                         NUMBER 13-12-00373-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

SYLVERIO CARRIZALES,                                                      Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


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


                         MEMORANDUM OPINION
               Before Justices Rodriguez, Garza, and Perkes
                 Memorandum Opinion by Justice Perkes
      Appellant Sylverio Carrizales appeals his conviction of two first-degree felony

counts of delivery of a controlled substance; namely, cocaine and heroin. See TEX.

HEALTH & SAFETY CODE ANN. § 481.112 (West, Westlaw through 2013 3d C.S.).

Appellant pleaded guilty to both counts, and a jury assessed punishment at thirty-years’

confinement for each count, to be served in the Texas Department of Criminal Justice,
Institutional Division. The trial court ordered the sentences to run concurrently. By two

issues, appellant argues on appeal: (1) he did not waive a jury trial on guilt/innocence;

and (2) the trial court erroneously admitted a co-defendant’s testimony regarding the

sentence the co-defendant received for participating in the same offense. We affirm.

                                       I. BACKGROUND1

        Appellant was arrested for his role in selling cocaine and heroin to an undercover

agent of the Texas Department of Public Safety. The undercover agent, Steven West,

negotiated to purchase the drugs from Phoungeune Xaypanya, a/k/a “Lisa.” Appellant

provided the drugs that Lisa sold to Agent West.

        Appellant received written admonishments from the trial court before he pleaded

guilty to two counts of delivery of a controlled substance. The admonishments included

a section in which appellant indicated his understanding of the admonishments by placing

his initials on the blanks beside each of the respective paragraphs in which they were

explained. Appellant also signed his name on the last page of the admonishments.

Further, the admonishments had a section outlining the rights that appellant was waiving

by pleading guilty, and appellant signed at the bottom of the list. Appellant did not,

however, initial the blanks provided beside each of the various rights.

        The trial court accepted appellant’s guilty plea, and, as per appellant’s request,

punishment was tried to a jury. In advance of the punishment hearing, appellant moved

to exclude testimony of Lisa’s sentence for her involvement in the drug transaction, but



         1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not

recite them here except as necessary to advise the parties of the Court's decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.
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the trial court denied appellant’s motion. Appellant re-urged the request immediately

before the punishment hearing, and the trial court again denied it.

       Lisa testified to her involvement in the offense. According to Lisa, she decided to

testify because she wanted “[j]ust to tell the truth of what happened that day.” She

claimed that the State made no deals with her in exchange for her testimony. On cross-

examination, defense counsel asked Lisa whether Agent West pressured her to say the

drugs belonged to appellant or whether she informed appellant in a letter that Agent West

was putting words in her mouth. In response to defense counsel’s questions, the State

asked the trial court for permission to introduce testimony of Lisa’s sentence, arguing the

defense opened the door to such testimony by challenging Lisa’s credibility. The trial

court denied the State’s request.

       During re-cross examination, Lisa affirmed that prior to this offense, she had no

criminal record in Texas and no felony record. Defense counsel then asked Lisa about

her decision to waive a jury trial, and the State again objected, contending that questions

regarding her plea opened the door for its questions regarding her sentence. The trial

court allowed defense counsel to continue the line of questioning but cautioned defense

counsel to be “aware it may open up the door.”        Defense counsel then asked Lisa

whether the appointed attorney who had represented her told her that he had, in the past,

represented Devon Lerma, another person arrested in this case. The State objected,

and the trial court again overruled the objection. Lisa testified that her attorney had

informed her of the past representation. When defense counsel probed further, asking




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when the attorney had so informed her, the State again objected, and the following

exchange occurred between the trial court and defense counsel:

       THE COURT:                   Where are you going? Are you making some
                                    accusation that certain things had not been
                                    done, or some improprieties?

       [DEFENSE COUNSEL]:           Judge, I wouldn’t know that unless I am fully
                                    allowed to develop that. But just with this—

       THE COURT:                   That tells me exactly what I just said. If you
                                    have got any information, we are getting into
                                    dangerous area.         Attorney/client privilege
                                    information regarding representation, that is
                                    what it looks like to the Court. And then your
                                    response to the Court is, if I am allowed to
                                    develop it; that leaves a false impression in front
                                    of the jury that the State may ask the Court to
                                    go into.

       During the subsequent re-direct examination, Lisa testified over defense counsel’s

objection to receiving a fifteen-year sentence.

                               II. WAIVER OF JURY TRIAL

       By his first issue, appellant contends the trial court erred in accepting his guilty

plea without properly securing a jury-trial waiver.     Specifically, appellant argues that

because he did not initial the jury-trial-waiver paragraph in the trial court’s written

admonishments, he did not waive that right. Appellant does not claim his guilty plea was

incorrect or involuntarily given.

A.     Applicable Law

       United States and Texas law protect a criminal defendant’s right to a trial by jury.

U.S. CONST. amend. VI; TEX. CONST. art. 1, § 15; see TEX. CODE CRIM. PROC. ANN. art.

