Opinion
NUMBER 13-19-00335-CR
07-23-2020
DETROY DENZEL WASHINGTON, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 377th District Court of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Perkes, and Tijerina
Memorandum Opinion by Justice Perkes
By two issues, appellant Detroy Denzel Washington challenges his conviction of robbery, a second-degree felony. See TEX. PENAL CODE ANN. § 29.02. Washington argues that: (1) his guilty plea is void because he did not orally or through written confirmation waive his privilege against self-incrimination or right to confront his accusers; and (2) his counsel provided ineffective assistance by failing to object to the absence of an oral or written waiver on record. We affirm.
I. BACKGROUND
On June 24, 2019, the morning of jury selection, Washington waived his right to a jury trial via an oral and written waiver and pleaded guilty to robbery. The trial court presided over the punishment hearing, wherein the State called several witnesses, including Janet Sylvester, the 62-year-old complaining witness. Sylvester testified that an unknown vehicle followed her from the bank to a car dealership where she worked. As she was exiting her vehicle in the dealership parking lot, Washington robbed her. Washington stole her personal bag and a bag belonging to the dealership containing $800 in cash before fleeing in a vehicle driven by a co-conspirator. Washington and the co-defendant led law enforcement on a high-speed chase, exceeding 150-mph speeds, that culminated in a county-wide manhunt.
Washington also testified. Although providing no reason for his actions, Washington was apologetic and disputed accusations that his actions were premeditated. He urged the trial court to consider imposing probation as punishment. The trial court sentenced Washington to ten years' imprisonment. This appeal followed.
II. BOYKIN
In his first issue raised, Washington cites to one case: Boykin v. Alabama, 395 U.S. 238, 243 (1969).
In his first issue, Washington complains that the trial court erred by failing to advise him about his right against self-incrimination and the right to confront and cross-examine witnesses prior to entering his guilty plea. Washington contends that the trial court violated his due process rights by failing to obtain waivers of these two rights. The State counters that the trial court did not violate Washington's due process rights because the record affirmatively shows that he entered his guilty plea voluntarily and knowingly.
A. Standard of Review and Applicable Law
A guilty plea constitutes a waiver of three constitutional rights: (1) the right to a jury trial, (2) the right to confront one's accusers, and (3) the right not to incriminate oneself. Boykin v. Alabama, 395 U.S. 238, 243 (1969); Ex parte Palmberg, 491 S.W.3d 804, 807 (Tex. Crim. App. 2016). The Texas Court of Criminal Appeals, however, has repeatedly emphasized "that Boykin did not specifically set out what must be 'spread on the record' to comply with [its due process] mandate." Davison v. State, 405 S.W.3d 682, 687 (Tex. Crim. App. 2013); Aguirre-Mata v. State, 125 S.W.3d 473, 475 (Tex. Crim. App. 2003). Thus, in consideration of and in reconciliation with Boykin, we abide by the rule that follows: to be consistent with due process, a guilty plea must be entered knowingly, intelligently, and voluntarily. Ex parte Broussard, 517 S.W.3d 814, 816 (Tex. Crim. App. 2017) (citing McCarthy v. United States, 394 U.S. 459, 466 (1969)). To be "voluntary," a guilty plea must be "the expression of the defendant's own free will and must not be induced by threats, misrepresentations, or improper promises." Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) (citing Brady v. United States, 397 U.S. 742, 755 (1970)); see Ex parte Barnaby, 475 S.W.3d 316, 322 (Tex. Crim. App. 2015) (per curiam). "So long as the record otherwise affirmatively discloses that the defendant's guilty plea was adequately informed, due process is satisfied." Davison, 405 S.W.3d at 687; Williams v. State, 674 S.W.2d 315, 320 (Tex. Crim. App. 1984) (en banc) ("There is no requirement that appellant be informed of his right against self-incrimination at trial upon a plea of guilty."); Garcia v. State, 877 S.W.2d 809, 812 (Tex. App.—Corpus Christi-Edinburg 1994, pet. ref'd) (providing the same). However, if the record contains "no evidence that the defendant knew of the rights that he was putatively waiving," the conviction must be reversed. Davison, 405 S.W.3d at 687; Stevens v. State, 525 S.W.3d 893, 896 (Tex. App.—Eastland 2017, pet. ref'd).
