IN THE
TENTH COURT OF APPEALS
Nos. 10-04-00349-CR, 10-04-00350-CR,
10-04-00351-CR & 10-04-00352-CR
Robert Lee Austin, III,
Appellant
v.
The State of Texas,
Appellee
From the 82nd District Court
Falls County, Texas
Trial Court Nos. 8001, 8002, 8003 & 8004
MEMORANDUM Opinion
Robert Lee Austin, III pleaded guilty before a jury to four separate charges: murder and three charges of aggravated assault. The jury assessed his punishment at seventy-five years’ imprisonment on the murder charge, twenty years’ imprisonment on one of the aggravated assault charges, and ten years’ imprisonment on each of the remaining aggravated assault charges. Austin contends in his sole issue that his guilty pleas must be set aside because the record does not reflect that they were made knowingly and voluntarily. We will affirm.
The Guilty Pleas
Before the commencement of voir dire, Austin’s counsel advised the court that Austin intended to plead guilty to each charge. Below are excerpts from the interchange which occurred thereafter among the court, Austin, Austin’s counsel, and the prosecutor.
COUNSEL: For the record, Your Honor, the State originally floated an offer of 30 years contingent on the family’s acceptance. I had conveyed that to my client. We discussed the fact this is a 5- to 99-year sentence. He is probation eligible; he knows that as well. And we had made a determination to accept that plea offer. However, the contingency did not come through. The family wanted a trial, and the State withdrew their offer.
I talked to my client about his right to have a jury trial in the guilt-innocence phase. We discussed that as well as the punishment. It was our decision and Mr. Austin’s ultimate decision to plead guilty to the Court and then go to the jury for punishment on this issue.
. . . .
COURT: Okay. First of all, are there any mental issues that we need to deal with concerning competency to stand trial? Mr. Austin appears to be fine and able to articulate himself. Are there any mental issues that we need to deal with concerning—
COUNSEL: None the defense is aware of, Your Honor.
. . . .
COURT: Now, Mr. Austin, in the event that you plead guilty to these charges—and I haven’t asked for your formal plea at this time, but I did want to advise you the same thing that I’m sure your attorney has advised you, that you are waiving all issues on the guilt or innocence phase of this trial. Do you understand that?
AUSTIN: Yes, sir.
COURT: Okay. A plea of guilty means exactly what it means: That you’re pleading guilty to it.
AUSTIN: Yes, sir.
COURT: And so, therefore, you’re waiving any issues, any legal matters that you could raise as to a charge or any other legal issue as to the guilt or innocence phase of this trial. Do you understand that?
AUSTIN: Yes, sir.
. . . .
COURT: We’ve gone over the punishment. You understand the punishment range. Now, you’ve also filed, I assume, in each one of these cases an application for probation?
COUNSEL: They are on file, Your Honor.
COURT: Okay. And the jury will be so instructed of that. But you understand this is the jury’s call. There is no recommendation from the district attorney’s office in the nature of a plea bargain agreement to you. There’s no cap on any of these; is that correct?
PROSECUTOR: Correct.
COURT: Okay. In other words, whatever the full range of punishment is that we’ve gone over with you, the 2 to 20, and the 5 to 99, that is the range that the jury will be instructed. Do you understand that?
AUSTIN: Yes, sir.
COURT: Okay. Now, there are punishment issues that can be raised, as I understand, on the sudden passion issue, and if those are properly raised to the Court’s satisfaction, then the jury will be so instructed in the punishment phase on the issue of sudden passion. Do you understand that?
AUSTIN: Yes, sir.
[Austin enters guilty plea to each charge]
COURT: Okay. Are you pleading guilty of each one of those of your own free will and accord?
AUSTIN: Yes, sir.
COURT: Have you had sufficient time to consult with your attorney?
AUSTIN: Yes, sir.
COURT: Any questions that you need to ask your attorney at this time?
AUSTIN: No, sir.
COURT: I recognize that your attorney has spent a considerable amount of time in this case talking to you about it, looking at the evidence that’s been offered by the district attorney’s office. Is there anything you need to take up with me at this time concerning the performance of your attorney?
AUSTIN: No, sir.
COURT: Okay. Are you satisfied 100 percent with his performance, his investigation, his consultation with you on these matters?
AUSTIN: Yes, sir.
COURT: Okay. And are you pleading guilty to each one of these because you are guilty and for no other reason?
AUSTIN: Yes, sir.
Validity of the Guilty Pleas
Austin contends in his sole issue that his guilty pleas are invalid because the record does not reflect that the court admonished him that he was waiving his privilege against compelled self-incrimination and the right to confrontation.
The procedural facts of Austin’s case are similar to those presented to the Court of Criminal Appeals in Gardner v. State, 164 S.W.3d 393 (Tex. Crim. App. 2005). Like Austin, the appellant in Gardner contended that his plea was invalid “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.
The Court observed that the intelligent and knowing nature of that appellant’s plea was shown in part by inference from his counsel’s statements that he “would testify even though he did not have to under the Fifth Amendment” and that his plea “saved the victim from having to testify and saved the jury the ‘grueling experience’ of determining [his] guilt.” Id. at 399 (citing Henderson v. Morgan, 426 U.S. 637, 647, 96 S. Ct. 2253, 2258, 49 L. Ed. 2d 108 (1976) (“it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit”); United States v. Henry, 933 F.2d 553, 559 (7th Cir. 1991) (“defendant’s intelligent awareness” of constitutional rights “can be reasonably inferred from the transcript”)).
The Court also observed:
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 [v. Alabama], 395 U.S. [238,] 240, 89 S. Ct. 1709[, 1710, 23 L. Ed. 2d 274 (1969)] (“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 [v. United States], 397 U.S. [742,] 743-44 n.2, 90 S. Ct. 1463[, 1466 n.2] and at 754-55[, 90 S. Ct. at 1472, 25 L. Ed. 2d 747 (1970)] (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 399-400 (footnote omitted).
Here, it may be reasonably inferred from counsel’s statements on the record that counsel thoroughly explained Austin’s right to a jury trial and the rights he would be forfeiting if he pleaded guilty. “The voluntary nature of [Austin]’s guilty plea is further shown in the record by the overwhelming evidence that [his] 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 [him] probation.” See id.
Accordingly, we overrule Austin’s sole issue and affirm the judgment in each case.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed March 8, 2006
Do not publish
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