                                                                         PD-0326-15
                                                        COURT OF CRIMINAL APPEALS
                                            Oral   argument    requested AUSTIN, TEXAS
                                                      Transmitted 4/8/2015 11:54:37 AM
                                                       Accepted 4/15/2015 11:27:52 AM
                                                                          ABEL ACOSTA
                          PD-0326-15                                             CLERK

        IN THE TEXAS COURT OF CRIMINAL APPEALS
    _________________________________________________

             MARCUS EDWARD CLICK
                          APPELLANT

                             vs.

                THE STATE OF TEXAS
                        APPELLEE
    _________________________________________________

            FROM THE SECOND COURT OF APPEALS
                CAUSE NO. 02-14-00247-CR

          APPEAL FROM THE 355TH DISTRICT COURT
           OF HOOD COUNTY, CAUSE NO. CR12270
    _________________________________________________

          APPELLANT’S PETITION FOR
           DISCRETIONARY REVIEW
    _________________________________________________

GARY UDASHEN
State Bar No. 20369590
gau@sualaw.com                     SORRELS, UDASHEN & ANTON
                                   2311 Cedar Springs, Suite 250
ROBERT N. UDASHEN, P.C.            Dallas, Texas 75201
State Bar No. 20369600             214-468-8100 (office)
rnu@sualaw.com                     214-468-8104 (fax)
                                   Counsel for Appellant
BRETT ORDIWAY
State Bar No. 24079086
bordiway@sualaw.com

                                          April 15, 2015
              Ground for Review

Whether an admonishment as to the punishment
range to which a defendant is subject as a conse-
quence of his plea of true to motion to revoke pro-
bation is constitutionally required




                        2
                                         Table of Contents

Ground for Review ...................................................................................... 2

Index of Authorities .................................................................................... 4

Identity of Parties and Counsel ................................................................. 6

Statement Regarding Oral Argument ....................................................... 7

Statement of the Case and Procedural History ........................................ 8

Argument .................................................................................................... 9

   An admonishment as to the punishment range to which a defendant
   is subject as a consequence of his plea of true to motion to revoke
   probation is constitutionally required ................................................... 9

      I. The court of appeals’s error ........................................................... 9

      II. The constitution requires admonishment as to the range of
      punishment to which one is subject before pleading ....................... 12

      III. Relief requested........................................................................... 18

Prayer ........................................................................................................ 20

Certificate of Service ................................................................................ 22

Certificate of Compliance ......................................................................... 22

Appendix ................................................................................................... 23




                                                        3
                                       Index of Authorities

Cases

Aguirre-Mata v. State, 125 S.W.3d 473, 478 (Tex. Crim. App. 2003)
   ....................................................................................................... passim
Aguirre–Mata v. State, 992 S.W.2d 495, 499 (Tex. Crim. App. 1999)
   ....................................................................................................... passim
Bessey v. State, 239 S.W.3d 809, 812 (Tex. Crim. App. 2007) ................ 19
Boykin v. Alabama, 395 U.S. 238, 242 (1969) ................................. passim
Brady v. United States, 397 U.S. 742, 749 (1970) ................................... 13
Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997) ............... 13, 14, 17
Carranza v. State, 980 S.W.2d 653 (Tex. Crim. App. 1998) ............. 15, 17
Click v. State, No. 02-14-00247-CR, 2015 WL 831993, at *1 (Tex. App.—
  Fort Worth Feb. 26, 2015). ............................................................. 10, 12
Ex parte McAtee, 599 S.W.2d 335 (Tex. Crim. App. 1980) ..................... 13
Fuller v. State, 576 S.W.2d 856 (Tex. Crim. App. 1979) ......................... 14
Garnica v. State, 53 S.W.3d 457, 460 (Tex. App.—Texarkana 2001, no
  pet.) ........................................................................................................ 12
Gutierrez v. State, 108 S.W.3d 304, 309-10 (Tex. Crim. App. 2003) ...... 11
High v. State, 964 S.W.2d 637, 638 (Tex. Crim. App. 1998)................... 15
LeBlanc v. State, 768 S.W.2d 881, 882 (Tex. App.—Beaumont 1989, no
  pet.) ........................................................................................................ 12
Matchett v. State, 941 S.W.2d 922 (Tex. Crim. App. 1996) .................... 14
McCarthy v. United States, 394 U.S. 459 (1969) ........................ 15, 17, 18
McDade v. State, 562 S.W.2d 487 (Tex. Crim. App. 1978) ..................... 14
Sierra v. State, 157 S.W.3d 52, 60 (Tex. App.–Fort Worth 2004) .......... 12
Southwick v. State, 701 S.W.2d 927, 929 (Tex. App.–Houston [1st Dist.]
  1985, no pet.) ......................................................................................... 12
Stewart v. State, 580 S.W.2d 594 (Tex. Crim. App. 1979) ...................... 14
Weekley v. State, 594 S.W.2d 96 (Tex. Crim. App. 1980) ........................ 13
Whitten v. State, 587 S.W.2d 156 (Tex. Crim. App. 1979) ...................... 14
Williams v. State, 415 S.W.2d 917 (Tex. Crim. App. 1967) .................... 14
Wright v. State, 499 S.W.2d 326 (Tex. Crim. App. 1973) ....................... 14


