P
November 15, 1988
Honorable David T. Garcia Opinion No. JM-980
Brooks County Attorney
P. 0. BOX 557 Re: Whether a court may satis-
Falfurrias, Texas 78355 fy the lqadmonishmenttB reguire-
ments of article 26.13 of the
Code of Criminal Procedure by
showing the defendant a video
tape (RQ-1554)
Dear Mr. Garcia:
You ask whether a court may satisfy the admonishment
requirements of article 26.13 of the Code of Criminal
Procedure before accepting a plea of guilty by showing the
defendant a video tape presentation of the judge giving the
admonitions.
Article 26.13 provides:
la) Prior to accentina a ~1 of auilty
or a nlea of nolo contendere, th=?court shall.
admonish the defendant of:
(1) the range of the punishment attached
to the offense:
(2) the fact that the recommendation of
the prdsecuting attorney as to punishment is
not binding on the court. Provided that the
court shall inquire as to the existence of
any plea bargaining agreements between the
state and the defendant and, in the event
that such an agreement exists, the court
shall inform the defendant whether it will
follow or reject such agreement in open court
and before any finding on the plea. Should
the court reject any such agreement, the
defendant shall be permitted to withdraw his
plea of guilty or nolo contendere;
p. 5003
Honorable David T. Garcia - Page 2 (JM-980)
(3) the fact that if the punishment
assessed does not exceed the punishment
recommended by the prosecutor and agreed to
by the defendant and his attorney, the trial
court must give its permission to the
defendant before he may prosecute an appeal
on any matter in the case except for those
matters raised by written motions filed prior
to trial: and
(4) the fact that if the defendant is not
a citizen of the United States of America, a
plea of guilty or nolo contendere for the
offense charged may result in deportation,
the exclusion from admission to this country,
or the denial of naturalization under federal
law.
(b) Ho nlea of guilty or plea of nolo
contendere shall be aCCeDted bv the court
unless it aonears that the defendant is
mentallv comnetent and the nlea is free and
voluntary.
(c) In admonishina the defendant as here-
in nrovided. substantial comnliance bv the
court is sufficient, unless the defendant
affirmatively shows that he was not aware of
the consequences of his plea and that he was
misled or harmed by the admonishment of the
court.
Id) The court mav make the admonitions
reouired bv this article either orallv or in
writina. If the court makes the admonitions
in writina. it must receive a statement
sianed bv the defendant and the defendant's
attornev that he understands the admonitions
and is aware of the conseouences of his nlea.
If the defendant is unable or refuses to sion
the statement. the court shall make the
admonitions orally. (Emphasis added.)
Prior to the amendment that resulted in the addition of
subsection (d), the statute was explicit in requiring "the
court shall admonish the defendant." House Bill 95 added
subsection (d) of article 26.13, effective August 31, 1987,
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Honorable David T. Garcia - Page 3 (JM-980)
providing that the court may make the admonitions orally or
in writing. Acts 1987, 70th Leg., ch. 443, at 2021.
In the video tape scenario you have submitted you state
"that the court would require the defendant and his attorney
to sign a written statement that the defendant understood
the admonitions and is aware of the consequences of his
pleas."
In Bovkin v. Alaba the United States Supreme Court
held, "It was error, p%n on the face of the record, for
the trial judge to accept petitioner's guilty plea without
an affirmative showing that it was intelligent and volun-
tary." 395 U.S. 238, 242. The court emphasized the
importance of this stage of the plea of guilty proceeding.
In Bovkin, the court stated:
A plea of guilty is more than a confession
which admits that the accused did various
acts; it is itself a conviction: nothing
remains but to qive judgment and determine
punishment. See-Jterchevai v. United States,
274 U.S. 220. 223. 47 s.ct. 582. 583. 71
L.Ed. 1009. .Admissibility of a 'confession
must be based on a *reliable determination on
the voluntariness issue which satisfies the
constitutional rights of the defendant.'
Jackson v. Denno, 378 U.S. 368, 387, 84 S.Ct.
1774, 1786, 12 L.Ed.Zd 908. The requirement
that the prosecution spread on the record the
prerequisites of a valid waiver is no
constitutional innovation. In C rnlev
Cochran, 369 U.S. 506, 516, 82 S"Ct. 88::
890, 8 L.Ed.Zd 70, we dealt with a problem of
waiver of the right to counsel, a Sixth
Amendment right. We held: 'Presuming waiver
from a silent record is impermissible. m
record must show. or there must be an alleaa-
tion and evidence which show, that an accused
was offered counsel but intelliaentlv and
understandinalv reiected the offer. 'Anything
less is not waiver.'
