Adam Anthony Gomez v. State ( 2021 )

Affirmed and Memorandum Opinion filed February 23, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00173-CR
ADAM ANTHONY GOMEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Cause No. 17CR2125
MEMORANDUM OPINION
Appellant, Adam Anthony Gomez, pled guilty to the offense of assault on a
public servant. Six enhancement allegations were found true and the trial court
sentenced appellant to prison for twenty-five years. Appellant timely brought this
appeal, raising two issues. We affirm.
ISSUES
In his first issue, appellant contends his plea was not made knowingly and
intelligently and the trial court violated his right to due process by accepting it.
Appellant’s second issue claims the trial court erred by failing to admonish
appellant pursuant to article 26.13 of the Texas Code of Criminal Procedure
concerning the range of punishment. See Tex. Code Crim. Proc. Art. 26.13(a)(1).
FACTUAL AND PROCEDURAL BACKGROUND
The record reflects that during voir dire, with appellant present, the trial
court informed the jury panel that the range of punishment for assault of a public
servant was imprisonment for two to ten years and a fine up to $10,000. The trial
court also informed the jury that the range of punishment with two prior
convictions was imprisonment for twenty-five or life. The State informed the jury
panel that the range of punishment for the offense was two to ten years, and a
$10,000 fine, and that if there were two priors that resulted in confinement in the
Institutional Division of the Texas Department of Criminal Justice, the range
would be twenty-five to ninety-nine years or life. Defense counsel also informed
the panel that the range of punishment was two to ten years and that appellant was
“facing 25 to life, minimum 25 to life.” A jury was seated.
The next day, appellant elected to change his plea to guilty and have
punishment assessed by the court. The following exchange occurred:
THE COURT: All right. We are back on the record outside the presence of
the jury. I understand that an agreement has been reached?
[DEFENSE COUNSEL]: Well, Judge, my client has elected to change his
plea from the arraignment from not guilty to guilty, Judge, and ask that a
Presentence Investigation Report be completed. And then, of course, have
punishment assessed by the Court.
...
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THE COURT: And for the record, Mr. Gomez, you do agree to this?
THE DEFENDANT: Yes, sir.
THE COURT: And you’re doing so voluntarily and freely?
THE DEFENDANT: Yes, sir.
THE COURT: Okay.
The record contains no written admonishments. The judgment recites that
“[it] appeared to the Court that [sic] was mentally competent to stand trial, made
the plea freely and voluntarily, and was aware of the consequences of the plea.”
Appellant filed two pro se motions: to appeal and for court-appointed appellate
counsel. Neither motion claimed the plea was involuntary. Appellate counsel
timely filed a motion for new trial; it did not challenge the voluntariness of
appellant’s plea.
During the punishment phase, Jeffrie Hoskins, a former correctional officer
with the Texas Department of Criminal Justice, testified that he and Sergeant
Applebee transported appellant in a hospital bed to another room. When Hoskins
turned his back to appellant to walk out of the room, appellant threw a cup of hot
coffee at him. The coffee hit Hoskins in the back of his head, neck and back.
Hoskins testified the coffee scalded him immediately and ran down his neck and
back. Photographs of the burns on the back of Hoskins’ ears and neck were
admitted into evidence. Hoskins’ scalp peeled from the burn. He received medical
treatment from the burn unit and missed work for almost a week. According to
Hoskins, it took at least a month to heal and on a scale of one to ten, the pain was a
four or five.
Chris Segielski, a Lieutenant in the Investigation’s Division of the Texas
Department of Criminal Justice Office of the Inspector General, testified to an
assault by appellant on Officer James Motte, a few days later. Repeated blows
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from the defendant caused severe swelling of Motte’s hand. Segielksi knew Motte
was advised “something about torn ligaments.” It was Segielski’s understanding
that Motte’s hand was still disabled, in some way, from the assault. Motte’s
medical records were admitted into evidence. The records reflected Motte
sustained a right hand/wrist injury in consistent with a TFCC1 tear and was in a
cast for seven weeks. The assault occurred in March 2016. In December 2016,
Motte sought medical treatment for chronic regional pain. As of June 2017, Motte
was still unable to return to work. Segielski testified that appellant admitted to
throwing coffee on Hoskins to Investigator Patricia Harrison.
Four of appellant’s family members and appellant testified on his behalf.
Appellant is bipolar and has schizoaffective disorder. According to appellant, he
was not receiving his medication prior to the two incidents. Appellant was back on
his medication at the time of trial.
Amanda Hall, a forensic investigator with the Galveston County Sheriff’s
Office, Forensic Services Unit, compared appellant’s fingerprints to multiple pen
packets and judgments. The trial court found six enhancement allegations “true.”
The State asked for a sentence of fifty years. The trial court sentenced
appellant to the minimum of twenty-five years.
ANALYSIS
Appellant first contends the trial court’s question if his plea was made
“voluntarily and freely” failed to satisfy his right to due process. Appellant argues
the trial court was required to ascertain that his plea was made “knowingly and
intelligently” and that he understood the consequences of pleading guilty.
1
TFCC stands for triangular fibrocartilage complex.
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It is a due process violation for a trial court to accept a guilty plea without an
affirmative showing on the record that the guilty plea was intelligently and
knowingly made. Fuller v. State, 253 S.W.3d 220, 229 (Tex. Crim. App. 2008).
