                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                        No. 07-16-00079-CR


                          JOHN L. MCLAUGHLIN, JR., APPELLANT

                                                 V.

                              THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 108th District Court
                                      Potter County, Texas
                 Trial Court No. 60,418-E, Honorable Don R. Emerson, Presiding

                                        October 27, 2016

                                MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Appellant, John L. McLaughlin Jr., was indicted for the offense of aggravated

robbery.1 Pursuant to a plea agreement, appellant entered a plea of guilty and was

placed on ten years’ deferred adjudication. The State subsequently filed a motion to

adjudicate appellant guilty of the indicted offense. Thereafter, on October 15, 2015, the

trial court held a hearing on the State’s motion to adjudicate.           After hearing the

evidence, the trial court adjudicated appellant guilty and sentenced him to serve life in

      1
          See TEX. PENAL CODE ANN. § 29.03(a)(3)(A) (West 2011).
the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ).

Appellant then filed a motion for new trial, which the trial court granted on December 9,

2015.    On January 15, 2016, another hearing was held on the State’s motion to

adjudicate appellant guilty of the indicted offense. After receiving appellant’s plea of

“True,” appellant was adjudicated guilty of the aggravated robbery, and the trial court

then heard the evidence regarding punishment.          Following the receipt of evidence

regarding punishment, the trial court sentenced appellant to thirty years in the ID-TDCJ.

Appellant appeals, contending that, because he was not advised of the consequences

of his plea of “True,” his plea was not voluntarily entered. We will affirm.


                                   Factual Background


        A review of the record reflects that appellant entered a plea of guilty pursuant to

a plea bargain. On the date of appellant’s plea, he was admonished about all of the

rights he was giving up by entering a plea of “Guilty.” Specifically, he was admonished

about the applicable range of punishment for a first-degree felony offense. Further,

appellant was admonished about the consequences of entering a plea of “Guilty” to a

recommendation of deferred adjudication.           After the admonishments, appellant

proceeded to enter his plea of “Guilty.”


        Subsequently, at the first hearing on the State’s motion to proceed with

adjudication, appellant executed a document that contained written admonishments

regarding pleading “True” to a motion to adjudicate. One of the admonishments was an

acknowledgement by appellant that, if he was pleading “True,” after receiving a deferred




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adjudication, the entire punishment range was available for the trial court’s

consideration as to punishment.


       Following the granting of appellant’s motion for new trial, appellant again entered

a plea of “True” to the State’s motion to adjudicate. At the time of the plea of “True,” the

trial court made inquiry into whether appellant had received a copy of the motion to

adjudicate and understood what the State’s allegations were. Appellant replied that he

had received a copy of the allegations contained in the State’s motion to proceed and

understood those allegations. The trial court asked if appellant wanted the allegations

read, which appellant declined.     Then, the trial court asked appellant whether the

State’s allegations were true or untrue. Appellant then entered a plea of “True” to the

allegations.


       Following the plea of “True,” the trial court heard evidence on the issue of

punishment. At the conclusion of the punishment hearing, the trial court sentenced

appellant to thirty years in the ID-TDCJ. It is from this judgment that appellant appeals.


                                   Standard of Review


       As an appellate court, we review the record of the trial court to ensure that the

trial court did not abuse its discretion. See Leonard v. State, 385 S.W.3d 570, 576 (Tex.

Crim. App. 2012) (op. on reh’g).


                                         Analysis


       Appellant’s contention is that, because the trial court failed to admonish appellant

prior to the entry of his plea of “True,” the plea was not voluntarily entered. To support


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this proposition, appellant cites the Court to Article 26.13 of the Texas Code of Criminal

Procedure.      See TEX. CODE CRIM. PROC. ANN. art. 26.13 (West Supp. 2016).2

Specifically, appellant finds fault with the trial court because he was not admonished

regarding the range of punishment, the consequences of pleading “True,” his current

mental health, immigration consequences, and the voluntariness of the plea. See id.


