                                 IN THE
                         TENTH COURT OF APPEALS

                               No. 10-14-00279-CR

KYDRICK RESHAWD BENTON,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                         From the 361st District Court
                             Brazos County, Texas
                       Trial Court No. 13-04453-CRF-361


                         MEMORANDUM OPINION


      Appellant Kydrick Benton pleaded guilty to aggravated robbery, and a jury

assessed his punishment at thirty-eight years’ confinement. This appeal ensued.

                                     Guilty Plea

      In his first issue, Benton contends that the trial court denied him due process of

law under the Fourteenth Amendment by accepting his guilty plea without properly

admonishing him of his rights and without determining that he was competent and was
entering his guilty plea freely and voluntarily. Similarly, in his second issue, Benton

contends that the trial court erred in accepting a guilty plea that was in violation of Code

of Criminal Procedure article 26.13(b), which states, “No plea of guilty or plea of nolo

contendere shall be accepted by the court unless it appears that the defendant is mentally

competent and the plea is free and voluntary.” TEX. CODE CRIM. PROC. ANN. art. 26.13(b)

(West Supp. 2016). Benton addresses these two issues together in his brief, and, other

than citing the statute itself, Benton offers no argument or authority regarding the specific

protections provided by article 26.13(b) or how the protections provided by article

26.13(b) differ from federal due-process protections. We therefore consider Benton’s

second issue inadequately briefed and will address only his first issue regarding federal

due-process jurisprudence. See Manns v. State, 122 S.W.3d 171, 192 n.97 (Tex. Crim. App.

2003); Johnson v. State, 853 S.W.2d 527, 533 (Tex. Crim. App. 1992).

         In this case, the following exchange occurred just before the voir dire examination

began:

               THE COURT: All right. We’re outside the presence of the jury,
         Cause No. 13-04453-CRF-361. Mr. Benton is present with his attorney.

                Mr. Benton, it’s my understanding you want to plead guilty to Count
         3 of the indictment; is that correct, sir?

                  THE DEFENDANT: Yes, sir.

                THE COURT: You understand you have a right to a trial by jury on
         the guilt phase as well as the punishment phase of the trial?

                  THE DEFENDANT: Yes, sir.
Benton v. State                                                                        Page 2
                THE COURT: You also have the right to confront and cross-examine
        witnesses, you have the right to call witnesses on your own behalf, you have
        a right to testify or not testify as you wish. You cannot been [sic] compelled
        to testify. Do you understand that?

                  THE DEFENDANT: Yes, sir.

                THE COURT: You understand the range of punishment for this case
        is between five to 99 years or life imprisonment. I understand you have
        filed a request for probation, but you understand that is up to the jury and
        the jury alone?

                  THE DEFENDANT: Yes, sir.

               THE COURT: Okay. The State alleges in Count 3 that back on June
        the 13th of 2013, here in Brazos County, Texas, while in the course of
        committing theft of property, and with the intent to obtain or maintain
        control of that property, that you intentionally or knowingly threatened or
        placed Vidimara Garcia in fear of imminent bodily injury or death, and that
        when you did that you used or exhibited a deadly weapon, specifically a
        firearm.

                  Do you understand that charge of aggravated robbery?

                  THE DEFENDANT: Yes, sir.

                  THE COURT: And how do you plead to that charge?

                  THE DEFENDANT: Guilty.

                THE COURT: It is my understanding that we are now going to go
        select the jury on the punishment phase of the trial and that the Defendant
        has filed his request for election for the jury to assess punishment and also
        filed his application for probation; am I correct?

               [DEFENSE COUNSEL]: Those are on your bench, Tiffany wasn’t
        here, he signed, it’s been notarized, but it’s bench-filed.

                  THE COURT: It’s bench-filed, yeah.
Benton v. State                                                                          Page 3
                [DEFENSE COUNSEL]: Judge, a scheduling question about all this
        just so we kind of have an idea about witnesses and what have you so we
        can work most efficiently for you.

              My understanding from the State - - well, can you walk through
        what y’all anticipate?

                  ....

              [PROSECUTOR]: We could take - - we could take the Defense
        witnesses out of order.

              [DEFENSE COUNSEL]: That would work, Judge, because some of
        my witnesses - - I’m going to put a probation officer on. That will take 30
        minutes.

                  THE COURT: Right. We can get one of those across the street.

               [DEFENSE COUNSEL]: And I have one sheriff’s guard that I’ll put
        on over there so that we can put that - - as long as we’re doing that, I’m
        confident that we can have him on a 15-minute standby so that if we get
        there - -

                  THE COURT: Okay.

