Affirmed and Opinion Filed August 30, 2021

In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05
- 20
- 00212
- CR No. 05
- 20
- 00213
- CR JAILEN LATRELL MATTHEWS , Appellant

V. THE STATE OF TEXAS , Appellee On Appeal from the 194th Judicial District Court

Dallas County, Texas Trial Court Cause No s. F 18
- 76633
- M and F 18
- 76635
- M

MEMORANDUM OPINION Before Justices Osborne, Pedersen, III, and Nowell

Opinion by Justice Osborne Appellant Jailen Latrell Matthews was indicted for aggravated assault with a dea dly weapon in Cause Numbers F 18

- 76633

- M and F 18

- 76635

- M. He entered pleas of “no contest” to both charges , and the cases proceeded to trial before the
court

. Finding sufficient evidence of app ellant’s guilt, the trial court sentenced appellant to twenty years’ imprisonment for each assault. In one issue, appellant complains that the trial court failed to admonish him regarding the punishment range for his offenses. In addition, appellant and th e State agree that the judgment in each– 2

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case should be modified to reflect that appellant did not enter into plea bargain agreements with the State. We modify the judgment s as agreed and affirm.
B ACKGROUND On October 30, 2018, Justin Villanueva , his girlfr iend Christina (“Nina”) Rivas, and Nina’s brother were sitting in Justin’s car smoking “weed.” Appellant approached the car and asked to buy a gram of marijuana. Justin recognized appellant because they had attended the same high school and both had played football there . Justin, a drug dealer, sold the marijuana to appellant, and appellant walked away. As Justin and Nina rolled marijuana blunts, appellant walked back up to the car, opened the door, pointed a gun at Nina , and demanded that Justin and Nina “ [r]un me that shit,” or “give me everything.” Justin laughed and refused but then grabbed Nina to shield her with his body to protect her from being shot. Appellant shot the gun numerous times, then ran away. Nina did not know or recognize appellant at the time of the shooting. She was scared when appellant pointed the gun at her face and thought he was going to shoot her. Justin testified that Nina was screaming an d crying as appellant started shooting

. Nina’s brother chased appellant. Justin did not immediately realize he had been shot. A bullet entered the left side of his back, brok e his collarbone, and lodged near his heart. When police interviewed Justin at the hospital, he was not forthcoming about the shooting or about appellant’s identity because he wanted to “take matter s into my own hands at first.” But both Justin and Nina la ter cooperated– 3

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with the police investigation. Appellant was subsequently indicted in two cases for second

- degree aggravated assault with a deadly weapon. At the time of his indictment, appellant had entered into plea bargain agreements with the State in tw o other felony cases (second

- degree burglary of a habitation and state

-

jail theft from a person) and was serving deferred

- adjudication community supervision in those cases. The State moved to adjudicate appellant’s guilt in the two prior felony cases, alle ging that appellant had committed violations of his community supervision. Appellant entered pleas of no contest to the
aggrav ated assault charges and pleas of not true to the State’s motions to adjudicate his guilt in the two prior felonies. After hearing evidence, the trial court found appellant guilty of the aggravated assaults and made affirmative deadly

- weapon findings. The trial court also found the State’s allegations in the two prior felony cases to be true, found appellant guilty in those cases, an d revoked appellant’s community supervision. The court sentenced appellant to twenty years’ imprisonment for each aggravated assault, ten years for burglary of a habitation, and 180 days’ confinement in state jail for theft. Appellant filed motions for new trial that were overruled by operation of law and timely notices of appeal of the trial court’s judgments in the aggravated assault cases. Appellant has not appealed the trial court’s rulings revoking his community supervision in the two prior felony case s .– 4

– I SSUE AND S TANDARD OF R EVIEW In a single issue, appellant contends the trial court erred by failing to admonish him of the punishment range for his offenses “as required by Code of Criminal Procedure, article 26.13.” Appellant’s statement of the issue a lso includes the complaint that the trial court’s failure to admonish him “render[ed] his pleas involuntary under the Due Process Clause.” Read broadly, this issue states two separate complaints governed by two different standards of review. Appellant’s co mplaint under article 26.13 is reviewed as non

- constitutional error under appellate procedure rule 44.2(b). Bessey v. State , 239 S.W.3d 809, 813 (Tex. Crim. App. 2007). His due process complaint is reviewed as constitutional error under appellate procedure rule 44.2(a). Davison v. State , 405 S.W.3d 682, 691 (Tex. Crim. App. 2013). Although appellant cites and discusses Boykin v. Alabama , 395 U.S. 238 (1969)

— authority for his due process complaint

—he requests review only under rule 44.2(b) for non

- constituti onal error. The State argues we need not consider the due process complaint because appellant’s issue is multifarious. The State relies on two opinions not designated for publication in which the co urts declined to consider a due process claim combined
in a single issue with an article 26.13 claim. 1 In the alternative, the State argues that

1 See Pender v. State , No. 02

- 13

- 00400

- CR, 2014 WL 1859110, at *1 (Tex. App.

