Matthews v. State

JAILEN LATRELL MATTHEWS, Appellant v. THE STATE OF TEXAS, Appellee

Nos. 05-20-00212-CR, 05-20-00213-CR

Court of Appeals of Texas, Fifth District, Dallas

August 30, 2021

Do Not Publish TEX. R. APP. P. 47.2(b)

On Appeal from the 194th Judicial District Court Dallas County Texas Trial Court Cause Nos. F18-76633-M and F18-76635-M

Before Justices Osborne, Pedersen, III, and Nowell

MEMORANDUM OPINION

LESLIE OSBORNE JUSTICE

Appellant Jailen Latrell Matthews was indicted for aggravated assault with a deadly weapon in Cause Numbers F18-76633-M and F18-76635-M. He entered pleas of "no contest" to both charges, and the cases proceeded to trial before the court. Finding sufficient evidence of appellant's guilt the trial court sentenced appellant to twenty years' imprisonment for each assault. In one issue, appellant complains that the trial court failed to admonish him regarding the punishment range for his offenses. In addition appellant and the State agree that the judgment in each case should be modified to reflect that appellant did not enter into plea bargain agreements with the State. We modify the judgments as agreed and affirm.

Background

On October 30, 2018, Justin Villanueva, his girlfriend Christina ("Nina") Rivas, and Nina's brother were sitting in Justin's car smoking "weed." Appellant approached the car and asked to buy a gram of marijuana. Justin recognized appellant because they had attended the same high school and both had played football there. Justin a drug dealer, sold the marijuana to appellant, and appellant walked away. As Justin and Nina rolled marijuana blunts, appellant walked back up to the car, opened the door, pointed a gun at Nina, and demanded that Justin and Nina "[r]un me that shit," or "give me everything." Justin laughed and refused but then grabbed Nina to shield her with his body to protect her from being shot. Appellant shot the gun numerous times, then ran away.

Nina did not know or recognize appellant at the time of the shooting. She was scared when appellant pointed the gun at her face and thought he was going to shoot her. Justin testified that Nina was screaming and crying as appellant started shooting.

Nina's brother chased appellant. Justin did not immediately realize he had been shot. A bullet entered the left side of his back, broke his collarbone, and lodged near his heart. When police interviewed Justin at the hospital, he was not forthcoming about the shooting or about appellant's identity because he wanted to "take matters into my own hands at first." But both Justin and Nina later cooperated with the police investigation. Appellant was subsequently indicted in two cases for second-degree aggravated assault with a deadly weapon.

At the time of his indictment, appellant had entered into plea bargain agreements with the State in two other felony cases (second-degree burglary of a habitation and state-jail theft from a person) and was serving deferred-adjudication community supervision in those cases. The State moved to adjudicate appellant's guilt in the two prior felony cases, alleging that appellant had committed violations of his community supervision. Appellant entered pleas of no contest to the aggravated assault charges and pleas of not true to the State's motions to adjudicate his guilt in the two prior felonies.

After hearing evidence, the trial court found appellant guilty of the aggravated assaults and made affirmative deadly-weapon findings. The trial court also found the State's allegations in the two prior felony cases to be true, found appellant guilty in those cases, and revoked appellant's community supervision. The court sentenced appellant to twenty years' imprisonment for each aggravated assault, ten years for burglary of a habitation, and 180 days' confinement in state jail for theft.

Appellant filed motions for new trial that were overruled by operation of law and timely notices of appeal of the trial court's judgments in the aggravated assault cases. Appellant has not appealed the trial court's rulings revoking his community supervision in the two prior felony cases.

Issue and Standard of Review

In a single issue, appellant contends the trial court erred by failing to admonish him of the punishment range for his offenses "as required by Code of Criminal Procedure, article 26.13." Appellant's statement of the issue also includes the complaint that the trial court's failure to admonish him "render[ed] his pleas involuntary under the Due Process Clause." Read broadly, this issue states two separate complaints governed by two different standards of review.