Statutes


                                                        4
TEX. CODE CRIM. PROC. art. 26.13(a)(1) ................................................... 11
TEX. PEN. CODE § 49.08 .............................................................................. 8


Rules

TEX. R. APP. P. 66.3 ................................................................................... 20




                                                    5
                  Identity of Parties and Counsel

For Appellant Marcus Edward Click:

     RICHARD HATTOX
          Trial counsel of record
     201 East Bridge Street
     Granbury, TX 76048

     GARY A. UDASHEN
     ROBERT N. UDASHEN
     BRETT ORDIWAY
          Appellate counsel of record
     SORRELS, UDASHEN & ANTON
     2311 Cedar Springs Suite 250
     Dallas, Texas 75201

For Appellee the State of Texas:

     ROBERT CHRISTIAN
     PATRICK BERRY
     MEGAN CHALIFOUX
          Trial counsel of record
     HOOD COUNTY DISTRICT ATTORNEY’S OFFICE
     1200 W. Pearl Street
     Granbury, Texas 76048

     MEGAN CHALIFOUX
         Appellate counsel of record
     HOOD COUNTY DISTRICT ATTORNEY’S OFFICE

Trial court:

     THE HONORABLE RALPH H. WALTON
     355TH DISTRICT COURT, HOOD COUNTY




                                    6
                Statement Regarding Oral Argument

       This petition asks this Court to overrule its precedent. Click be-

lieves oral argument would be helpful to this Court’s understanding of

why.




                                    7
          Statement of the Case and Procedural History

     Click was indicted for, and then convicted by a jury of, intoxication

manslaughter. See TEX. PEN. CODE § 49.08; (CR: 8, 34). On May 24,

2013, the jury assessed his punishment at 10 years’ imprisonment, sus-

pended pending 10 years’ community supervision. (CR: 34; RR4: 52).

     On April 10, 2014, the State filed a motion to revoke Click’s proba-

tion. (CR: 46). The State alleged that Click had violated the terms and

conditions of his probation by “fail[ing] to abstain from the use of alco-

hol.” (CR: 46). At a bench trial on May 27, 2014, Click pleaded true to

the allegation. (RR5: 5). The State presented testimony from Click’s

probation supervisor that Click had admitted drinking a glass of cham-

pagne at a party. (RR5: 6, 15). Click waived his constitutional right

against self-incrimination and admitted as much, as well, imploring the

court that he had a drinking problem and to sentence him to a treat-

ment program. (RR5: 48-49, 51-53, 60, 62). The court sentenced Click to

ten years’ imprisonment. (RR5: 70).




                                      8
                                   Argument

           An admonishment as to the punishment range to
           which a defendant is subject as a consequence of
           his plea of true to motion to revoke probation is
           constitutionally required

                                   !   !   !

 I.   The court of appeals’s error

      Immediately after beginning the bench trial on the State’s motion

to revoke Click’s probation, the trial court demanded Click enter a plea

to the State’s accusation:

      The court:       Read the motion to revoke probation,
                       please.

