                             NUMBER 13-10-128-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

CLAYTON JOHNSON,                                                          Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 28th District Court
                        of Nueces County, Texas.


                        MEMORANDUM OPINION
                Before Justices Garza, Benavides, and Vela
                  Memorandum Opinion by Justice Vela
      Clayton Johnson appeals his convictions for intoxication manslaughter, a

second-degree felony, see TEX. PENAL CODE ANN. § 49.08(a), (b) (West Supp. 2010), and

intoxication assault, a third-degree felony. See id. § 49.07(a), (c). Appellant pleaded

guilty to both charges before the court without a plea-bargain agreement.         After
presentation of evidence, the jury assessed punishment at fifteen years’ and nine years’

imprisonment, respectively, plus a $10,000 fine for each offense. The trial court ordered

the sentences to run consecutively. In one issue, appellant contends he did not enter his

pleas freely and voluntarily. We affirm.

                                  I. FACTUAL BACKGROUND

       On June 5, 2009, appellant, intending to celebrate his high-school graduation,

bought a bottle of vodka and a 30-pack of beer. He and three friends began drinking

alcohol and smoking marihuana. Shortly before 9:00 p.m., appellant drove a Mercury

Sable east onto South Padre Island Drive at a high rate of speed. At that time, Christobal

Isaac, a local musician, was driving two friends, Sethen Waid and John Saenz, to a movie

theater. As Isaac approached Airline Road, the appellant rear-ended Isaac's vehicle, a

Honda Element, at a speed in excess of ninety miles per hour. The Honda went over the

guardrail and rolled over two times, landing on the access road. Isaac and Waid were

ejected from the vehicle. The medical evidence showed that Isaac died from blunt-force

injuries consistent with a high-speed collision. Waid suffered a severe skull fracture

along with traumatic brain injury. At the time of appellant's punishment trial, Waid was

bedridden and "unresponsive." Saenz, who was wearing his seatbelt, received minor

injuries.

       Jonathan Barraza, who was traveling on SPID at the time of the collision,

approached the Mercury just as appellant was getting out of it. When appellant exited

his vehicle, he told Barraza, "'I'm sorry.'" Barraza testified there was "[n]o question at all"

that appellant was driving the vehicle that rear-ended Isaac's Honda.


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         Officer Leopoldo Hernandez, who investigated the collision, testified there was no

evidence to show that any other vehicle struck Isaac's Honda. Appellant testified that

shortly before the collision, he drank "an excessive amount" of alcohol.              After the

collision, laboratory analysis of appellant's blood showed he had a 0.22 blood-alcohol

level.

                                      II. APPLICABLE LAW

         "A guilty plea constitutes a waiver of three constitutional rights: 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) (citing Boykin v. Alabama, 395 U.S.

238, 243 (1969)).        Consequently, a person must enter a guilty plea knowingly,

intelligently, and voluntarily so that the plea is consistent with due process of law. Id.

(citing Boykin, 395 U.S. at 242). "To be 'voluntary,' a guilty plea must be the expression

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

or improper promises." Id. (citing Brady v. United States, 397 U.S. 742, 755 (1970)). In

Aguirre-Mata v. State, the court of criminal appeals said that the Boykin Court stated

"generally that state courts should make sure that a guilty-pleading defendant has a full

understanding of what the plea connotes and of its consequences." 125 S.W.3d 473,

475 (Tex. Crim. App. 2003) (internal quotes omitted).

                                         III. DISCUSSION

         In his sole issue, appellant argues he did not enter his guilty pleas freely and

voluntarily.    Specifically, he contends his pleas were not knowing, intelligent, and

voluntary because the trial court did not substantially comply with the requirements of


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code of criminal procedure article 26.13(a) and (b) when admonishing him about: (1) his

citizenship and immigration status; (2) the range of punishment attached to each offense;

(3) the trial court’s power to cumulate his sentences; and (4) whether he was competent

to enter his pleas.

A. Citizenship and Immigration Status

       Appellant contends the trial court did not inquire about his citizenship status.

Article 26.13(a)(4) requires that, before accepting a guilty plea, the trial court admonish

the defendant of "the fact that if the defendant is not a citizen of the United States of

America, a plea of guilty or nolo contendere for the offense charged may result in

deportation, the exclusion from admission to this country, or the denial of naturalization

under federal law[.]" TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(4) (West Supp. 2010).
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       Here, the supplemental record                 included a transcript of the trial court's

admonishments to appellant. During that proceeding, the trial court asked appellant the

following questions:       (1) "Is your name Clayton Johnson?"; (2) "Do you speak and

understand the English language?"; and (3) "Are you a citizen of the United States of

America?" Appellant answered affirmatively to all of these questions. When the record

shows a defendant is a United States citizen, the trial court's failure to admonish him

about the immigration consequences of his plea is harmless error. VanNortrick v. State,

227 S.W.3d 706, 709 (Tex. Crim. App. 2007).

B. Punishment Range

       Appellant contends the trial court failed to admonish him about the punishment

range for each offense. Article 26.13(a)(1) requires that, before accepting a guilty plea,
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           This Court file-stamped the supplemental record on February 11, 2011.
                                                     4
the trial court must admonish the defendant of "the range of the punishment attached to

the offense[.]" TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(1). Substantial compliance is

sufficient unless a defendant affirmatively shows he was not aware of the consequences

of his plea and that he was misled or harmed by the trial court's admonishment. Id. art.