                  [DEFENSE COUNSEL]: And I don’t mind taking that out of order.

                  Kydrick, do you understand what we’re talking about?

                  THE DEFENDANT: Yes, sir.

                  [DEFENSE COUNSEL]: Do you have any questions about that?

                  THE DEFENDANT: No, sir.

                  [DEFENSE COUNSEL]: Do you trust me when I say that that’s
        okay?

                  THE DEFENDANT: That’s okay.
Benton v. State                                                                       Page 4
                THE COURT: Yeah. And that’s fine with the Court too, because the
        jury is going to hear the evidence no matter what.

                  [DEFENSE COUNSEL]: Yes, sir.

                  [PROSECUTOR]: Right.

                THE COURT: It just may not be in the same order that we normally
        hear it.

              [DEFENSE COUNSEL]: And as long [as] we’re explaining it and
        everything is going along.

                  THE COURT: Yeah, that’ll work.

               [DEFENSE COUNSEL]: We talked about one other issue on this,
        Judge. The Court - - I had requested it and the Court had a competency
        and sanity evaluation done in this case. In voir dire, part of what - - we’ve
        talked about how to address that with the jury.

                My anticipation in voir dire is to bring up the issue that we wouldn’t
        be here if there wasn’t a finding of competency and sanity. Because what I
        want to avoid - - I think what everyone wants to avoid - - is that through
        this case there will be some questions about Mr. Benton’s mental status, but
        I don’t want a psychiatrist in the box that’s going to diagnose and do all
        sorts of strange things in there that - -

              THE COURT: Because there’s a question of when you put that
        psychiatrist on how much of his Fifth Amendment goes out the door,
        sometimes.

                  [DEFENSE COUNSEL]: Yes, sir. Yes, sir.

                  THE COURT: Okay. Very well.

Benton subsequently pleaded guilty in front of the jury.

               Federal due process requires that “[w]aivers of constitutional rights
        not only must be voluntary but must be knowing, intelligent acts done with
Benton v. State                                                                          Page 5
        sufficient awareness of the relevant circumstances and likely
        consequences.” 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. “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.’” 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. Such a defendant

                  has such an incomplete understanding of the charge that his
                  plea cannot stand as an intelligent admission of guilt.
                  Without adequate notice of the nature of the charge against
                  him, or proof that he in fact understood the charge, the plea
                  cannot be voluntary in this … sense.

        For his guilty plea to be constitutionally valid, then, the defendant must
        have an actual awareness of the nature and gravity of the charges against
        him and of the constitutional rights and privileges that he necessarily
        relinquishes—in short, “a full understanding of what the plea connotes and
        of its consequence.”

Davison v. State, 405 S.W.3d 682, 686-87 (Tex. Crim. App. 2013) (footnotes omitted).

        Benton argues that the record does not demonstrate that his guilty plea was

entered freely, voluntarily, and knowingly. Benton asserts that he did not execute any

written waiver of his rights and that the trial court failed to advise him of the right to be

convicted only upon proof beyond a reasonable doubt, to inquire whether he was

entering his plea knowingly and voluntarily, and to inquire if anything had been

promised to him in exchange for his guilty plea. The State responds that due process

does not require these specific admonishments.



Benton v. State                                                                        Page 6
        Although due process does not require specific admonishments, see Aguirre-Mata

v. State, 125 S.W.3d 473, 475-76 (Tex. Crim. App. 2003), it does require that the defendant

have “a full understanding of what the plea connotes and of its consequence.” See

Davison, 405 S.W.3d at 686-87 (quoting Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709,

1712, 23 L.Ed.2d 274 (1969)). Here, the trial court informed Benton that he had a right to

trial by jury at both the guilt/innocence and punishment phases of trial, that he had the

right to confront and cross-examine witnesses, that he had the right to call witnesses, and

that he had the right not to be compelled to testify. Benton responded that he understood

that he had these rights. The trial court, however, never explained to Benton what effect

his pleading guilty would have on these rights. The trial court never informed Benton

that he was relinquishing any of these rights by pleading guilty.

        In Boykin, the U.S. Supreme Court held that when the record of a criminal

conviction obtained by guilty plea contains no evidence that a defendant knew of the

rights he was putatively waiving, the conviction must be reversed. United States v.

Benitez, 542 U.S. 74, 84 n.10, 124 S.Ct. 2333, 2341 n.10, 159 L.Ed.2d 157 (2004) (citing Boykin,

395 U.S. at 243, 89 S.Ct. at 1712). But Boykin’s holding does not mean that a defendant

necessarily prevails on his constitutional claim just because the record fails to show that

he was properly admonished by the trial court. Davison, 405 S.W.3d at 687. “[T]he record

must also be silent with respect to whether he was otherwise provided, or nevertheless




Benton v. State                                                                          Page 7
aware of, the requisite information to render his guilty plea voluntary and intelligent.”

