Jailen Latrell Matthews v. the State of Texas ( 2021 )

Affirmed and Opinion Filed August 30, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00212-CR
No. 05-20-00213-CR
JAILEN LATRELL MATTHEWS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F18-76633-M and F18-76635-M
MEMORANDUM OPINION
Before Justices Osborne, Pedersen, III, and Nowell
Opinion by Justice Osborne
Appellant Jailen Latrell Matthews was indicted for aggravated assault with a
deadly weapon in Cause Numbers F18-76633-M and F18-76635-M. He entered
pleas of “no contest” to both charges, and the cases proceeded to trial before the
court. Finding sufficient evidence of appellant’s guilt, the trial court sentenced
appellant to twenty years’ imprisonment for each assault. In one issue, appellant
complains that the trial court failed to admonish him regarding the punishment range
for his offenses. In addition, appellant and the State agree that the judgment in each
case should be modified to reflect that appellant did not enter into plea bargain
agreements with the State. We modify the judgments as agreed and affirm.
BACKGROUND
On October 30, 2018, Justin Villanueva, his girlfriend Christina (“Nina”)
Rivas, and Nina’s brother were sitting in Justin’s car smoking “weed.” Appellant
approached the car and asked to buy a gram of marijuana. Justin recognized
appellant because they had attended the same high school and both had played
football there. Justin, a drug dealer, sold the marijuana to appellant, and appellant
walked away. As Justin and Nina rolled marijuana blunts, appellant walked back up
to the car, opened the door, pointed a gun at Nina, and demanded that Justin and
Nina “[r]un me that shit,” or “give me everything.” Justin laughed and refused but
then grabbed Nina to shield her with his body to protect her from being shot.
Appellant shot the gun numerous times, then ran away.
Nina did not know or recognize appellant at the time of the shooting. She was
scared when appellant pointed the gun at her face and thought he was going to shoot
her. Justin testified that Nina was screaming and crying as appellant started shooting.
Nina’s brother chased appellant. Justin did not immediately realize he had
been shot. A bullet entered the left side of his back, broke his collarbone, and lodged
near his heart. When police interviewed Justin at the hospital, he was not
forthcoming about the shooting or about appellant’s identity because he wanted to
“take matters into my own hands at first.” But both Justin and Nina later cooperated
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with the police investigation. Appellant was subsequently indicted in two cases for
second-degree aggravated assault with a deadly weapon.
At the time of his indictment, appellant had entered into plea bargain
agreements with the State in two other felony cases (second-degree burglary of a
habitation and state-jail theft from a person) and was serving deferred-adjudication
community supervision in those cases. The State moved to adjudicate appellant’s
guilt in the two prior felony cases, alleging that appellant had committed violations
of his community supervision. Appellant entered pleas of no contest to the
aggravated assault charges and pleas of not true to the State’s motions to adjudicate
his guilt in the two prior felonies.
After hearing evidence, the trial court found appellant guilty of the aggravated
assaults and made affirmative deadly-weapon findings. The trial court also found the
State’s allegations in the two prior felony cases to be true, found appellant guilty in
those cases, and revoked appellant’s community supervision. The court sentenced
appellant to twenty years’ imprisonment for each aggravated assault, ten years for
burglary of a habitation, and 180 days’ confinement in state jail for theft.
Appellant filed motions for new trial that were overruled by operation of law
and timely notices of appeal of the trial court’s judgments in the aggravated assault
cases. Appellant has not appealed the trial court’s rulings revoking his community
supervision in the two prior felony cases.
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ISSUE AND STANDARD OF REVIEW
In a single issue, appellant contends the trial court erred by failing to admonish
him of the punishment range for his offenses “as required by Code of Criminal
Procedure, article 26.13.” Appellant’s statement of the issue also includes the
complaint that the trial court’s failure to admonish him “render[ed] his pleas
involuntary under the Due Process Clause.” Read broadly, this issue states two
separate complaints governed by two different standards of review.
Appellant’s complaint under article 26.13 is reviewed as non-constitutional
error under appellate procedure rule 44.2(b). Bessey v. State, 239 S.W.3d 809, 813
(Tex. Crim. App. 2007). His due process complaint is reviewed as constitutional
error under appellate procedure rule 44.2(a). Davison v. State, 405 S.W.3d 682, 691
(Tex. Crim. App. 2013). Although appellant cites and discusses Boykin v. Alabama,
395 U.S. 238 (1969)—authority for his due process complaint—he requests review
only under rule 44.2(b) for non-constitutional error.
