In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-05-064 CR
NO. 09-05-086 CR
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KRISTOFF JAMELL GROGAN, Appellant
V.
THE STATE OF TEXAS, Appellee
Jefferson County, Texas
Trial Cause Nos. 92885, 88342
We consolidate our discussion of these separate appeals because the lone issue, pertinent facts, and the applicable law are all identical. In separate indictments, Kristoff Jamell Grogan was charged in Trial Cause No. 92885 with the offense of Aggravated Robbery and in Trial Cause No. 88342 with the offense of Aggravated Kidnapping, arising out of the same criminal episode. See Tex. Pen. Code Ann. § 3.01(1) (Vernon 2003). Separate trials were conducted for each offense before different juries. After the jury was selected in each case, Grogan pleaded guilty, both parties offered evidence, and the juries reached verdicts on punishment. In Trial Cause No. 92885, the jury assessed punishment at confinement in the Texas Department of Criminal Justice - Correctional Institutions Division for a term of thirty years. In Trial Cause No. 88342, the jury assessed punishment at confinement in the Texas Department of Criminal Justice - Correctional Institutions Division for a term of eighty years, and a fine of $10,000. The trial court ordered punishment in Cause No. 92885 to run consecutively with a punishment assessed in a previous conviction (Trial Cause No. 88343). Thereafter, in Cause No. 88342, the trial court ordered the eighty year term to run consecutively and "begin only when the judgment and sentence in 88343, and 92885 has ceased to operate."
The lone issue in each appeal reads: "The trial court erred in accepting appellant's plea of guilty in the total absence of any admonishments." The State's brief in each appeal concedes the fact that the trial court failed to provide the required admonishments either orally or in writing to Grogan prior to his pleas of guilty. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2006). In each case, Grogan contends the error is reversible because he was not admonished "concerning the ramifications of his plea of guilty." Specifically, Grogan contends that a total absence of any admonishments "regarding the consequences" of his guilty pleas was a violation of certain federal constitutional rights as well as a violation of article 26.13. In each appeal, the State replies that any error in failing to provide the proper admonishments is harmless.
On a plea of guilty, whether a trial court has complied with article 26.13 and whether it has complied for purposes of federal due process are two separate issues. See Gardner v. State, 164 S.W.3d 393, 398 (Tex. Crim. App. 2005). As to the federal constitution, three protections are generally recognized: (1) the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the states via the Fourteenth Amendment; (2) the right to trial by jury; and (3) the right to confront one's accusers. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). However, the reason for admonishing a defendant prior to accepting his plea of guilty is because the defendant typically agrees to waive a number of constitutional and statutory protections simultaneous with the entry of his plea. See id. ("Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial.") (emphasis added). See also U.S. v. Dominguez Benitez, 542 U.S. 74, 84 n. 10, 124 S. Ct. 2333, 159 L. Ed. 2d 157 (2004). In the instant cases, neither record indicates Grogan executed waivers of any federal constitutional rights. A similar issue raised by the defendant in Williams v. State, 674 S.W.2d 315 (Tex. Crim. App. 1984), was addressed by the Court of Criminal Appeals as follows:
The rights referred to by appellant [right against self-incrimination, to confront and cross-examine witnesses, and trial by jury] were never waived. Indeed, the trial court told appellant that even though he pled guilty "The state will have to introduce evidence into the record to prove your guilt beyond a reasonable doubt." [ (1)] The court also allowed, and appellant exercised, his confrontation right fully during the jury trial on the guilty plea and on punishment. There is no requirement that appellant be informed of his right against self-incrimination at trial upon a plea of guilty. We see no reason to so require.
Id. at 319-20. As the records before us do not indicate Grogan waived any rights prior to or during the course of his guilty plea to the juries empaneled in each case, no error affecting the protections afforded him under the federal constitution is shown. As the defendant in Williams, Grogan was able to fully exercise his confrontation right and also had the opportunity to testify in his behalf should he have so desired.
Article 26.13 of the Texas Code of Criminal Procedure requires the trial court to admonish a defendant before accepting a guilty plea. Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2006). These admonishments are listed as follows:
(1) the applicable range of punishment;
(2) the fact that the prosecutor's punishment recommendation is not binding on the trial court;
(3) the fact that the defendant must obtain the court's permission to appeal if the punishment assessed does not exceed the prosecutor's recommendation, except on matters raised by written pretrial motion;
(4) the fact that, if the defendant is not a United States citizen, his guilty plea may result in deportation; and
(5) the fact that the defendant will be required to register as a sex offender if he is convicted of an offense which requires such registration.
