                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-232-CR


ROBERT KEITH CAMPBELL                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                  Introduction

      Appellant Robert Keith Campbell appeals his conviction for possession of

cocaine of less than one gram.          See Tex. Health & Safety Code Ann.

§ 481.102(3)(D) (Vernon Supp. 2008), § 481.115(b) (Vernon 2003). In two

issues, he asserts that (1) his guilty plea was not intelligently and voluntarily

made, and thus, he was deprived of due process of law when the trial court



      1
          … See Tex. R. App. P. 47.4.
failed to admonish him regarding his constitutional rights; and (2) the trial

court’s judgment should be reformed to delete court costs because they were

not announced as part of his sentence. We affirm.

                                Background Facts

     Around 11:30 p.m. on February 21, 2008, dispatchers directed Fort

Worth Police Officer Michael Buchanan to a domestic disturbance call.

When he arrived, only a female was on the scene. She said that she and her

boyfriend, Campbell, had been arguing. Officer Buchanan got in his patrol car

and found Campbell.

     Officer Buchanan asked Campbell about the disturbance. Campbell said

that he and his girlfriend had an argument. Officer Buchanan patted down

Campbell for weapons and found none, but he noticed an object in Campbell’s

jacket that he suspected was a pipe.        Officer Buchanan called the police

identification center and learned that Campbell had outstanding warrants.

     Officer Buchanan arrested Campbell. Under a search incident to arrest,

Officer Buchanan discovered a crack pipe in Campbell’s jacket and a rock of

crack cocaine in Campbell’s jeans pocket.       Lab testing confirmed that the

cocaine weighed 0.20 grams.2




     2
         … Campbell stipulated at trial that he possessed the cocaine.

                                        2
      The grand jury indicted Campbell with possession of cocaine in an amount

of less than one gram; the indictment contained an enhancement paragraph

related to Campbell’s two previous cocaine-related felony convictions. After

the parties filed various pretrial documents, Campbell pled guilty to the charge

in front of the judge and then again in front of the jury, and he pled true to the

enhancement allegations.

      After Campbell’s mother testified about his punishment and the parties

submitted closing arguments, the jury assessed Campbell’s punishment at ten

years’ confinement and no fine. The trial court sentenced him accordingly. The

court’s judgment, while not containing a fine, assessed $340 in court costs.

This appeal followed.

        Admonishment of Constitutional Rights When Pleading Guilty

      In his first issue, Campbell asserts that his guilty plea was not intelligently

and voluntarily made and that he was deprived of due process of law when the

trial court failed to admonish him of his constitutional rights regarding witness




                                         3
confrontation, trial by jury, and self-incrimination. 3 Campbell acknowledges,

and we agree, that precedent forecloses his argument.4

      A guilty plea generally waives the constitutional rights that Campbell

relies on. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712

(1969); Gardner v. State, 164 S.W.3d 393, 399 (Tex. Crim. App. 2005).

“Waivers of constitutional rights not only must be voluntary but must be

knowing, intelligent acts done with sufficient awareness of the relevant

circumstances and likely consequences.” Brady v. United States, 397 U.S.

742, 748, 90 S. Ct. 1463, 1469 (1970). It is error for a trial judge to accept

a guilty plea without an affirmative showing in the record that it was intelligent

and voluntary. Boykin, 395 U.S. at 242, 89 S. Ct. at 1711; Aguirre-Mata v.

State, 125 S.W.3d 473, 474–75 (Tex. Crim. App. 2003); see Tex. Code Crim.

Proc. Ann. art. 26.13(b).

      However, there is no requirement that a defendant be specifically

informed of the waiver of each of his constitutional rights at the time of a guilty



      3
        … Campbell acknowledges that article 26.13 of the code of criminal
procedure does not require that a defendant be specifically advised of the three
constitutional rights. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon
2009). He does not assert any error related to the admonishments required by
article 26.13.
      4
        … Campbell effectively concedes his first issue by stating that “there is
significant authority which appears to be contrary to his position.”

                                        4
plea. See Gardner, 164 S.W.3d at 399–400; Vasquez v. State, 522 S.W.2d

910, 912 (Tex. Crim. App. 1975) (noting that the “failure to give

[admonishments regarding the right to confront witnesses or the right against

self-incrimination] does not invalidate a plea of guilty otherwise freely and

voluntarily made”); Breaux v. State, 16 S.W.3d 854, 856 (Tex. App.—Houston

[14th Dist.] 2000, pet. ref’d) (stating that “[d]ue process does not require a trial

judge to enumerate, laundry-list style, every Constitutional right that a

defendant possesses and demand that the defendant note for the record his

separate waiver of each”); see also United States v. Edwards, 911 F.2d 1031,

1035 (5th Cir. 1990). Rather, the defendant’s knowledge of his constitutional

rights and the voluntariness of his plea may be inferred by statements made by

counsel in the defendant’s presence. See Gardner, 164 S.W.3d at 399; Austin

v.   State,   Nos.   10-04-00349-CR,         10-04-00350-CR,    10-04-00351-CR,

10-04-00352-CR, 2006 WL 561835, at *2–3 (Tex. App.—Waco Mar. 8, 2006,

pet. ref’d) (mem. op., not designated for publication).