Id.

        The record in this case is not totally “silent” with respect to Benton’s knowledge

that, by pleading guilty, he was relinquishing 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, at the guilt/innocence phase of trial. As shown above, the trial

court did inform Benton of each of these rights. Furthermore, the record reveals that

Benton indicated to his counsel during the punishment phase that he was frustrated with

the State’s presentation of the evidence against him, not because he wanted to challenge

the witnesses or dispute the evidence, but because he had pleaded guilty because of what

he had done and therefore wanted to simply accept his punishment without the State

“bashing it in my head.” It may therefore be inferred that Benton did not plead guilty

without knowing that he was relinquishing 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, at the guilt/innocence phase of trial. We thus conclude that

the trial court did not violate Benton’s federal due-process rights by accepting his guilty

plea as free and voluntary.

        Benton also argues that the record does not demonstrate that he was competent to

enter his guilty plea. Benton contends that although there is a reference made to a




Benton v. State                                                                       Page 8
competency evaluation, there was no inquiry made of him or his counsel about his

competency at the time of trial.1

        Under the Due Process Clause of the Fourteenth Amendment, a trial court may

not accept a defendant’s guilty plea unless that defendant is competent to make such a

plea. See Medina v. California, 505 U.S. 437, 439, 112 S.Ct. 2572, 2574, 120 L.Ed.2d 353

(1992). But unless an issue is made of the defendant’s mental competency at the time of

the plea, the trial court need not make inquiry or hear evidence on the issue. Kuyava v.

State, 538 S.W.2d 627, 628 (Tex. Crim. App. 1976); see TEX. CODE CRIM. PROC. ANN. art.

46B.004(c-1) (West Supp. 2016) (“A suggestion of incompetency is the threshold

requirement for an informal inquiry.”); Medina, 505 U.S. at 450-51, 112 S.Ct. at 2580

(holding that allocation of burden of proof to defendant does not offend due process).

This is particularly true when the trial court had an opportunity to observe the defendant

in open court. Kuyava, 538 S.W.2d at 628.

        About five months before Benton entered his guilty plea, his counsel filed a motion

suggesting incompetency and requesting an examination of Benton. During the above-

quoted exchange that occurred just before the voir-dire examination began, his counsel

acknowledged that a competency evaluation had been done and that Benton had been



1Benton asserts that the only other reference to his mental state was during the punishment phase when
“the trial court was informed that [he] was threatening suicide,” and the trial court “made no inquiry into
his state of mind but simply advised him and his counsel that he was free to absent himself from the
proceedings.” Benton, however, does not argue that the trial court failed to inquire about his competency
at that point in the punishment proceeding.
Benton v. State                                                                                     Page 9
found competent. During the voir-dire examination immediately following the above-

quoted exchange, Benton’s counsel then stated:

        Okay. Tell you one thing here, is that in order to get to where we are today,
        where we are having a trial, the one thing that you can be guaranteed is that
        the individual on trial is competent and sane. Okay. That there are not
        questions about their competence or ability to understand the proceedings
        and what’s going on. And their sanity, their ability to comprehend what
        they did, when they did it and to realize that it was wrong. Okay.

And there was no suggestion that Benton was incompetent when he subsequently

pleaded guilty in front of the jury. Therefore, the trial court did not violate Benton’s due-

process rights by not inquiring about his competency at the time he entered his guilty

plea. We overrule Benton’s first and second issues.

                                    Motion to Suppress

        In his third issue, Benton contends that the trial court erred in denying his motion

to suppress the evidence that was seized during the warrantless search of his vehicle.

Benton states that the question before us is “whether the facts were sufficient to perform

a Terry frisk of a silver Lincoln when the only information law enforcement possessed

was that the witness said the suspect had left in a [gray] Mitsubishi Galant[ ] and

provided no license tag number.”

        We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.

2007). In reviewing the trial court’s decision, we do not engage in our own factual review.

Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857,
Benton v. State                                                                         Page 10
861 (Tex. App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and

judge of the credibility of the witnesses and the weight to be given their testimony. Wiede

v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex.

Crim. App. 2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim.

