Robert Thomas v. State ( 2010 )

NUMBER 13-10-00104-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ROBERT THOMAS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 28th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Rodriguez
Appellant Robert Thomas challenges the revocation of his community supervision,
which he was serving for his conviction for family violence assault. See TEX. PENAL
CODE ANN. § 22.01(a)(1), (b)(2) (Vernon Supp. 2010). By one issue, Thomas argues
that his due process rights were violated because he was not properly admonished of his
rights at his revocation hearing. See U.S. CONST. amends. V, VI, XIV. We affirm.
I. BACKGROUND
Thomas was indicted for family violence assault, a third-degree felony, to which he
pleaded guilty. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2). The trial court
sentenced Thomas to five years' incarceration but suspended the sentence and placed
him on community supervision for a term of three years.
Approximately eight months later, the State moved to revoke Thomas's community
supervision. Thomas pleaded true to all the violations of his community supervision
alleged by the State. The trial court then found that Thomas committed the alleged
violations, revoked his community supervision, and sentenced him to three years'
incarceration in the Institutional Division of the Texas Department of Criminal Justice.
This appeal followed.
II. DISCUSSION
By his sole issue, Thomas argues that the trial court violated his due process rights
at his revocation hearing by not properly admonishing him of his rights to confront and
cross-examine witnesses, to produce witnesses and documentary evidence on his
behalf, to be free from self-incrimination, and to testify on his own behalf. We review a
trial court's order revoking community supervision for abuse of discretion. Rickels v.
State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006).
Thomas signed the trial court's written admonishments to him, acknowledging by
his signature that he "carefully" read and "fully underst[ood]" the admonishments. The
admonishments provided, in relevant part, as follows:
You have the right to plead not true and to have a hearing, without a
jury, by the Court. The State must prove any one or more of the alleged
violations by a preponderance of the evidence. You also have the right to
remain silent, to require the State to bring witnesses into Court to testify
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against you, to confront and cross-examine the witnesses through your
attorney, and to present evidence in your defense. These are your
constitutional rights that you would be waiving or giving up by pleading true
and by agreeing to be tried upon stipulated testimony.
Thomas also placed his initials by the following specific paragraph:
Waiver of Confrontation of Witnesses: I understand that I have
the right to the appearance, confrontation and cross-examination of
witnesses in this cause. I hereby waive my right to the appearance,
confrontation, and cross-examination of the witnesses against me. I agree
that the testimony of the witnesses may be read into the record by the
State's attorney; that such testimony would be the same as if the witnesses
were present in Court and were testifying under oath; and that any
testimony or evidence may be introduced by affidavit, written statements of
witnesses, and any other documents offered by the State.
Thomas's acknowledgments are followed by a certificate signed by his trial counsel,
stating that counsel read and explained the trial court's written admonishment to Thomas,
that Thomas was fully aware of consequences of his plea, and that Thomas understood
the admonishments given to him by the court in writing.
At his revocation hearing, Thomas then answered the following questions by the
trial court:
[Court]: You had a chance to discuss this revocation hearing pending
before the court with your attorney?
[Thomas]: Yes, Your Honor.
[Court]: Have you reviewed the admonishments given to you by the
court?
[Thomas]: Yes, Your Honor.
[Court]: You understand what this document says?
[Thomas]: Yes.
[Court]: Those are your initials and your signature on the document?
[Thomas]: Yes.
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....
[Court]: Mr. Thomas, to the allegations in the motion to revoke, do you
plead true or not true?
[Thomas]: True, Your Honor.
[Court]: True to all of the allegations?
[Thomas]: Yes, ma'am.
[Court]: Are you pleading true to them because they are true?
[Thomas]: Yes, ma'am.
[Court]: You are doing that voluntarily?
[Thomas]: Yes, ma'am.
[Court]: No one is threatening you or forcing you or making you plea
true in any way?
[Thomas]: No.
[Court]: You understand by pleading true, the State does not have to
present evidence of these allegations?
[Thomas]: Yes, ma'am.
Thomas seems to assert that he only waived his right to confront and
cross-examine witnesses—i.e., the rights enumerated in the admonishments paragraph
by which Thomas placed his initials. Thomas also asserts that, by its "single perfunctory
question" asking Thomas if he understood his rights, the trial court did not explain
Thomas's rights to him. For these reasons, Thomas argues his waiver of rights was not
voluntary and knowing. We disagree.
The statute governing community supervision does not refer to article 26.13 of the
code of criminal procedure, which is the provision that requires certain admonishments by
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the trial court before a defendant can plead guilty. See TEX. CODE CRIM. PROC. ANN. art.
42.12 (Vernon Supp. 2010) (community supervision statute); see also id. art. 26.13
(Vernon Supp. 2010) (admonishments required in guilty plea proceedings). Thus, the
admonishments required by article 26.13 do not apply in revocation proceedings. Harris
v. State, 505 S.W.2d 576, 578 (Tex. Crim. App. 1974); Lindsey v. State, 902 S.W.2d 9, 12
(Tex. App.–Corpus Christi 1995, no pet.). The allegedly-absent admonishments
Thomas complains of on appeal, therefore, were not guaranteed to him in his revocation
hearing.
Regardless, the record here does not demonstrate that Thomas did not
understand his plea of true or that his plea was otherwise involuntary. In fact, Thomas
acknowledged by his signature on the trial court's written admonishments that he was
waiving each right about which he complains on appeal, including his "right[s] to remain
silent, to require the State to bring witnesses into Court to testify against [him], to confront
and cross-examine the witnesses through [his] attorney, and to present evidence in [his]
defense." Thomas then confirmed his understanding and waiver of those rights in open
court during his revocation hearing.
We are not persuaded by Thomas's contention on appeal that his initialing of the
one paragraph regarding confronting and cross-examining witnesses means he
voluntarily waived only that right. Rather, we will not disregard (1) Thomas's clear
acknowledgments on the trial court's written admonishments that he had read and
understood the waiver of his rights, (2) Thomas's oral statements at his revocation
hearing confirming that understanding, and (3) Thomas's counsel's written assurances
that Thomas understood the consequences of his true plea, all of which appear plainly in
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the record before us. See Lindsey, 902 S.W.2d at 12-13 (holding that appellant's plea of
true was voluntary where he was admonished in writing by the trial court in a manner
almost identical to this case); see also Rice v. State, No. 13-01-00276-CR, 2005 WL
2559941, at *2 (Tex. App.–Corpus Christi Oct. 13, 2005, no pet.) (mem. op., not
designated for publication) (finding appellant's plea of true voluntary where he read and
signed written admonishments regarding the charges against him and the consequences
of his pleas of true and was given oral admonishments in court by the judge). We
conclude that Thomas's plea of true was knowing and voluntary, that his due process
rights were therefore not violated, and that the trial court did not abuse its discretion in
revoking his community supervision. Thomas's sole issue is overruled.
III. CONCLUSION
The judgment of the trial court revoking Thomas's community supervision is
affirmed.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 21st
day of December, 2010.
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