Fred Carroll Houston v. State ( 2011 )

Affirmed and Memorandum Opinion filed June 28, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-00893-CR

NO. 14-10-00894-CR

NO. 14-10-00895-CR

FRED CARROLL HOUSTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause Nos. 61,607, 61,608 & 61,609

MEMORANDUM OPINION

Appellant, Fred Carroll Houston, contends his convictions in the three underlying cause numbers are void because he did not enter “guilty” pleas.  We affirm.

I.   Background

            In cause number 58,844, appellant was charged with committing burglary.  Appellant pleaded guilty to this charge pursuant to a plea bargain and was sentenced to two years’ confinement, probated for four years.  During the term of his probation, appellant was charged with committing burglary on November 14, 2009 (cause number 61,609), January 21, 2010 (cause number 61,607), and January 30, 2010 (cause number 61,608).

In May 2010, the trial court conducted a hearing on cause numbers 61,607, 61,608 and 61,609 and on the State’s petition for revocation of probation in cause number 58,844.  During the hearing, the court asked appellant, “To the allegations and charges contained in Cause Nos. 61607, 61608 and 61609, how do you plead?”  Appellant responded, “True.”  The court then asked appellant whether he pleaded “true or not true” to the allegations in the State’s petition for revocation of probation.  Appellant replied “true” to each allegation.  Thereafter, the following exchange occurred:    

THE COURT: Is there a plea bargain agreement in either one of these cases?

. . .

[The Prosecutor]:  No, there is not.

THE COURT: Is that your understanding?

[Appellant]: Yes, sir.

THE COURT: Does that mean to you that I’m going to assess your punishment if I find you guilty?

[Appellant]: Yes, sir.

THE COURT: And you understand it’s pretty difficult not to find you guilty since you pled guilty and pled true to the violations of the probation?

[Appellant]: Yes, sir.

THE COURT: Fully understanding that I will be the one to assess punishment after a PSI investigation is conducted, do you still plead guilty? 

[Appellant]: Yes, sir.

THE COURT: And your pleas are true?

[Appellant]: Yes, sir.

(emphasis added).  The court found appellant guilty of the crimes alleged in cause numbers 61,607, 61,608, 61,609 and that he violated probation in cause number 58,844.  In “Defendant’s Affidavit of Admonitions, Waivers, Judicial Confession, Statements, Plea, Probation and Appeal – Felony Less than Capital,” admitted at the hearing, appellant (1) judicially confessed and stipulated to the facts in the indictments and (2) stated he pleaded guilty to the charges in cause numbers 61,607, 61,608, 61,609.

II.   Guilty Plea

            In his sole issue, appellant contends his convictions in cause numbers 61,607, 61,608, and 61,609 are void because he did not enter a “guilty” plea but stated “true” when asked for his plea.  Appellant argues that a “true” plea does not satisfy the requirements of article 27.13 of the Texas Code of Criminal Procedure and that such non-compliance violated his right to due process.  Tex. Code Crim. Proc. Ann. art. 27.13 (West 2006).  Assuming we may review this issue despite appellant’s failure to raise it in the trial court,[1] we conclude the trial court substantially complied with article 27.13.

            Article 27.13 provides that “[a] plea of ‘guilty’ . . . in a felony case must be made in open court by the defendant in person; and the proceedings shall be as provided in Articles 26.13, 26.14, and 27.02.  If the plea is before the judge alone, same may be made in the same manner as is provided for by Articles 1.13 and 1.15.”  Id. The intent of article 27.13 is “to establish that the accused voluntarily desires to plead guilty.” Matchett v. State, 941 S.W.2d 922, 930 (Tex. Crim. App. 1996).  The statute does not require an oral plea.  Costilla v. State, 146 S.W.3d 213, 217 (Tex. Crim. App. 2004).  We evaluate the particular facts of a case to determine whether the trial court complied with the law.  Id. When the facts point to a defendant’s voluntary desire to plead guilty, the trial court has complied with the statute.  Id.

            The facts described above demonstrate the following: (1) appellant clearly pleaded “true” to the charges in cause numbers 61,607, 61,608, and 61,609; (2) the trial court twice expressed that appellant was pleading guilty, and both times appellant replied “Yes, sir”; (3) appellant swore in an affidavit that the allegations were true and he was pleading guilty; and (4) the affidavit contained admonishments regarding the effects of appellant’s guilty plea.[2] Based on these particular facts, we conclude appellant knowingly and voluntarily pleaded guilty, and the trial court substantially complied with article 27.13. See Costilla v. State, 146 S.W.3d 213, 217 (Tex. Crim. App. 2004); see also Shields v. State, 608 S.W.2d 924, 927 (Tex. Crim. App. [Panel Op.] 1980); Manoy v. State, 7 S.W.3d 771, 778 (Tex. App.—Tyler 1999, no pet.); Adkison v. State, 762 S.W.2d 255, 259 (Tex. App.—Beaumont 1988, pet. ref’d).  Because of this substantial compliance, we hold the trial court did not violate appellant’s right to due process.  Appellant’s sole issue is overruled.

            We affirm the trial court’s judgment.

                                                                        /s/        Charles W. Seymore

                                                                                    Justice

Panel consists of Chief Justice Hedges, and Justices Seymore, and Boyce.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] The Court of Criminal Appeals has declined to address whether this issue may be raised for the first time on appeal.  See Costilla v. State, 146 S.W.3d 213, 216 (Tex. Crim. App. 2004).

[2] We acknowledge appellant’s reliance on White v. State, in which the Tyler Court of Appeals, after acknowledging the defendant did not enter a plea relative to a specific charge, held his written stipulation to the allegations was not sufficient to comply with article 27.13.  932 S.W.2d 593, 596–97 (Tex. App.—Tyler 1995, pet. ref’d).  However, this case differs because appellant actually pleaded “true” to the allegations in the pertinent cause numbers and twice agreed with the trial court that he was pleading guilty.  We consider the stipulations and plea in appellant’s affidavit solely as additional evidence that he intended to plead guilty.