NUMBER 13-17-00238-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CORLES ANDRE GILES, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Jackson County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Hinojosa
Memorandum Opinion by Chief Justice Contreras
Appellant Corles Andre Giles appeals his conviction for possession of more than
four but less than 400 grams of synthetic marijuana with intent to deliver, a first-degree
felony. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.103, 481.113(d) (West, Westlaw
through 2017 1st C.S.). By seven issues, which we rearrange into five main issues,
appellant argues that: (1) his right to a speedy trial was violated, (2) the trial court erred
when it denied him a continuance, (3) the evidence was insufficient, (4) he did not waive
his right to a jury, and (5) his guilty plea was not entered intelligently and voluntarily. We
affirm.
I. BACKGROUND
On June 7, 2015, appellant was a passenger in a car when he was arrested for
possession of synthetic marijuana with intent to deliver. See id. §§ 481.103, 481.113(d).
Appellant was indicted on September 26, 2015, and the indictment included three
enhancement paragraphs.1 On June 30, 2016, appellant filed a motion to dismiss and
argued, among other things, that the charge should be dismissed because his right to a
speedy trial was violated. The trial court held a hearing on July 7, 2016, denied
appellant’s motion, and set the trial date for August 8, 2016.
On March 23, 2017, appellant signed a written waiver of his right to a jury in open
court. On the day trial was scheduled to begin, he moved for a continuance to subpoena
the other passengers in the vehicle, but the trial court denied his motion. Trial
proceedings began the next day on March 28, 2017.2 Appellant pleaded guilty to the
offense and true to all three enhancement allegations. The trial court subsequently heard
testimony from multiple witnesses and officers, found appellant guilty, and assessed
punishment at fifty years’ imprisonment in the Texas Department of Criminal Justice—
1
The State alleged appellant had two felony robbery convictions and a felony conviction for burglary
of a habitation.
2 Appellant and the State filed an agreed order of reset on August 8, 2016, which postponed the
trial setting to September 19, 2016. Though, the record contains no explanation for the trial delay between
September 19, 2016 and March 27, 2017, but it appears that part of the delay was due to plea negotiations.
2
Institutional Division. See TEX. PENAL CODE ANN. § 12.32 (West, Westlaw through 2017
1st C.S.). This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
By his third issue, which we address first, appellant contends the evidence was
insufficient to support the intent to deliver element of the offense, and therefore he was
guilty of only possession. The State argues that the evidence was sufficient to support
appellant’s guilty plea. We agree with the State.
A. Applicable Law and Standard of Review
Once a defendant enters a valid guilty plea, the State is no longer constitutionally
required to prove his guilt beyond a reasonable doubt. See Menefee v. State, 287 S.W.3d
9, 13 (Tex. Crim. App. 2009). Yet, no trial court is authorized to render a conviction in a
felony case based upon a plea of guilty without sufficient evidence to support the same.
Id. (quoting TEX. CODE CRIM. PROC. ANN. art. 1.15 (West, Westlaw through 2017 1st C.S.)).
We will affirm the trial court’s judgment if the State introduced evidence that embraces
every essential element of the offense charged and that is sufficient to establish the
defendant’s guilt. See Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996);
Chindaphone v. State, 241 S.W.3d 217, 219–20 (Tex. App.—Fort Worth 2007, pet. ref’d).
B. Analysis
Here, appellant only challenges the sufficiency of the evidence as to the intent to
deliver element. See TEX. HEALTH & SAFETY CODE ANN. § 481.113(a).
Intent to deliver is a question of fact that may be inferred from the acts, words, or
conduct of the accused. Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003,
no pet.); Parramore v. State, 853 S.W.2d 741, 745 (Tex. App.—Corpus Christi 1993, pet.
