Thyee McGruder v. State ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00093-CR
THYEE MCGRUDER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
TRIAL COURT NO. 1436227D
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MEMORANDUM OPINION 1
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Thyee McGruder entered an open guilty plea to theft of property valued at
less than $2,500 with two prior theft convictions, a state-jail felony further
enhanced by two prior state-jail felony convictions, which raised the punishment
range to a third-degree felony. See Tex. Penal Code Ann. §§ 12.425(a),
31.03(e)(4)(D) (West Supp. 2017). The trial court accepted McGruder’s guilty
1
See Tex. R. App. P. 47.4.
plea and assessed punishment at six years’ confinement. In one point, McGruder
complains that the trial court’s failure to properly admonish him of the correct
punishment range rendered his guilty plea unknowing and involuntary. We affirm.
Background
In November 2015, two Fort Worth police officers arrested McGruder for
shoplifting $236 in merchandise from a local Wal-Mart. 2 McGruder was later
indicted for theft of property valued at less than $2,500 with two prior theft
convictions, a state-jail felony. Id. § 31.03(e)(4)(D). In an enhancement
paragraph, the State also alleged two prior state-jail felony convictions, which
raised the punishment range to a third-degree felony. Id. § 12.425(a).
Some six months later, in an unrecorded proceeding, McGruder entered
an open guilty plea and requested a presentence investigation report.
McGruder’s written confession encompassed both the offense and the
enhancements. At that time, the trial court provided McGruder with plea
documents that mistakenly admonished him of the offense as a second-degree
felony with a punishment range of two to twenty years’ confinement and a fine
not to exceed $10,000, even though his punishment range equaled that of a
third-degree felony: two to ten years and a fine not to exceed $10,000. See Id.
§§ 12.33, 12.34 (West 2011).
2
A presentence investigation report reflected McGruder’s claims that he
stole the merchandise to sell it for cash to help his ailing mother.
2
At the sentencing hearing, this discrepancy caused some confusion,
leading to the following exchange:
THE COURT: All right. Mr. McGruder, based upon your plea of
guilty, the Court’s going to find that you are, in fact, guilty of this
offense of theft of property less than $2500 with two or more
convictions. Does the State intend to prove up the third degree
enhancements?
[PROSECUTOR]: He pled to that, Your Honor, on the plea
paperwork. It was checked.
THE COURT: Did he? He pled true to that?
[PROSECUTOR]: And that was a second degree I believe.
[DEFENSE COUNSEL]: Third degree.
[PROSECUTOR]: It was a third? Okay.
THE COURT: Well, actually it states here [on the indictment itself] 3
that it’s a third degree felony, state jail enhanced to a third degree.
[PROSECUTOR]: Okay.
THE COURT: Even though y’all wrote it up as a second degree [in
the plea paperwork]. I don’t know why you did that.
[PROSECUTOR]: The indictment, Your Honor, I believe says
second degree, but let me double check that before. I don’t want to
misrepresent the Court.
THE COURT: [Defense Counsel], what’s your thoughts?
[DEFENSE COUNSEL]: My thought is that I know that’s the -- we
had an agreement to plead for a third degree so...
THE COURT: Okay. I mean, that’s what the indictment states here,
[Prosecutor], unless you see something different.
3
The enhancement paragraph explicitly states, “STATE JAIL FELONY
ENHANCEMENT – 3RD DEGREE FELONY NOTICE: . . . .”
3
[PROSECUTOR]: You’re right, Your Honor, it says third degree.
The trial court then proceeded to sentence McGruder without re-admonishing or
questioning him about his understanding of the corrected punishment range:
THE COURT: All right. Okay. Real good. All right. Anything further
from either side?
[PROSECUTOR]: Nothing further from the State, Your Honor.
[DEFENSE COUNSEL]: No, Your Honor
THE COURT: All right. Mr. McGruder, the Court’s going to -- having
found that you are, in fact, guilty, assess your punishment at six
years in the Institutional Division of the Texas Department of
Criminal Justice. Any legal reason I shouldn’t sentence him?
[DEFENSE COUNSEL]: No, Your Honor.
At no point during the sentencing hearing, or even in his motion for new trial, did
McGruder raise an objection to the court’s failure to properly admonish him of the
correct punishment range. 4
Discussion
In his sole point, McGruder argues that the trial court’s failure to properly
admonish him of the correct punishment range rendered his decision to enter a
guilty plea unknowing and involuntary. McGruder insinuates that if the initial
written admonishments had not misstated the punishment range, he might have
pursued a jury trial.
4
“[A] court’s failure to properly admonish a defendant cannot be forfeited
and may be raised for the first time on appeal unless it is expressly waived.”
Bessey v. State, 239 S.W.3d 809, 812 (Tex. Crim. App. 2007).
4
Under Texas Code of Criminal Procedure article 26.13, a trial court must
admonish a defendant of the punishment range attached to the offense before
accepting the defendant’s guilty plea. Tex. Code Crim. Proc. Ann.
art. 26.13 (West Supp. 2017). The purpose of article 26.13 is to ensure that only
constitutionally valid pleas—that is, those that are knowing and voluntary—are
entered by defendants and accepted by trial courts. Meyers v. State, 623 S.W.2d
397, 402–03 (Tex. Crim. App. [Panel Op.] 1981) (citing Brady v. United States,
397 U.S. 742, 90 S. Ct. 1463 (1970)). An admonishment that substantially
complies with article 26.13 is sufficient and establishes a prima facie case that
the defendant’s plea was knowing and voluntary. See Tex. Code Crim. Proc.
