Appeal from the 35th District Court Brown County, Texas Trial
Court Cause Nos. CR24040 & CR24041
consists of: Wright, C.J., Willson, J., and Bailey, J.
grand jury indicted Appellant for possession with intent to
deliver a controlled substance, namely methamphetamine in the
amount of four grams or more but less than 200 grams, in a
drug-free zone. The grand jury also indicted her for the
offense of tampering with or fabricating physical evidence.
In each case, Appellant waived her right to a jury trial and
entered open guilty pleas. The trial court found Appellant
guilty of both offenses, assessed punishment at confinement
for ten years for the possession offense and at two years for
the tampering offense, and ordered that the sentences were to
run consecutively. In each appeal, Appellant challenges the
voluntariness of her plea. We affirm.
enforcement officers executed a search warrant at
Appellant's home after receiving a confidential tip from
an informant that narcotics were located in Appellant's
home and that children in the home might be at risk. As law
enforcement officers entered the house, Appellant threw more
than six grams of methamphetamine into a toilet. When law
enforcement officers searched Appellant's home, they
found approximately forty grams of "methamphetamine cut,
" which is a substance "used to bulk up
methamphetamine for distribution."
the entry of her guilty pleas, the trial court asked
Appellant whether she understood the charges leveled against
her and the possible punishment that she faced. Before the
trial court accepted Appellant's guilty plea in each
cause, the trial court asked Appellant about her age and
education level and her ability to read and write the English
language. The trial court also asked whether she understood
that she had waived her right to a jury trial, whether her
mental health was impaired, and whether she understood that
no plea bargain had been arranged in each cause. The trial
court also explained that it would decide her punishment
within the applicable range and asked if her plea was made
freely and voluntarily. The trial court then explained to
Appellant how the drug-free zone statute would enhance the
possession charge and how her punishment in the possession
case could be stacked upon punishment in the
tampering-with-evidence case. Appellant told the trial court
that she understood the consequences explained to her and
that she wished to freely and voluntarily enter an open plea
of guilty to each offense.
claims in a single issue on appeal in both causes that her
open pleas of guilty were not voluntary. A guilty plea
involves a waiver of several constitutional rights. Ex
parte Barnaby, 475 S.W.3d 316, 322 (Tex. Crim. App.
2015) (citing Boykin v. Alabama, 395 U.S. 238,
242-43 (1969)) (a guilty plea involves, among other things, a
waiver of a defendant's federal constitutional rights to
be tried by a jury, to confront his accusers, to have a
speedy and public trial, and to invoke his privilege against
compulsory self-incrimination); see Ex parte
Palmberg, 491 S.W.3d 804, 807 (Tex. Crim. App. 2016).
Although a defendant has an absolute right to a jury trial,
he also has a right to waive it. Adams v. United States
ex rel. McCann, 317 U.S. 269, 275 (1942); see
Tex. Code Crim. Proc. Ann. art. 1.13(a) (West Supp. 2016).
The defendant must make the waiver in person and in writing,
in open court, and do so with the consent and approval of
both the court and the State. Crim. Proc. art. 1.13(a). In
addition, "[f]ederal due process requires that
'[w]aivers of constitutional rights not only must be
voluntary but must be knowing, intelligent acts done with
sufficient awareness of the relevant circumstances and likely
consequences.'" Davison v. State, 405
S.W.3d 682, 686 (Tex. Crim. App. 2013) (second alteration in
original) (quoting Brady v. United States, 397 U.S.
742, 748 (1970)); see Dansby v. State, 448 S.W.3d
441, 451 (Tex. Crim. App. 2014).
consider the voluntariness of a plea, we examine the record
as a whole. Martinez v. State, 981 S.W.2d 195, 197
(Tex. Crim. App. 1998). "The crucial issue is whether,
under all the facts and circumstances, the plea was truly
voluntary." Barnaby, 475 S.W.3d at 323 (quoting
Gaither v. State, 479 S.W.2d 50, 51 (Tex. Crim. App.
1972)); see Salvaggio v. State, No. 11-15-00027-CR,
2017 WL 922509, at *1 (Tex. App.-Eastland Feb. 28, 2017, no
pet.) (mem. op., not designated for publication). Pleas are
only involuntary when induced by threats, misrepresentation,
or improper promises. Khamissi v. State, No.
11-10-00020-CR, 2010 WL 3796225, at *3 (Tex. App.-Eastland
Sept. 30, 2010, pet. ref'd) (mem. op., not designated for
publication) (citing Brady, 397 U.S. at 755). The
fact that a trial court duly admonished a defendant about her
rights and the consequences of her guilty plea creates a
prima facie showing that the defendant knowingly and
voluntarily entered the plea. Martinez, 981 S.W.2d
asserts that her plea was not voluntary because she was
unaware that the Court of Criminal Appeals might revise the
mens rea element of the drug-free zone enhancement.
While her appeal was before this court, the Court of Criminal
Appeals considered White v. State to decide whether
the State must prove that the defendant knew that he was in a
drug-free zone. 509 S.W.3d 307 (Tex. Crim. App. 2017). In
White, the court held that no such mens rea
requirement was necessary. Id. at 315. An accused
need not be aware that, when he possessed an illegal drug, he
was in a drug-free zone. Id.
causes, the trial court properly admonished Appellant as to
her rights, her understanding of the charges against her, and
the consequences of her guilty pleas. We note that Appellant
does not claim that her guilty pleas were the product of any
threat, misrepresentation, or any improper promise. The open
plea to the possession offense is not related in any way to
the separate tampering offense for which she also entered an
open plea. Furthermore, a defendant's failure to
anticipate a potential change in the law at the time of her
guilty plea does not impugn the truth or reliability of that
plea. Brady, 397 U.S. at 757. We overrule
Appellant's single issue on appeal in each cause.