      Counsel:         We do waive the reading of the motion,
                       Your Honor.

      Prosecutor:      Your Honor, with—with that, if I could read
                       just paragraph two, Roman numeral two?

      The court:       Yes, sir. I will allow you to waive reading,
                       counsel, but I will require the reading of the
                       allegations as contained in paragraph Ro-
                       man numeral two.

      Prosecutor:      May I proceed?

      The court:       Yes, sir.

      Prosecutor:      Okay. Paragraph two. (State’s motion read).



                                       9
     The court:       Sir, how did you plead to that allegation,
                      true or not true?

     Click:           True, Your Honor.

     Prosecutor:      Subparagraph B. (State’s motion read)

     The court:       Sir, how do you plead to that allegation,
                      true or not true?

     Click:           True, Your Honor.

     The court:       All right. Be seated.

(RR5: 4-5). The court never admonished Click as to the punishment

range to which he would be subjected as a consequence of his plea.

     Accordingly, on appeal Click “argue[d] that the trial court erred by

failing to admonish him about the range of punishment to which he was

subject as a result of pleading true to the allegation in the State's mo-

tion, analogizing this to a failure to admonish a defendant who pleads

guilty about the range of punishment to which he will be subjected dur-

ing a trial's punishment phase.” Click v. State, No. 02-14-00247-CR,

2015 WL 831993, at *1 (Tex. App.—Fort Worth Feb. 26, 2015). Click

conceded that this Court has held that trial courts are only required to

admonish defendants of as much before pleading guilty to felony offens-

es, not before pleading guilty to misdemeanor offenses, or before plead-


                                   10
ing true in a revocation of community supervision proceeding. Gutierrez

v. State, 108 S.W.3d 304, 309-10 (Tex. Crim. App. 2003). Though, in

each circumstance, “[i]gnorance, incomprehension, coercion, terror, in-

ducements, subtle or blatant threats might be a perfect cover-up of un-

constitutionality,” and “[s]everal federal constitutional rights are in-

volved in a waiver,”1 this Court distinguished between the circumstanc-

es under the belief that the admonishment is not constitutionally re-

quired, but is instead a statutorily enacted gift to Texas defendants. See

Aguirre–Mata v. State, 992 S.W.2d 495, 499 (Tex. Crim. App. 1999) (cit-

ing TEX. CODE CRIM. PROC. art. 26.13(a)(1)). And because “[t]he statutes

governing probation do not make reference to article 26.13,” this Court

reasoned, the admonitions contained therein are thus not required in

revocation cases. Gutierrez, 108 S.W.3d at 309. But Click urged the

court of appeals that this Court was wrong. An admonishment as to the

punishment range to which a defendant is subject as a consequence of

his plea is constitutionally required—article 26.13(a)(1) is simply a codi-

fication of that requirement.




1Boykin v. Alabama, 395 U.S. 238, 242 (1969) (reversible error where record did not
disclose that defendant voluntarily and understandingly entered his pleas of guilty).
                                         11
      The court “decline[d] Click's invitation to contradict [this Court’s]

precedent.” Click, 2015 WL 831993 at *1 (citing Sierra v. State, 157

S.W.3d 52, 60 (Tex. App.–Fort Worth 2004) (op. on reh'g) (stating that

this court “is bound by the precedent of the Texas Court of Criminal

Appeals and has no authority to disregard or overrule” it), aff'd, 218

S.W.3d 85 (Tex. Crim. App. 2007); Southwick v. State, 701 S.W.2d 927,

929 (Tex. App.–Houston [1st Dist.] 1985, no pet.) (“The Court of Crimi-

nal Appeals is the highest tribunal on matters pertaining to the en-

forcement of criminal laws, and when it has deliberately and unequivo-

cally interpreted the law in a criminal matter, we must adhere to its in-

terpretation.”).