We think that the same standard must be
annlied to determinina whether a auiltv olea
is voluntarilv made. For, as we have said, a
plea of guilty is more than an admission of
conduct: it is a conviction. Ignorance,
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Honorable David T. Garcia - Page 4 (JM-980)
incomprehension, coercion, terror, induce-
ments, subtle or blatant threats might be a
perfect cover-up of unconstitutionality. The
question of an effective waiver of a federal
constitutional right in a proceeding is of
course governed by federal standards.
Doualas v. Alabama 380 U.S. 415, 422, 85
S.Ct. 1074, 1078, 1; L.Ed.2d 934.
Several federal constitutional riahts are
involved in a waiver that takes Lace when a
lea of cuiltv is entered in a state criminal
Gial. First, is the privilege against
compulsory self-incrimination guaranteed by
the Fifth Amendment and applicable to the
States by reason of the Fourteenth. Wallov
v. Hoaan, 378 U.S. 1, 84 S.Ct. 1489, 12
L.Ed.Zd 653. Second, is the right to trial
by jury. Duncan v. Louisiana, 391 U.S. 145,
88 S.Ct. 1444, 20 L.Ed.Zd 491. Third, is the
right to confront one's accusers. Pointer
Texas, 380 U.S. 400, 85 s.ct. 1065, 7;
L.Ed.2d 923. We cannot presume a waiver of
these three important federal rights from a
silent record.
What is at stake for an accused facing
death or imnrisonment demands the utmost
solicitude of which courts are CaDable in
canvassina the matter with the accused to
make sure he has a full understandina of what
the nlea connotes and of its consecuence.
When the iudae discharaes that function. he
leaves a record adecuate for anv review that
mav be later souaht (Garner v. Louisiana 368
U.S. 157, 173, 82 S.Ct. 248, 256, 7 L.;d.zd
207; Svecht v. Patterson, 386 U.S. 605, 610,
87 s.ct. 1209, 1212, 18 L.Ed.2d 326), and
forestalls the snin-off of collateral oro-
ceedinas that seek to nrobe murkv memories.
(Emphasis added.)
Bovkin, 395 U.S. 238, 242-44.
The **substantial compliance" provision of subsection
(c), of article 26.13 has been applied to the sufficiency of
the language used rather than the method of giving the
admonitions. Whitten v. State, 587 S.W.2d 156 (Tex. Crim.
p. 5006
Honorable David T. Garcia - Page 5 (JM-980)
APP. 1979). In Whitten, the state urged that the defendant
had heard the prosecutor give a portion of the admonitions
that had been omitted by the judge. On rehearing, the court
cited Bovkin and concluded that the statute then in force
and due process mandated the judge's participation. 587
S.W.2d 156, 158-59.
The importance of the court's actual participation in
the admonitions is reflected in Iucero v. State 502 S.W.Zd
750 (Tex. Crim. App. 1973). In Lucero four casks were tried
together before the court upon pleas of guilty. On appeal
it was urged that the court had failed to determine the
mental competence of the appellant in each case. In
rejecting the appellant‘s contention, the court stated:
In the instant cases the court once
inquired of appellant's counsel as to
appellant's sanity, was able to observe him
.rn onen court. to hear him sneak and to note
his demeanor. and to enaaae in a collocluy
1
with him re ardin ‘S
pleas. At no time was the issue of appel-
lant's sanity ever raised. In light of the
circumstances of these particular cases, the
pleas being taken together, cannot
conclude the court failed to s%sfy the
requirements of Article 26.13, Vernon's
Ann.C.C.P. . . . (Emphasis added.)
Lucero, 502 S.W.2d 750, 753.
While the foregoing cases predated the 1987 amendment,
they reflect the importance the courts have placed on the
judge's participation in determining that the defendant has
a full understanding of what the plea connotes and of its
consequences.
Without addressing the validity of the 1987 amendment,
we conclude that the video tape showing of the judge giving
the admonitions is not the functional equivalent of the
written procedure allowed by subsection (d) - The written
admonitions allow time for study and reflection and an
opportunity for the defendant to identify for his lawyer and
the judge any words or phrases he does not understand.
Further, the Court of Criminal Appeals has demonstrated a
reluctance to approve any method of giving the admonitions
not authorized by article 26.13. The utilization of the
P. 5007
Honorable David T. Garcia - Page 6 (JM-980)
video presentations does not satisfy the requirements of
article 26.13.
SUMMARY
A court may not satisfy the requirements
of article 26.13 of the Code of Criminal
Procedure before accepting a plea of guilty
or nolo contendere by showing the defendant a
video tape presentation of the judge giving
the admonitions. 1
JIM MATTOX
Attorney General of Texas
MARYKELLER
First Assistant Attorney General
MU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEARLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 5008