Appellant's complaint under article 26.13 is reviewed as non-constitutional error under appellate procedure rule 44.2(b). Bessey v. State, 239 S.W.3d 809, 813 (Tex. Crim. App. 2007). His due process complaint is reviewed as constitutional error under appellate procedure rule 44.2(a). Davison v. State, 405 S.W.3d 682, 691 (Tex. Crim. App. 2013). Although appellant cites and discusses Boykin v. Alabama, 395 U.S. 238 (1969)-authority for his due process complaint-he requests review only under rule 44.2(b) for non-constitutional error.

The State argues we need not consider the due process complaint because appellant's issue is multifarious. The State relies on two opinions not designated for publication in which the courts declined to consider a due process claim combined in a single issue with an article 26.13 claim.^[1] In the alternative, the State argues that neither complaint is ground for reversal. Although we agree with the State that appellant's issue is multifarious, we can discern "with reasonable certainty, the alleged error about which the complaint is made." See Thomas v. State, 615 S.W.3d 552, 566 (Tex. App.-Houston [1st Dist.] 2020, no pet.) (internal quotation omitted) (considering multifarious issue where error complained of was reasonably certain). Under these circumstances, we may review appellant's due process argument in the interest of justice. See Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010) (reviewing multifarious issue in the interest of justice). We do so, however, only after considering appellant's principal argument under article 26.13.

Admonishment of Punishment Range

1. Article 26.13(a)(1)

Before a trial court may accept a plea of nolo contendere, it must admonish the defendant of the range of punishment attached to the offense. TEX. CODE CRIM. PROC. art. 26.13(a)(1). Substantial compliance with article 26.13(a) 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. art. 26.13(c).

"A trial court's failure to properly admonish a defendant is subject to the harm analysis of Rule of Appellate Procedure 44.2(b): 'Any other [than constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.'" Bessey, 239 S.W.3d at 813 (quoting rule 44.2(b)). "In applying Rule 44.2(b) to the failure to give an admonition, the court considers the record as a whole to determine whether, in this particular case, the error affected substantial rights. If it did, it is not harmless error." Id. (citation omitted). "[T]o warrant 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).

Neither party has a formal burden to show harmlessness under rule 44.2(b). Id. "Rather, it is the appellate court's duty to assess harm after a proper review of the record." Id. (internal quotation omitted). "'Harm' in this context means the appellant probably would not have pleaded guilty but for the failure to admonish." Webb v. State, 156 S.W.3d 653, 656 (Tex. App.-Dallas 2005, pet. ref'd). If the reviewing court has "grave doubt" about whether the error had "substantial influence" on the outcome of the proceeding, then it "must treat the error as if it did." Id. at 655. "'Grave doubt' occurs when the matter is so evenly balanced that the reviewing court believes the record is 'in virtual equipoise as to the harmlessness of the error.'" Id. at 655-56 (quoting Burnett, 88 S.W.3d at 637-38).

In reviewing the record, the "critical question" is whether there is "a fair assurance that the defendant's decision to plead guilty would not have changed had the court admonished him." VanNortrick v. State, 227 S.W.3d 706, 709 (Tex. Crim. App. 2007). In Bessey, the court considered "the strength of the evidence of guilt" as well as the defendant's awareness of the plea's consequences. See Bessey, 239 S.W.3d at 813. In Burnett, the court concluded nothing in the record supported an inference "that 1) appellant was unaware of the consequences of his plea; or 2) the trial judge's failure to admonish him misled appellant into pleading guilty because he did not know the applicable range of punishment." Burnett, 88 S.W.3d at 635; see also Webb, 156 S.W.3d at 656 (appellate court must assess harm by "independently examin[ing] the record for indications that appellant was or was not aware of the consequences of his plea and whether he was misled or harmed by the trial court's failure to admonish").

Our review of the record indicates that the evidence of appellant's guilt was strong. See Bessey, 239 S.W.3d at 813. Although initially a reluctant witness, Justin testified at trial that he recognized and identified appellant from high school. Justin and Nina both testified that appellant pointed a gun at Nina and actually shot and injured Justin. The record also reflects that appellant recognized the strength of the evidence. At the admonishment hearing the week before commencement of...