II.   The constitution requires admonishment as to the range of
      punishment to which one is subject before pleading

      For a plea to be valid, it must be voluntary. Boykin, 395 U.S. at

241 (“It was error, plain 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 voluntary.”); Garnica v. State, 53 S.W.3d 457, 460

(Tex. App.—Texarkana 2001, no pet.) (recognizing that a plea of true to

probation violation allegations must be voluntary); LeBlanc v. State,

768 S.W.2d 881, 882 (Tex. App.—Beaumont 1989, no pet.) (same). And

                                    12
only a defendant who knows and appreciates the extreme consequences

his plea may entail can make a free and voluntary plea. Brady v. United

States, 397 U.S. 742, 749 (1970) (“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 conse-

quences.”).

     This Court once recognized that the trial judge thus has a consti-

tutionally required duty to see that a defendant understands the conse-

quences of pleading guilty. See Whitten v. State, 587 S.W.2d 156, 158

(Tex. Crim. App. 1979) (“An affirmative showing of such knowledge is

constitutionally required as well.” (citing Boykin, 395 U.S. 238)), over-

ruled by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). In fact,

“[b]eginning as early as the 1960’s, this Court held that the failure to

properly admonish a defendant of the consequences of his guilty plea by

failing to advise him of the sentencing range was ground for automatic

reversal without regard to harm.” Aguirre-Mata v. State, 125 S.W.3d

473, 478 (Tex. Crim. App. 2003) (Johnson, J., dissenting) (citing, e.g.,

Weekley v. State, 594 S.W.2d 96 (Tex. Crim. App. 1980); Ex parte

McAtee, 599 S.W.2d 335 (Tex. Crim. App. 1980); Whitten v. State, 587


                                   13
S.W.2d 156 (Tex. Crim. App. 1979); Fuller v. State, 576 S.W.2d 856

(Tex. Crim. App. 1979); Stewart v. State, 580 S.W.2d 594 (Tex. Crim.

App. 1979); McDade v. State, 562 S.W.2d 487 (Tex. Crim. App. 1978);

Wright v. State, 499 S.W.2d 326 (Tex. Crim. App. 1973); Williams v.

State, 415 S.W.2d 917 (Tex. Crim. App. 1967)). And “[t]he rationale be-

hind these holdings was to insure that a defendant entered a plea with

full knowledge of its consequences, as required by the United States

Supreme Court in Boykin.” Id.

     This Court abandoned that holding, though—determining that

admonishments were only statutorily required—in its 1999 opinion in

Aguirre–Mata, 992 S.W.2d at 499. Aguirre-Mata was the end result of a

trend that began in 1997 when this Court decided Cain, 947 S.W.2d

262. As Judge Johnson later explained when Aguirre-Mata came back

before this Court:

     Cain raised the issue of a trial court’s failure to admonish a
     defendant about the deportation consequences of a guilty
     plea, as required by art. 26.13(a)(4). Here, we recognized
     that substantial compliance had sometimes been used as a
     rough replacement for a harmless error analysis, when that
     was really not its purpose. Cain, 947 S.W.2d at 264. We then
     went on to cite Matchett v. State, 941 S.W.2d 922 (Tex. Crim.
     App. 1996), in which a plurality of this Court held that all
     errors, including a failure to admonish under art.
     26.13(a)(4), are subject to a harmless error analysis. Id. The

                                  14
     majority in Cain took Matchett’s holding regarding art.
     26.13(a)(4) and expanded it to hold that “except for certain
     federal constitutional errors labeled by the United States
     Supreme Court as ‘structural,’ no error, whether it relates to
     jurisdiction, voluntariness of a plea, or any other mandatory
     requirement, is categorically immune to a harmless error
     analysis.” Id.

