (hereinafter "Yoffe").
Finally, in the 1960s, 70s, and 80s, rising crime rates, much of it drug related, provoked a get-tough response from law enforcement officers, prosecutors, and lawmakers. State and federal legislatures significantly increased the penalties for criminal violations and passed mandatory minimum sentence and three strikes laws, "provid[ing] prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains." And aggressive policing resulted in the arrest of millions of people annually, further expanding the criminal justice system, and further incentivizing the use of plea bargains.
See Rakoff; Yoffe.
Rakoff; see also Rummel v. Estelle , 445 U.S. 263, 285, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (holding that life sentence imposed under Texas's three strikes law for conviction for felony fraud did not constitute cruel and unusual punishment).
See Yoffe.
The upshot is that today the overwhelming majority of criminal convictions are the result of plea bargains. The United States Supreme Court acknowledged this reality over eight years ago in Missouri v. Frye , which held that the constitutional right to effective assistance of counsel applies to plea bargaining, as such bargaining now constitutes a critical stage of the criminal process. Writing for the majority, Justice Anthony Kennedy eloquently summarized the current situation:
566 U.S. 134, 155, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012).
To a large extent horse trading between prosecutor and defense counsel determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.
Id. (quoting Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992) (ellipses and brackets omitted)).
When the Court issued Frye in 2012, 97 percent of federal convictions and 94 percent of state convictions were the result of guilty pleas. Since then, not much has changed. Last year, for example, some 95 percent of criminal convictions in Texas district courts resulted from a guilty or no contest plea. B. The problems plea bargains cause
Id.
Annual Statistical Report for the Texas Judicial for Fiscal Year 2019 at 74, available at https://www.txcourts.gov/media/1445760/fy-19-annual-statistical-report.pdf. Corresponding data for federal courts is no different. See, e.g., Year One of Trump's DOJ: The National Criminal Sentencing Statistics , The Nat'l Law Rev. (June 4, 2019), https://www.natlawreview.com/article/year-one-trump-s-doj-national-criminal-sentencing-statistics ("Of the offenders sentenced in FY2018, 67,610 pleaded guilty to one or more offenses with which they were charged – a rate of 97.4%. This is the highest percentage of guilty pleas in federal cases since the Commission began reporting data. The lowest guilty plea rate was in FY1991 (85.4%). The percentage of guilty pleas in federal cases has grown steadily since that time.").
I readily acknowledge that our contemporary plea-bargaining systems has its advantages. In complicated cases involving organized crime, prosecutors can use plea bargains strategically, "extracting information from low-level offenders and pushing further up the criminal hierarchy." Plea bargains often "provide genuinely good deals to people facing long prison sentences." And, most fundamentally, plea bargains are economical.
Dylan Walsh, Why U.S. Criminal Courts Are So Dependent on Plea Bargaining , The Atlantic (May 2, 2017), https://www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-prosecutors/524112/ (hereinafter "Walsh").
Walsh; see Frye , 566 U.S. at 144, 132 S.Ct. 1399 (noting the "potential ... for defendants to admit their crimes and receive more favorable terms at sentencing" as among benefits of plea bargains); Brady v. United States , 397 U.S. 742, 751–52, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (noting that "both the State and the defendant often find it advantageous to preclude the possibility of the maximum penalty authorized by law").
Frye , 566 U.S. at 144, 132 S.Ct. 1399 (noting the "potential to conserve valuable prosecutorial resources" as among benefits of plea bargains); Walsh ("Trials are expensive and protracted. Two rational parties, goes the logic, can more cheaply and quickly come to an agreeable outcome through stripped-down bartering: The prosecutor offers a lenient charge if the defendant foregoes trial and admits guilt."); Yoffe ("Ideally, plea bargains work like this: Defendants for whom there is clear evidence of guilt accept responsibility for their actions; in exchange, they get leniency. A time-consuming and costly trial is avoided, and everybody benefits.").
Nevertheless, a growing body of research shows that these benefits have been largely overstated and are outweighed by significant costs. Our plea-bargaining system values efficiency over justice; undermines democratic values; and invites abuse and arbitrary results through a lack of transparency and regulation.
See John Rappaport, Unbundling Criminal Trial Rights , 82 U. Chi. L. Rev. 181–99 (2015) (hereinafter "Rappaport"). Efficiency, as the late Chief Justice Warren Burger recognized, is not an end in itself and should not be prioritized over courts' fundamental responsibility of sorting the guilty from the innocent. See Mayer v. City of Chicago , 404 U.S. 189, 201, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971) (Burger, C.J., concurring) ("An affluent society ought not be miserly in support of justice, for economy is not an objective of the system.").
See Rappaport; Rakoff.
Rakoff. By and large, plea bargains are the products "of largely secret negotiations behind closed doors in the prosecutor's office, and [are] subject to almost no review, either internally or by the courts." Id. ; see also Walsh ("Judges are not regularly allowed to take part when a plea deal is made, and written records of a deal are almost never required."). Such a system "inevitably invites" abuse and arbitrary results. Rakoff.