1.12 (West, Westlaw through 2013 3d C.S.). Subject to certain limitations, that right is

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waivable, and, generally, a guilty plea waives the right to a jury trial. Boykin v. Alabama,

395 U.S. 238, 243 (1969); Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006).

Texas statutory law requires a jury-trial waiver to be in writing. See TEX. CODE CRIM.

PROC. ANN. art. 1.13 (West, Westlaw through 2013 3d C.S.); Johnson v. State, 72 S.W.3d

346, 348 (Tex. Crim. App. 2002).

       Appellant’s argument turns entirely on the trial court’s alleged non-conformity with

article 1.13. Appellant does not contest the validity or voluntariness of his guilty plea.

Accordingly, the alleged error is statutory, which we analyze for harm under Texas Rule

of Appellate Procedure 44.2(b). See Johnson, 72 S.W.3d at 348. If the error “does not

affect substantial rights,” then it “must be disregarded.” Id.; TEX. R. APP. P. 44.2(b). In

assessing whether a trial court’s non-conformity with article 1.13 affected substantial

rights, we evaluate the record, and if it reflects the defendant’s awareness of the jury-trial

right, the non-conformity is harmless. Johnson, 72 S.W.3d at 349; Jackson v. State, 76

S.W.3d 798, 801 (Tex. App.—Corpus Christi 2002, no pet.).

B.     Discussion

       Although appellant did not initial the jury-trial-waiver paragraph (or any paragraph

in that section of the written admonishments) as invited as an additional measure of proof

by the instructions atop the trial court’s standard form, he nevertheless signed his name

at the foot of the outlined waivers. This was enough to satisfy the writing requirement of

article 1.13, which does not require the additional precaution that a defendant initial the

waiver before subscribing to it. See TEX. CODE CRIM. PROC. ANN. art. 1.13(a).




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        Even assuming, however, appellant’s signature alone was insufficient under article

1.13, we hold the error was harmless. Looking to the record, we note that before the trial

court accepted the written plea, it orally admonished appellant, “Do you know by having

signed these documents you have waived important rights, and one of those rights is to

have a jury decide your case on guilt or innocence?                         Do you understand that?”

Appellant responded, “Yes.”            Appellant now contends the foregoing colloquy merely

inquired whether appellant had signed the documents, but a review of the conversation

shows that to be incorrect; the trial court asked whether appellant understood the impact

of signing, which, as the trial court explicitly noted to appellant, included a jury-trial waiver.

Appellant’s affirmation that he understood the signing waived his right to a jury trial shows

appellant’s awareness of the right.             See Johnson, 72 S.W.3d at 349 2 ; Jackson, 76

S.W.3d at 801. Moreover, this was not a plea-bargain case, and appellant requested

and received a jury trial on punishment, which further indicates he was aware of the right.

At the hearing on his motion for new trial, appellant’s attorney explicitly acknowledged,

“[M]y client elected to waive his right to a jury trial . . . .”

        After evaluating the record, we conclude that it reflects appellant’s awareness and

intentional waiver of his right to a jury trial, and we hold that any alleged non-conformity

         2 Appellant attempts to distinguish Johnson v. State, 72 S.W.3d 346 (Tex. Crim. App. 2006),

arguing the non-compliance with article 1.13 of the Texas Code of Criminal Procedure was harmless in that
case only because the judgment stated the defendant waived a jury trial, whereas the judgment here does
not. The Johnson Court did hold that the judgment in that case, which was uncontested by the appellant,
reflected the appellant’s awareness of the right, but the Johnson Court did not hold that a judgment
recitation is the only acceptable record showing that an appellant is aware of the right. See Johnson, 72
S.W.3d at 348–49. Instead, the Johnson Court established a harm analysis whereby reviewing courts
“ascertain whether [an appellant] understood his rights to a trial by jury before his bench trial began.” Id.
A judgment recitation is one of many ways a record may reflect awareness, and, like the Johnson Court,
our goal is to assess whether appellant ever “alleged that he did not know about his right to a jury trial” and
whether “the record indicate[s] that he did not.” Id. at 349; see Jackson v. State, 76 S.W.3d 798, 801 (Tex.
App.—Corpus Christi 2002, no pet.).
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with article 1.13 by the trial court was harmless. See TEX. R. APP. P. 44.2(b); Johnson,

72 S.W.3d at 349; Jackson, 76 S.W.3d at 801. We overrule appellant’s first issue.

                III. TESTIMONY OF CO-DEFENDANT’S SENTENCE

      By his second issue, appellant asserts the trial court erred in allowing Lisa to testify

regarding the sentence that she received because her sentence was not relevant.