Id. The failure by a trial court to admonish a guilty-pleading defendant pursuant to article 26.13 involves statutory rather than constitutional error. Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002). Here, the second, third, and fifth admonishments do not apply because Grogan rejected the State's punishment recommendation, and because Grogan's convictions were not for sex crimes. See Anderson v. State, 182 S.W.3d 914, 916-17 (Tex. Crim. App. 2006). Therefore, if even implicated, Grogan's substantial rights were not affected by the trial court's failure to provide these admonishments. Tex. R. App. P. 44.2(b).
As for any deportation consequences from the plea of guilty, the record contains a copy of an identification information card apparently created by either the Beaumont Police Department or the Jefferson County Sheriff's Office on the day Grogan was initially arrested. The information card lists Grogan's place of birth as "BEAUMONT TX." Although it was error for the trial court to have failed to provide this admonishment, the error is harmless under Rule 44.2(b) as the record affirmatively reflects Grogan to be a natural-born United States citizen. See Anderson, 182 S.W.3d at 919 (citing Cain v. State, 947 S.W.2d 262, 265-66 (Tex. Crim. App. 1997) (record indicated defendant born in Texas, therefore he was a non-deportable citizen of the United States)).
Lastly, the trial court erroneously failed to expressly admonish Grogan regarding the applicable range of punishment for each of the offenses at issue. In applying Rule 44.2(b) to a trial court's failure to give the requisite admonishments, a reviewing court must determine if there is fair assurance that the defendant's decision to plead guilty would not have changed had the court admonished him. Id. at 919. In making this determination, the reviewing court considers the record as a whole. Id. In both trials, Grogan was present during the voir dire process at which time the entire range of punishment for each offense was explained to the venire panel in detail. Neither record indicates that Grogan attempted to change his decision to plead guilty following the detailed explanations to the jury venires of the consequences of Grogan's guilty pleas - - exposure to possible life sentences in each case. See Burnett, 88 S.W.3d at 639. It was only after the voir dire proceedings in each case that Grogan formally entered his pleas of guilty. Additionally, the potential severity of the punishments that could be assessed by the respective jury panels was clearly explored by counsel for each party during the voir dire proceedings. Further references to the punishment ranges or to the wide range of punishment appear in the closing arguments as well as in the trial court's instructions to both juries.
To warrant reversal, the record must support an inference that Grogan did not know the consequence of his plea. See id. at 638 (citing Carranza v. State, 980 S.W.2d 653, 657-58 (Tex. Crim. App. 1998)). While a completely silent record would support the inference of a defendant's lack of knowledge, a reviewing court is permitted to consider record facts from which one would reasonably infer that a defendant did know the consequences of his plea - - in this case, was actually aware of the applicable ranges of punishment. See id. at 638-39 (citing Schutz v. State, 63 S.W.3d 442, 444-45 (Tex. Crim. App. 2001) (discussing proper scope of review for non-constitutional error)). As was the circumstance in Burnett, the records before us lack "even a scintilla of evidence that [Grogan] did not know the punishment range, while the record is replete with evidence that he did know the punishment range." Id. at 639. As further noted in Burnett, it is Grogan's factual knowledge of the applicable range of punishment, or lack thereof, with which we are concerned, not his ability to judge the risk that he would actually receive a sentence at the high end of the punishment range. See id. at 639 n.22. Without record evidence supporting an inference that Grogan was unaware of the range of punishment for the offenses he pleaded guilty to, and with a significant amount of full range-of-punishment discussion in the record taking place in Grogan's presence, we cannot find the trial court's failure to provide range of punishment admonishments in either case misled or harmed Grogan. See id. at 641. Grogan's substantial rights were, therefore, not affected in either case. See Tex. R. App. P. 44.2(b). Grogan's lone appellate issue in each case is overruled. We affirm the trial court's judgments in Trial Cause Number 92885 and Trial Cause Number 88342.
AFFIRMED.
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CHARLES KREGER
Justice
Submitted on September 26, 2006
Opinion Delivered January 24, 2007
Do not publish
Before McKeithen, C.J., Gaultney and Kreger, JJ.
1. The footnote appearing in Williams here points out the trial court's incorrect
statement of the law to the defendant. When a defendant pleads guilty before a jury no
evidence need be introduced to support the conviction. Id. at 319 n. 3. Only when a
defendant pleads guilty to the judge is evidence necessary. Id.; see also Wilkerson v. State, 736 S.W.2d 656, 659 (Tex. Crim. App. 1987).