3
ref’d). Intent to deliver may also be inferred from the quantity of drugs possessed and the
manner of packaging. Branch v. State, 599 S.W.2d 324, 325 (Tex. Crim. App. [Panel
Op.] 1979); Taylor, 106 S.W.3d at 831; Guy v. State, 160 S.W.3d 606, 613 (Tex. App.—
Fort Worth 2005, pet. ref’d).
At trial, Officer Bryan Martin of Jackson County Sheriff’s Department testified that
he responded to a call about a vehicle at a McDonald’s. Appellant was a passenger in
the vehicle. As Officer Martin approached the car, he noticed a black bag that contained
packages of synthetic marijuana between appellant’s legs. Appellant subsequently
admitted to Officer Martin that the black bag and its contents belonged to him. The bag
contained seventeen individually wrapped packets of synthetic marijuana, each with a
weight of ten grams. Officer Martin testified that the amount he found was not what he
would expect someone to have for personal use. Jackson County Sheriff’s Deputy Gary
Smejkal testified each packet could be used to make twenty to thirty cigarettes and that,
at that time, synthetic marijuana was not being sold openly in Jackson County stores.
Officer Stacey Cavasos of the Edna Police Department testified that appellant possessed
a large amount of synthetic marijuana. This testimony supported appellant’s guilty plea
to the intent to deliver element of the offense. See Branch, 599 S.W.2d at 325;
Chindaphone, 241 S.W.3d at 219–20; Guy, 160 S.W.3d at 613. The evidence is
sufficient.
We overrule appellant’s third issue.
III. SPEEDY TRIAL CLAIM
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By his first main issue, appellant argues that his right to a speedy trial was violated.
Appellant also argues that the trial court should have held a hearing on his motion to
dismiss and that the court should have dismissed the case.
A. Applicable Law and Standard of Review
A criminal defendant has the right to a speedy trial. See U.S. CONST. amends. VI,
XIV; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.05 (West, Westlaw
through 2017 1st C.S.); Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014);
see also Dillingham v. United States, 423 U.S. 64, 65 (1975) (noting that the right to a
speedy trial is triggered by formal indictment or arrest). “This ensures that the defendant
is protected from oppressive pretrial incarceration, mitigates the anxiety and concern
accompanying public accusations, and ensures that the defendant can mount a defense.”
Henson v. State, 407 S.W.3d 764, 766 (Tex. Crim. App. 2013) (citing Barker v. Wingo,
407 U.S. 514, 532 (1972)).
We analyze speedy trial claims “on an ad hoc basis,” weighing and balancing the
factors set forth in Barker v. Wingo: (1) the length of the delay, (2) the reason for the
delay, (3) the assertion of the right, and (4) the prejudice to the accused. Cantu v. State,
253 S.W.3d 273, 280 (Tex. Crim. App. 2008); see Barker, 407 U.S. at 530. “While the
State has the burden of justifying the length of delay, the defendant has the burden of
proving the assertion of the right and showing prejudice.” Cantu, 253 S.W.3d at 280.
“The defendant’s burden of proof on the latter two factors ‘varies inversely’ with the State’s
degree of culpability for the delay.” Id.
We apply a bifurcated standard of review to a trial court’s ruling on a speedy trial
claim. Id. at 282. We review the factual components for an abuse of discretion, while we
5
review the legal components de novo. Id. Review of the individual Barker factors
necessarily involves factual determinations and legal conclusions, but the balancing test
as a whole is “a purely legal question.” Id. With regard to the trial court’s resolution of
factual issues, we view all the evidence in the light most favorable to the trial court’s
ultimate ruling. Id.
B. Analysis
Here, appellant’s motion to dismiss was denied after a hearing on July 7, 2016.
Accordingly, we reject appellant’s argument that the trial court failed to hold a hearing on
his motion to dismiss. Nevertheless, appellant argues that the trial court should have
dismissed the case because his right to a speedy trial was violated. In turn, we analyze
the four speedy trial factors. See Barker, 407 U.S. at 530.