A.    Standard of Review

      We review a trial court’s decision to admit or exclude evidence during the

punishment phase for an abuse of discretion. Mitchell v. State, 931 S.W.2d 950, 953

(Tex. Crim. App. 1996) (en banc); Crain v. State, 373 S.W.3d 811, 815 (Tex. App.—

Houston [14th Dist.] 2012, pet. ref’d). Under this standard, we uphold the trial court’s

ruling so long as it was within the zone of reasonable disagreement and correct under

any theory of law applicable to the case. Winegarner v. State, 235 S.W.3d 787, 790

(Tex. Crim. App. 2007) (citations omitted).

      Texas Code of Criminal Procedure article 37.07, section 3(a) governs the

admissibility of evidence during the punishment phase of a non-capital trial. See TEX.

CODE CRIM. PROC. ANN. art. 37.07, § 3(a) (West, Westlaw through 2013 3d C.S.); Erazo

v. State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004). Under article 37.07 section 3(a),

evidence may be offered on any matter the trial court deems relevant to sentencing. See

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a). Relevant evidence is that which is helpful

to the jury in determining the appropriate sentence in light of the facts of the case.

Hayden v. State, 296 S.W.3d 549, 552 (Tex. Crim. App. 2009); Erazo, 144 S.W.3d at 491.




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       Evidence that is otherwise inadmissible may become admissible when a party

opens the door to such evidence. Hayden, 296 S.W.3d at 554 (citations omitted). “A

party opens the door by leaving a false impression with the jury that invites the other side

to respond.” Id.; see Daggett v. State, 187 S.W.3d 444, 454 (Tex. Crim. App. 2005).

B.     Discussion

       Assuming without deciding that Lisa’s sentence was irrelevant, we agree with the

trial court that defense counsel left a false impression with the jury and thereby opened

the door for the challenged testimony. See Hayden, 296 S.W.3d at 554; Daggett, 187

S.W.3d at 454. Although Lisa testified that she was in no position to receive a benefit

from the State for testifying, defense counsel attempted to portray the opposite, asking

whether Agent West pressured Lisa to blame appellant.

       After the trial court twice advised defense counsel that additional inquiry may open

the door, defense counsel asked Lisa why she, with no criminal record, decided to waive

a jury trial. Defense counsel also asked Lisa whether her appointed attorney told her

that he previously represented co-defendant Lerma. The State objected, and the trial

court concluded that defense counsel left a false impression with the jury, opening the

door for the State to ask questions about her sentence.

       A conversation between the trial court and defense counsel took place outside the

presence of the jury, and it highlights the trial court’s concerns about the questions

regarding Lisa’s plea and attorney.       Defense counsel began the conversation by

informing the court, “Judge, I will put everything on the table.” He then noted, “The jury

obviously knows that this witness is in custody and serving time.” Defense counsel


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proceeded to discuss the fact that Lisa waived a jury trial on the same day that she

learned her attorney had represented codefendant Lerma in the past. The following

exchange is relevant to defense counsel’s strategy and the trial court’s concern:

      THE COURT:                  [I]f you are just a casual observer and you heard
                                  this, I would get the impression that you thought
                                  that the lawyer and client had not talked and
                                  somehow that this was a rush to judgment, an
                                  open plea, and that is what it sounds like.

      [DEFENSE COUNSEL]:          Yes, Your Honor.

      THE COURT:                  If it is not, just say on the record that it is not
                                  what you are doing.

                                  Well, silence is something golden.

      [DEFENSE COUNSEL]:          Judge, all I know is she made a conscious
                                  decision. Most clients are represented.

      THE COURT:                  But what does that have to do with this
                                  punishment hearing? This is your client. I
                                  think what you want to show is that somehow
                                  you want to bootstrap yourself into the fact, if
                                  you can develop it, that this was a rushed open
                                  plea. She didn’t have all the information and
                                  somehow your client and her are not getting a
                                  fair deal, and your client ought to get probation.
                                  I don’t know, I’m just guessing. Well, I guess I
                                  guessed right.

      [DEFENSE COUNSEL]:          Well, for some reason she opted to go to the
                                  judge as opposed to a jury.

      As the foregoing discussion reflects, the trial court worried defense counsel painted

an imperfect picture of Lisa’s conviction and, more importantly, incarceration; defense

counsel sought probation for appellant, and the trial court thought counsel was trying to

undermine Lisa’s sentence of confinement by suggesting there were some improprieties


                                            9
by her attorney, in her plea, or underlying the statement she gave to Agent West. The

trial court’s decision to allow Lisa’s testimony did not fall outside the zone of reasonable

disagreement; Lisa’s sentence reflected no beneficial treatment by the State, and her

testimony provided details of the sentence that defense counsel intimated was somehow

inappropriate. We conclude the trial court did not abuse its discretion in allowing the

State to perfect the picture. See Hayden, 296 S.W.3d at 554; Daggett, 187 S.W.3d at

454. We overrule appellant’s second issue.

                                   IV. CONCLUSION

       We affirm the trial court’s judgment.



                                                    GREGORY T. PERKES
                                                    Justice

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

Delivered and filed the
3rd day of April, 2014.




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