The State argues we need not consider the due process complaint because
appellant’s issue is multifarious. The State relies on two opinions not designated for
publication in which the courts declined to consider a due process claim combined
in a single issue with an article 26.13 claim.1 In the alternative, the State argues that
1
See Pender v. State, No. 02-13-00400-CR, 2014 WL 1859110, at *1 (Tex. App.—Fort Worth May 8,
2014, no pet.) (mem. op., not designated for publication) (single issue that conflated the two complaints
presented nothing for the court’s review regarding the Due Process Clause); Sherrill v. State, No. 06-05-
00159-CR, 2005 WL 3555581, at *3, n.3 (Tex. App.—Texarkana Dec. 30, 2005, no pet.) (mem. op. not
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neither complaint is ground for reversal. Although we agree with the State that
appellant’s issue is multifarious, we can discern “with reasonable certainty, the
alleged error about which the complaint is made.” See Thomas v. State, 615 S.W.3d
552, 566 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (internal quotation omitted)
(considering multifarious issue where error complained of was reasonably certain).
Under these circumstances, we may review appellant’s due process argument in the
interest of justice. See Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010)
(reviewing multifarious issue in the interest of justice). We do so, however, only
after considering appellant’s principal argument under article 26.13.
ADMONISHMENT OF PUNISHMENT RANGE
1. Article 26.13(a)(1)
Before a trial court may accept a plea of nolo contendere, it must admonish
the defendant of the range of punishment attached to the offense. TEX. CODE CRIM.
PROC. art. 26.13(a)(1). Substantial compliance with article 26.13(a) 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.”
TEX. CODE CRIM. PROC. art. 26.13(c).
designated for publication) (sole issue asserting violations of both article 26.13 and due process was
multifarious). More recently, the court in Williams v. State, No. 02-19-00484-CR, 2020 WL 6066198, at
*2 (Tex. App.—Fort Worth Oct. 15, 2020, no pet.) (mem. op., not designated for publication) followed its
analysis in Pender and reached the same conclusion.
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“A trial court’s failure to properly admonish a defendant is subject to the harm
analysis of Rule of Appellate Procedure 44.2(b): ‘Any other [than constitutional]
error, defect, irregularity, or variance that does not affect substantial rights must be
disregarded.’” Bessey, 239 S.W.3d at 813 (quoting rule 44.2(b)). “In applying Rule
44.2(b) to the failure to give an admonition, the court considers the record as a whole
to determine whether, in this particular case, the error affected substantial rights. If
it did, it is not harmless error.” Id. (citation omitted). “[T]o warrant reversal on direct
appeal, the record must support an inference that appellant did not know the
consequences of his plea.” Burnett v. State, 88 S.W.3d 633, 638 (Tex. Crim. App.
2002).
Neither party has a formal burden to show harmlessness under rule 44.2(b).
Id. “Rather, it is the appellate court’s duty to assess harm after a proper review of
the record.” Id. (internal quotation omitted). “‘Harm’ in this context means the
appellant probably would not have pleaded guilty but for the failure to admonish.”
Webb v. State, 156 S.W.3d 653, 656 (Tex. App.—Dallas 2005, pet. ref’d). If the
reviewing court has “grave doubt” about whether the error had “substantial
influence” on the outcome of the proceeding, then it “must treat the error as if it did.”
Id. at 655. “‘Grave doubt’ occurs when the matter is so evenly balanced that the
reviewing court believes the record is ‘in virtual equipoise as to the harmlessness of
the error.’” Id. at 655–56 (quoting Burnett, 88 S.W.3d at 637–38).
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In reviewing the record, the “critical question” is whether there is “a fair
assurance that the defendant’s decision to plead guilty would not have changed had
the court admonished him.” VanNortrick v. State, 227 S.W.3d 706, 709 (Tex. Crim.
App. 2007). In Bessey, the court considered “the strength of the evidence of guilt”
as well as the defendant’s awareness of the plea’s consequences. See Bessey, 239
S.W.3d at 813. In Burnett, the court concluded nothing in the record supported an
inference “that 1) appellant was unaware of the consequences of his plea; or 2) the
trial judge’s failure to admonish him misled appellant into pleading guilty because
he did not know the applicable range of punishment.” Burnett, 88 S.W.3d at 635;
see also Webb, 156 S.W.3d at 656 (appellate court must assess harm by
“independently examin[ing] the record for indications that appellant was or was not
aware of the consequences of his plea and whether he was misled or harmed by the
trial court’s failure to admonish”).