1. The First Factor: Length of Delay
The length of the delay between an initial charge and the defendant’s demand for
speedy trial acts as a triggering mechanism. See Zamorano v. State, 84 S.W.3d 643,
648 (Tex. Crim. App. 2002) (en banc); State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim.
App. 1999) (en banc). Unless the delay is presumptively prejudicial, courts need not
examine the other three factors. Zamorano, 84 S.W.3d at 648. Thus, any speedy trial
analysis depends first upon whether the delay is more than “ordinary”; if so, the longer
the delay beyond that which is ordinary, the more prejudicial that delay is to the defendant.
Gonzalez, 435 S.W.3d at 809; Zamorano, 84 S.W.3d at 649.
Here, the delay of thirteen months between appellant’s arrest and the denial of his
motion for speedy trial is presumptively prejudicial and sufficient to trigger a Barker
analysis. See Doggett v. United States, 505 U.S. 647, 652 n. 1 (1992) (noting that a one-
6
year delay is presumptively prejudicial); Shaw v. State, 117 S.W.3d 883, 888–89 (Tex.
Crim. App. 2003) (same). Because the delay of thirteen months triggers judicial
examination of the claim, this factor weighs against the State. See Gonzalez, 435 S.W.3d
at 809; Zamorano, 84 S.W.3d at 649.
2. The Second Factor: Reason for Delay
Once the length of time is found to be presumptively prejudicial, the burden of
justifying the delay falls on the State. Smith v. State, 436 S.W.3d 353, 355 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d) (citing Cantu, 253 S.W.3d at 280); see Zamorano,
84 S.W.3d at 649. Unjustifiable reasons for the delay count towards the “length of delay,”
while justifiable reasons for delay do not. Gonzales, 435 S.W.3d at 810; see Munoz, 991
S.W.2d at 822 (“A valid reason for the delay should not be weighed against the
government at all”). For example,
[a] deliberate attempt to delay the trial in order to hamper the defense
should be weighed heavily against the government. A more neutral reason
such as negligence or overcrowded court should be weighed less heavily
but nevertheless should be considered since the ultimate responsibility for
such circumstances must rest with the government rather than with the
defendant. Finally, a valid reason, such as a missing witness, should serve
to justify appropriate delay.
Zamorano, 84 S.W.3d at 649.
This was a criminal prosecution for possession of synthetic marijuana, and lab
work was required to confirm whether the substance appellant was arrested for
possessing was a controlled substance. The State explained at the hearing on
appellant’s motion to dismiss that the delay up until that point was due to a backlog at the
lab for drug cases and that the lab had yet to issue a report on the analysis requested by
the State. The record indicates that the initial lab work request was submitted on July 20,
7
2015—shortly after appellant’s arrest—and that the lab’s initial report was issued on July
28, 2016. The government must bear responsibility for failing to provide adequate
resources to law-enforcement agencies. Ex parte Martin, 33 S.W.3d 843, 847 (Tex.
App.—Austin 2000, pet. dism’d); see Zamorano, 84 S.W.3d at 649. There is, however,
no evidence that the State deliberately delayed appellant’s trial for strategic gain. Thus,
we conclude that the delay of thirteen months weighs against the State, but not heavily.
See Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003); Zamorano, 84 S.W.3d
at 649; Smith, 436 S.W.3d at 365; see also Coy v. State, No. 05-15-00011-CR, 2016 WL
1705153, at *4 (Tex. App.—Dallas Apr. 26, 2016, no pet.) (mem. op., not designated for
publication).
3. The Third Factor: Assertion of Right
Here, appellant filed a motion to dismiss the case, not a motion for a speedy trial
asking the court to set a trial date. “Filing a motion to dismiss instead of a motion for a
speedy trial will generally weaken a speedy trial claim because it shows a desire to have
no trial instead of a speedy one.” State v. Davis, 549 S.W.3d 688, 704 (Tex. App.—Austin
2017, no pet.) (citing Cantu, 253 S.W.3d at 283; Zamorano, 84 S.W.3d at 651 n.40). A
defendant can “either fail to insist upon a speedy trial and reap the benefits caused by
delay, or he can insist on a prompt trial, and if it is not granted, argue for dismissal.”
