             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-19-00013-CR
     ___________________________

         TAJ L. LOVE, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 432nd District Court
         Tarrant County, Texas
       Trial Court No. 1496684D


  Before Gabriel, Kerr, and Womack, JJ.
 Memorandum Opinion by Justice Womack
                           MEMORANDUM OPINION

                                 I. INTRODUCTION

      Appellant Taj L. Love appeals his conviction for aggravated assault with a

deadly weapon, a knife.1 In one issue, Love argues that he was deprived of several of

his constitutional and statutory rights because neither the trial court, nor the

prosecutor, nor his own counsel informed him that he had the right to not testify at

the punishment hearing in this case; thus, Love argues, he never knowingly,

intelligently, and voluntarily waived his right to not testify. Because the Texas Court

of Criminal Appeals and this court have routinely rejected the very arguments that

Love presents on appeal, we will affirm the trial court’s judgment.

                                  II. BACKGROUND

      Because the facts of this case are not vital to the resolution of Love’s issue, we

will only address them briefly. On May 2, 2017, Love and the complainant in this

case began to argue over a necklace while attending Brewer High School. The

argument escalated, and Love stabbed the complainant in the neck with a knife.

Later, a grand jury indicted Love for aggravated assault with a deadly weapon.

      Love entered a plea of guilty without the benefit of a sentencing agreement

with the State; the trial court ordered the preparation of a presentencing investigation

report (PSI); and, after receiving the PSI, the trial court held a punishment hearing.


      1
       See Tex. Penal Code Ann. § 22.02(a)(2).


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At the hearing, Love’s attorney called Love to testify in his own defense. Love neither

objected to nor protested his being called to testify.       Ultimately, the trial court

assessed punishment at twelve years’ confinement and rendered judgment

accordingly. The trial court certified that Love had the right to appeal his conviction,

and this appeal followed.

                                   III. DISCUSSION

      In one issue, Love argues that neither the trial court, nor the prosecutor, nor

his own attorney adequately advised him of his constitutional and statutory rights to

not testify at the punishment hearing.2 The State counters that both this court and the

Texas Court of Criminal Appeals have routinely rejected the arguments that Love

makes. We agree with the State.

      The Texas Court of Criminal Appeals has held that a trial court “has no duty to

inform a testifying defendant, represented by counsel, of his right not to testify.”

Johnson v. State, 169 S.W.3d 223, 235 (Tex. Crim. App. 2005); see Hernandez v. State,

506 S.W.2d 884, 886 (Tex. Crim. App. 1974) (“We find no error in the trial court’s

refusal to admonish appellant as to his privilege against self-incrimination.”); see also

Powers v. United States, 223 U.S. 303, 313, 32 S. Ct. 281, 283 (1912) (“We are of the


      2
        In his brief, Love cites to both the federal and state constitutions as well as
several statutes and rules addressing the right not to testify at trial. See U.S. Const.
amend. V; Tex. Const. art. I, §§ 10, 19; Tex. Code Crim. Proc. Ann. arts. 1.04–.05;
Tex. Disciplinary Rules Prof’l Conduct R. 1.02(a)(3), reprinted in Tex. Gov’t Code
Ann., tit. 2, subtit. G, app. A.


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opinion that it was not essential to the admissibility of [a defendant’s] testimony that

he should first have been warned that what he said might be used against him.”).

Instead, when a defendant who is represented by counsel testifies in his own behalf,

this court “will presume this act to be undertaken voluntarily and with full knowledge

of his rights.” Mullane v. State, 475 S.W.2d 924, 926 (Tex. Crim. App. 1971); see Lantrip

v. State, 336 S.W.3d 343, 350 (Tex. App.—Texarkana 2011, no pet.) (applying the rule

from Mullane). This court has routinely followed this precedent. See Delgado v. State,

849 S.W.2d 904, 905 (Tex. App.—Fort Worth 1993, pet. ref’d) (rejecting appellant’s

complaint that the trial court “fundamentally erred by failing to inform [him],

immediately before he testified, of his right to remain silent”); see also Thompson v. State,

No. 02-04-00256-CR, 2005 WL 375485, at *2 (Tex. App.—Fort Worth Feb. 17, 2005,

pet. ref’d) (mem. op., not designated for publication) (citing Mullane and holding that a

defendant testified voluntarily and that the trial court did not violate the defendant’s

constitutional rights by not admonishing him of his right to not testify when the

defendant’s attorney called him to testify and the defendant did so without objection

or protest).

       Here, at the punishment hearing, Love’s counsel called him to testify, and Love

did so without objection or protest. Thus, given the settled precedent by the Texas

Court of Criminal Appeals and this court, we reject Love’s argument that the trial

court violated any of his constitutional or statutory rights by not admonishing him



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about his right to not testify. See Mullane, 475 S.W.2d at 926; Delgado, 849 S.W.2d at

906.

       Love also argues that the prosecutor had a duty to admonish him about his

right to not testify. This court has also held that when a defendant is represented by

counsel and goes to the stand to testify, we presume that the defendant has the

knowledge of his right to not testify and that the prosecutor has no duty to admonish

the defendant. See Smith v. State, No. 02-15-00453-CR, 2017 WL 1018589, at *2, (Tex.

App.—Fort Worth Mar. 16, 2017, pet. ref’d) (mem. op., not designated for

publication) (holding that the record did not establish that appellant’s constitutional or

statutory rights were violated even though neither trial court nor State informed him

of his right to not testify). As we did in Smith, we decline Love’s invitation to create a

duty upon the State to advise a defendant of his right to not testify. Id.

       Love further argues that his right to not testify was violated by his own

counsel’s failure to admonish him. Even though the authority cited above does not

directly address this issue, it is apparent that in many of these cases the courts’

presumption regarding a defendant’s knowledge of the right to not testify also applies

toward his own counsel—we presume that the defendant has the knowledge of his

right to not testify. Hernandez, 506 S.W.2d at 886; Smith, 2017 WL 1018589, at *2. We

see no reason to not apply the presumption in regard to a defendant’s own counsel,

and that holding is consistent with prior precedent. See Mullane, 475 S.W.2d at 926.



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      We hold that the record in this case does not establish a violation of Love’s

constitutional or statutory rights based on the trial court’s, the State’s, or his own

counsel’s alleged failure to inform him of his right to not testify. See id. (“Where, as

here, a defendant, represented by counsel, testifies in his own behalf, we will presume

this act to be undertaken voluntarily and with full knowledge of his rights.”); see also

Smith, 2017 WL 1018589, at *2 (overruling appellant’s argument that the trial court,

the prosecutor, and his own counsel failed to adequately inform him of his right to

not testify because his own counsel called him to testify without objection or protest).

We overrule Love’s sole issue.

                                  IV. CONCLUSION

      Having overruled Love’s sole issue on appeal, we affirm the trial court’s

judgment.

                                                      /s/ Dana Womack

                                                      Dana Womack
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: October 24, 2019




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