We examine the record for indications that appellant understood he was waiving his constitutional rights when he pleaded guilty. Ex parte Barnaby, 475 S.W.3d at 323; see also Lorenz v. State, No. 07-17-00002-CR, 2018 WL 3384966, at *2 (Tex. App.—Amarillo July 11, 2018, pet. ref'd) (mem. op., not designated for publication). It is error "for the trial judge to accept petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary." Boykin, 395 U.S. at 242; Davison, 405 S.W.3d at 690.
B. Discussion
Washington asserts the record does not show that his guilty plea was made freely and voluntarily and argues he was never informed that as a result of entering his guilty plea, he was relinquishing his constitutional rights to remain silent or to confront his accusers. We disagree.
Washington was accompanied by counsel at the time of his guilty plea. The following transpired prior to the trial court's acceptance of Washington's plea:
THE COURT: All right. The range of punishment for this offense is imprisonment in the Texas Department of Criminal Justice for no more than 20 years, no less than 2 years, and a fine not to exceed $10,000. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: To the offense as alleged in the indictment, how do you plead, guilty or not guilty?
THE DEFENDANT: I plead guilty.
THE COURT: Sir?
THE DEFENDANT: I plead guilty.
THE COURT: And do you understand that there's a jury here and you have a right to have a jury make a determination if the State has proven the elements of the offense beyond a reasonable doubt? Do you understand that that's your constitutional right?
THE DEFENDANT: Yes, sir.
THE COURT: And are you waiving your right to have the jury determine whether the State can prove the elements alleged in the indictment beyond a reasonable doubt?
THE DEFENDANT: Yes, sir. Yes, sir.
THE COURT: Has anybody threatened you or forced you to waive that right?
THE DEFENDANT: No, sir.
THE COURT: Has anybody promised you anything to waive that right?
THE DEFENDANT: No, sir.
THE COURT: And are you waiving your right to have the jury make a determination as to whether you are guilty or not freely and voluntarily?
THE DEFENDANT: (No verbal response.)
THE COURT: Are you doing it of your own free will?
THE DEFENDANT: Yes, sir.
THE COURT: All right. I'm going to have you sign a document where you're waiving your right to have the jury make a determination as to whether you are guilty or not of the elements alleged in the indictment, and then I need to visit with the lawyers and see what we're going to do with regards to punishment.
. . .
THE COURT: . . . Mr. Washington, I have in front of me a document entitled Application to Waive Jury. Did you go over this document with your lawyer?
THE DEFENDANT: Yes, sir.
THE COURT: And you've been previously sworn. Are you—do you understand what rights you're waiving by signing this document?
THE DEFENDANT: Yes, sir.
THE COURT: And is that your signature right there (indicating)?
THE DEFENDANT: Yes, sir.
THE COURT: And are you waiving your right to a jury trial on the issue of guilt/innocence and also on the issue of punishment freely and voluntarily?
THE DEFENDANT: Yes, sir.
This document was admitted into evidence. It did not, however, contain a written stipulation of Washington's right to remain silent or to confront his accusers.
The trial court accepted Washington's guilty plea and proceeded to punishment. In opening statements during the punishment phase, Washington acknowledged it was "a slam dunk case for the prosecution" and maintained that in pleading guilty and taking responsibility, he sought "a short prison sentence or get probation." Prior to testifying, the trial court admonished Washington on his right to remain silent.
THE COURT: Mr. Washington, do you understand that you have a right to remain silent, you're not required to make any statement, and any statement that you make can be used against you? Do you understand that?
THE DEFENDANT: Yes, sir.
. . .
THE COURT: All right. And are you waiving your right against self-incrimination freely and voluntarily?
THE DEFENDANT: Yes, sir.