Henson, 407 S.W.3d at 769. “If a defendant fails to first seek a speedy trial before seeking
dismissal of the charges, he should provide cogent reasons for this failure.” Cantu, 253
S.W.3d at 283; see Davis, 549 S.W.3d at 704. Appellant provided no such reasons here.
Also, “[r]epeated requests for a speedy trial weigh heavily in favor of the defendant, while
the failure to make such requests supports an inference that the defendant does not really
8
want a trial, he wants only dismissal.” Cantu, 253 S.W.3d at 283; see Henson, 407
S.W.3d at 769. Here, appellant only raised his speedy-trial complaint once, and it was
raised thirteen months after being arrested. Appellant did not seek a speedy trial after
the issuance of the lab results, which confirmed that the substance appellant possessed
when he was arrested was in fact synthetic marijuana. “Under Barker, appellant’s failure
to diligently and vigorously seek a rapid resolution is entitled ‘strong evidentiary weight.’”
Cantu, 253 S.W.3d at 283 (quoting Barker, 407 U.S. at 531–32).
This factor weighs heavily against appellant.
4. The Fourth Factor: Prejudice
“Because ‘pretrial delay is often both inevitable and wholly justifiable,” the fourth
Barker factor examines whether and to what extent the delay has prejudiced the
defendant.” Id. at 285. We analyze the prejudice to appellant in light of the interest the
speedy trial was designed to protect: (1) to prevent oppressive pretrial incarceration, (2)
to minimize the accused’s anxiety and concern, and (3) to limit the possibility that the
accused’s defense will be impaired. Id. Prejudice to the accused’s defense is the most
serious “because the inability of a defendant adequately to prepare his case skews the
fairness of the entire system.” Id.
Appellant did not testify that he was anxious or concerned about the case or that
his incarceration was oppressive. More importantly, appellant did not testify or argue that
his defense was impaired in any way. Finally, appellant raised his speedy-trial complaint
thirteen months after being arrested, and his silence for the entirety of that time suggests
that any hardships he suffered were either minimal or caused by other factors. See United
States v. Palmer, 537 F.2d 1287, 1288 (5th Circ. 1976) (concluding that appellant’s
9
silence for thirty months after arrest worked against him); Cantu, 253 S.W.3d at 284–85
(similar); cf. Zamorano, 84 S.W.3d at 652–54.
This factor also weighs heavily against appellant.
C. Conclusion
In sum, the evidence in this case fully supports the trial court’s ruling. There was
a delay of thirteen months that weighs in favor of finding a violation of appellant’s right to
a speedy trial. However, from the record, we conclude that appellant did not really seek
a speedy trial; he sought only a dismissal of the charges. The nature of the State’s delay,
the tardiness of appellant’s sole assertion of his speedy-trial right, and the lack of any
substantial personal or defense prejudice resulting from the State’s delay convinces us
that the trial court did not err in denying appellant’s motion for speedy trial. We conclude
appellant was not denied his Sixth Amendment right to a speedy trial. See Barker, 407
U.S. at 534; Cantu, 253 S.W.3d at 286–87; Dragoo, 96 S.W.3d at 308.
We overrule appellant’s first issue.
IV. MOTION FOR CONTINUANCE
By his second issue, appellant argues that the trial court erred when it denied his
motion for a continuance. Specifically, appellant argues the trial court erred because he
needed more time to subpoena or otherwise secure his witnesses. The State argues that
appellant failed to preserve this issue for our review.
