Affirmed and Opinion filed July 14, 2016.




                                      In The

                     Fourteenth Court of Appeals

                              NOS. 14-15-00480-CR
                                   14-15-00481-CR

                      EMMANUEL WIGGINS, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 184th District Court
                             Harris County, Texas
                   Trial Court Cause Nos. 1432587 &1432588

                                 OPINION


      Appellant Emmanuel Wiggins pleaded guilty to aggravated assault and
burglary of a habitation with a deadly weapon. After a punishment hearing, the
trial court sentenced appellant to 14 years’ confinement as to each offense, with the
sentences running concurrently. Appellant asserts that the trial court erred in
failing to admonish him as to the consequences of a deadly weapon finding,
thereby rendering his plea involuntary under the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.1 We find no error in the
trial court’s admonitions and affirm the judgment of the trial court.

                                          Background

       Appellant and others burglarized a home. The complainant and others
returned home and observed the burglars pulling out of the driveway in appellant’s
truck. The complainant’s daughter was driving the complainant’s car and followed
the truck. Appellant intentionally struck the car with his truck multiple times in his
attempt to flee. Appellant was charged with aggravated assault with a deadly
weapon, “namely, a motor vehicle” and burglary of a habitation using a deadly
weapon, the motor vehicle, during the commission of and immediate flight from
that offense.

       Appellant signed two documents waiving his right to be tried by a jury,
waiving his right to confront and examine witnesses, waiving his right against self-
incrimination, and entering his pleas of guilty to the alleged crimes. The written
admonishments identified, among other things, the range of punishment for the
charged offenses as “a term of not more than 20 years or less than 2 years in the
Institutional Division of the Texas Department of Criminal Justice and, in addition,
a possible fine not to exceed $10,000.” Appellant also waived the right to be orally
admonished by the trial court.2 Appellant entered his guilty plea, and the trial court
found him guilty of the charged offenses.3 The punishment hearing was held
approximately four months later, at which time the trial court affirmed its guilt

       1
          Appellant complains that the deadly weapon finding delays his eligibility for parole
until he has served one-half of his sentence. See Tex. Gov’t Code § 508.145(d)(1); Tex. Crim.
Proc. Code art. 42.12, § 3g(a)(2).
       2
           The record on appeal does not reflect whether appellant received oral admonishments.
       3
         A transcript of the plea hearing is not in our record, but the plea hearing was referenced
during the punishment hearing.

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adjudication and sentenced appellant.

                                    Discussion

      Appellant argues in his sole issue on appeal that the trial court’s failure to
admonish him of the consequences of a deadly weapon finding rendered his guilty
pleas involuntary under the Due Process Clause. Federal due process requires that
“[w]aivers 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.” Davison v. State, 405 S.W.3d 682, 686
(Tex. Crim. App. 2013) (quoting Brady v. United States, 397 U.S. 742, 748
(1970)). A criminal defendant who enters a plea of guilty has by definition
relinquished his Sixth Amendment rights to a trial by jury and to confront the
witnesses against him, as well as his Fifth Amendment privilege against self-
incrimination. Id. “For this waiver to be valid under the Due Process Clause, it
must be an intentional relinquishment or abandonment of a known right or
privilege.” Id. (quoting McCarthy v. United States, 394 U.S. 459, 466 (1969)). A
criminal defendant who is induced to plead guilty in a state court in total ignorance
of the precise nature of the charge and the range of punishment it carries has
suffered a violation of procedural due process. Id. We look to the entire record to
determine whether a defendant who pleaded guilty entered his plea knowingly and
voluntarily. See id. at 687.

      Relying on Boykin v. Alabama, 395 U.S. 238, 244 (1969), appellant
contends that “[a] guilty plea is not constitutionally valid unless the defendant
understands both the charges against him and the consequences of his plea.” In that
case, the defendant was sentenced to death by an Alabama jury after he pleaded
guilty to five indictments charging common-law robbery. Id. at 239. As “far as the
record show[ed],” the trial court “asked no questions of [the defendant] concerning

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his plea, and [the defendant] did not address the court.” Id. According to the
Supreme Court, “It was error, plain on the face of the record, for the trial judge to
accept [the defendant’s] guilty plea without an affirmative showing that it was
intelligent and voluntary.” Id. at 242. The court observed that the waiver of several
constitutional rights is at play when a defendant enters a guilty plea: the privilege
against compulsory self-incrimination and the rights to trial by jury and to confront
one’s accusers. Id. at 243. Accordingly, the court held that it was a violation of due
process of law for a reviewing court to “presume a waiver of these three important
federal rights from a silent record.” Id. In reaching this conclusion, the court noted,
“What is at stake for an accused facing . . . imprisonment demands [that]
courts . . . make sure [an accused] has a full understanding of what the plea
connotes and of its consequence.” Id. at 243-44.

