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November 15, 1988

Honorable David T. Garcia Opinion No. JM-980 Brooks County Attorney P. 0. BOX 557 Re: Whether acourt may satisFalfurrias, Texas 78355 fythe lqadmonishmenttBreguirements of article 26.13 of the Code of Criminal Procedure by showing the defendant a video tape (RQ-1554)

Dear Mr. Garcia:

You askwhether acourtmay satisfy the admonishment requirements of article 26.13 of the Code of Criminal Procedure before accepting aplea ofguilty by showing the defendant avideo tape presentation of the judge giving the admonitions.

Article 26.13 provides:

la) Prior to accentina a ~1 of auilty or anlea ofnolo 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 topunishment is not binding on the court. Provided that the court shall inquire as to the existence of anyplea 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 inopen court andbefore any finding on the plea. Should the court reject any such agreement, the defendant shall bepermitted towithdraw his plea ofguilty ornolo contendere;

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(3) the fact that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant andhis attorney, the trial court must give its permission to the defendant before he may prosecute an appeal
on anymatter inthe case except for those matters raised bywritten motions filed prior to trial: and
(4) the fact that ifthe defendant isnot acitizen of theUnited States ofAmerica, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion fromadmission to this country, or the denial of naturalization under federal law.
(b) Ho nlea ofguilty orplea 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) Inadmonishina the defendant ashereinnrovided. substantial comnliance bv the court is sufficient, unless the defendant affirmatively shows that hewas not aware of the consequences ofhis plea and that he was misled orharmed by the admonishment of the court.
Id) The court mavmake the admonitions reouired bv this article either orallv or in writina. If the courtmakes the admonitions in writina. it must receive a statement sianed bv the defendant and the defendant's attornev that he understands the admonitions and isaware of the conseouences ofhis nlea. If the defendant isunable or refuses to sion the statement. the court shall make the admonitions orally. (Emphasis added.)
Prior to the amendment that resulted inthe addition of subsection (d),the statute was explicit inrequiring "the court shall admonish the defendant." House Bill 95 added subsection (d)of article 26.13, effective August 31, 1987,

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providing that the court maymake the admonitions orally or inwriting. Acts 1987, 70th Leg., ch. 443, at 2021.

Inthevideo tape scenario you have submitted you state "that the court would require the defendant andhis attorney to sign a written statement that the defendant understood the admonitions and is aware of the consequences of his pleas."

InBovkin v.Alaba theUnited States Supreme Court held, "Itwas error, p%n onthe face of the record, for the trial judge to accept petitioner's guilty plea without
anaffirmative showing that itwas intelligent and voluntary." 395 U.S. 238, 242. The court emphasized the importance of this stage of the plea ofguilty proceeding. InBovkin, the court stated:

Aplea 

### ofguilty ismore than aconfession which admits that the accused did various acts; it is itself a conviction: nothing remains but toqive judgment and determine punishment. See-Jterchevaiv.United States, 274U.S. 220. 223. 47 s.ct. 582. 583. 71 L.Ed. 1009. .Admissibility of a 'confession must be based on a *reliable determination on thevoluntariness issue which satisfies the constitutional rights of the defendant.' Jackson v. Denno, 378U.S. 368, 387, 84 S.Ct. 1774, 1786, 12L.Ed.Zd 908. The requirement that the prosecution spread on the record the prerequisites of a valid waiver is no constitutional innovation. In Crnlev Cochran, 369 U.S. 506, 516, 82 S"Ct. 88:: 890, 8L.Ed.Zd 70,we dealt with aproblem of waiver of the right to counsel, a Sixth Amendment right. Weheld: 'Presuming waiver froma silent record is impermissible. m record must show. orthere must be an alleaation and evidence which show, that anaccused
was offered counsel but intelliaentlv and understandinalv reiected the offer. 'Anything less isnotwaiver.'

We think that the same standard must be annlied todeterminina whether aauiltv olea isvoluntarilv made. For, aswehave said, a plea ofguilty is more than an admission of conduct: it is a conviction. Ignorance,

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incomprehension, coercion, terror, inducements, subtle orblatant threats might be a perfect cover-up ofunconstitutionality. The question of an effective waiver of a federal constitutional right ina 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 inawaiver that takes Lace when a lea of cuiltv isentered ina 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, 391U.S. 145, 88 S.Ct. 1444, 20L.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 awaiver of these three important federal rights from a silent record.

What is at stake foran accused facing death or imnrisonment demands the utmost solicitude of which courts are CaDable in canvassina the matter with the accused to make sure hehas a fullunderstandina ofwhat the nlea connotes and of its consecuence. When the iudae discharaes that function. he leaves arecord adecuate foranv review that
mav be later souaht (Garnerv. Louisiana 368 U.S. 157, 173, 82 S.Ct. 248, 256, 7 L.;d.zd 207; Svecht v. Patterson, 386U.S. 605, 610, 87 s.ct. 1209, 1212, 18L.Ed.2d 326), and forestalls the snin-off of collateral oroceedinas that seek tonrobe murkv memories. (Emphasis added.)
Bovkin, 395U.S. 238, 242-44.

The **substantial compliance" provision of subsection (c),of article 26.13has 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.

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APP. 1979). InWhitten, the state urged that the defendant had heard the prosecutor give aportion 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 isreflected inIucero v. State 502 S.W.Zd 750 (Tex.Crim. App. 1973). InLucero four casks were tried together before the court upon pleas ofguilty. On appeal itwas urged that the court had failed todetermine 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
.rnonen court. tohear him sneak and to note his demeanor. and to enaaae in a collocluy with him re ardin 1 ‘S pleas. At no timewas 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 indetermining that the defendant has
a fullunderstanding of what the plea connotes and of its consequences.
Without addressing thevalidity of the 1987 amendment,
we conclude that thevideo tape showing of the judge giving the admonitions isnot 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 forhis lawyer and the judge any words or phrases he does not understand. Further, the Court ofCriminal Appeals has demonstrated a reluctance to approve any method ofgiving the admonitions not authorized by article 26.13. The utilization of the

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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 aplea 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 TomG. Davis Assistant Attorney General

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