A. Applicable Law and Standard of Review
A motion for a continuance must be in writing, set forth in full the sufficient cause
for delay, and be sworn by someone having personal knowledge of the facts relied on for
the request. See TEX. CODE CRIM. PROC. ANN. arts. 29.03, 29.08 (West, Westlaw through
10
2017 1st C.S.). Furthermore, when a defendant’s first motion for continuance is based
on the absence of a witness, the motion must state: the name of the witness and their
residence; the diligence used to procure their attendance; the material facts expected to
be proved by the witness; that their absence is not due to the defendant; that the motion
is not made for delay; and that the witness cannot be secured during the present term of
the court. Id. art. 29.06 (West, Westlaw through 2017 1st C.S.). “Mere conclusions and
general averments are not sufficient for the court to determine their materiality, and the
motion for continuance must show on its face the materiality of the absent testimony.”
Harrison v. State, 187 S.W.3d 429, 433 (Tex. Crim. App. 2005).
We review a trial court’s ruling on a motion for continuance for an abuse of
discretion. Fears v. State, 479 S.W.3d 315, 325 (Tex. App.—Corpus Christi 2015, pet.
ref’d) (citing Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007)). A motion for
continuance not in writing and not sworn preserves nothing for review. Drewberry v.
State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999); see TEX. CODE CRIM. PROC. ANN. arts.
29.03, 29.08. Error is also waived if a written and sworn motion does not sufficiently
advise the trial court of the defendant’s request and the grounds therefor. See Harrison,
187 S.W.3d at 433; see also TEX. CODE CRIM. PROC. ANN. art. 29.06.
B. Analysis
At the trial court, appellant: (1) filed a written motion for a continuance before trial
started and (2) orally moved for a continuance after the State rested its case. It is unclear
which trial court decision he complains of on appeal.3 Either way, as discussed below,
3 Appellant’s brief does not cite the clerk’s record or the reporter’s record in reference to his
complaint that the trial court erred when it denied him a continuance. See TEX. R. APP. P. 38.1(h) (“The
brief must contain a clear and concise argument for the contentions made, with appropriate citations to
11
we conclude that error was not preserved, and, even if it had been, the trial court did not
abuse its discretion.
Here, appellant filed an unsworn written motion for a continuance prior to the
beginning of trial. Because appellant’s motion was unsworn, he failed to preserve error
for our review. See TEX. CODE CRIM. PROC. ANN. arts. 29.03, 29.08; TEX. R. APP. P. 33.1;
Drewberry, 4 S.W.3d at 755. Furthermore, appellant’s written motion did not name the
witnesses he sought to subpoena or state the information he hoped to obtain from them,
as is required by statute. See TEX. CODE CRIM. PROC. ANN. art. 29.06. With nothing more,
the trial court did not abuse its discretion in denying appellant’s written motion for a
continuance. See Harrison, 187 S.W.3d at 435.
Also, after the State rested its case at trial, appellant urged an oral motion for a
continuance. He argued for more time to present the testimony of the witnesses he was
not able to get subpoenaed. However, because this motion was not in writing and
unsworn, appellant again failed to preserve error for our review. See Drewberry, 4 S.W.3d
at 755; Gentry v. State, 770 S.W.2d 780, 786 (Tex. Crim. App. 1988) (en banc).
Moreover, appellant knew of the three witnesses he sought to subpoena since the day of
the offense, because they were his fellow passengers in the vehicle when he was
arrested. Accordingly, this was not “some unexpected occurrence after trial began, which
no reasonable diligence could have anticipated,” as is required for a continuance after
trial has begun. See TEX. CODE CRIM. PROC ANN. art. 29.13. Therefore, the trial court did
authorities and to the record.”). Nevertheless, out of an abundance of caution and in our sole discretion,
we choose to address the issue.
12
not abuse its discretion when it denied this request for a continuance. See Gentry, 770
S.W.2d at 787.
Appellant’s second issue is overruled.