But most concerning of all, our system of plea bargains causes a not insignificant number of defendants to plead guilty to crimes they did not actually commit. This is largely because the "bargaining takes place within a coercive framework in which the parties have asymmetric information and act through imperfect agents."
Rappaport.
In a typical case, the defense lawyer meets her client when or shortly after the defendant is arrested, so "at the outset, she is at a considerable informational disadvantage to the prosecutor." And if the defendant cannot make bail, as is often the case, the defense lawyer will have "only modest opportunities, within the limited visiting hours and other arduous restrictions imposed by most jails, to interview [the defendant] and find out his version of the facts." The prosecutor, by contrast, will typically have a full police report, complete with witness interviews and other evidence, grand jury testimony, forensic test reports, and follow-up investigations. The prosecutor's evidence "may be one-sided and inaccurate." But it still gives him "a huge advantage" over the defense lawyer. And it may make "the prosecutor confident, maybe overconfident, of the strength of his case."
Rakoff.
Id.
Id.
Id.
Id.
Id.
It is against this background that the defense lawyer, usually within a few days of the defendant's arrest, meets with the prosecutor, "who makes clear that, unless the case can be promptly resolved by a plea bargain, he intends to charge the defendant with the most severe offenses he can prove." Under these circumstances, even if the defendant is innocent, he will often make the rational choice to plead guilty, reasoning that serving a short sentence for a crime he did not commit is better than the risk of serving a much longer sentence for a more serious crime he did not commit.
Id. ; see also Yoffe ("To induce defendants to plead, prosecutors often threaten ‘the trial penalty’: They make it known that defendants will face more-serious charges and harsher sentences if they take their case to court and are convicted.").
But how often does this actually happen? How often do innocent defendants plead guilty. It's hard to say for sure, but the available data indicates the number is appallingly high. For example, of the more than 300 people exonerated by The Innocence Project with DNA evidence, nearly 11 percent pled guilty. According to The National Registry of Exonerations, the total number is even higher at 15 percent. Whatever the precise figure, one thing is clear: Innocent people routinely plead guilty to crimes they did not commit.
Innocence Project and Members of Innocence Network Launch Guilty Plea Campaign, The Innocence Project (Jan. 23, 2017), https://www.innocenceproject.org/guilty-plea-campaign-announcement/#:~:text=Innocence% 20Project% 20and% 20Members% 20of% 20Innocence% 20Network% 20Launch% 20Guilty% 20Plea% 20Campaign&text=Innocent% 20people% 20are% 20pleading% 20guilty% 20to% 20crimes% 20they% 20did% 20not% 20commit.&text=With% 20the% 20system% 20stacked% 20against,lengthy% 20prison% 20sentences% 20at% 20trial.
The Registry "collects, analyzes and disseminates information about all known exonerations of innocent criminal defendants in the United States, from 198 9 to the present." Our Mission, The National Registry of Exonerations, http://www.law.umich.edu/special/exoneration/Pages/mission.aspx (last visited July 13, 2020).
Guilty Pleas, The National Registry of Exonerations (July 13, 2020), http://www.law.umich.edu/special/exoneration/Pages/Guilty-Pleas.aspx (last visited July 13, 2020).
C. A potential solution
What can we do about our problematic plea-bargaining system? One solution is to have more trials. Because trials are better at distinguishing the guilty from the innocent, having more trials "would reduce the social costs of wrongful convictions and enhance the criminal law's deterrent effects." More trials would also "strengthen the bargaining position of defendants, whose threats of going to trial [would] become more credible, nudging plea bargaining closer to the law's shadow." Further, trials make the performance of the prosecutor and the defense "more visible—and thus more accountable." Like an audit, trials "shine a light on investigatory behavior and the exercise of governmental power more generally." If the prosecutor or police behave badly, their misconduct will more often than not remain buried when the defendant takes a plea. Finally, trials "promote democratic values like local control and help to cultivate an active and informed citizenry."
Rappaport.
Id.
Id.
Id.
See Walsh; see also Rappaport.
Rappaport.
While no panacea, a renewed emphasis on trials would help correct some of the injustices caused by the proliferation of plea bargains—and conducting mandatory trials for Old Code felonies is what our constitution already requires. As I stated in my dissent in Farris , Article I, section 10's "striking, mandatory requirement stems from the earliest constitution of the Republic of Texas" and "emphasizes the importance that Texans place on the mandate for and the right to jury trials." And as I hope my current dissent makes clear, the problems caused by our failure to follow this constitutional mandate highlight both the wisdom of our forefathers and our solemn obligation to follow the principles enshrined in our state's founding document.
Farris , 581 S.W.3d at 930.
Conclusion
Whether Article I, section 10 requires trials for Old Code felonies is not merely a matter of academic debate, but rather an issue of profound importance to our criminal justice system—the resolution of which may determine whether our system is truly just. I respectfully dissent.
Because I conclude the trial court's violation of our constitution's mandate that all criminal prosecutions be tried by a jury requires that the judgment of conviction be reversed and the case be remanded for a new trial, I would not reach Pacas's second issue, in which he contends he was assessed duplicative court costs across his three convictions.