App. 2006). Therefore, we give almost total deference to the trial court’s rulings on (1)

questions of historical fact, even if the trial court’s determination of those facts was not

based on an evaluation of credibility and demeanor; and (2) application-of-law-to-fact

questions that turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at

673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App. 2006); Johnson v. State, 68

S.W.3d 644, 652-53 (Tex. Crim. App. 2002). But when application-of-law-to-fact questions

do not turn on the credibility and demeanor of the witnesses, we review the trial court’s

rulings on those questions de novo. Amador, 221 S.W.3d at 673; Johnson, 68 S.W.3d at 652-

53.

        Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police can

stop and briefly detain a person for investigative purposes if they have a reasonable

suspicion supported by articulable facts that criminal activity may be afoot. United States

v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (citing Terry, 392 U.S. at

30, 88 S.Ct. at 1884-85). Reasonable suspicion exists when, based on the totality of the

circumstances, the officer has specific, articulable facts that, when combined with rational

inferences from those facts, would lead him to reasonably conclude that a particular


Benton v. State                                                                         Page 11
person is, has been, or soon will be engaged in criminal activity. Ford v. State, 158 S.W.3d

488, 492-93 (Tex. Crim. App. 2005). This is an objective standard that disregards any

subjective intent of the officer making the stop and looks solely to whether an objective

basis for the stop exists. Id. at 492. Whether the totality of the circumstances is sufficient

to support an officer’s reasonable suspicion is a legal question that we review de novo.

See Madden v. State, 242 S.W.3d 504, 517 (Tex. Crim. App. 2007).

        At the hearing on the motion to suppress, Bryan Police Sergeant Lance Mathews

testified that, on June 19, 2013, a 911 call was made, reporting that a robbery had just

occurred at Prosperity Bank. The 911 call was admitted into evidence. The 911 caller,

who identified herself by name, reported that Prosperity Bank had been robbed by a black

male who had a handgun and was wearing a black hoodie, blue mask, and sunglasses.

The caller further stated that the man had just left in a light gray Mitsubishi Galant with

no license plate on the front and a paper license plate on the back.

        Mathews testified that dispatch relayed that the suspect vehicle was a gray

Mitsubishi Galant. Mathews has experience with civilian identifications of vehicles. He

stated that sometimes civilians get the makes and models of vehicles “mixed up”;

therefore, if dispatch said that the suspect vehicle was a gray Mitsubishi, he would try to

narrow the search but would not limit it to only gray Mitsubishis.

        Bryan Police Officer Crystal O’Rear testified that, on June 19, when the call was

received about the bank robbery, she was dispatched to Prosperity Bank in a marked


Benton v. State                                                                        Page 12
patrol car. Dispatch gave her the vehicle description of a silver Mitsubishi Galant and

informed her that a gun had been used in the robbery. She knew nothing about whether

there were license plates on the vehicle.

        O’Rear stated that, as she was traveling to Prosperity Bank, she saw a silver

Lincoln LS with temporary tags on the back. She turned around to follow the vehicle

because it looked similar to the vehicle described in the dispatch call. She was also a short

distance—about a mile or two—from the bank, and she acknowledged that it would have

been very reasonable for her to encounter the suspect vehicle at that point if it had left

Prosperity Bank when she had gotten the dispatch call. She did not attempt to stop the

vehicle at that time.

        Benton argues that these facts were not sufficient to establish reasonable suspicion

because the only information that law enforcement had at that time was that a witness

said that the suspect had left in a gray Mitsubishi Galant and, according to Mathews,

witness information about vehicles can be unreliable. But Mathews did not testify that

witness testimony should be ignored; he merely testified that civilians sometimes get the

makes and models of vehicles “mixed up.” Furthermore, the reliability of an anonymous

tip can be heightened when, as here, an informant places himself in a position to be easily

identified and held responsible for the information provided. Hawes v. State, 125 S.W.3d

535, 538 (Tex. App.—Houston [1st Dist.] 2002, no pet.). The U.S. Supreme Court has

recognized that because the 911 system “has some features that allow for identifying and


Benton v. State                                                                       Page 13
tracing callers,” tips from 911 callers should be considered more reliable. Navarette v.

California, 134 S.Ct. 1683, 1689-90, 188 L.Ed.2d 680 (2014). Courts also consider a person

who is not connected with the police or who is not a paid informant to be inherently

trustworthy when advising the police of suspected criminal activity. Taflinger v. State,

414 S.W.3d 881, 885 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Most importantly,

however, the information from the 911 caller is not the totality of the circumstances. See

Ford, 158 S.W.3d at 492-93.

        O’Rear testified that when she turned around to follow the Lincoln, she lost sight

of it but then saw it parked in a driveway. Another officer was with her by this point.

