COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-07-244-CR
2-07-245-CR
2-07-246-CR
2-07-247-CR
2-07-248-CR
2-07-249-CR
GREGORY WAYNE BRISCOE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In two points, Appellant Gregory Wayne Briscoe appeals his convictions
for aggravated robbery with a deadly weapon, robbery by threats, and evading
arrest. We affirm.
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… See T EX. R. A PP. P. 47.4.
II. Factual and Procedural History
On April 13, 2004, Briscoe went on a crime spree. He robbed employees
of two stores and the owner of one of the stores, whom he encountered as he
left the scene. Briscoe drove away and attempted to elude an alerted police
officer by weaving through traffic—his car collided head-on with another
vehicle, and he continued to try to evade the officer by fleeing on foot. Soon
afterward, he broke into the house of an elderly woman, threatened her, and
stole money and car keys from her purse. When Briscoe went into the
bathroom, the woman ran to the front porch and screamed for help. A police
officer on the street responded to her screams and pursued Briscoe, who ran
from the residence. The police subsequently caught and arrested Briscoe.
Briscoe entered open pleas of “guilty” to six offenses: (1) one count of
aggravated robbery with a deadly weapon; (2) four counts of robbery by
threats; and (3) one count of evading arrest. He also pleaded “true” to the
repeat-offender notices in the aggravated-robbery and robbery-by-threats
charges. The trial court subsequently found Briscoe guilty on all charges and
found the repeat-offender notices to be true. Following a punishment hearing,
the trial court assessed Briscoe’s punishment at life imprisonment for each of
the robbery charges and the aggravated-robbery charge, and it assessed two
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years for evading arrest, with all sentences to run concurrently. This appeal
followed.
III. Failure to Admonish
In his first point, Briscoe argues that the trial court failed to admonish him
as to the range of punishment attached to each charge and its respective
enhancement, thus rendering involuntary his pleas of “guilty” and “true.”
A. Standard of Review
The voluntariness of a guilty plea is determined by the totality of the
circumstances as viewed in light of the entire record. Ducker v. State, 45
S.W .3d 791, 796 (Tex. App.—Dallas 2001, no pet.); Edwards v. State, 921
S.W.2d 477, 479 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Before
accepting a defendant’s guilty plea, a trial court is required to admonish the
defendant as to, inter alia, the range of punishment attached to the offense.
T EX. C ODE C RIM. P ROC. A NN. art. 26.13(a)(1) (Vernon Supp. 2007). A trial court
may make the required admonitions either orally or in writing. Id. art. 26.13(d).
If the admonitions are made in writing, then the court must receive a statement
signed by the defendant and the defendant’s attorney that the defendant
understands the admonitions and is aware of the consequences of his plea. Id.
Once the defendant and his attorney have signed written admonitions and the
judge has established that the defendant has read and understood the
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admonitions, the judge is not required to orally inquire about the voluntariness
of the defendant’s plea. Edwards, 921 S.W.2d at 479; Pena v. State, 132
S.W.3d 663, 668 (Tex. App.—Corpus Christi 2004, no pet.). When the record
shows that the defendant received an admonition on punishment, it is a prima
facie showing that the plea was knowing and voluntary, and the burden shifts
to the defendant to show that he entered his plea without understanding the
consequences. Arreola v. State, 207 S.W.3d 387, 391 (Tex. App.—Houston
[1st Dist.] 2006, no pet.); Edwards, 921 S.W.2d at 481–82. If the defendant
has stated that he understands the nature of his plea and that it was voluntary,
then he has a “heavy burden” to prove on appeal that his plea was involuntary.
Acosta v. State, 160 S.W.3d 204, 211 (Tex. App.—Fort Worth 2005, no pet.);
Arreola, 207 S.W.3d at 391.
B. Analysis
In arguing that his guilty pleas were involuntary, Briscoe focuses on his
oral statements during the sentencing hearing. Briscoe argues that those
statements show that he was confused as to the range of punishment at the
time that he entered his pleas and that he wanted to withdraw his pleas and
accept the State’s earlier plea-bargain offer. Briscoe fails to acknowledge,
however, that the record clearly reflects that the trial court complied with the
statutory requirements regarding written admonitions.
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The trial court admonished Briscoe in writing of the applicable range of
punishment for each charged offense. For each charge, Briscoe and his
attorney both signed a document titled “Written Plea Admonishments.”
