P 

November 15, 1988 

Honorable David T. Garcia Opinion No. JM-980 

Brooks County Attorney 

P. 0. BOX 557 Re: Whether a court may satisFalfurrias, Texas 78355 fy the lqadmonishmenttB reguirements of article 26.13 of the 

Code of Criminal Procedure by 

showing the defendant a video 

tape (RQ-1554) 

Dear Mr. Garcia: 

You ask whether a court may satisfy the admonishment 

requirements of article 26.13 of the Code of Criminal 

Procedure before accepting a plea of guilty by showing the 

defendant a video tape presentation of the judge giving the 

admonitions. 

Article 26.13 provides: 

la) Prior to accentina a ~1 of auilty 

or a nlea of nolo contendere, th=?court shall. 

admonish the defendant of: 

(1) the range of the punishment attached 

to the offense: 

(2) the fact that the recommendation of 

the prdsecuting attorney as to punishment is 

not binding on the court. Provided that the 

court shall inquire as to the existence of 

any plea bargaining agreements between the 

state and the defendant and, in the event 

that such an agreement exists, the court 

shall inform the defendant whether it will 

follow or reject such agreement in open court 

and before any finding on the plea. Should 

the court reject any such agreement, the 

defendant shall be permitted to withdraw his 

plea of guilty or nolo contendere; 

p. 5003 
Honorable David T. Garcia - Page 2 (JM-980) 

(3) the fact that if the punishment 

assessed does not exceed the punishment 

recommended by the prosecutor and agreed to 

by the defendant and his attorney, the trial 

court must give its permission to the 

defendant before he may prosecute an appeal 

on any matter in the case except for those 

matters raised by written motions filed prior 

to trial: and 

(4) 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. 

(b) Ho nlea of guilty or plea of nolo 

contendere shall be aCCeDted bv the court 

unless it aonears that the defendant is 

mentallv comnetent and the nlea is free and 

voluntary. 

(c) In admonishina the defendant as herein nrovided. substantial comnliance bv the 

court is sufficient, unless the defendant 

affirmatively shows that he was not aware of 

the consequences of his plea and that he was 

misled or harmed by the admonishment of the 

court. 

Id) The court mav make the admonitions 

reouired bv this article either orallv or in 

writina. If the court makes the admonitions 

in writina. it must receive a statement 

sianed bv the defendant and the defendant's 

attornev that he understands the admonitions 

and is aware of the conseouences of his nlea. 

If the defendant is unable or refuses to sion 

the statement. the court shall make the 

admonitions orally. (Emphasis added.) 

Prior to the amendment that resulted in the addition of 

subsection (d), the statute was explicit in requiring "the 

court shall admonish the defendant." House Bill 95 added 

subsection (d) of article 26.13, effective August 31, 1987, 

p. 5004 
Honorable David T. Garcia - Page 3 (JM-980) 

providing that the court may make the admonitions orally or 

in writing. Acts 1987, 70th Leg., ch. 443, at 2021. 

In the video tape scenario you have submitted you state 

"that the court would require the defendant and his attorney 

to sign a written statement that the defendant understood 

the admonitions and is aware of the consequences of his 

pleas." 

In Bovkin v. Alaba the United States Supreme Court 

held, "It was error, p%n on the face of the record, for 

the trial judge to accept petitioner's guilty plea without 

an affirmative showing that it was intelligent and voluntary." 395 U.S. 238, 242. The court emphasized the 

importance of this stage of the plea of guilty proceeding. 

In Bovkin, the court stated: 

A plea of guilty is more than a confession 

which admits that the accused did various 

acts; it is itself a conviction: nothing 

remains but to qive judgment and determine 

punishment. See-Jterchevai v. United States, 

274 U.S. 220. 223. 47 s.ct. 582. 583. 71 

L.Ed. 1009. .Admissibility of a 'confession 

must be based on a *reliable determination on 

the voluntariness issue which satisfies the 

constitutional rights of the defendant.' 

Jackson v. Denno, 378 U.S. 368, 387, 84 S.Ct. 

1774, 1786, 12 L.Ed.Zd 908. The requirement 

that the prosecution spread on the record the 

prerequisites of a valid waiver is no 

constitutional innovation. In C rnlev 

Cochran, 369 U.S. 506, 516, 82 S"Ct. 88:: 

890, 8 L.Ed.Zd 70, we dealt with a problem of 

waiver of the right to counsel, a Sixth 

Amendment right. We held: 'Presuming waiver 

from a silent record is impermissible. m 

record must show. or there must be an alleaation and evidence which show, that an accused 

was offered counsel but intelliaentlv and 

understandinalv reiected the offer. 'Anything 

less is not waiver.' 