They got out of their vehicles and walked toward the suspect vehicle. She did not see the

driver because the windows of the vehicle were tinted. The vehicle then quickly reversed

out of the driveway and drove away from them. O’Rear radioed dispatch to let them

know that they “probably had the vehicle.” She then got into her patrol car to try to find

the suspect vehicle again. She subsequently received a call that the vehicle had been

found in the same area where she had initially tried to contact the vehicle.

        Benton asserts that the foregoing conduct by the driver of the Lincoln does not rise

to a reasonable suspicion because it is not reasonable to presume that the driver of the

Lincoln saw O’Rear when she attempted to approach the car while it was parked in the

driveway. Benton argues that the driver’s behavior could not therefore be categorized as

flight. But because the trial court denied Benton’s motion to suppress without express


Benton v. State                                                                      Page 14
findings of fact, we must assume that the trial court made implicit findings of fact that

support its ruling as long as those findings are supported by the record. See Lujan v. State,

331 S.W.3d 768, 771-72 (Tex. Crim. App. 2011). Here, O’Rear stated that she got out of

her marked patrol car, along with another officer, and walked toward the suspect vehicle

when the suspect vehicle quickly reversed out of the driveway and drove away from

them. It can be rationally inferred from these facts that the driver of the Lincoln saw

O’Rear as she attempted to approach the vehicle and fled. See Reyes v. State, 899 S.W.2d

319, 324-25 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d) (stating that flight alone

may not justify investigatory detention, but flight from show of authority is factor in

support of a finding that there is reasonable suspicion that person is involved in criminal

activity).

        Mathews testified that the suspect vehicle was found and that he went to the

location. Several officers were already at the location where a silver Lincoln was parked

in the driveway of one of the houses. Mathews said that the silver Lincoln looked very

similar to a silver or gray Mitsubishi Galant. They set up a perimeter on the vehicle.

Mathews stated that this was occurring minutes after the initial call came in about the

bank robbery. At that point, they had not recovered the gun. The windows of the vehicle

had dark tint on them, so they did not know if someone was still in the vehicle or how

many suspects were involved. Sometimes in robbery cases, there is a person who never

goes into the bank and whose job is to be the driver of the car.


Benton v. State                                                                       Page 15
        Mathews testified that they called out to anyone who might be in the vehicle. They

used a K-9 to try to draw someone out of the vehicle. Keys were then brought to Mathews

by another officer. When asked by Benton’s counsel where Mathews believed the officer

got the keys, Mathews replied, “Off of your client at the tire shop just adjacent or just

west of this house.” Mathews “popped the trunk” with the key fob to make sure that the

keys worked for the vehicle. He then unlocked the vehicle doors to give them the ability

to more quickly and easily secure a person who might be in the vehicle. Officers then

used the “K-9 Tahoe” as cover to approach the vehicle and open the driver’s side door.

Once the door was opened, they discovered that no one was inside the vehicle. But laying

in the front seat, visible from outside the open door, was clothing that matched the

description of the clothing worn by the suspect during the bank robbery, including

gloves, a hooded sweatshirt, sunglasses, and a ball cap. They then entered the vehicle

without a warrant.

        We have already discussed the 911 caller’s information and the driver’s conduct

when O’Rear walked toward the vehicle. Mathews’s testimony then shows that the

Lincoln was found parked again. This was occurring just minutes after the initial call

came in about the bank robbery, so law enforcement did not know how many suspects

were involved. The windows of the vehicle had such dark tint that the officers did not

know if someone was still in the vehicle. And although the keys to the vehicle were




Benton v. State                                                                    Page 16
recovered, the evidence shows that neither the gun nor the clothing worn by the suspect

during the bank robbery had been recovered.

        We therefore conclude that, based on the totality of the circumstances, the officers

had reasonable suspicion, supported by articulable facts and rational inferences from

those facts, that there was a person in the Lincoln who was, had been, or soon would be

engaged in criminal activity.    See Ford, 158 S.W.3d at 492-93. It is not relevant that once

the door to the Lincoln was opened, law enforcement discovered that no one was inside

the vehicle. A mistake about the facts, if reasonable, will not vitiate an officer’s actions in

hindsight so long as his actions were lawful under the facts as he reasonably, albeit

mistakenly, perceived them to be. Robinson v. State, 377 S.W.3d 712, 720-21 (Tex. Crim.

App. 2012).

        The trial court did not err in denying Benton’s motion to suppress. We overrule

his third issue.

        Having overruled all of Benton’s issues, we affirm the trial court’s judgment.




                                                   REX D. DAVIS
                                                   Justice




Benton v. State                                                                         Page 17
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed November 9, 2016
Do not publish
[CRPM]




Benton v. State                                Page 18