Paragraph 3 of each document states, “If convicted of the above offense, you
face the following range of punishment. . . .” For the charges of robbery by
threats, each of these documents has an “X” next to the following statement:
“SECOND DEGREE FELONY ENHANCED: Life or any term of not more than 99
years or less than 5 years in the Institutional Division of the Texas Department
of Criminal Justice; and in addition, a fine not to exceed $10,000 may also be
assessed.” For the charge of aggravated robbery, the document has an “X”
next to the following statement: “FIRST DEGREE FELONY ENHANCED: Life or
any term of not more than 99 years or less than 15 years in the Institutional
Division of the Texas Department of Criminal Justice; and in addition, a fine not
to exceed $10,000 may also be assessed.” For the charge of evading arrest,
the document has an “X” next to the following statement: “STATE JAIL
FELONY: A term of not less than 180 days or more than 2 years in a state jail;
and in addition, a fine not to exceed $10,000 may also be assessed.”
On all six of these documents, Briscoe signed a “Written Waiver of
Defendant–Joined By Attorney.” Among the statements in these documents
are the following: (1) “I [the defendant] fully understand each of the above
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written plea admonishments given by the Court and I have no questions”; (2)
“I am aware of the consequences of my plea”; (3) “I am mentally competent
and my plea is knowingly, freely, and voluntarily entered”; and (4) “I give up
and waive my right to a jury, both as to my guilt and assessment of my
punishment.” Immediately below Briscoe’s signature on each document, his
attorney signed the following statement:
I have fully reviewed and explained the above and foregoing court
admonishments, rights, and waivers, as well as the following
judicial confession to the Defendant. I am satisfied that the
Defendant is legally competent and has intelligently, knowingly,
and voluntarily waived his rights and will enter a guilty plea
understanding the consequences thereof.
Finally, on each document, Briscoe, his attorney, and the trial court all signed
a statement that includes the following: “The Court has given the Defendant
the admonishments set out in paragraphs numbered 1 through 15, above. In
addition, the Court finds that the Defendant is mentally competent and that his
plea is intelligently, freely and voluntarily entered.” 2
Statements made by both Briscoe and his attorney at the plea hearing
also indicate that Briscoe was aware of the range of punishment that he might
2
… Notably, on each of these six documents, a statement that Briscoe
“waive[s] preparation of a presentence investigation report” has been marked
out, and both Briscoe’s initials and his attorney’s initials appear next to the
marked-out statement.
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receive. According to the transcript of the hearing, the State had offered
Briscoe a plea bargain of forty-five years’ confinement, and Briscoe’s attorney
had convinced the State to reduce the offer to thirty-three years. Nevertheless,
Briscoe rejected the plea bargain and pleaded “guilty” to each charge and “true”
to the repeat-offender notices. Briscoe’s attorney stated to the court that he
had explained to Briscoe that
33 years is roughly half of what he could get under the law . . . I
think that Mr. Briscoe very likely . . . is going to receive a life
sentence. And I know the Court [hasn’t] prejudged that, but I think
that’s well within the range of possibility . . . Thirty-three is the
best the [S]tate is going to do, and it is absolutely against my
advice that we enter an open plea in this case and seek a
presentence investigation because I do not believe that is going to
benefit him at all. But, beyond that, I mean, I believe even though
he’s been treated by MHMR I do believe he is competent. He has
the capacity. He discussed with me these offenses. He appears
to understand–that he understands the procedure. I do not think
this is an issue of competency. I think he has the right to make
this decision even though it is, in my opinion, the wrong decision.
At this same hearing, the following exchange subsequently took place between
Briscoe and the trial court:
[Trial Court]: . . . You understand the ranges of punishment?
[Briscoe]: Yes, ma’am.
[Trial Court]: And did you have any questions at all about the
documents you signed?
[Briscoe]: No, ma’am.
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[Trial Court]: And your attorney has gone over this with you. Did
you have any questions of him?
[Briscoe]: He already did, he did. My attorney did.
[Trial Court]: Do you have any questions?
[Briscoe]: No.
[Trial Court]: None at all?
[Briscoe]: No, ma’am.
The trial court concluded the hearing by stating the following: “And I do find
that you[] are competent and find that you are freely and voluntarily making this
decision albeit maybe not the smartest one you ever made. This is your last
chance. Do you want to change your mind?” To this, Briscoe answered, “No,
ma’am.”