     Using Cain as authority, we began to hold for the first time
     that a complete failure to comply with art. 26.13(a)(1) was
     subject to a harm analysis. In 1998, we held that the First
     Court of Appeals erred by holding that the complete failure
     to admonish a defendant under art. 26.13(a)(1) is automatic
     reversible error, without regard to harm. High v. State, 964
     S.W.2d 637, 638 (Tex. Crim. App. 1998). After High, we de-
     cided Carranza v. State, 980 S.W.2d 653 (Tex. Crim. App.
     1998). Here, in an effort to reconcile all of our previous case
     law and to create a workable test, we analyzed sections (1)-
     (5) of art. 26.13(a) as a whole. Carranza, 980 S.W.2d at 656.
     Applying McCarthy v. United States, 394 U.S. 459 (1969), we
     held that the purpose and function of art. 26.13(a) is to en-
     sure that only a constitutionally valid plea is entered and ac-
     cepted by the trial court, but that art. 26.13(a) itself is statu-
     tory and does not implicate constitutional protections. Car-
     ranza, at 656. We went on to hold that the failure of the trial
     court to admonish a defendant regarding his deportation sta-
     tus was non-constitutional error and was, therefore, subject
     to a harm analysis under Rule 44.2(b). Id. at 658.

Aguirre-Mata, 125 S.W.3d at 481 (Johnson, J., dissenting). From that,

this Court’s original Aguirre-Mata opinion then held that, even though

the trial court completely failed to admonish the appellant as required

by art. 26.13(a)(1), the error was subject to a harm analysis. Aguirre–

Mata, 992 S.W.2d at 499. This Court then “said that under Carranza,

                                    15
the error should be reviewed under Rule 44.2(b); the admonishments

embodied in art. 26.13(a)(1) are not constitutionally required because

their purpose and function is to assist the trial court in making the de-

termination that a guilty plea is knowingly and voluntarily entered.”

Aguirre–Mata, 125 S.W.3d at 481 (Johnson, J., dissenting) (citing

Aguirre-Mata, 992 S.W.2d at 499).

     As Judges Johnson and Price recognized when Aguirre-Mata was

back before the Court four years later, however, “several flaws ap-

pear[ed] in [this Court’s] reasoning” in its original opinion. Id. at 481

(Johnson, J., dissenting). “First, and most importantly, [this Court’s]

holding is contrary to the constitutional law of the United States as re-

quired by Boykin v. Alabama.” Id. (Johnson, J., dissenting). In that

case, “the Supreme Court held that the voluntariness of a plea must

appear on the face of the record or a reversal is required,” and the de-

fendant must be shown to have “a full understanding of what the plea

connotes and of its consequence.” Id. (Johnson, J., dissenting) (citing

Boykin, 395 U.S. at 244).

     Second, the authority cited in this Court’s initial review of Aguir-

re-Mata concerned solely the failure to admonish of possible deporta-


                                    16
tion, and those cases are not controlling on the issue of failure to ad-

monish as to sentence ranges:

     In Carranza, we used language that implied that all admon-
     ishments under art. 26.13(a) are the same. Carranza, at 656.
     I do not believe that this implication is correct; some of the
     admonishments included in art. 26.13(a) are constitutionally
     required and some are not. Texas has imposed the statutory
     requirement that a trial court admonish a defendant of the
     possible deportation consequences through art. 26.13(a)(4),
     but there is no similar federal or state constitutional right to
     such admonishment. Error under art. 26.13(a)(4) is, there-
     fore, purely statutory and subject to analysis under Rule
     44.2(b). However, as I understand the law, the right to know
     the range of punishment under art. 26.13(a)(1) is constitu-
     tional, and it was improper to apply Cain and Carranza to
     the constitutional due-process violations of art. 26.13(a)(1).

Aguirre-Mata, 125 S.W.3d at 481 (Johnson, J., dissenting). Again,

“[u]nder Boykin, 395 U.S. at 244 n. 7, admonishment as to the range of

punishment impacts the voluntariness of a plea and thereby implicates

the due-process clause. There is no similar constitutional right to be

admonished as to possible deportation.” Id. (Johnson, J., dissenting).

     Third, this Court’s prior holding relied upon McCarthy, 394 U.S.