26.13(c). However, a trial court does not substantially comply with article 26.13(a)(1) if

the judge "wholly failed to admonish appellant regarding the applicable range of

punishment." Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002).

      "Failure to admonish a defendant on the direct consequences of his guilty plea is

statutory rather than constitutional error." Id. In Burnett, the court of criminal appeals

stated:

              Courts of appeals must conduct the harm analysis of statutory errors,
      as a species of "other errors," under rule 44.2(b), disregarding the error
      unless it "affect[ed] [appellant's] substantial rights."       For claims of
      non-constitutional error, we, like the Supreme Court, hold that "a conviction
      should not be overturned unless, after examining the record as a whole, a
      court concludes that an error may have had 'substantial influence' on the
      outcome of the proceeding." Put another way, if the reviewing court has "a
      grave doubt" that the result was free from the substantial influence of the
      error, then it must treat the error as if it did. "Grave doubt" means that "in
      the judge's mind, the matter is so evenly balanced that he feels himself in
      virtual equipoise as to the harmlessness of the error." Thus, "in cases of
      grave doubt as to harmlessness the petitioner must win."

             "[N]either the State nor appellant must demonstrate harm when [a
      non-constitutional] error has occurred. Rather, it is the appellate court's
      duty to assess harm after a proper review of the record. Accordingly, a
      conviction must be reversed on direct appeal if the record shows that a
      defendant was unaware of the consequences of his plea and that he was
      misled or harmed by the trial court's failure to admonish him regarding the
      range of punishment."

             Thus, a reviewing court must independently examine the record for
      indications that a defendant was or was not aware of the consequences of
      his plea and whether he was misled or harmed by the trial court's failure to

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        admonish him of the punishment range. . . . [T]o warrant a reversal on
        direct appeal, the record must support an inference that appellant did not
        know the consequences of his plea. Reviewing courts must examine the
        entire record to determine whether, on its face, anything in that record
        suggests that a defendant did not know the consequences of his
        plea—here, the range of punishment. Of course, a silent record would
        support such an inference. The reviewing court also may simultaneously
        consider record facts from which one would reasonably infer that a
        defendant did know the consequences of his plea or, in this case, was
        actually aware of the range of punishment. It is ultimately the responsibility
        of the reviewing court to determine whether the record supports or negates
        the defendant's assertion of harm. If, after a conscientious examination of
        the record, the reviewing court is left with "grave doubt" on the matter, the
        error is not harmless.

Id. at 637–39 (emphasis in original) (citations omitted).

        Here, the record contains evidence showing that appellant knew the punishment

range for both offenses. During voir dire, at which appellant was present, the trial court

informed2 the venire members of the punishment range for each offense. In addition,

during voir dire, the prosecutor explained the punishment ranges to the jury panel as

follows:

                Let me talk about the range of punishment. . . . Let me take the first
        offense, intoxication manslaughter. The range of punishment as Judge
        Villarreal has indicated is a minimum of two years in prison and a maximum
        of 20 years in prison. . . .

              Now also for intoxication assault, probation or community
        supervision is a possible punishment, if the person is qualified. . . .

        * * *
               With that said, is there anybody here who could not consider the
        entire range of punishment for an intoxication manslaughter case? That
        would be anywhere from probation to 20 years in prison. . . .

        Is there anybody here who could not consider the entire range of

        2
           The trial court told the jury panel: "[T]he range of punishment is from probation all the way to the
penitentiary. Count 1 [intoxication manslaughter] being from two years to 20 years. And then in Count 2
[intoxication assault] two years to 10 years."
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       punishment of anywhere between two years and 10 years in prison or
       probation for intoxication assault?

       Even though appellant was present during voir dire, the record does not show that

either he or his defense counsel objected or tried to withdraw his guilty pleas during voir

dire, despite the fact that the trial court and the prosecutor informed the jury about the

range of punishment for each offense. Furthermore, after the jury of twelve was sworn

in, appellant formally entered his pleas as follows:

       (The State read aloud Count 1.)

       THE COURT:           How do you plead to Count 1, Mr. Johnson?

       THE DEFENDANT: Guilty.

       * * *

       (The State read aloud Count 2.)

       THE COURT:           How do you plead to Count 2, guilty or not guilty?

       THE DEFENDANT: Guilty.