      In Gardner, the appellant, after relying on a guilty plea to seek leniency

from the jury on his punishment at trial, claimed on appeal that his guilty plea

made before the jury “was involuntary and a violation of his federal due process

rights because the [trial] court failed to admonish him of his various

constitutional rights and determine that his plea was intelligently and voluntarily

                                         5
made.”    Gardner, 164 S.W.3d at 394–97.          Because his case involved a

complete absence of admonishments, Gardner argued that his guilty plea was

invalid under Boykin and contended that the record did not affirmatively show

that he understood the nature of the constitutional due process protections that

he was waiving when he pled guilty. Id. at 397–98.

      The court of criminal appeals held that the record adequately showed that

Gardner understood that he was waiving his rights—the privilege against

compelled self-incrimination, the right to a jury trial, and the right to confront

his accusers—when he pled guilty. Id. at 399. In reaching its holding, the

court said that Gardner’s understanding that he was waiving his rights could

      be inferred, in part, from [Gardner’s] counsel’s statements during
      the punishment phase mentioning that appellant would testify even
      though he did not have to under the Fifth Amendment and that
      [Gardner’s] guilty plea saved the victim from having to testify and
      saved the jury from the “grueling experience” of determining
      [Gardner’s] guilt.

Id. at 399 & n.5 (citing United States v. Henry, 933 F.2d 553, 559 (7th Cir.

1991) (stating that “if the defendant’s intelligent awareness can be reasonably

inferred from the transcript or the custom and practice of the court, the plea

passes constitutional muster”), cert. denied, 503 U.S. 997 (1992)).

      Similarly, in Slaughter v. State, the appellant contended that the trial

court erred by failing to inform him of the waiver of his constitutional rights



                                        6
before he pled guilty in front of a jury.     No. 02-07-00050-CR, 2007 WL

3120688, at *3 (Tex. App.—Fort Worth Oct. 25, 2007, no pet.) (mem. op.,

not designated for publication). The record did not expressly show that the trial

court provided Slaughter with any warnings or admonishments at the time he

pleaded guilty. Id. at *1.

      After examining Boykin’s requirements, we explained that a “trial court

does not commit per se reversible error by failing to specifically inform the

defendant of each right he is waiving by pleading guilty[;] [i]nstead, in

determining whether a plea is voluntary, the focus is upon whether the record

shows that the defendant understood that he was waiving the rights when he

pleaded guilty.”) Id. at *3 (citation omitted). The record did not contain any

threats, misrepresentations, or improper promises, and it indicated that

Slaughter understood that he was waiving the right to have the State present

its evidence against him. Id. at *4. Also, Slaughter’s plea was part of his trial

strategy. Id. Thus, we held that Slaughter understood his plea and that the

trial court did not err by failing to expressly advise him of each of his

constitutional rights. Id. at *5.

      As in Gardner and in Slaughter, the record in this case indicates

Campbell’s awareness that he was waiving his constitutional rights by pleading

guilty. As to the right against compelled self-incrimination, during voir dire and

                                        7
in Campbell’s presence, before his guilty plea before the jury, the State’s

attorney recited that Campbell had the right “not to testify.”       The State’s

attorney went on to explain,

      [I]t’s important to know in a criminal proceeding because we can’t
      hold it against someone if they don’t testify. And we talked
      specifically about the right to remain silent. . . . [T]hat’s what the
      Fifth Amendment is. The Fifth Amendment is a person has the
      right to remain silent, they cannot be forced to testify and they --
      there it is, if they want to, they can. Jurors cannot use the
      defendant’s silence as evidence against them.

Also, in response to a question from the trial court on his plea, Campbell

affirmed that no one was forcing him to plead guilty against his will.

      On Campbell’s right to confront his accusers, the State’s attorney also

explained during voir dire, before Campbell’s plea in front of the jury, that

Campbell had the right to “confront all his witnesses and . . . to subpoena

witnesses just like the State does” and to make the State prove its case beyond

a reasonable doubt. Also, Campbell’s counsel spoke with him before Campbell

agreed to stipulate in writing to the evidence supporting his guilt. Finally, the

State still presented Officer Buchanan’s testimony regarding Campbell’s guilt,

and Campbell could have confronted Officer Buchanan at that time.5




      5
          … Campbell’s counsel chose not to cross-examine Officer Buchanan.