The record before us is not silent on the issue of voluntariness nor does it reveal constitutional error resulting in harm. See Davison, 405 S.W.3d at 687 (explaining "it is not enough that the record is unrevealing with respect to whether [the defendant] was admonished by the trial court; the record must also be silent with respect to whether he was otherwise provided, or nevertheless aware of, the requisite information to render his guilty plea voluntary and intelligent"); Dominguez v. State, 535 S.W.3d 125, 133-34 (Tex. App.—El Paso 2017, no pet.). Rather, the record shows that Washington was informed of the applicable range of punishment and chose to freely and voluntarily plead guilty in hopes of obtaining a more lenient sentence. See Gardner v. State, 164 S.W.3d 393, 399 (Tex. Crim. App. 2005) (finding that appellant's strategy of seeking community supervision demonstrates that he understood the consequences of his plea when he entered it even though he had not been expressly informed of those consequences at the time); cf. Boykin, 395 U.S. at 242-43 ("Ignorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality."); see also Giles v. State, No. 13-17-00238-CR, 2019 WL 1186880, at *7-8 (Tex. App.—Corpus Christi-Edinburg Mar. 14, 2019, pet. ref'd) (mem. op., not designated for publication) (observing that where an appellant pleaded guilty in optimism of—but absent promise of—a lesser punishment, such fact indicates that the plea was made with strategy and thus, intelligently and knowingly). Although the trial court did not specifically admonish appellant on each of his constitutional rights at the time he entered his plea, such explicit admonishment is not required under Boykin. See Vasquez v. State, 522 S.W.2d 910, 912 (Tex. Crim. App. 1975) ("[F]ailure to give [admonishments regarding the right to confront witnesses or the right against self-incrimination] does not invalidate a plea of guilty otherwise freely and voluntarily made."); see Garcia v. State, 877 S.W.2d 809, 812 (Tex. App.—Corpus Christi-Edinburg 1994, pet. ref'd); see also Giles, 2019 WL 1186880, at *7; Easley v. State, No. 01-14-00296-CR, 2015 WL 1263140, at *4 (Tex. App.—Houston [1st Dist.] Mar. 19, 2015, pet. ref'd) (mem. op., not designated for publication). Therefore, the record in this case fails to raise the presumption that due process was violated because Washington entered an unintelligent guilty plea. Davison, 405 S.W.3d at 692. We conclude the Washington entered his guilty plea "voluntarily and understandingly." See id. at 690. We overrule issue one.
III. INEFFECTIVE ASSISTANCE
Washington next avers that his trial counsel's failure to object to the trial court's incomplete and improper admonishment of his constitutional rights constitutes ineffective assistance of counsel.
A. Standard of Review and Applicable Law
To reverse a conviction based on ineffective assistance of counsel, the appellate court must find: (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Andrus v. Tex., No. 18-9674, ___ U.S. ___, ___, 2020 WL 3146872, at *4 (June 15, 2020) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)); Miller v. State, 548 S.W.3d 497, 499 (Tex. Crim. App. 2018).
Any claim for ineffectiveness of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017); Folse v. State, 479 S.W.3d 913, 917 (Tex. App.—Corpus Christi-Edinburg 2015, pet. ref'd). Where trial counsel was not given an opportunity to explain his actions, "counsel should be found ineffective only if his conduct was 'so outrageous that no competent attorney would have engaged in it.'" Prine, 537 S.W.3d at 117 (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). Where the issue is counsel's alleged deficient performance resulting in a waiver of right or proceeding, to satisfy the second prong, the appellant must show there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty, but would instead have insisted on going to trial. Miller, 548 S.W.3d at 499. A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
B. Discussion
On appeal, Washington does not allege that he failed to understand the consequence of his plea or that he was misinformed by counsel of the consequence. Instead, Washington singularly argues counsel should have objected to the trial court's alleged improper admonishments, and counsel's failure to do so constituted ineffective assistance.
Having already determined supra that the trial court was not obligated under Boykin to provide explicit admonishments regarding the right to confront witnesses or the right against self-incrimination where it otherwise assures the appellant's plea is freely and voluntarily made, we accordingly conclude that counsel was not deficient in failing to request that the trial court do that which it is not required to do. See Prine, 537 S.W.3d at 117; Folse, 479 S.W.3d at 917 (observing that the standard for reasonableness of counsel is whether actions are "so outrageous that 'no competent counsel' could have engaged in it"). Thus, Washington has not proven the first deficient-performance prong, and we need not consider the prejudice prong. See Rylander, 101 S.W.3d at 110; see also Martinez v. State, No. 13-16-00249-CR, 2017 WL 2200299, at *2 (Tex. App.—Corpus Christi-Edinburg Mar. 16, 2017, pet. ref'd) (mem. op., not designated for publication). We overrule Washington's second issue.
IV. CONCLUSION
We affirm the trial court's judgment.
GREGORY T. PERKES
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 23rd day of July, 2020.