V. WAIVER OF RIGHT TO A JURY
By his fourth issue, appellant argues that he did not waive his right to a jury before
he pleaded guilty.
A. Applicable Law
An accused is guaranteed a speedy public trial by an impartial jury under both the
United States and Texas Constitutions. U.S. CONST. amends. VI, XIV; TEX. CONST. art. I,
§§ 10, 15; see Hobbs v. State, 298 S.W.3d 193, 197 (Tex. Crim. App. 2009). However,
a defendant also has the right to waive his or her right to a jury trial, except when the
State seeks the death penalty in a capital felony. See TEX. CODE CRIM. PROC. ANN. arts.
1.13, 1.14(a) (West, Westlaw through 2017 1st C.S.); Adams v. United States, 317 U.S.
269, 275 (1942); Hobbs, 298 S.W.3d at 197. The waiver must be made in writing by the
defendant in person in open court with the consent and approval of the court and the
attorney representing the State. TEX. CODE CRIM. PROC. ANN. art. 1.13. The consent and
approval of the court shall be entered of record on the minutes of the court, and the
consent and approval of the attorney representing the State shall be in writing, signed by
that attorney, and filed in the papers of the cause before the defendant enters his plea.
Id. In addition, federal due process requires that waivers of constitutional rights—such
as the right to a jury—not only must be voluntary but must be knowing, intelligent acts
done with sufficient awareness of the relevant circumstances and consequences.
13
Davison v. State, 405 S.W.3d 682, 686 (Tex. Crim. App. 2013) (quoting Brady v. United
States, 397 U.S. 742, 748 (1970)); see Hobbs, 298 S.W.3d at 197.
B. Analysis
Appellant argues that “neither written nor oral waiver [of his right to a jury] was
accomplished.” We disagree. On March 23, 2017, appellant, defense counsel, the
attorney for the State, and the presiding judge all signed and executed an “Application to
Waive Trial by Jury” in open court. The waiver stated that appellant fully understood his
right to a jury trial and that he made his waiver request freely and voluntarily. The waiver
includes the consent and approval of the attorney for the State and the presiding judge,
and the trial court indicated at the hearing that it approved the waiver. This accomplished
appellant’s waiver of his right to a jury. See TEX. CODE CRIM. PROC. ANN. art. 1.13; Smith
v. State, 363 S.W.3d 761, 767–68 (Tex. App.—Austin 2012, pet. ref’d).
Nevertheless, appellant argues that the written waiver does not include the word
“intelligently.” When a defendant challenges a jury-trial waiver on appeal, the State must
establish through the trial record an express, knowing, and intelligent waiver of that right.
Martinez v. State, 449 S.W.3d 193, 199–200 (Tex. App.—Houston [1st Dist.] 2014, pet.
ref’d) (citing Hobbs, 298 S.W.3d at 197); see Davison, 405 S.W.3d at 686. Whether “there
is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend
upon the unique circumstances of each case.” Adams, 317 U.S. at 278.
Here, the trial court asked appellant whether he had discussed with his attorney
his waiver of a jury trial, and appellant stated “Yes.” The trial court also asked appellant
if he wanted to waive his right to a jury, and appellant answered “Yes, Your Honor.” The
trial court then explained to appellant that he had a constitutional right to be tried by a jury
14
and asked him if he wanted to waive that right. Appellant again answered in the
affirmative. The written waiver signed by appellant also stated that he fully understood
his right to trial by jury and that he made the request to waive that right “freely and
voluntarily.”
