In Boykin v. Alabama, 395 U.S. 238, 243 (1969) the United States Supreme Court held that due process requires an adequate record illustrating that a defendant's guilty plea was "intelligent and voluntary." The Court further held that the record must show that a defendant who pleads guilty "has a full understanding of what the plea connotes and of its consequences." Id. Here appellant was sentenced to ninety-nine years confinement. Is there a more direct consequence of a plea than incarceration? How can a guilty plea be knowing or voluntary if a defendant is not informed of the possible range of punishment?
Here, appellant plead guilty to the offense of possession of a controlled substance with intent to deliver. Appellant speaks mostly Spanish, and the record reflects that an interpreter was sworn. A jury sentenced him to the statutory maximum of ninety-nine years confinement and a $250,000 fine. Appellant appealed, claiming that his guilty plea was involuntary because of the trial court's complete failure to admonish him of the possible punishment range. The First Court of Appeals reversed and remanded, holding that, because the trial court's failure to admonish appellant of the sentencing range was constitutional error, a reversal was required under Texas Rule of Appellate Procedure 44.2(a). (1) Aguirre-Mata v. State, 962 S.W.2d 264, 266-67 (Tex. App.-Houston [1st Dist.] 1998), citing Whitten v. State, 587 S.W.2d 156, 158 (Tex. Crim. App. 1979); Boykin v. Alabama, 395 U.S. 238 (1969). The court of appeals held that there was no affirmative showing that appellant had full knowledge of the range of punishment and that nothing in the record proved beyond a reasonable doubt that the error was harmless. Aguirre-Mata, 962 S.W.2d at 267.
The state filed a petition for discretionary review asking this Court to determine whether the court of appeals erred in holding that the trial court's failure to admonish under Texas Code of Criminal Procedure art. 26.13(a)(1) (2) violated appellant's federal due process rights and is therefore constitutional error, requiring review under Rule 44.2(a), or whether it was "other error," requiring review under Rule 44.2(b). We granted review of the state's petition and reversed the holding of the First Court of Appeals. Aguirre-Mata v. State, 992 S.W.2d 495 (Tex. Crim. App. 1999). Specifically, we held that because the trial court violated the Tex. Code of Crim. Proc., art. 26.13(a)(1), the violation was statutory and not constitutional and, therefore, required a harm analysis pursuant to Rule 44.2(b). Aguirre-Mata, 992 S.W.2d at 499.
On remand, the First Court of Appeals, after expressing strong disagreement with our holding requiring a harm analysis under Rule 44.2(b), found that nothing in the record showed that appellant was harmed by the trial court's error and upheld the conviction. Aguirre-Mata v. State, 26 S.W.3d 922, 925 (Tex. App.-Houston [1st Dist.] 2000). Appellant then filed a petition for discretionary review, asserting that the First Court of Appeals committed constitutional error when it held that the complete failure of the trial court to admonish appellant of the possible sentencing range was statutory error and, therefore, subject to a harm analysis under Rule 44.2(b).
This Court's rulings on a trial court's failure to comply with art. 26.13(a) are confusing at best. Beginning as early as the 1960's, this Court held that the failure to properly admonish a defendant of the consequences of his guilty plea by failing to advise him of the sentencing range was ground for automatic reversal without regard to harm. See e.g. Weekley v. State, 594 S.W.2d 96 (Tex. Crim. App. 1980); Ex parte McAtee, 599 S.W.2d 335 (Tex. Crim. App. 1980); Whitten v. State, 587 S.W.2d 156 (Tex. Crim. App. 1979); Fuller v. State, 576 S.W.2d 856 (Tex. Crim. App. 1979); Stewart v. State, 580 S.W.2d 594 (Tex. Crim. App. 1979); McDade v. State, 562 S.W.2d 487 (Tex. Crim. App. 1978); Wright v. State, 499 S.W.2d 326 (Tex. Crim. App. 1973); Williams v. State, 415 S.W.2d 917 (Tex. Crim. App. 1967). The rationale behind these holdings was to insure that a defendant entered a plea with full knowledge of its consequences, as required by the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238 (1969). See also, Whitten v. State, 587 S.W.2d 156, 158 (Tex. Crim. App. 1979).
