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                           November 15, 1988




    Honorable David T. Garcia      Opinion No.   JM-980
    Brooks County Attorney
    P. 0. BOX 557                  Re: Whether a court may satis-
    Falfurrias, Texas 78355        fy the lqadmonishmenttB reguire-
                                   ments of article 26.13 of the
                                   Code of Criminal Procedure    by
                                   showing the defendant a video
                                   tape   (RQ-1554)

    Dear Mr. Garcia:

         You ask whether  a court may satisfy the admonishment
    requirements of article 26.13 of the Code of Criminal
    Procedure before accepting a plea of guilty by showing the
    defendant a video tape presentation of the judge giving the
    admonitions.

         Article 26.13 provides:

               la) Prior to accentina   a ~1   of auilty
            or a nlea of nolo contendere, th=?court shall.
            admonish the defendant of:

               (1) the range of the punishment      attached
            to the offense:

               (2) the fact that the recommendation     of
            the prdsecuting attorney as to punishment   is
            not binding on the court. Provided that the
            court shall inquire as to the existence     of
            any plea bargaining agreements   between the
            state and the defendant   and, in the event
            that such an agreement    exists, the court
            shall inform the defendant whether it will
            follow or reject such agreement in open court
            and before any finding on the plea.     Should
            the court reject any such agreement,       the
            defendant shall be permitted to withdraw   his
            plea of guilty or nolo contendere;




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Honorable David T. Garcia - Page 2     (JM-980)




            (3) the fact that if the       punishment
        assessed does not exceed the       punishment
        recommended by the prosecutor and agreed to
        by the defendant and his attorney, the trial
        court must give     its permission   to   the
        defendant before he may prosecute an appeal
        on any matter  in the case except for those
        matters raised by written motions filed prior
        to trial: and

           (4) the fact that if the defendant is not
        a citizen of the United States of America,  a
        plea of guilty or nolo contendere    for the
        offense charged may result in deportation,
        the exclusion from admission to this country,
        or the denial of naturalization under federal
        law.

            (b) Ho nlea of guilty or plea of nolo
        contendere shall be aCCeDted  bv the court
        unless   it aonears that the defendant   is
        mentallv comnetent and the nlea is free and
        voluntary.

            (c) In admonishina the defendant as here-
        in nrovided.   substantial comnliance bv 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.

            Id) The court mav make the admonitions
        reouired bv this article either orallv or in
        writina.  If the court makes the admonitions
        in writina.   it must receive a statement
        sianed bv the defendant and the defendant's
        attornev that he understands the admonitions
        and is aware of the conseouences of his nlea.
        If the defendant is unable or refuses to sion
        the statement.   the court shall make the
        admonitions orally.   (Emphasis added.)

     Prior to the amendment that resulted in the addition of
subsection (d), the statute was explicit in requiring    "the
court shall admonish the defendant."   House Bill 95 added
subsection (d) of article 26.13, effective August 31, 1987,




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Honorable David T. Garcia - Page 3     (JM-980)




providing that the court may make the admonitions orally   or
in writing.  Acts 1987, 70th Leg., ch. 443, at 2021.

     In the video tape scenario you have submitted you state
"that the court would require the defendant and his attorney
to sign a written statement that the defendant    understood
the admonitions  and is aware of the consequences    of his
pleas."

     In Bovkin v. Alaba      the United States Supreme  Court
held, "It was error, p%n     on the face of the record,   for
the trial judge to accept petitioner's guilty plea without
an affirmative showing that it was intelligent and volun-
tary."   395 U.S. 238, 242.       The court emphasized    the
importance of this stage of the plea of guilty proceeding.
In Bovkin, the court stated:

           A plea of guilty is more than a confession
        which admits that the accused did various
        acts; it is itself a conviction:        nothing
        remains but to qive judgment and determine
        punishment.   See-Jterchevai v. United States,
        274 U.S. 220. 223. 47 s.ct. 582. 583. 71
        L.Ed. 1009. .Admissibility of a 'confession
        must be based on a *reliable determination on
        the voluntariness issue which satisfies     the
        constitutional   rights of the      defendant.'
        Jackson v. Denno, 378 U.S. 368, 387, 84 S.Ct.
        1774, 1786, 12 L.Ed.Zd 908. The requirement
        that the prosecution spread on the record the
        prerequisites   of a    valid waiver    is    no
        constitutional   innovation.    In C rnlev
        Cochran, 369 U.S. 506, 516, 82 S"Ct. 88::
        890, 8 L.Ed.Zd 70, we dealt with a problem of
        waiver of the right to counsel,        a Sixth
        Amendment right. We held:     'Presuming waiver
        from a silent record is impermissible.      m
        record must show. or there must be an alleaa-
        tion and evidence which show, that an accused
        was offered counsel but intelliaentlv       and
        understandinalv reiected the offer. 'Anything
        less is not waiver.'

