                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                               §
 HECTOR GARZA, JR.,                                           No. 08-12-00149-CR
                                               §
                        Appellant,                                 Appeal from
                                               §
 v.                                                            372nd District Court
                                               §
 THE STATE OF TEXAS,                                        of Tarrant County, Texas
                                               §
                        Appellee.                               (TC # 1274171R)
                                               §

                                         OPINION

       Hector Garza, Jr. appeals his conviction of sexual assault of a child, enhanced by a prior

felony conviction. Appellant waived his right to a jury and entered an open plea of guilty. He

also pled true to the enhancement paragraph. The court found Appellant guilty, found the

enhancement paragraph true, and assessed his punishment at imprisonment for thirty years. For

the reasons that follow, we affirm.

                                      FACTUAL SUMMARY

       Three girls under the age of seventeen and a fourth young woman worked for Appellant

as prostitutes. Appellant had sex with each of them on a regular basis and one of the underage

girls became pregnant with Appellant’s child. A grand jury indicted Appellant for sexual assault

of a child younger than seventeen years of age. Appellant waived his right to a jury trial in

writing. At the open guilty plea hearing, Appellant appeared with counsel who had represented
him for more than a year. The trial court advised Appellant of the charge against him and

determined that Appellant understood the nature of the charge. The court also inquired whether

Appellant and his attorney had been given sufficient time to discuss the case and the charge

against him. Appellant stated that he had. He also told the trial court that he was satisfied with

his attorney’s representation of him in the case. The court informed Appellant that sexual assault

of a child is a second-degree felony, and if found guilty, Appellant would be sentenced to

imprisonment for two to twenty years and could be fined in an amount not to exceed $10,000.

Appellant said that he understood the range of punishment.            The court also admonished

Appellant about the enhancement paragraph and told him that if proven true, the range of

punishment would be increased to imprisonment from five years to ninety-nine years or life.

Appellant understood that range of punishment.          He then entered a plea of guilty to the

indictment and a plea of true to the enhancement paragraph. Appellant told the trial court that he

was pleading guilty because he was guilty of the charged offense and he was pleading true to the

enhancement paragraph because it was true that he had the prior conviction. He denied that

anyone had forced him to enter these pleas and he was not pleading guilty because he hoped to

receive probation, pardon, or parole. The court also informed Appellant that he had an absolute

right to a jury trial and Appellant stated he understood that right. Appellant told the court that he

wanted to waive his right to a jury trial and he was making that decision freely and voluntarily.

He also understood everything the court had explained to him. The court accepted the waiver of

jury trial as well as the pleas of guilty and true. The punishment hearing began the following

day.

       At the punishment hearing, the State offered evidence related to the offense, the

extraneous offenses, and the prior conviction. Defense counsel thoroughly cross-examined the



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State’s witnesses. The defense also presented punishment witnesses, but Appellant did not

testify. At the conclusion of the punishment hearing, the trial court found Appellant guilty,

found the enhancement paragraph true, and assessed his punishment at imprisonment for a term

of thirty years.

                         VOLUNTARINESS OF THE GUILTY PLEA

        In his sole issue on appeal, Appellant argues that his guilty plea was involuntary because

the trial court failed to expressly admonish him of his constitutional right of confrontation and to

remain silent. Appellant does not assert that the trial court failed to admonish him as required by

Article 26.13 of the Code of Criminal Procedure. See TEX.CODE CRIM.PROC.ANN. art. 26.13

(West Supp. 2013). He instead argues that the court failed to comply with Boykin v. Alabama,

395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Whether a trial court has complied with

Article 26.13 and whether it has complied with Boykin are two separate issues. See Gardner v.

State, 164 S.W.3d 393, 398 (Tex.Crim.App. 2005).