See Burnett, 88 S.W.3d at 640 (where trial court failed to admonish accused about the

punishment range in accordance with article 26.13(a)(1), the court of criminal appeals

considered that accused was present during voir dire, that during voir dire the judge,

prosecutor, and defense counsel admonished the jury on the punishment range, that

accused did not seek to withdraw his guilty plea during voir dire, and after the jury was

sworn, formally pleaded guilty). In addition, the trial court in the case before us read the

punishment charge to the jury in open court.           The charge detailed the range of

punishment for each offense.       Defense counsel did not object, and there was no

on-the-record reaction or protest from appellant when the charge was read. Neither

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appellant nor his defense counsel ever objected that appellant was not aware of the

punishment range for either offense. The record does not include a motion for new trial,

alleging appellant was not aware of the range of punishment for each offense.

       There is in fact nothing in the record to show that appellant was unaware of the

range of punishment for each offense. Without any evidence in the record to support an

inference that appellant did not know the range of punishment for each offense, we

cannot find that the trial court's failure to admonish him regarding the range of punishment

misled or harmed him. See id. at 641.

C. Whether Appellant Entered His Guilty Pleas Freely and Voluntarily

       Appellant states the record "is silent on whether [he] entered his pleas freely and

voluntarily." Trial courts are not required to make an "express inquiry" with regard to

whether a plea was freely and voluntarily made to comply with article 26.13.           See

Basham v. State, 608 S.W.2d 677, 678–79 (Tex. Crim. App. 1980). Nevertheless, we

note that, before appellant pleaded guilty to both offenses, he, his defense counsel, and

the prosecutor signed a document entitled ―Judicial Confession and Stipulation," which

stated, in relevant part, ―I am pleading guilty to the offense of COUNT 1:

INTOXICATION MANSLAUGHTER and COUNT 2:                        INTOXICATION ASSAULT

because I am guilty. My plea is freely, voluntarily, knowingly, and intelligently given.‖

The record shows that appellant's guilty pleas were the expression of his own free will.

Nothing in the record shows that his guilty pleas were induced by threats,

misrepresentations, or improper promises.




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D. Consecutive Sentencing

       Appellant states the record is silent on the issue of whether he "was aware . . . of

the Trial Court's [sic] power to order that the sentences be served consecutively."

Appellant does not cite any authority, or provide any argument, with respect to how the

trial court's failure to admonish on the possibility of stacking his sentences prevented him

from entering his pleas freely and voluntarily.       "The brief must contain a clear and

concise argument for the contentions made, with appropriate citations to authorities and

to the record." TEX. R. APP. P. 38.1(i). Appellant's failure to brief this issue constitutes a

waiver of the argument. See Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000)

(stating that failure to cite relevant authority waives error).

       Nevertheless, we hold appellant's argument lacks merit. Even though the trial

court did not admonish him that it could order his sentences to run consecutively, "a guilty

plea is considered voluntary if the defendant was made fully aware of the direct

consequences. It will not be rendered involuntary by lack of knowledge as to some

collateral consequence."     State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App.

1999). The court of criminal appeals has further explained that direct consequences are

those that are "definite and largely or completely automatic," and that a trial court is only

required to advise a defendant of direct consequences that are "punitive in nature or

specifically enunciated in the law." Mitschke v. State, 129 S.W.3d 130, 135, 136 (Tex.

Crim. App. 2004).

       We note that article 26.13 does not require the trial court to admonish on

consecutive or cumulative sentences. See TEX. CODE CRIM. PROC. ANN. art. 26.13. In


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McGrew v. State, we stated, after citing case law from several federal appellate courts,

"[w]e agree that the imposition of consecutive sentences is not a direct consequence of a

guilty plea, and a plea is not rendered involuntary by the trial court's failure to warn of such

a possibility."   286 S.W.3d 387, 391 (Tex. App.—Corpus Christi 2008, no pet.).

Because the trial court's ability to cumulate appellant's sentences was a collateral

consequence of his guilty pleas, he has failed to establish that his pleas were involuntary

due to the trial court's failure to warn of that consequence. See id.

E. Competency

       Appellant states the record "is silent on whether [he] was competent to enter his

pleas." However, appellant does not cite any authority, or provide any argument, with

respect to how the trial court's failure to inquire about his competency to enter his guilty

pleas prevented him from entering his pleas freely and voluntarily. "The brief must

contain a clear and concise argument for the contentions made, with appropriate citations

to authorities and to the record." TEX. R. APP. P. 38.1(i). Appellant's failure to brief this

issue constitutes a waiver of the argument. See Tong, 25 S.W.3d at 710. Furthermore,

appellant does not argue, and the record does not show, that he was incompetent at any

time, including the time he pleaded guilty to the offenses. The sole issue for review is

overruled.




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                                     IV. CONCLUSION

       We affirm the trial court's judgment.




                                                    ROSE VELA
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
3rd day of November, 2011.




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