We think that the same standard must be 

annlied to determinina whether a auiltv olea 

is voluntarilv made. For, as we have said, a 

plea of guilty is more than an admission of 

conduct: it is a conviction. Ignorance, 

p. 5005 
Honorable David T. Garcia - Page 4 (JM-980) 

incomprehension, coercion, terror, inducements, subtle or blatant threats might be a 

perfect cover-up of unconstitutionality. The 

question of an effective waiver of a federal 

constitutional right in a proceeding is of 

course governed by federal standards. 

Doualas v. Alabama 380 U.S. 415, 

S.Ct. 1074, 1078, 1; L.Ed.2d 934. 

422, 85 

Several federal constitutional riahts are 

involved in a waiver that takes Lace when a 

lea of cuiltv is entered in a state criminal 

Gial. First, is the privilege against 

compulsory self-incrimination guaranteed by 

the Fifth Amendment and applicable to the 

States by reason of the Fourteenth. Wallov 

v. Hoaan, 378 U.S. 1, 84 S.Ct. 1489, 12 

L.Ed.Zd 653. Second, is the right to trial 

by jury. Duncan v. Louisiana, 391 U.S. 145, 

88 S.Ct. 1444, 20 L.Ed.Zd 491. Third, is the 

right to confront one's accusers. Pointer 

Texas, 380 U.S. 400, 85 s.ct. 1065, 7; 

L.Ed.2d 923. We cannot presume a waiver of 

these three important federal rights from a 

silent record. 

What is at stake for an accused facing 

death or imnrisonment demands the utmost 

solicitude of which courts are CaDable in 

canvassina the matter with the accused to 

make sure he has a full understandina of what 

the nlea connotes and of its consecuence. 

When the iudae discharaes that function. he 

leaves a record adecuate for anv review that 

mav be later souaht (Garner v. Louisiana 368 

U.S. 157, 173, 82 S.Ct. 248, 256, 7 L.;d.zd 

207; Svecht v. Patterson, 386 U.S. 605, 610, 

87 s.ct. 1209, 1212, 18 L.Ed.2d 326), and 

forestalls the snin-off of collateral oroceedinas that seek to nrobe murkv memories. 

(Emphasis added.) 

Bovkin, 395 U.S. 238, 242-44. 

The **substantial compliance" provision of subsection 

(c), of article 26.13 has been applied to the sufficiency of 

the language used rather than the method of giving the 

admonitions. Whitten v. State, 587 S.W.2d 156 (Tex. Crim. 

p. 5006 
Honorable David T. Garcia - Page 5 (JM-980) 

APP. 1979). In Whitten, the state urged that the defendant 

had heard the prosecutor give a portion of the admonitions 

that had been omitted by the judge. On rehearing, the court 

cited Bovkin and concluded that the statute then in force 

and due process mandated the judge's participation. 587 

S.W.2d 156, 158-59. 

The importance of the court's actual participation in 

the admonitions is reflected in Iucero v. State 502 S.W.Zd 

750 (Tex. Crim. App. 1973). In Lucero four casks were tried 

together before the court upon pleas of guilty. On appeal 

it was urged that the court had failed to determine the 

mental competence of the appellant in each case. In 

rejecting the appellant‘s contention, the court stated: 

In the instant cases the court once 

inquired of appellant's counsel as to 

appellant's sanity, was able to observe him 

.rn onen court. to hear him sneak and to note 

his demeanor. and to enaaae in a collocluy 

with 1 him re ardin ‘S 

pleas. At no time was the issue of appellant's sanity ever raised. In light of the 

circumstances of these particular cases, the 

pleas being taken together, cannot 

conclude the court failed to s%sfy the 

requirements of Article 26.13, Vernon's 

Ann.C.C.P. . . . (Emphasis added.) 

Lucero, 502 S.W.2d 750, 753. 

While the foregoing cases predated the 1987 amendment, 

they reflect the importance the courts have placed on the 

judge's participation in determining that the defendant has 

a full understanding of what the plea connotes and of its 

consequences. 

Without addressing the validity of the 1987 amendment, 

we conclude that the video tape showing of the judge giving 

the admonitions is not the functional equivalent of the 

written procedure allowed by subsection (d) - The written 

admonitions allow time for study and reflection and an 

opportunity for the defendant to identify for his lawyer and 

the judge any words or phrases he does not understand. 

Further, the Court of Criminal Appeals has demonstrated a 

reluctance to approve any method of giving the admonitions 

not authorized by article 26.13. The utilization of the 

P. 5007 
Honorable David T. Garcia - Page 6 (JM-980) 

video presentations does not satisfy the requirements of 

article 26.13. 

SUMMARY 

A court may not satisfy the requirements 

of article 26.13 of the Code of Criminal 

Procedure before accepting a plea of guilty 

or nolo contendere by showing the defendant a 

video tape presentation of the judge giving 

the admonitions. 1 

JIM MATTOX 

Attorney General of Texas 

MARYKELLER 

First Assistant Attorney General 

MU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEARLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 5008