      Boykin thus involved a guilty plea by a defendant who apparently received
no admonishments and never addressed the trial court, making it difficult to
ascertain whether his plea was knowingly and voluntarily entered. Id. at 239-40;
see also Friemel v. State, 465 S.W.3d 770, 776 (Tex. App.—Texarkana 2015, pet.
ref’d). The guilty plea was held to be involuntary because the record was silent
regarding whether “the defendant voluntarily and understandingly entered his pleas
of guilty.” Boykin, 395 U.S. at 244; Friemel, 465 S.W.3d at 776.

      The Boykin court, however, did not specifically state what the record must
disclose to satisfy due process, “except to say generally that state courts should
make sure that a guilty-pleading defendant ‘has a full understanding of what the
plea connotes and of its consequence.’” Aguirre–Mata v. State, 125 S.W.3d 473,
475 (Tex. Crim. App. 2003) (quoting Boykin, 395 U.S. at 244). As the Court of
Criminal Appeals has noted, Boykin establishes that, when the record is “devoid of
any indication that the defendant possessed ‘a full understanding of what the plea

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connotes and of its consequence,’” a presumption arises that the defendant did not
enter a knowing and voluntary plea. Davison, 405 S.W.3d at 690 (quoting Boykin,
395 U.S. at 244) (emphasis added). Therefore, we must examine the record and
determine whether there is any indication that appellant fully understood what his
plea involved and the consequences of that plea. Davison, 405 S.W.3d at 691-92.

      Appellant signed written admonishments regarding the privilege against
compulsory self-incrimination and rights of trial by jury and confrontation—the
rights that were addressed in Boykin. See Friemel, 465 S.W.3d at 776. Appellant
expressly waived all of these rights in writing. See id. Appellant was also
admonished in writing as to the applicable range of punishment. Thus, the record is
not silent as to whether appellant understood the consequences of his plea. See
Davison, 405 S.W.3d at 692.

      Yet appellant does not argue that he received no admonishments as in
Boykin, only that the admonishments he did receive were insufficient. See Friemel,
465 S.W.3d at 776. The question then is whether under Boykin, the record must
also disclose that appellant understood the consequences of a deadly weapon
finding to avoid triggering Boykin’s presumption that his plea was involuntary. See
Davison, 405 S.W.3d at 692. Appellant cites no authority to support this
conclusion, and we have found none. Moreover, the Court of Criminal Appeals has
held that a trial court’s failure to admonish a guilty-pleading defendant on the
range of punishment, standing alone, does not render a guilty plea invalid under
Boykin.4 Aguirre–Mata, 125 S.W.3d at 475; see Johnson v. State, No. 14-15-

      4
          We note that in Davison, the Court of Criminal Appeals stated:
      “[W]e have found no Supreme Court case . . . holding that a trial court’s failure to
      admonish a guilty-pleading defendant on the range of punishment renders the
      guilty plea invalid.” But even assuming that a silent record with respect to the
      appellant’s awareness of the range of punishment is alone sufficient to trigger
      Boykin’s appellate presumption, the record in this case is not totally “silent” with
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00046-CR, 2016 WL 354438, at *2 (Tex. App.—Houston [14th Dist.] Jan. 28,
2016, no pet.) (mem. op.).

       Our sister court has held, “Since neither the United States Supreme Court
nor the Court of Criminal Appeals has held that a defendant must be admonished
regarding the range of punishment in order to satisfy due process, we see no basis
for holding that due process requires the defendant to be admonished regarding the
additional consequences of a deadly-weapon finding on his eligibility for . . .
release on parole.” Friemel, 465 S.W.3d at 777. We agree with this reasoning.

       We conclude that the Boykin presumption does not apply to appellant’s plea.
See id. Consequently, due process did not require the trial court to admonish
appellant on the consequences of a deadly weapon finding, and the trial court did
not err in failing to do so. See id. We overrule appellant’s sole issue on appeal.

       We affirm the judgment of the trial court.




                                           /s/       Martha Hill Jamison
                                                     Justice



Panel consists of Justices Jamison, Donovan, and Brown.
Publish — TEX. R. APP. P. 47.2(b).




       respect to appellant’s knowledge of the applicable range of punishment when he
       entered his plea.
405 S.W.3d at 692 (quoting Aguirre–Mata, 125 S.W.3d at 475 n.7). Here, likewise, the record is
not totally silent with respect to appellant’s knowledge of the applicable range of punishment
when he entered his plea because he was admonished in writing as to that information.

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