Ann. art. 26.13(c); Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App.
1998).
When the record reflects that the trial court incorrectly admonished a
defendant regarding the punishment range but in fact assessed punishment
within the actual and misstated ranges, substantial compliance with article
26.13 is attained. Martinez, 981 S.W.2d at 197; Lemmons v. State, 133 S.W.3d
751, 757 (Tex. App.––Fort Worth 2004, pet. ref’d). The burden then shifts to the
defendant to affirmatively show that he was not aware of the consequences of
his plea and that he was misled or harmed, such that the plea was rendered
involuntary. See Martinez, 981 S.W.2d at 197 (interpreting Tex. Code Crim. Proc.
Ann. art. 26.13(c)); Lemmons, 133 S.W.3d at 751. In other words, once
substantial compliance is shown, “[a] defendant may still raise the claim that his
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plea was not voluntary; however, the burden shifts to the defendant to
demonstrate that he did not fully understand the consequences of his plea such
that he suffered harm.” Martinez, 981 S.W.2d at 197.
We hold that the trial court substantially complied with article 26.13(a)(1)
because it assessed McGruder’s punishment within the actual and misstated
ranges. 5 See Martinez, 981 S.W.2d at 197. Thus the issue now becomes
whether McGruder has affirmatively shown that despite the trial court’s
substantial compliance, he was not aware of the consequences of his plea as it
related to the correct punishment range for his offense and was misled or
harmed by the court’s admonishment. See Tex. Code Crim. Proc. Ann. art.
26.13(c); Lemmons, 133 S.W.3d at 759.
In reviewing the voluntariness of a guilty plea, we must examine the record
as a whole. Martinez, 981 S.W.2d at 197. An “affirmative” showing requires more
than a defendant’s unsupported, subjective assertion that he did not know the
punishment range for his offense, that he would not have entered the plea in
question had he been correctly admonished, or that he was misled or harmed by
the trial court’s admonishment. See Ex parte Gibauitch, 688 S.W.2d 868,
872 (Tex. Crim. App. 1985); Lemmons, 133 S.W.3d at 759. We have previously
held that when the consequence at issue is the applicable punishment range, the
5
The actual range for this offense was two to ten years. See Tex. Penal
Code Ann. § 12.34. The misstated range included in the written admonishments
was two to twenty years. McGruder’s six-year sentence is within both ranges.
6
defendant must show—by evidence grounded in the record—both his lack of
knowledge or understanding about the punishment range for his offense and,
objectively, the manner in which he was misled or harmed. Lemmons,
133 S.W.3d at 759 (citing Grays v. State, 888 S.W.2d 876, 878–79 (Tex. App.––
Dallas 1994, no pet.)).
Under similar facts in Lemmons, this court noted that even given an
incorrect admonishment, a defendant may otherwise know or understand the
correct punishment range before the trial court accepts his plea. Id. at 759.
There, the trial court initially admonished Lemmons using an enhanced
punishment range that the State later waived, effectively reducing the minimum
punishment by ten years. Id. at 757–58. Lemmons later complained that his guilty
plea was not voluntary because at the time he entered his plea, he did not know
that the actual punishment range was only five-years-to-life imprisonment, as
opposed to the fifteen-to-life range initially included in the trial court’s
admonishment. Id. at 757. Lemmons contended that had he known this fact, he
would have taken his chances with a jury. Id. As evidenced in the reporter’s
record, however, Lemmons acknowledged the lesser punishment range before
the trial court accepted his open plea. Id. at 758. Lemmons thus failed to
affirmatively show that he was unaware of the consequences of his plea and that
he was misled or harmed by the trial court’s admonishment. Id.
McGruder argues that his plea was involuntary because it was predicated
on the untruths and falsities contained in the initial admonishment, which
7
misstated the applicable punishment range. But he does not point to any specific
evidence demonstrating that he was unaware of the consequences of his plea
and that he was misled or harmed by the trial court’s admonishment. To the
contrary, the reporter’s record indicates that McGruder already knew the correct
punishment range because, during the sentencing hearing, his attorney quickly
pointed out the prosecutor’s misstatement regarding the applicable punishment
range as a second-degree felony. And during that exchange, McGruder’s
attorney indicated that McGruder “had an agreement to plead for a third degree”
felony, further suggesting that McGruder understood the consequence of
pleading guilty to a third-degree felony before the trial court accepted his guilty
plea.
McGruder cannot make the affirmative showing necessary under article
26.13 to rebut the prima facie showing that his guilty plea was knowing and
voluntary by relying solely on the fact that the trial court’s admonishment
misstated the punishment range. See Grays, 888 S.W.2d at 878. The record
indicates that McGruder was in fact aware of the correct range and understood
the consequences of his plea before it was accepted. Lemmons, 133 S.W.3d at
758. Furthermore, McGruder provides no concrete evidence of harm beyond his
subjective assertion that he might not have entered the plea. See Gibauitch,
688 S.W.2d at 872. Accordingly, we conclude that McGruder knowingly and
voluntarily pleaded guilty and that the trial court did not err in accepting
McGruder’s open guilty plea. Lemmons, 133 S.W.3d at 759.
8
We overule McGruder’s sole point and affirm the trial court’s judgment.
/s/ Elizabeth Kerr
ELIZABETH KERR
JUSTICE
PANEL: WALKER, MEIER, and KERR, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 3, 2018
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