This rule of automatic reversal without regard to harm was first revised in 1975 when the Legislature amended art. 26.13 to provide that substantial compliance in admonishing a defendant was sufficient. Tex. Code Crim. Proc. Ann. § 26.13(c) (1975). (3) During the same year, this Court held that a failure to fully comply with art. 26.13(a)(1) would not constitute reversible error absent a showing of injury or prejudice to the defendant. Guster v. State, 522 S.W.2d 494 (Tex. Crim. App. 1975). We said that when the trial court gave an admonishment that did not fully comply with the terms of art. 26.13(a)(1), a defendant is required to show harm. Guster, 522 S.W.2d at 495.
This change caused some confusion, (4) and in Ex parte McAtee, 599 S.W.2d 335 (Tex. Crim. App. 1980), and Weekley v. State, 594 S.W.2d 96 (Tex. Crim. App. 1980), we attempted to clarify the issue. In Weekley, this Court held that, even given the 1975 amendment of art. 26.13 which allowed for substantial compliance, the complete failure to admonish an accused as to the range of punishment constitutes reversible error without resort to consideration of harm. Weekley, 594 S.W.2d at 97. In McAtee, we held that, when the trial court wholly fails to admonish a defendant of the range of punishment, substantial compliance analysis does not apply and automatic reversal is required without regard to harm. McAtee, 599 S.W.2d at 336.
Despite some tumult, these holdings were entirely consistent with the requirements of the United States Constitution. In Boykin v. Alabama, 395 U.S. 238 (1969), the United States Court concluded that "[i]t was error, plain and on the face of the record, for the trial judge to accept [a] guilty plea without an affirmative showing that [the plea] was intelligent and voluntary." Boykin, 395 U.S. at 242. The Boykin Court stated that "[s]everal federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination . . .. Second, is the right to trial by jury. . .. Third, is the right to confront one's accusers. We cannot presume a waiver of these three important federal rights from a silent record." Id. at 243 (citations omitted). The Court then noted that there is reversible error where the record does not show that the defendant had "a full understanding of what the plea connotes and of its consequence." Id. at 244. Finally, the Supreme Court indicated that, if a conviction was based on a plea of guilty, the record must show that the defendant understood, among other things, the permissible range of sentences that are applicable to the charge he faces.
A majority of criminal convictions are obtained after a plea of guilty, If these convictions are to be insulated from attack, the trial court is best advised to conduct an on the record examination of the defendant which should include, inter alia, . . . the permissible range of punishment.
Id. at 244 n. 7.
In our pre-Cain cases regarding a trial court's failure to follow art. 26.13(a)(1), where the record contained no admonishment as to punishment range, we required automatic reversal as mandated by Boykin, but where there was some evidence that the trial court admonished the defendant, but simply fell short of the statutory requirements, we required only substantial compliance with art. 26.13(a)(1), as permitted by art. 26.13(c). We held that evidence, in the record, of substantial compliance by the trial court with art. 26.13(a)(1) constitutes a prima facie showing of a knowing and voluntary plea of guilty. Eatmon v. State, 768 S.W.2d 310, 312 (Tex. Crim. App. 1989), citing Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985); Robinson v. State, 739 S.W.2d 795 (Tex. Crim. App. 1987). The burden then shifts to the defendant to show that he entered the plea without understanding the consequences of his action and was thereby harmed. Eatmon, 768 S.W.2d at 312.
The turning point came in 1997 when this court decided Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). Cain raised the issue of a trial court's failure to admonish a defendant about the deportation consequences of a guilty plea, as required by art. 26.13(a)(4). Here, we recognized that substantial compliance had sometimes been used as a rough replacement for a harmless error analysis, when that was really not its purpose. Cain, 947 S.W.2d at 264. We then went on to cite Matchett v. State, 941 S.W.2d 922 (Tex. Crim. App. 1996), in which a plurality of this Court held that all errors, including a failure to admonish under art. 26.13(a)(4), are subject to a harmless error analysis. Id. The majority in Cain took Matchett's holding regarding art. 26.13(a)(4) and expanded it to hold that "except for certain federal constitutional errors labeled by the United States Supreme Court as 'structural,' no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis." Id.
