                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00010-CR



         WANDA KAY COLEMAN, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 124th District Court
                Gregg County, Texas
              Trial Court No. 45,831-B




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                                      MEMORANDUM OPINION
           When Wanda Kay Coleman and her son went to the Home Depot in Longview to buy

lumber, they left Coleman’s three-year-old grandson unattended in their pickup truck. About thirty

minutes later, the child exited the vehicle and was walking in the parking lot when an adult saw

the child and accompanied him inside the Home Depot. After Coleman and her son completed

their purchase, they returned to their vehicle, loaded the lumber, and drove away, without the child.

About fifty minutes later, Coleman’s son telephoned Home Depot to inquire whether the child was

there. Consequently, Coleman was charged with two counts of child abandonment1 and two counts

of child endangerment.2            Coleman entered an open plea of guilty to one count of child

endangerment and was sentenced to fifteen months’ confinement in state jail.

           In her appeal, Coleman complains that her guilty plea was made without knowledge and

involuntarily, in violation of her right to due process of law under the Fourteenth Amendment.3

See U.S. CONST. amend. XIV, § 1. To preserve a complaint for our review, a party must first


1
    See TEX. PENAL CODE ANN. § 22.041(b) (West 2011).
2
    See TEX. PENAL CODE ANN. § 22.041(c) (West 2011).
3
 Although Coleman purports to assert five issues on appeal, as acknowledged in her brief, her enumerated issues one
through four consist of arguments supporting the single issue of the involuntariness of her guilty plea. First, Coleman
argues that there may have been defenses available to her. However, Coleman does not point to any evidence in the
record showing that her trial counsel failed to inform her of possible defenses before she entered her plea. Coleman
also points to her trial counsel’s statement made in his final argument at the punishment phase of the trial, which
occurred over one month after the guilt/innocence phase, that under the statute, his client was guilty. Coleman argues
that this is analogous to the facts in McCoy v. Louisiana, 138 S.Ct. 1500 (2018). In McCoy, trial counsel, over the
defendant’s objections, admitted the defendant’s guilt in three murders at the guilt/innocence phase of the trial. Id. at
1506. The United States Supreme Court reversed McCoy’s conviction, holding that the decision of whether to plead
guilty is reserved to the defendant alone under the Sixth Amendment, and his attorney may not override the defendant’s
expressed desire to maintain innocence. Id. at 1508–09, 1512. In this case, it was Coleman, not her attorney, who
pled guilty at the guilt/innocence phase, and Coleman did not maintain her innocence in the trial court at any time
during or after the trial. Therefore, McCoy is not applicable to the facts of this case. Finally, in her fifth enumerated
issue, Coleman argues that she has not waived her complaint that her plea was involuntary.

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present to the trial court a timely request, objection, or motion stating the specific grounds for the

desired ruling, if not apparent from the context. TEX. R. APP. P. 33.1(a)(1). Further, the trial court

must have ruled on the request, objection, or motion, either expressly or implicitly, or the

complaining party must have objected to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2).

Generally, due process complaints must also be preserved for appeal. Shipp v. State, 292 S.W.3d

251, 261 (Tex. App.—Texarkana 2009, no pet.). In this case, no complaint was made to the trial

court, either during trial or post-trial, that Coleman’s plea was made without knowledge or that it

was involuntary.

       Nevertheless, Coleman argues that she may bring her complaint for the first time on appeal

because it is of constitutional dimension and there was structural error. Although an involuntary

plea does impact a defendant’s constitutional rights, the Texas Court of Criminal Appeals has

consistently held that “[e]xcept for complaints involving fundamental constitutional systemic

requirements . . . all other complaints based on a violation of both constitutional and statutory

rights are waived by failure to comply with Rule 33.1.” Mendez v. State, 138 S.W.3d 334, 338

(Tex. Crim. App. 2004) (quoting Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999)).

Errors involving fundamental constitutional systemic requirements, also known as structural

errors, “are those which defy analysis by harmless error standards.” Id. (citing Manley v. State, 23

S.W.3d 172, 175 (Tex. App.—Waco 2000, pet. ref’d) (citing Arizona v. Fulminante, 499 U.S. 279,

309 (1991))). Since errors involving the voluntariness of a plea do not defy harm analysis, they




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are not structural errors. Id. (citing Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997)).

Therefore, Coleman was required to preserve her complaint in the trial court.4

        Since Coleman failed to assert her complaint in the trial court, she has not preserved this

complaint for our review. See Shipp, 292 S.W.3d at 261. We overrule Coleman’s point of error.

        For the reasons stated, we affirm the trial court’s judgment.




                                                    Bailey C. Moseley
                                                    Justice

Date Submitted:           July 27, 2018
Date Decided:             August 1, 2018

Do Not Publish




4
Coleman also argues that the structural error found in McCoy saves her complaint. However, as we previously noted,
McCoy is not applicable to this case.
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