459, “for the proposition that a plea admonishment itself is not constitu-

tionally required, but is there merely to aid the trial court.” Id. at 482

(Johnson, J., dissenting) (citing Aguirre–Mata, 992 S.W.2d at 498; Car-

ranza, 980 S.W.2d at 656). But McCarthy addressed Federal Rule of

                                   17
Criminal Procedure Rule 11, not a constitutional issue, and the Su-

preme Court specifically stated that it’s opinion did “not reach any of

the constitutional arguments petitioner urges.” McCarthy, 394 U.S. at

464. In speaking of the voluntariness of a plea, though, McCarthy ex-

plicitly invoked the due-process clause of the United States Constitu-

tion. Id. at 466. And, of course, “[t]wo months after McCarthy, the Su-

preme Court decided Boykin and held that failure to establish the vol-

untariness of a plea was constitutional error. McCarthy, therefore, can-

not control violations of art. 26.13(a)(1).” Aguirre-Mata, 125 S.W.3d at

482 (Johnson, J., dissenting).

       For all these reasons, this Court was wrong to overrule its original

holding: it was constitutional error to fail to admonish a defendant as to

the range of punishment to which he was subject by pleading guilty.

Aguirre–Mata, 125 S.W.3d at 483 (Johnson, J., dissenting).

III.   Relief requested

       Click thus respectfully requests this Court to grant this petition so

that it may (1) overrule Aguirre-Mata and its progeny and restore that

holding. Further, because, again, whether pleading guilty to a felony or

misdemeanor, or true to a probation violation allegation, “[i]gnorance,


                                     18
incomprehension, coercion, terror, inducements, subtle or blatant

threats might be a perfect cover-up of unconstitutionality,” and

“[s]everal federal constitutional rights are involved in a waiver,”2 (2)

Click respectfully requests this Court to hold that that his constitution-

al rights were violated when the trial court in this case failed to admon-

ish him as to the range of punishment to which he was subject as a re-

sult of his plea of true. That the statutes governing probation do not

make reference to article 26.13 of the Code of Criminal Procedure is ir-

relevant. And for the same reason, (3) Click respectfully requests this

Court to hold that his failure to object to the lack of admonishment does

not preclude this Court’s review. A defendant’s right to be properly ad-

monished is a waivable-only right, and errors may be raised for the first

time on appeal if the complaint is that the appellant was denied a wai-

vable-only right that he did not waive. Bessey v. State, 239 S.W.3d 809,

812 (Tex. Crim. App. 2007). Finally, should this Court do so, (4) Click

respectfully requests it to then remand this case to the court of appeals

to analyze whether the trial court’s infringement of Click’s constitution-




2 Boykin, 395 U.S. at 242 (reversible error where record did not disclose that de-
fendant voluntarily and understandingly entered his pleas of guilty).
                                       19
al rights was “structural,” and therefore immune from a harmless error

analysis, or whether it is the type of constitutional error governed by

Rule of Appellate Procedure 44.2(a).

                                 Prayer

     Accordingly, because admonishment as to the punishment range

to which a defendant is subject as a consequence of his plea is constitu-

tionally required, Click respectfully requests this Court to grant this pe-

tition and consider this important question of federal constitutional law.

See TEX. R. APP. P. 66.3(c) (“While neither controlling nor fully measur-

ing the Court of Criminal Appeals' discretion,” this Court will consider

“whether a court of appeals has decided an important question of state

or federal law in a way that conflicts with the applicable decisions of the

Court of Criminal Appeals or the Supreme Court of the United States”

in deciding whether to grant discretionary review).

                                  Respectfully submitted,



                                       /s/ Gary A. Udashen
                                  Gary A. Udashen
                                  State Bar No. 20369590
                                  gau@sualaw.com



                                    20
     /s/ Robert N. Udashen
ROBERT N. UDASHEN, P.C.
State Bar No. 01274700
rnu@sualaw.com


     /s/ Brett Ordiway
BRETT ORDIWAY
Bar Card No. 24079086
bordiway@sualaw.com

SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road Suite 250
Dallas, Texas 75201
(214)-468-8100 (office)
(214)-468-8104 (fax)

Attorneys for Appellant




 21
                        Certificate of Service

     I, the undersigned, hereby certify that a true and correct copy of
the foregoing Petition for Discretionary Review was electronically
served to the Hood County District Attorney’s Office on April 8, 2015.