Using Cain as authority, we began to hold for the first time that a complete failure to comply with art. 26.13(a)(1) was subject to a harm analysis. In 1998, we held that the First Court of Appeals erred by holding that the complete failure to admonish a defendant under art. 26.13(a)(1) is automatic reversible error, without regard to harm. High v. State, 964 S.W.2d 637, 638 (Tex. Crim. App. 1998). After High, we decided Carranza v. State, 980 S.W.2d 653 (Tex. Crim. App. 1998). Here, in an effort to reconcile all of our previous case law and to create a workable test, we analyzed sections (1)-(5) of art. 26.13(a) as a whole. Carranza, 980 S.W.2d at 656. Applying McCarthy v. United States, 393 U.S. 459 (1969), we held that the purpose and function of art. 26.13(a) is to ensure that only a constitutionally valid plea is entered and accepted by the trial court, but that art. 26.13(a) itself is statutory and does not implicate constitutional protections. Carranza, at 656. We went on to hold that the failure of the trial court to admonish a defendant regarding his deportation status was non-constitutional error and was, therefore, subject to a harm analysis under Rule 44.2(b). Id. at 658.
Our most recent review of the total failure to admonish a defendant of the applicable sentencing range was done in Burnett v. State, 88 S.W.3d 633 (Tex. Crim. App. 2002). In Burnett, we held that a Rule 44.2(b) harm analysis was the proper standard of review when an appellant claims only a violation of Code of Criminal Procedure 26.13. Burnett, however, is not controlling here because the appellant in Burnett claimed only a violation of the Texas Code of Criminal Procedure; he did not make a federal due process claim. We specifically left unresolved the question of whether a trial court's failure to admonish a defendant of the range of punishment violates his federal due process rights. Burnett at 641.
In our first review of the instant case, we relied upon Cain, Carranza, and McCarthy and held that, even though the trial court completely failed to admonish appellant as required by art. 26.13(a)(1), the error was subject to a harm analysis. Aguirre-Mata, 992 S.W.2d at 499. We then moved on to decide whether the error should be analyzed under Rule 44.2(a) or (b). We said that under Carranza, the error should be reviewed under Rule 44.2(b); the admonishments embodied in art. 26.13(a)(1) are not constitutionally required because their purpose and function is to assist the trial court in making the determination that a guilty plea is knowingly and voluntarily entered. Aguirre-Mata, at 499.
In hindsight, I believe that several flaws appear in our reasoning. First, and most importantly, I think that our holding is contrary to the constitutional law of the United States as required by Boykin v. Alabama. In Boykin, the Supreme Court held that the voluntariness of a plea must appear on the face of the record or a reversal is required, without regard to harm. (5) Boykin, 395 U.S. at 244. The defendant must be shown to have "a full understanding of what the plea connotes and of its consequence." Id. See also, Parke v. Raley, 506 U.S. 20, 37 (1992) ("Respondent knew, for example, . . . the sentencing and parole requirements for both offenses. . . . [. W]e think the [court of appeals] fairly inferred that respondent understood the full consequences of his . . . plea.").
Second, as mentioned above, the authority we cited in High and in our initial review of this case for the proposition that a complete failure to admonish a defendant about the possible sentencing range was subject to a harm analysis under Rule 44.2(b) were Cain and Carranza, which were about failure to warn of the possibility of deportation under art. 26.13(a)(4). These cases are not controlling on the issue of failure to admonish under art. 26.13(a)(1). Under Boykin, at 244 n.7, admonishment as to the range of punishment impacts the voluntariness of a plea and thereby implicates the due-process clause. There is no similar constitutional right to be admonished as to possible deportation. Jimenez v. State, 987 S.W.2d 886, 889 (Tex. Crim. App. 1999). (6)
In Carranza, we used language that implied that all admonishments under art. 26.13(a) are the same. Carranza, at 656. I do not believe that this implication is correct; some of the admonishments included in art. 26.13(a) are constitutionally required and some are not. Texas has imposed the statutory requirement that a trial court admonish a defendant of the possible deportation consequences through art. 26.13(a)(4), but there is no similar federal or state constitutional right to such admonishment. Error under art. 26.13(a)(4) is, therefore, purely statutory and subject to analysis under Rule 44.2(b). However, as I understand the law, the right to know the range of punishment under art. 26.13(a)(1) is constitutional, and it was improper to apply Cain and Carranza to the constitutional due-process violations of art. 26.13(a)(1).