There is nothing in the record indicating that appellant lacked the mental capacity
to waive his right to a jury, was under duress, or was coerced into the waiver. On the
contrary, the record reflects that the trial court explained the jury waiver to appellant and
made an adequate inquiry to ensure that appellant understood his choice. After reviewing
the entire record, we conclude that appellant made a knowing, intelligent, and voluntary
waiver of his right to a jury trial. See Patton v. United States, 281 U.S. 276, 312 (1930)
(noting that for jury waiver to be effective, there must be “express and intelligent consent
of the defendant”); Hobbs, 298 S.W.3d at 203 n.42 (noting that “for a waiver of a
constitutional right to be valid the record must show that it was voluntarily and knowingly
made”); Hoang v. State, 825 S.W.2d 729, 732 (Tex. App.—Houston [14th Dist.] 1992,
pet. ref’d) (concluding that Vietnamese-speaking defendant, who required translation of
jury-trial waiver, knowingly and voluntarily waived right to jury trial when trial court asked
defendant if he was aware that he had a constitutional right to a jury trial, whether he
understood what a jury trial is, and whether he wanted to waive the right and have the
matter heard by the court).
Appellant also points out that the trial court did not enter its consent and approval
of appellant’s jury waiver into the minutes of the court. However, because neither the
federal nor the state constitution require that trial by jury waiver be noted in the court’s
minutes, the failure to waive the right in the manner prescribed by the code of criminal
15
procedure is statutory error, not constitutional error. See Johnson v. State, 72 S.W.3d
346, 347–48 (Tex. Crim. App. 2002); Ex parte Sadberry, 864 S.W.2d 541, 543 (Tex. Crim.
App. 1993). Thus, we analyze harm under appellate rule 44.2(b). Johnson, 72 S.W.3d
at 348; see TEX. R. APP. P. 44.2(b) (providing that if the error does not affect the
defendant’s substantial rights, then it must be disregarded). Technical violations of the
statutory jury waiver requirements in article 1.13 are harmless when the record otherwise
reflects that the defendant was aware of his right to a jury trial and that the defendant
waived that right. See Johnson, 72 S.W.3d at 349. And as previously discussed,
appellant was aware of and voluntarily waived his right to a jury trial. Therefore, the trial
court’s failure to notate the jury waiver in its minutes was harmless error. See TEX. R.
APP. P. 44.2(b); Johnson, 72 S.W.3d at 348.
We overrule appellant’s fourth issue.
VI. GUILTY PLEA
By his fifth issue, appellant cites the United States Supreme Court decision in
Boykin v. Alabama, 395 U.S. 238, 242 (1969) and argues that the face of the record lacks
an affirmative showing that he entered his guilty plea intelligently and voluntarily. 4
A. Applicable Law
A guilty plea “entails a waiver of three significant constitutional rights: the right
against self-incrimination; the right to confrontation; and the right to a trial by jury.” Ex
4 Texas cases differentiate appellate claims based on due process, whereby an appellant asserts
his or her plea was involuntary because it was inadequately informed, and those based on a violation of
Texas’ statutory admonishment requirements. Davison v. State, 405 S.W.3d 682, 691 (Tex. Crim. App.
2013); Dominguez v. State, 535 S.W.3d 125, 132–33 (Tex. App.—El Paso 2017, no pet.); see TEX. CODE
CRIM. PROC. ANN. art. 26.13 (West, Westlaw through 2017 1st C.S.). Appellant only presents an argument
based on due process and constitutional law—i.e. that his plea was involuntary because he was
inadequately informed.
16
parte Palmberg, 491 S.W.3d 804, 807 (Tex. Crim. App. 2016) (citing Boykin, 395 U.S. at
243 (1969)). “Because such significant constitutional rights are at stake, due process
requires that their relinquishment in the course of a guilty plea be undertaken voluntarily,
with sufficient awareness of the consequences.” Id. (citing McCarthy v. United States,
394 U.S. 459, 466 (1969)); Davison, 405 S.W.3d at 686. 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. Brady, 397 U.S. at 755; Kniatt v.
State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). A defendant must have sufficient
awareness of the relevant circumstances and must possess an understanding of the law
in relation to the facts. Ex parte Broussard, 517 S.W.3d 814, 816 (Tex. Crim. App. 2017).