— Fort Worth May 8, 2014, no pet.) (mem. op., not designated for publication) (single issue that conflated the two complaints presented nothing for the court’s review regarding the Due Process Clause); Sherrill v. State , No. 06

- 05

- 00159

- CR, 2005 WL 3555581, at *3, n.3 (Tex. App.

— Texarkana Dec. 30, 2005, no pet.) (mem. op. not– 5

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neither complaint is ground for reversal. Although we agree with the State that appellant’s issue is multifarious, we can discern “with reasonable certainty, the alleged error about which the complaint is made.” See Thomas v. State , 615 S.W.3d 552, 566 (Tex. App.

— Houston [1st Dist.] 2020, no pet.) (internal quotation omitted) (consider ing multifarious issue where error complained of was reasonably certain). Under these circumstances , we may review appellant’s due process argu ment in the interest of justice. See Davis v. State , 329 S.W.3d 798, 803 (Tex. Crim. App. 2010) (reviewing multifarious issue in the interest of ju stice). W e do so , however, only after con sider ing appellant’s principal argument under article 26.13

.

A DMONISHMENT OF P UNISHMENT R ANGE 1. Article 26.13(a)(1) Before a trial court may accept a plea of nolo contendere, it must admonish the defendant of the r ange of punishment attached to the offense. T EX
. C ODE C RIM
. P ROC
. art. 26.13(a)(1). Substantial compliance with article 26.13(a) is sufficient “unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was m isled or harmed by the admonishment of the court.”
T EX
. C ODE C RIM
. P ROC
. art. 26.13(c).

designated fo r publication) (sole issue asserting violations of both article 26.13 and due process was multifarious). More recently, the court in Williams v. State , No. 02

- 19

- 00484

- CR, 2020 WL 6066198, at *2 (Tex. App.

— Fort Worth Oct. 15, 2020, no pet.) (mem. op., not designated for publication) followed its analysis in Pender and reached the same conclusion.– 6

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“ A trial court’ s failure to properly admonish a defendant is subject to the harm analysis of Rule o f Appellate Procedure 44.2(b): ‘ Any other [than constitutional]

error , defect, irregularity, or variance that does not affect substantial rights must be disregarded. ’ ” Bessey , 239 S.W.3d at 813 (quoting rule 44.2(b))

. “ In applying Rule 44.2(b) to the failure to give an admonition, the court considers the record as a whole to determine whether, in this particular case, the err or affected substantial rights. If it did, it is not harmless error.” Id. (citation omitted )

. “[T]o warrant reversal on direct appeal, the record must support an inference that appellant did not k now the consequences of his plea.” Burnett v. State , 88 S.W.3d 633, 638 (Tex. Crim. App. 2002). Neither party has a formal burden to show harmlessness under rule 44.2(b). Id. “Rather, it is the appellate court’s duty to assess harm after a proper review of the record.” Id. (internal quotation omitted). “‘Harm’ in this context means the appellant probably would not have pleaded guilty but for the failure to admonish.” Webb v. State , 156 S.W.3d 653, 656 (Tex. App.

— Dallas 2005, pet. ref’d). If the reviewing co urt has “grave doubt” about whether the error had “substantial influence” on the outcome of the proceeding, then it “must treat the error as if it did.”
Id. at 655. “ ‘Grave doubt’ occurs when the matter is so evenly balanced that the reviewing court believ es the record is ‘in virtual equipoise as to the harmlessness of the error.’” Id. at 655

– 56 (quoting Burnett , 88 S.W.3d at 637

– 38 ).– 7

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In reviewing the record, the “critical question” is whether there is “a fair assurance that the defendant’s decision to plead guilty would not have changed had the court admonished him.” VanNortrick v. State , 227 S.W.3d 706, 709 (Tex. Crim. App. 2007). In Bessey , the court considered “ the st rength of the evidence of guilt” as well as the defendant’s awareness of the plea’s consequences. See Bessey , 239 S.W.3d at 813 . In Burnett , the court concluded nothing in the record supported an inference “that 1) appellant was unaware of the consequences of his plea; or 2) the trial judge’s failure to admonish him misled appellant into pleading guilty because he did not know the applicable range of punishment.” Burnett , 8 8 S.W.3d at 635; see also Webb , 156 S.W.3d at 656 (appellate court must assess harm by “independently examin[ing] the record for indications that appellant was or was not aware of the consequences of his plea and whether he was misled or harmed by the tria l court’s failure to admonish”)