The trial court complied with the statutory requirements for accepting
Briscoe’s guilty pleas through the written admonitions, which Briscoe and his
attorney signed. Moreover, given those written admonitions and the detailed
discussions at the plea hearing between Briscoe, his attorney, and the trial court
about Briscoe’s pleas, Briscoe’s argument that he was “confused” when he
entered his pleas 3 fails to satisfy his “heavy burden” to prove that his pleas
3
… Specifically, Briscoe argues that his ignorance of the consequences of
his pleas of “guilty” without a plea bargain was “obvious” because at the
beginning of the sentencing hearing, he “fervently requested to be allowed to
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were involuntary. See Acosta, 160 S.W.3d at 211; Arreola, 207 S.W.3d at
391. Therefore, we overrule Briscoe’s first point.
IV. Assessment of Maximum Punishment
In his second point, Briscoe argues that the trial court’s assessment of the
maximum punishment as to all six charges violated his Due Process rights under
the Fifth and Fourteenth Amendments of the United States Constitution. The
State argues that Briscoe failed to preserve any error as to this point, though
it notes that at least one court of appeals has held that a defendant may
complain for the first time on appeal about a trial court‘s alleged refusal to
consider the full range of punishment. Jaenicke v. State, 109 S.W.3d 793,
796–97 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d); Steadman v. State,
31 S.W.3d 738, 741–42 (Tex. App.— Houston [1st Dist.] 2000, pet. ref’d).
Assuming, without deciding, that Briscoe was not required to preserve his
complaint for appeal, we conclude that he has not shown that he was denied
due process.
A. Standard of Review
A trial court denies due process when it arbitrarily refuses to consider the
entire range of punishment. McClenan v. State, 661 S.W.2d 108, 110 (Tex.
accept, belatedly, the thirty-three year plea bargain offer.”
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Crim. App. 1983), overruled on other grounds by De Leon v. Aguilar, 127
S.W.3d 1 (Tex. Crim. App. 2004); Burke v. State, 930 S.W.2d 230, 234 (Tex.
App.—Houston [14th Dist.] 1996, pet. ref’d). “Arbitrary” means capricious and
unreasonable. Roman v. State, 145 S.W.3d 316, 320 (Tex. App.—Houston
[14th Dist.] 2004, pet. ref’d). An opinion based on personal knowledge and
reason is “the exact opposite of arbitrary.” Id. In the absence of a clear
showing to the contrary, we assume that the trial court was neutral and
detached in imposing a sentence. Jaenicke, 109 S.W.3d at 796; Salinas v.
State, 9 S.W.3d 338, 340 (Tex. App.—San Antonio 1999, no pet.).
B. Analysis
In arguing that the trial court was not neutral and detached in imposing
its sentence, Briscoe relies on statements by both the trial court and his
attorney. Neither statement, however, indicates that the trial court arbitrarily
refused to consider the entire range of punishment. During the plea hearing,
the trial court stated that Briscoe’s best interest “would probably not be served
by me setting his sentence.” This does not, in and of itself, indicate that the
trial court arbitrarily refused to consider the entire range of punishment.
Particularly since the trial court knew that Briscoe wanted to plead “guilty” to
all six charges and that he wanted to plead “true” to the repeat-offender notices
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in five of the charges, this statement does not clearly indicate that the trial
court was not neutral and detached in imposing Briscoe’s sentence. See
Jaenicke, 109 S.W.3d at 796; Salinas, 9 S.W.3d at 340.
Briscoe also relies on the following statement from his attorney: “I think
that Mr. Briscoe very likely would be from a jury or this court, is going to
receive a life sentence. And I know the Court [hasn’t] prejudged that, but I
think that’s well within the range of possibility.” By his own words, however,
Briscoe’s attorney acknowledged that the trial court had not prejudged Briscoe’s
sentence. In this same statement, Briscoe’s attorney also acknowledged that
because of the specific facts of Briscoe’s case, a life sentence was “very
likely.” This statement, made by someone very familiar with the specifics of
Briscoe’s case, suggests that imposition of a life sentence would not be
“capricious and unreasonable.” See Roman, 145 S.W.3d at 320.
Finally, we note that on the day of the sentencing hearing, the trial court
had received and reviewed Briscoe’s presentence investigation report, which
recommended that Briscoe be sentenced to prison “for a lengthy term deemed
appropriate by the Court.” During the hearing, the State offered the report as
evidence, and Briscoe’s attorney stated that “[w]e have no objections since Mr.
Briscoe specifically asked that this report be generated and available to the
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Court over my objection.” Following testimony by Briscoe, the trial court
sentenced him. All of this indicates that the trial court’s assessment of
Briscoe’s punishment was not arbitrary; instead, it was based on “personal
knowledge and reason.” See id.
Thus, Briscoe has not clearly shown that the trial court was not neutral
and detached in imposing the sentences. See Jaenicke, 109 S.W.3d at 796;
Salinas, 9 S.W.3d at 340. Briscoe’s second point is overruled.
V. Conclusion
Having overruled both of Briscoe’s points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL F: MCCOY, LIVINGSTON, and DAUPHINOT, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: June 5, 2008
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