                                        8
      As to Campbell’s right to a jury trial, when Campbell pled guilty, the trial

court advised him that he was waiving his right to have the State prove the

indictment’s allegations beyond a reasonable doubt.               The trial court also

ensured that Campbell knew that the consequence of his plea was that the jury

would be instructed to find him guilty based on the plea. 6 Campbell must have

been aware of his right to a jury trial since he was in the process of exercising

it before he announced his guilty plea in front of the jury. See Johnson v.

State, 501 S.W.2d 306, 307 (Tex. Crim. App. 1973).                  Also, the court of

criminal appeals has recently noted that in Texas, a plea of guilty in front of a

jury is not a waiver of the right to a trial by jury at all; rather, it is a unitary trial

by jury on punishment only.7 Fuller v. State, 253 S.W.3d 220, 226 (Tex. Crim.

App. 2008), cert. denied, 129 S. Ct. 904 (2009); see Williams v. State, 674

S.W.2d 315, 318 (Tex. Crim. App. 1984).


      6
      … The trial court also specifically advised Campbell that the range of his
punishment was two to ten years’ confinement because of the enhancement
from his previous convictions.
      7
       … Campbell’s counsel recognized the jury’s continued role in the trial
after Campbell pled guilty. Campbell’s counsel stated in his closing argument,

      [Campbell] elected to put his faith in you, the jury, all 12 of you.
      All 12 of you will unanimously decide what in your opinion you feel
      a fair and just punishment for this case is. You get to consider all
      the evidence that was presented to you at trial . . . . [Campbell]
      trusts you. I trust you, that you will render a fair and appropriate,
      just verdict for this offense.

                                            9
       Finally, as in Gardner and in Slaughter, the voluntary nature of

Campbell’s guilty plea is further shown in the record by the “evidence that

[Campbell’s] guilty plea was part of a strategy.” Gardner, 164 S.W.3d at 399;

see Slaughter, 2007 WL 3120688, at *4. In his closing argument, Campbell’s

counsel stated, “[Campbell] has pled guilty. [Campbell] didn’t try to weasel out

of this. He confessed to you, to the Court. And so we’re here to determine the

punishment.”

      Based on our review of the record, we hold that Campbell understood

that he was waiving his constitutional rights when he pled guilty before the jury

and that he did so as a deliberate trial strategy. See Gardner, 164 S.W.3d at

398–400; Slaughter, 2007 WL 3120688, at *2–5. Because the trial court was

not required to expressly admonish him about the rights in such circumstances,

we overrule Campbell’s first issue.

                       Court Costs in Written Judgment

      In his second issue, Campbell asserts that the trial court’s judgment

should be reformed to delete court costs because they were not announced as

part of the sentence. He contends that court costs are part of his sentence and

are part of his punishment. We disagree.

      The court of criminal appeals expressly held earlier this year that requiring

a convicted defendant to pay court costs does not alter the defendant’s

                                       10
punishment. Weir v. State, 278 S.W .3d 364, 367 (Tex. Crim. App. 2009).

Instead, court costs are not punitive and, therefore, do not have to be included

in the oral pronouncement of sentence as a precondition to their inclusion in the

trial court’s written judgment. Id.; see Hobbs v. State, Nos. 02-08-00295-CR,

02-08-00296-CR, 02-08-00297-CR, 2009 WL 1035216, at *1 (Tex.

App.—Fort Worth Apr. 16, 2009, no pet.) (mem. op., not designated for

publication) (following the Weir decision and explaining that this court “is bound

by the precedent of the Texas Court of Criminal Appeals and has no authority

to disregard or overrule it”).

      In this case, the judge announced Campbell’s confinement in open court

but did not orally address court costs at that time. The written judgment, in

contrast, dictates that Campbell owes $340 in court costs. Because the $340

is not punitive, it can be included in the written judgment without being

included in the oral pronouncement. See Weir, 278 S.W.3d at 367; Hobbs,

2009 WL 1035216, at *1.8 We overrule Campbell’s second issue.




      8
      … To argue that court costs cannot be included in a judgment if they are
not announced in open court, Campbell relies in part on the Weir opinion from
the Austin court of appeals that the court of criminal appeals reversed. See
Weir v. State, 252 S.W.3d 85, 88–89 (Tex. App.—Austin 2008), rev’d, 278
S.W.3d at 367.

                                       11
                                Conclusion

     Having overruled both of Campbell’s issues, we affirm the trial court’s

judgment.




                                         TERRIE LIVINGSTON
                                         JUSTICE

PANEL: LIVINGSTON, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 25, 2009




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