Our review of the record indicates that the evidence of appellant’s guilt was
strong. See Bessey, 239 S.W.3d at 813. Although initially a reluctant witness, Justin
testified at trial that he recognized and identified appellant from high school. Justin
and Nina both testified that appellant pointed a gun at Nina and actually shot and
injured Justin. The record also reflects that appellant recognized the strength of the
evidence. At the admonishment hearing the week before commencement of trial,
appellant’s trial counsel mentioned “some of the facts” of the case as the basis for
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discussion with appellant about a possible plea. Appellant, his attorney, and an
attorney for the State were present. Appellant was sworn and testified as follows:
DIRECT EXAMINATION
BY MR. QUEZADA [appellant’s attorney]:
Q Mr. Matthews, this is what we refer to as a
formal admonishment. I wanted to get a few things
on the record. You and I have discussed your
case quite a few times. Certainly within the
last couple of weeks, we have gone back and forth
in terms of negotiations as well as talk about
some of the facts and some of what you know and
what we can do to try to resolve this matter. I
gave you several options. One of which included
having an open plea. Another of which included
having some type of an agreed plea on all the
cases. I also discussed with you the possibility
of having a jury trial. And the possibility of
having what is referred to as a TBC or a trial
before the Court, where basically Judge White
will function as sort of the finder of fact and
finder of law. Basically he kind of functions as
jury for determination of the trial. You
understand all that?
A Yes, sir.
Q And I have also talked to you about the fact
that you do have two matters also, because you
were currently on probation as well, correct?
And we talked about kind of that would be
together with whatever we have pending in terms
of the new case, correct?
A Yes, sir.
Q And so after discussing all those different
options, how did you want to proceed in this
matter?
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A Still going to do what we had—what we talked
about.
Q So we are clear for the record.
A TBC.
Q That means you wish to waive your right to a
jury trial and go forward on a trial before the
Court; is that correct?
A Yes, sir.
Q Okay. And so you—and that’s something that I
have not forced you to do that or nobody else
has forced you to do that. Just after discussing
all the different options, that’s the one that
you elected me to attempt to pursue; is that
correct?
A Yes, sir.
MR. QUEZADA: Thank you, I pass the witness.
Although I did want to get the State’s last offer
in this case sort of on the record for my client
to accept or reject.
THE COURT: Very well. You may put the offer on
the record.
MS. AULBAUGH [State’s attorney]: My last offer,
Judge, was ten years TDC.
And I don’t have any questions for purposes of
this hearing. And I do also agree to waive jury
trial and proceed to a bench trial.
THE COURT: Very well.
MR. QUEZADA: Mr. Matthews, again for the record,
you have overheard the offer of ten years on
these cases, are you accepting or rejecting that
at this time?
THE DEFENDANT: Rejecting.
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We also conclude that the record reflects appellant’s awareness of the
consequences of his plea and does not reflect that appellant would have made a
different plea had he been properly admonished. See Burnett, 88 S.W.3d at 635;
Webb, 156 S.W.3d at 656. During the punishment phase of the trial, appellant’s
counsel argued that appellant chose the plea of “no contest” to expand the options
for possible sentencing:
We understand that the Court has lots of options available to it. One,
the reason we did begin this matter with a plea of no contest, so if the
Court did make a finding of guilt with regard to the cases that the Court
had before it, that we would leave the open possibility that he could be
placed on deferred supervision for these offenses.
The record also reflects that at the time of the aggravated assaults in October
2018, appellant was serving terms of community supervision pursuant to plea
bargain agreements for the second-degree felony of burglary of a habitation and a
state-jail theft. The State filed motions to adjudicate appellant’s guilt in those cases
that were heard in the same proceeding as the aggravated assaults that are at issue in
this appeal. Our record does not include the clerk’s and reporter’s records relating to
those offenses because appellant has not challenged the trial court’s revocation of
his community supervision in those cases. The record does reflect, however, that
appellant entered into plea agreements with the State for those offenses.2 As the State
2
The reporter’s record reflects that at the beginning of trial, the court read out the four cause numbers
and announced that all were “set for trial before the Court today.” The court noted that in two cases,
appellant was placed on community supervision and the State had filed a motion alleging violations of
specific terms and conditions of community supervision in each case. Appellant confirmed that he had
received a copy of the State’s motion in each case, and declined the court’s offer to read all the allegations
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argues, “[s]erving community supervision on a negotiated plea to a second degree
felony in a prior case reflects an awareness of the punishment range for a second-
degree felony.”
In sum, the record lacks evidence that appellant did not know the punishment
range, and there is some evidence that he did know. See Burnett, 88 S.W.3d at 639.
The quoted exchange reveals that appellant and his counsel had discussed
appellant’s options for pleas and for trial. Further, appellant had recently entered into
a plea bargain for another second-degree felony offense. Consequently, although the
trial court erred by failing to admonish appellant as required by article 26.13(a), after
reviewing the record as a whole, we do not have “grave doubt” about whether
appellant’s conviction “was free from the substantial influence of the error.” See
Webb, 156 S.W.3d at 656. We conclude there is “a fair assurance that the defendant’s
decision to plead guilty would not have changed had the court admonished him.”
See Loch v. State, 621 S.W.3d 279, 282 (Tex. Crim. App. 2021) (concluding that,
based on entire record, there was fair assurance appellant would not have changed
his plea if properly admonished). Under these circumstances, we conclude that
appellant’s substantial rights were not affected, see id., and we decide this portion
of appellant’s issue against him.