           We think that the same standard must    be
        annlied to determinina whether a auiltv olea
        is voluntarilv made. For,  as we have said, a
        plea of guilty is more than an admission   of
        conduct:   it is a conviction.     Ignorance,




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Honorable David T. Garcia - Page 4    (JM-980)




        incomprehension,  coercion,  terror,   induce-
        ments, subtle or blatant threats might be a
        perfect cover-up of unconstitutionality.   The
        question of an effective waiver of a federal
        constitutional right in a proceeding is of
        course   governed   by   federal    standards.
        Doualas v. Alabama   380 U.S. 415, 422, 85
        S.Ct. 1074, 1078, 1; L.Ed.2d 934.

           Several federal constitutional riahts are
        involved in a waiver that takes Lace when a
         lea of cuiltv is entered in a state criminal
        Gial.     First, is the privilege      against
        compulsory self-incrimination   guaranteed  by
        the Fifth Amendment   and applicable   to the
        States by reason of the Fourteenth.     Wallov
        v. Hoaan,   378 U.S. 1, 84 S.Ct. 1489, 12
        L.Ed.Zd 653. Second, is the right to trial
        by jury. Duncan v. Louisiana, 391 U.S. 145,
        88 S.Ct. 1444, 20 L.Ed.Zd 491. Third, is the
        right to confront one's accusers.   Pointer
        Texas,   380 U.S. 400, 85 s.ct. 1065, 7;
        L.Ed.2d 923. We cannot presume a waiver     of
        these three important   federal rights from a
        silent record.

           What is at stake for an accused      facing
        death or imnrisonment    demands the utmost
        solicitude of which courts are CaDable      in
        canvassina the matter with the accused to
        make sure he has a full understandina of what
        the nlea connotes and of its consecuence.
        When the iudae discharaes that function. he
        leaves a record adecuate for anv review that
        mav be later souaht (Garner v. Louisiana   368
        U.S. 157, 173, 82 S.Ct. 248, 256, 7 L.;d.zd
        207; Svecht v. Patterson, 386 U.S. 605, 610,
        87 s.ct. 1209, 1212, 18 L.Ed.2d     326), and
        forestalls the snin-off of collateral     oro-
        ceedinas that seek to nrobe murkv memories.
        (Emphasis added.)

Bovkin, 395 U.S. 238, 242-44.

     The **substantial compliance" provision  of subsection
(c), of article 26.13 has been applied to the sufficiency of
the language used rather than the method of giving       the
admonitions.  Whitten v. State, 587 S.W.2d 156 (Tex. Crim.




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Honorable David T. Garcia - Page 5       (JM-980)




APP. 1979). In Whitten, the state urged that the defendant
had heard the prosecutor give a portion of the admonitions
that had been omitted by the judge. On rehearing, the court
cited Bovkin and concluded that the statute then in force
and due process mandated   the judge's participation.   587
S.W.2d 156, 158-59.

     The importance of the court's actual participation  in
the admonitions is reflected in Iucero v. State 502 S.W.Zd
750 (Tex. Crim. App. 1973). In Lucero four casks were tried
together before the court upon pleas of guilty. On appeal
it was urged that the court had failed to determine     the
mental  competence  of the appellant    in each case.    In
rejecting the appellant‘s contention, the court stated:

            In the instant cases the court        once
        inquired of     appellant's  counsel   as   to
        appellant's sanity, was able to observe him
        .rn onen court. to hear him sneak and to note
        his demeanor.   and to enaaae in a collocluy
        1
        with him re ardin                            ‘S
        pleas. At no time was the issue of appel-
        lant's sanity ever raised.    In light of the
        circumstances of these particular cases, the
        pleas being     taken together,         cannot
        conclude the court failed to s%sfy         the
        requirements   of   Article  26.13,   Vernon's
        Ann.C.C.P. . . . (Emphasis added.)

Lucero, 502 S.W.2d 750, 753.

     While the foregoing cases predated the 1987 amendment,
they reflect the importance the courts have placed on the
judge's participation in determining that the defendant has
a full understanding of what the plea connotes and of its
consequences.

     Without addressing the validity of the 1987 amendment,
we conclude that the video tape showing of the judge giving
the admonitions  is not the functional equivalent    of the
written procedure allowed by subsection   (d) - The  written
admonitions allow time for study and reflection      and an
opportunity for the defendant to identify for his lawyer and
the judge any words or phrases he does not understand.
Further, the Court of Criminal Appeals has demonstrated    a
reluctance to approve any method of giving the admonitions
not authorized  by article 26.13. The utilization of the




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Honorable David T. Garcia - Page 6         (JM-980)




video presentations   does not    satisfy the         requirements   of
article 26.13.

                        SUMMARY
             A court may not satisfy the requirements
        of article 26.13 of the Code of Criminal
        Procedure before accepting  a plea of guilty
        or nolo contendere by showing the defendant a
        video tape presentation  of the judge giving
        the admonitions.              1




                                    JIM     MATTOX
                                    Attorney General of Texas

MARYKELLER
First Assistant Attorney General

MU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEARLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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