Third, our prior holding in this case relied upon McCarthy v. United States, 394 U.S. 495 (1969), and the parts of Carranza that relied upon McCarthy. See Aguirre-Mata v. State, 922 S.W.2d 495, 498 (Tex. Crim. App. 1999). In Carranza and in our first opinion in this case, we cited McCarthy for the proposition that a plea admonishment itself is not constitutionally required, but is there merely to aid the trial court. Aguirre-Mata, 922 S.W.2d at 498; Carranza, at 656, citing McCarthy, at 465-66. McCarthy, however, addressed Federal Rule of Criminal Procedure Rule 11, (7) not a constitutional issue. The McCarthy Court specifically stated that this distinction had an impact on its decision, saying, "[t]his decision is based solely upon our construction of Rule 11 and is made pursuant to our supervisory power over the lower federal courts; we do not reach any of the constitutional arguments petitioner urges as additional grounds for reversal." Id. at 464. In speaking of the voluntariness of a plea, McCarthy explicitly invoked the due-process clause of the United States Constitution. Id. at 394. Two months after McCarthy, the Supreme Court decided Boykin and held that failure to establish the voluntariness of a plea was constitutional error. (8) McCarthy, therefore, cannot control violations of art. 26.13(a)(1).
In our prior opinion, we also cited McCarthy as support for the position that a violation of art. 26.13(a)(1) is subject to a harm analysis under Rule 44.2(b). Aguirre-Mata, 992 S.W.2d at 499. The McCarthy Court holding, however, was that "[w]e thus conclude that prejudice inheres in a failure to comply with Rule 11, for non-compliance deprives the defendant of the Rule's procedural safeguards that are designed to facilitate a more accurate determination of the voluntariness of his plea." McCarthy, at 471-72. The United States Supreme Court held that a defendant is entitled to a reversal if the statutory requirement that the trial court inquire whether a defendant understands the nature of the charges against him is not found in the record. Id. at 563-64. There is no mention of a harm analysis.
I believe that the First Court of Appeals was correct in its initial opinion, which held that, when properly plead, the failure to admonish appellant of the range of punishment was constitutional error. Aguirre-Mata, 962 S.W.2d at 266. The next question is whether the constitutional right protected by art. 26.13(a)(1) is "structural" and therefore immune from a harmless error analysis, or whether it is the type of constitutional error governed by Rule 44.2(a), pursuant to Cain, 947 S.W.2d at 264, which relied upon Arizona v. Fulminante, 499 U.S. 279 (1991), in holding that "except for certain federal constitutional errors labeled by the United States Supreme Court as 'structural,' no error is categorically immune to a harmless error analysis." Cain, at 264.
Chapman v. California, 386 U.S. 18 (1967), is the landmark decision in which the Supreme Court first adopted the general rule that a constitutional error does not automatically require reversal of a conviction and that some constitutional errors can be considered harmless. Chapman, at 24. It was not until Fulminante, decided in 1991, twenty-two years after Boykin, that the Supreme Court first began labeling constitutional errors as either "structural errors" (defects in the constitution of the trial mechanism which defy analysis by "harmless-error" standards) or "trial errors" (error which may be quantitatively assessed in the context of other evidence in order to determine whether its admission was harmless beyond a reasonable doubt). Fulminante, 499 U.S. at 307-08. The Supreme Court, then, twenty-four years before it began to use the terms "structural error" and "trial error," recognized the distinction between constitutional errors that are so severe that they require automatic reversal and constitutional errors that, when analyzed within the entire record, can be deemed harmless. Chapman, 386 U.S. at 24. Cain's mandate that the error be labeled "structural" is therefore not dispositive of the question, as the term is a recently created one, while the standard which the term describes is older. It is necessary look to whether the Supreme Court treated such an error as "structural."
When choosing to apply a harm analysis to a constitutional error, the Supreme Court specifically said that "[w]e conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction." Chapman, at 24. Boykin was decided two years later, in 1969, after the Supreme Court had already held that some constitutional errors were subject to a harm analysis. Yet, the Supreme Court ordered a reversal for the failure to establish the voluntariness of the defendant's plea, without regard to harm. Boykin, at 242. See also, Parke, supra; Bousley v. United States, 523 U.S. 614, 618 (1998) citing Smith v. O'Grady, 312 U.S. 329 (1941)(" a plea does not qualify as intelligent unless a criminal defendant first receives 'real notice of the true nature of the charge against him, the first and foremost universally recognized requirement of due process.'"). I must assume, therefore, that the Supreme Court intended to place the complete failure to admonish a defendant of the full consequences associated with a plea bargain, including the applicable sentencing range, within the category of errors that are not subject to a harm analysis.