A criminal defendant who is induced to plead guilty in a state court in total ignorance of
the precise nature of the charge and the range of punishment it carries has suffered a
violation of procedural due process. Davison, 405 S.W.3d at 686.
To determine whether a defendant’s “awareness” was “sufficient” at the time of his
plea, a reviewing court looks to whether the plea was a voluntary and intelligent choice
among the alternative courses of action open to the defendant. Ex parte Broussard, 517
S.W.3d at 816 (citing State v. Guerrero, 400 S.W.3d 576, 588 (Tex. Crim. App. 2013)).
The voluntariness of a guilty plea may be inferred from the relevant circumstances
surrounding it. Ex parte Barnaby, 475 S.W.3d 316, 323 (Tex. Crim App. 2015) (per
curiam); see Brady, 397 U.S. at 749. In evaluating whether a plea was voluntary, we
consider the entire record and the totality of the circumstances. Ex parte Barnaby, 475
S.W.3d at 323; Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App. 1986) (en banc).
If the record contains no evidence of the rights the defendant was putatively waiving, the
17
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) (noting that “the record must . . . be silent
with respect to whether [defendant] was otherwise provided, or nevertheless aware of,
the requisite information to render his guilty plea voluntary and intelligent”) (emphasis in
original).
Here, appellant signed a written waiver of arraignment in which he stated that he
is mentally competent and “thoroughly understands the nature of the charge pending
against [him] in this cause, and the range of punishment attached to the charge.”
Appellant also pleaded not guilty to the indictment in his waiver of arraignment. The
record shows that appellant initially intended to enter a plea on March 27, 2018 but
changed his mind that morning. At the hearing that day, at which appellant was present,
the State’s attorney explained that appellant’s punishment range was between 15 years
to 99 years or life. The following day, the indictment was read out loud and the trial court
subsequently asked appellant whether he wanted to plead guilty or not guilty to the
indictment, and appellant stated: “I would plead guilty, Your Honor, for a lesser sentence
please.” The trial court then reminded appellant that he had a right to plead not guilty and
asked appellant again how he wanted to plead; appellant pleaded guilty. This shows that
appellant’s decision to plead guilty was voluntary and an intelligent choice among
alternative courses of actions. See Ex parte Broussard, 517 S.W.3d at 816. This also
indicates that appellant entered a plea of guilty intelligently and with a strategy: that the
trial court would give him a lighter sentence. See Davison, 405 S.W.3d at 692; Gardner
v. State, 164 S.W.3d 393, 399 (Tex. Crim. App. 2005); Dominguez v. State, 535 S.W.3d
125, 134–35 (Tex. App.—El Paso 2017, no pet.). Furthermore, we note that appellant
18
does not argue that his guilty plea was the product of any threat, misrepresentation, or
any improper promise. See Stevens, 525 S.W.3d at 896.
As previously concluded, appellant successfully and knowingly waived his right to
a jury. And appellant did not waive his right to confront witnesses because the State was
still obligated to present witnesses, see TEX. CODE CRIM. PROC. ANN. art. 1.15, and
appellant’s counsel cross-examined the ones presented. Finally, “failure 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.”
Vasquez v. State, 522 S.W.2d 910, 912 (Tex. Crim. App. 1975); see Garcia v. State, 877
S.W.2d 809, 812 (Tex. App.—Corpus Christi 1994, pet. ref’d).
Based on the totality of the circumstances, we conclude that it is reasonable to
infer from the record that appellant’s plea was intelligent and voluntary. See Barnaby,
475 S.W.3d at 323; Gardner, 164 S.W.3d at 395; Vasquez, 522 S.W.2d at 912;
Dominguez, 535 S.W.3d at 133.
We overrule appellant’s fifth issue.
VII. CONCLUSION
The trial court’s judgment is affirmed.
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
14th day of March, 2019.
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Corles Andre Giles v. State
Combined Opinion