        Boykin held that when a defendant pleads guilty, the record must affirmatively disclose

that the plea was voluntarily and understandingly entered. Boykin, 395 U.S. at 243-44, 89 S.Ct.

at 1712-13. Courts may not presume a waiver of important constitutional rights from a silent

record. Id. Boykin did not hold that due process requires the equivalent of the Article 26.13(a)

admonishments and it did not specifically set out what must be “spread on the record” to comply

with its mandate. Davison v. State, 405 S.W.3d 682, 687 (Tex.Crim.App. 2013). As long as the

record otherwise affirmatively discloses that the defendant’s guilty plea was adequately

informed, due process is satisfied. Id.

        A guilty plea waives the right to a jury trial, the right to confront one’s accusers, and the

right not to incriminate oneself. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006),



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citing Boykin, 395 U.S. at 243, 89 S.Ct. at 1712. To be consistent with due process, a guilty plea

must be entered knowingly, intelligently, and voluntarily. Kniatt, 206 S.W.3d at 664, citing

Boykin, 395 U.S. at 242, 89 S.Ct. at 1712. For a plea to be “voluntary,” it must be the expression

of the defendant’s own free will and must not be induced by threats, misrepresentations, or

improper promises. Kniatt, 206 S.W.3d at 664, citing Brady v. United States, 397 U.S. 742, 755,

90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). A defendant who attests, when he enters his plea of

guilty, that he understands the nature of his plea and that his plea is voluntary, has a heavy

burden in a subsequent hearing to show that his plea was involuntary. See Houston v. State, 201

S.W.3d 212, 217 (Tex.App.--Houston [14th Dist.] 2006, no pet.); Dusenberry v. State, 915

S.W.2d 947, 949 (Tex.App.--Houston [1st Dist.] 1996, pet. ref’d); see also Kniatt, 206 S.W.3d at

664. We review the voluntariness of a plea in light of the totality of the circumstances. See

Griffin v. State, 703 S.W.2d 193, 196 (Tex.Crim.App. 1986).

       Appellant is correct that the trial court did not explicitly admonish him that a plea of

guilty resulted in the waiver of the right to confront his accusers and the right to not incriminate

himself. Boykin does not require that the court expressly admonish the defendant regarding these

rights. The Court of Criminal Appeals has held that the failure to admonish the defendant

regarding these rights does not invalidate a plea of guilty which is otherwise freely and

voluntarily made. Vasquez v. State, 522 S.W.2d 910, 912 (Tex.Crim.App. 1975); see Gardner,

164 S.W.3d at 399 n.5 (“It is not necessary to decide this case on the basis that the ‘constitution

does not require the specific admonitions listed in Boykin as a condition precedent to the validity

of a guilty plea.’”). The defendant’s knowledge of his constitutional rights and the voluntariness

of his plea may be inferred from the record, including statements made by counsel in the

defendant’s presence. Gardner, 164 S.W.3d at 399; see Campbell v. State, No. 2-08-232-CR,



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2009 WL 1815775 at *2 (Tex.App.--Fort Worth 2009, no pet.).

       The plea papers include a document which contains two sections, the first pertaining to

the waiver of jury trial and the second section pertaining to an agreement to stipulate to evidence

and testimony. The waiver of the right to jury trial is signed by Appellant and his attorney.

Immediately below that waiver is the section related to waiver of the appearance, confrontation,

and cross-examination of witnesses. A line is drawn across that entire section and it is not signed

by Appellant or his attorney. Defense counsel thoroughly cross-examined the State’s witnesses

during the punishment hearing and Appellant did not testify. During closing arguments, defense

counsel stated that Appellant had decided “to save the county and the State and the government

and everybody a lot of time by pleading guilty to the offense of sexual assault of a child under

the age of 17.” It is reasonable to infer from the plea papers, the record of the guilty plea and

punishment hearing, and counsel’s statements that counsel explained to Appellant the right of

confrontation and the right to remain silent and Appellant understood he waived those rights by

pleading guilty.   See Gardner, 164 S.W.3d at 399 (the court inferred that the defendant

understood his rights to remain silent and to confront his accusers based on statements made by

defense counsel during the guilty plea proceeding). Based on the totality of the circumstances,

we conclude that Appellant’s guilty plea was voluntary. We overrule Appellant’s sole issue and

affirm the judgment of the trial court.


December 19, 2013
                                          ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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