The record must “affirmatively disclose that a defendant who pleaded guilty
entered his plea understandingly and voluntarily.” Id. (quoting Brady v. United
States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970)).
The admonishments embodied in article 26.13(a) are not constitutionally
required because their purpose and function are to assist the trial court in
determining that a guilty plea is knowingly and voluntarily entered. Id.; Tex. Code
Crim. Proc. art. 26.13(a). Thus, a claim that the guilty plea was accepted in
violation of due process is separate from a claim that the trial court failed to follow
article 26.13. See Davison v. State, 405 S.W.3d 682, 687 (Tex. Crim. App. 2013).
Appellant’s constitutional claim, unlike his statutory claim, was subject to
procedural default and was forfeited by his failure to raise it in the trial court. See
Smith v. State, 463 S.W.3d 890, 895 (Tex. Crim. App. 2015). Accordingly, we do
not address it.
Construing appellant’s brief liberally, he also argues a statutory claim based
on article 26.13(b). See Tex. Code Crim. Proc. art. 26.13(b). Although Article
26.13(b) provides a court may not accept a guilty plea “unless it appears that the
defendant is mentally competent and the plea is free and voluntary,” it is not
necessary for the trial court to specifically ask a defendant whether his plea is
being entered freely and voluntarily, as the court did here. Tex. Code Crim. Proc.
art. 26.13(b); Manoy v. State, 7 S.W.3d 771, 777 (Tex. App.—Tyler 1999, no pet.);
see also Singleton v. State, 986 S.W.2d 645, 652 (Tex. App.—El Paso 1998, pet.
ref’d); Rachuig v. State, 972 S.W.2d 170, 176 (Tex. App.—Waco 1998, pet. ref'd).
Appellant did not argue in the trial court that he was mentally incompetent at the
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time of the entry of his guilty plea. Unless an issue is made of a defendant’s mental
competency at the time of the plea, the trial court need not inquire into or hear
evidence on that issue, and it is not error to accept appellant’s guilty plea. Kuyava
v. State, 538 S.W.2d 627, 628 (Tex. Crim. App.1976); Sims v. State, 783 S.W.2d
786, 788 (Tex. App.—Houston [1st Dist.] 1990, no pet.); see also Godoy v. State,
122 S.W.3d 315, 320 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The record
reflects appellant’s mental health was only raised as it related to the two incidents
of assaults and as a reason to mitigate punishment, and not in regards to his
competency to enter a plea. Issue one is overruled.
In his second issue, appellant contends he received no admonishment from
the trial court on the range of punishment “and the record does not show that he
was otherwise aware of the range of punishment he faced.” Although the State
agrees the trial court failed to admonish appellant under article 26.13, the State
asserts there was substantial compliance, and any error was harmless. See Tex.
Code Crim. Proc. Art. 26.13(a)(1); Tex. R. App. P. 44.2(b).
Article 26.13 requires a trial court to give certain admonishments, including
the punishment range attached to the offense, before accepting a guilty plea. See
Tex. Code Crim. Proc. art. 26.13(a)(1). Except for deportation consequences, the
court may admonish the defendant orally or in writing. See id., art. 26.13(d).
Substantial compliance with article 26.13 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. Id. art. 26.13(c). A total failure to give a required
admonishment is not substantially compliant and is, therefore, error; it is, however,
non-constitutional error and subject to a harmless-error analysis. Tex. R. App. P.
44.2(b); Bessey v. State, 239 S.W.3d 809, 813 (Tex. Crim. App. 2007); Aguirre–
Mata v. State, 125 S.W.3d 473, 473, 475–76 (Tex. Crim. App. 2003); High v.
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State, 964 S.W.2d 637, 638 (Tex. Crim. App. 1998). “[T]o warrant a 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). A silent record would support such an inference. Id.
We must determine independently whether the trial court’s failure to
admonish appellant about the punishment range affected his decision to plead
guilty and, thus, affected his substantial rights. See id. at 639. In doing so, we
consider the entire record, including the strength of the evidence of guilt and
whether appellant was aware of the punishment range. See Bessey, 239 S.W.3d at
813. Neither appellant nor the State bear any burden of proof on this issue. See
VanNortrick v. State, 227 S.W.3d 706, 709 (Tex. Crim. App. 2007).2
The evidence of guilt was uncontroverted. As noted above, the record
reflects appellant was present when the punishment range was explained. At no
time, did appellant or his attorney object or attempt to withdraw his guilty plea
based on the range of punishment. Appellant’s motion for new trial did not claim
appellant’s plea was not knowing or voluntary. The record, therefore, does not
support an inference that appellant was unaware of the applicable punishment
range to which he was subject.
After considering the record, we determine that no substantial right was
affected by the trial court’s error in failing to admonish appellant on the range of
punishment. By the standard of Rule of Appellate Procedure 44.2(b), the error was
harmless. See Tex. R. App. P. 44.2(b). Issue two is overruled.
2
We note that a complaint of admonishment error need not be preserved in the trial court.
See Bessey, 239 S.W.3d at 813.
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CONCLUSION
Having overruled both of appellant’s issues, we affirm the trial court’s
judgment.
/s/ Ken Wise
Justice
Panel consists of Chief Justice Christopher and Justices Wise and Zimmerer.
Do Not Publish — Tex. R. App. P. 47.2(b).
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