                                       /s/ Gary A. Udashen
                                  Gary A. Udashen




                      Certificate of Compliance

      Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with:

  1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(D) because
     this petition contains 2,509 words, excluding the parts of the brief
     exempted by TEX. R. APP. P. 9.4(i)(1).

  2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type
     style requirements of TEX. R. APP. P. 9.4(e) because this brief has
     been prepared in a proportionally spaced typeface using Microsoft
     Word 2011 in 14-point Century Schoolbook.


                                       /s/ Gary A. Udashen
                                  Gary A. Udashen




                                   22
Appendix




   23
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                               NO. 02-14-00247-CR


MARCUS EDWARD CLICK                                                APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


                                    ----------

          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                     TRIAL COURT NO. CR12270

                                    ----------

                        MEMORANDUM OPINION1

                                    ----------

      In a single issue, appellant Marcus Edward Click appeals the trial court’s

judgment revoking his community supervision and sentencing him to ten years’

confinement. We will affirm.

      Click pleaded guilty to intoxication manslaughter, a second-degree felony,

and a jury assessed his punishment at ten years’ confinement and a $10,000

fine; the trial court then suspended imposition of the sentence of confinement

      1
       See Tex. R. App. P. 47.4.
based on the jury’s recommendation and placed Click on ten years’ community

supervision.     See Tex. Penal Code Ann. § 49.08 (West 2011); see also id.

§ 12.33 (West 2011) (stating that the punishment range for a second-degree

felony is two to twenty years’ confinement and may include a fine not to exceed

$10,000).      Around a year later, the State filed a motion to revoke Click’s

community supervision, alleging that Click had failed to abstain from using

alcohol.    Click pleaded true to the allegation, and the trial court revoked his

community supervision “based upon [his] plea and the evidence presented” and

imposed the original ten-year sentence and $10,000 fine.

      Click argues that the trial court erred by failing to admonish him about the

range of punishment to which he was subject as a result of pleading true to the

allegation in the State’s motion, analogizing this to a failure to admonish a

defendant who pleads guilty about the range of punishment to which he will be

subjected during a trial’s punishment phase. However, Click acknowledges that

in Gutierrez v. State, the court of criminal appeals held that a trial court is only

required to admonish a defendant of the punishment range before he or she

pleads guilty to a felony offense and not before he or she pleads true in a

revocation proceeding. 108 S.W.3d 304, 309–10 (Tex. Crim. App. 2003) (“[I]n

the context of revocation proceedings, the legislature . . . has not required the

court to inquire as to the existence of a plea agreement or admonish the

defendant pursuant to 26.13.”); see also Aguirre-Mata v. State, 125 S.W.3d 473,

475 (Tex. Crim. App. 2003) (stating that Boykin v. Alabama, 395 U.S. 238, 89


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S. Ct. 1709 (1969), “clearly did not hold that due process requires the equivalent

of the Article 26.13(a) admonishments or an admonishment on the range of

punishment” to a defendant pleading guilty); cf. Tex. Code Crim. Proc. Ann. art.

26.13(a)(1) (West 2009 & Supp. 2014) (stating that before a trial court accepts a

guilty plea or plea of nolo contendere, it shall admonish the defendant of the

range of punishment attached to the offense).

      We decline Click’s invitation to contradict the court of criminal appeals’s

precedent; therefore, we overrule his sole issue and affirm the trial court’s

judgment. See, e.g., Sierra v. State, 157 S.W.3d 52, 60 (Tex. App.—Fort Worth

2004) (op. on reh’g) (stating that this court “is bound by the precedent of the

Texas Court of Criminal Appeals and has no authority to disregard or overrule”

it), aff’d, 218 S.W.3d 85 (Tex. Crim. App. 2007); Southwick v. State, 701 S.W.2d

927, 929 (Tex. App.—Houston [1st Dist.] 1985, no pet.) (“The Court of Criminal

Appeals is the highest tribunal on matters pertaining to the enforcement of

criminal laws, and when it has deliberately and unequivocally interpreted the law

in a criminal matter, we must adhere to its interpretation.”).


                                                     /s/ Bill Meier

                                                     BILL MEIER
                                                     JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

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

DELIVERED: February 26, 2015

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