Accordingly, I would hold that: 1) when properly plead, the complete failure of a trial court to admonish under art. 26.13(a)(1) is a due-process violation and, under Boykin, is "structural error" and immune from harm analysis; 2) a partial admonishment under art. 26.13(a)(1) is subject to a substantial-compliance analysis as required by art. 26.13(c) and our relevant case law, with the question of harm analyzed under Rule 44.2(a); and 3) because they are not constitutionally mandated, violations of art. 26.13(a)(2)-(5) are statutory only and are subject to a harm analysis under Rule 44.2(b) and our relevant case law.
I would remand this case to the court of appeals to order a new trial. Because the Court does not do so, I respectfully dissent.
Date Filed: May 14, 2003
1.Texas Rule of Appellate Procedure 44.2 governs reversible error in criminal cases and specifically says:
(a) "Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of :
(1) the range of the punishment attached to the offense; . . .."
Art. 26.13(c) says: "In admonishing the defendant as herein provided, substantial compliance by the court 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. Ann § 26.13(c) (1998). See e.g., Whitten v. State, 587 S.W.2d 156 (Tex. Crim. App. 1979)(where an art. 26.13(a)(4) admonishment was not given, the trial court was still in substantial compliance with the requirements of the statute); Ex parte Cervantes, 762 S.W.2d 577 (Tex. Crim. App. 1998) (plea set aside and cause remanded to trial court for failure to substantially comply with art. 26.13(a)(4).); Morales v. State, 872 S.W.2d 156 (Tex. Crim. App. 1994)(failure to substantially comply with art. 26.13(a)(4) is grounds for reversal) "The three dissenting justices in the Alabama Supreme Court state the law correctly when they concluded that there was reversible error 'because the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty.'" Boykin, 395 U.S. at 244. This distinction was noted by Justice Cohen in his concurring opinion in High v. State, 998 S.W.2d 642, 647 (Tex. App.-Houston [1st Dist.] 1999). At the time McCarthy was decided, Federal Rule 11 stated that a court could not accept a guilty plea "without first addressing [the defendant] . . . personally and determining that the plea [was] . . . made voluntarily with [an] understanding of the nature of the charge." McCarthy, 394 U.S. at 462, citing Fed. Rule Crim. Proc. 11. Libretti v. United States, 516 U.S. 29 (1995), was a challenge to the forfeiture of property under the federal Rules of Criminal Procedure 11(f), which authorizes forfeiture of property acquired through illegal activity, and 31(e), which grants a right to have a jury determine what property of the defendant is subject to forfeiture. By plea bargain, Libretti had agreed to forfeit a large part of his property after a conviction for engaging in a continuing criminal enterprise. Part of that plea bargain was a listing of the property to be forfeited. The Court reviewed the interaction between Rules 11(f) and 31(e) with 21 U.S.C. §§ 848(a) and 853(a) and held that a forfeiture is part of a sentence, like a fine. Libretti, at 39. It then addressed Libretti's claim to entitlement to a jury trial on what property should be subject to forfeiture and held that Rule 31(e) grants a statutory right only to jury determination of forfeitability. That right is not tied to the Sixth Amendment right to trial by jury; it is waivable by plea agreement, and Libretti was bound by his plea agreement. In regard to Boykin, the Court referred to the advisory committee's notes:
Given that the right to a jury determination of forfeitability is merely statutory in origin, we do not accept Libretti's suggestion that the plea agreement must make specific reference to Rule 31(e). Nor must the district court specifically advise a defendant that a plea of guilty will result in waiver of the Rule 31(e) right. Federal Rule of Criminal Procedure 11 (c) details the information a district court must communicate to a defendant in order to ensure that a guilty plea is valid. Advisory Committee's Notes on 1974 Amendment to Federal. Rule Crim. Proc. 11(c), 18 U.S.C. App., p. 731 (the Rule "codifies . . . the requirements of Boykin v. Alabama, [ . . . ], which held that a defendant must be apprised of the fact that he relinquished certain constitutional rights by pleading guilty.")(emphasis added)
Libretti, 516 U.S. at 49-50. (emphasis in original)