       In reviewing appellant’s complaint, we first turn to the language of Article 26.13.

See id. Specifically, we point out the heading of the article, “Plea of guilty.” Id. The first

sentence of part (a) says, “Prior to accepting a plea of guilty or a plea of nolo

contendere, the court shall admonish the defendant of . . .” and then enumerates the

matters about which the defendant is to be admonished. Art. 26.13(a). We note that

Article 26.13 specifically talks about pleas of “Guilty” or “Nolo contendere” and never

mentions pleas of “True” in any motion to proceed hearing.


       This Court has previously held that statutory requirements of Article 26.13 do not

apply to any type of revocation proceeding, of which a motion to proceed is one type.

See Carr v. State, No. 07-13-00159-CR, 2014 Tex. App. LEXIS 2659, at *5–6 (Tex.

App.—Amarillo Mar. 6, 2014, no pet.) (mem. op., not designated for publication). The

Court’s decision in Carr was substantially based upon the Texas Court of Criminal

Appeals’s decision in Gutierrez v. State, 108 S.W.3d 304, 309–10 (Tex. Crim. App.

2003) (en banc). Gutierrez holds that Article 26.13 applies only when a defendant

enters a plea of “Guilty” or “Nolo contendere” in a felony prosecution.                Id. at 309.

Gutierrez concludes that Article 26.13 does not apply in a probation revocation


       2
          Further reference to the Texas Code of Criminal Procedure will be by reference to “Article
____,” “article ____,” or “art. ____.”

                                                 4
proceeding because the statutes governing probation make no reference to Article

26.13.     Id. Gutierrez further provides that, in the context of probation revocation

proceedings, “the legislature has not authorized binding plea agreements, has not

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

defendant pursuant to 26.13.” Id. Therefore, we hold that the trial court did not abuse

its discretion in failing to admonish appellant regarding the matters covered by Article

26.13. See Leonard, 385 S.W.3d at 576.


         Appellant then seems to argue that there are due process considerations that will

still apply. According to appellant’s theory, due process requires that the trial court

substantially follow rules of criminal procedure and cites the Court to Leonard. Id. at

577. The issue in Leonard was whether the defendant was afforded due process of

law. See id. Leonard does not mention or imply that the strictures of Article 26.13 are

to be complied with in order to demonstrate that the defendant received due process of

law. Leonard cites Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. [Panel Op.]

1980), for a discussion about what due process of law means in the context of a

revocation proceeding. Caddell in turn cites the reader to Gagnon v. Scarpelli, 411 U.S.

778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), for the proposition that appropriate due

process of law is required in a probation revocation proceeding. Caddell, 605 S.W.2d at

277. Gagnon holds that at a final probation revocation proceeding the defendant is

entitled to (1) written notice of the claimed violations, (2) disclosure to the probationer of

the evidence against him, (3) opportunity to be heard and to present witnesses and

documentary evidence, (4) the right to confront and cross-examine witnesses, (5) a




                                              5
neutral and detached hearing body, and (6) a written statement of the factfinder as to

the evidence relied on and reasons for revocation. See Gagnon, 411 U.S. at 786.


         A review of the record reveals that appellant received written notice of the

violations, notice of the evidence through the testimony of the witnesses, an opportunity

to be heard and to present witnesses and evidence, the right of cross-examination, a

neutral judicial officer to hear the case, and the right to have a judgment presented as to

which of the allegations the trial court found to be true. In short, appellant pleaded

“True” with all of the due process of law to which he was entitled. See id. Accordingly,

appellant’s contention to the contrary is overruled. The trial court did not abuse its

discretion in finding appellant had violated his terms and conditions of community

supervision, adjudicating him guilty of aggravated robbery, and sentencing him to thirty

years in the ID-TDCJ. See Leonard, 385 S.W.3d at 576. We overrule appellant’s issue.


                                       Conclusion


         Having overruled appellant’s issue, we affirm the judgment entered by the trial

court.




                                                        Mackey K. Hancock
                                                           Justice



Do not publish.




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