2. Due process
to him. Appellant then pleaded “not true” to the allegations. At the trial’s conclusion, the court granted the
State’s motions and sentenced appellant in all four cases.
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A violation of constitutional due process occurs when a trial court accepts a
guilty plea without an affirmative showing “spread on the record” that the guilty plea
was voluntary. Boykin, 395 U.S. at 242–43. The Court in Boykin did not define what
must be “spread on the record” to satisfy due process other than generally to require
that a guilty-pleading defendant have a “full understanding” of what his plea
connotes and its consequences. See Aguirre-Mata v. State, 125 S.W.3d 473, 475
(Tex. Crim. App. 2003). Under Boykin, specific admonishments such as those in
article 26.13(a) are not required. See id. As long as the record otherwise affirmatively
discloses that the defendant’s guilty plea was adequately informed, due process is
satisfied. See Davison, 405 S.W.3d at 687.
As we have discussed, appellant’s contention that his due process rights were
violated is different from his complaint under article 26.13. In Davison, the court
explained: “We have taken care in our case law to differentiate appellate claims
based upon a violation of the statutory admonishment requirement of Article 26.13
from appellate claims based upon due process—that a guilty plea was involuntary
because inadequately informed.” Davison, 405 S.W.3d at 691. The State responds
that even if this complaint is adequately briefed, appellant was not denied due
process by the trial court’s failure to admonish him of the applicable punishment
range.
We review this complaint under the standard of review for constitutional
error. See TEX. R. APP. P. 44.2(a) (standard of review for constitutional error in
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criminal cases); Davison, 405 S.W.3d at 691 (claim of constitutional error under
Boykin is governed by rule 44.2(a)). Under this standard, we must reverse the
judgment of conviction or punishment unless we determine beyond a reasonable
doubt that the error did not contribute to the conviction or punishment. TEX. R. APP.
P. 44.2(a).
Boykin requires that “the record must affirmatively disclose that a defendant
who pleaded guilty entered his plea understandingly and voluntarily.” Davison, 405
S.W.3d at 687 (internal quotation omitted). As the court in Davison explained,
So long as the record otherwise affirmatively discloses that the
defendant’s guilty plea was adequately informed, due process is
satisfied. For the appellant to prevail on his constitutional claim,
therefore, it is not enough that the record is unrevealing with respect to
whether he was admonished by the trial court; the record must also be
silent with respect to whether he was otherwise provided, or
nevertheless aware of, the requisite information to render his guilty plea
voluntary and intelligent.
Id. “Boykin clearly did not hold that due process requires the equivalent of the Article
26.13(a) admonishments or an admonishment on the range of punishment.” Id.
(internal quotation omitted).
Here, as we have discussed, the record as a whole reflects that appellant’s no-
contest pleas were made after discussing the options for trial with his counsel and
subsequent to his plea bargain on another second-degree felony offense. After
reviewing the entire record, we conclude appellant was aware of “the requisite
information to render his [no contest] plea voluntary and intelligent.” See id.
Consequently, we conclude beyond a reasonable doubt that the trial court’s error in
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failing to admonish appellant of the punishment range did not contribute to
appellant’s conviction or punishment. See TEX. R. APP. P. 44.2(a). We decide
appellant’s sole issue against him.
MODIFICATION OF JUDGMENTS
The parties agree that the judgments should be modified to show that appellant
did not enter into plea bargain agreements in each of these cases. When the record
provides the necessary information to correct inaccuracies in the trial court’s
judgment, we have the authority to reform the judgment to speak the truth. TEX. R.
APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993)
(courts of appeals have authority to modify a judgment); Estrada v. State, 334
S.W.3d 57, 63–64 (Tex. App.—Dallas 2009, no pet.) (same).
Accordingly, we modify the judgments in Cause No. F18-76633-M and Cause
No. F18-76635-M to reflect that appellant did not enter into a plea bargain agreement
in either case.
CONCLUSION
As modified, we affirm the trial court’s judgments.
200212f.u05 /Leslie Osborne//
LESLIE OSBORNE
200213f.u05 JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JAILEN LATRELL MATTHEWS, On Appeal from the 194th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F-1876635-M.
No. 05-20-00212-CR V. Opinion delivered by Justice
Osborne. Justices Pedersen, III and
THE STATE OF TEXAS, Appellee Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
To reflect that appellant did not enter into a plea bargain agreement.
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 30th day of August, 2021.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JAILEN LATRELL MATTHEWS, On Appeal from the 194th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F-1876633-M.
No. 05-20-00213-CR V. Opinion delivered by Justice
Osborne. Justices Pedersen, III and
THE STATE OF TEXAS, Appellee Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
To reflect that appellant did not enter into a plea bargain agreement.
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 30th day of August, 2021.
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