. Our review of the record indicates that the evidence of appellant’s guilt was strong. See Bessey , 239 S.W.3d at 813 . Although initially a reluctant witness, Justin testified at trial that he recognized and identified appell ant from high school. Justin and Nina both testified that appellant pointed a gun at Nina and actually shot and injured Justin. The record also reflects that appellant recognized the strength of the evidence. At the admonishment hearing the week before com mencement of trial, appellant’s trial counsel mentioned “some of the facts” of the case as the basis for– 8

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discussion with appellant about a possible plea. Appellant, his attorney, and an attorney for the State were present. Appellant was sworn and testified as follows:
DIRECT EXAMINATION BY MR. QUEZADA [appellant’s attorney]: Q Mr. Matthews, this is what we refer to as a formal admonishment. I wanted to get a few things on the record. You and I have discussed your case quite a few times. Certainly within the last couple of weeks, we have gone back and forth in terms of negotiations as well as talk about some of the facts and some of what you know and what we can do to try to resolve this matter. I gave you several options. One of which included having an open plea. Another of which included having some type of an agreed plea on all the cases. I also discussed with you the possibility of having a jury trial. And the possibility of having what is referred to as a TBC or a trial before the Court, where basically Judge White will function as sort of the finder of fact and finder of law. Basically he kind of functions as jury for determination of the trial. You understand all that? A Yes, sir. Q And I have also talked to you about the fact that you do have two matte rs also, because you were currently on probation as well, correct? And we talked about kind of that would be together with whatever we have pending in terms of the new case, correct? A Yes, sir. Q And so after discussing all those different options, how di d you want to proceed in this matter?– 9

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A Still going to do what we had

— what we talked about. Q So we are clear for the record.
A TBC. Q That means you wish to waive your right to a jury trial and go forward on a trial before the Court; is that correct?
A Ye s, sir. Q Okay. And so you

— and that’s something that I have not forced you to do that or nobody else has forced you to do that. Just after discussing all the different options, that’s the one that you elected me to attempt to pursue; is that correct?
A Yes , sir. MR. QUEZADA: Thank you, I pass the witness. Although I did want to get the State’s last offer in this case sort of on the record for my client to accept or reject. THE COURT: Very well. You may put the offer on the record. MS. AULBAUGH [State’s atto rney]: My last offer, Judge, was ten years TDC. And I don’t have any questions for purposes of this hearing. And I do also agree to waive jury trial and proceed to a bench trial. THE COURT: Very well. MR. QUEZADA: Mr. Matthews, again for the record, you ha ve overheard the offer of ten years on these cases, are you accepting or rejecting that at this time? THE DEFENDANT: Rejecting.– 10

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We also conclude that the record reflects appellant’s awareness of the consequences of his plea and does not reflect that appell ant would have made a different plea had he been properly admonished. See Burnett , 88 S.W.3d at 635; Webb , 156 S.W.3d at 656

. During the punishment phase of the trial, appellant’s counsel argued that appellant chose the plea of “no contest” to expand the options for possible sentencing: We understand that the Court has lots of options available to it. One, the reason we did begin this matter with a plea of no contest, so if the Court did make a finding of guilt with regard to the cases that the Court h ad before it, that we would leave the open possibility that he could be placed on deferred supervision for these offenses. The record also reflects that at the time of the aggravated assaults in October 2018, appellant was serving terms of community superv ision pursuant to plea bargain agreements for the second

- degree felony of burglary of a habitation and a
state

- jail theft. The State filed motions to adjudicate appellant’s guilt in those cases that were heard in the same proceeding as the aggravated assau lts that are at issue in this appeal. Our record does not include the clerk’s and reporter’s records relating to those offenses because appellant has not challenged the trial court’s revocation of his community supervision in those cases. The record does r eflect, however, that appellant entered into plea agreements with the State for those offenses. 2 As the State

2 The reporter’s record reflects that at the beginning of trial, the court read out the four cause numbers and announced that all were “set for trial before the Co urt today.” The court noted that in two cases, appellant was placed on community supervision and the State had filed a motion alleging violations of specific terms and conditions of community supervision in each case. Appellant confirmed that he had receiv ed a copy of the State’s motion in each case, and declined the court’s offer to read all the allegations– 11

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argues, “[s]erving community supervision on a negotiated plea to a second degree felony in a prior case reflects an awareness of the punishment r ange for a second

degree felony.” In sum, the record lacks evidence that appellant did not know the punishment range, and there is some evidence that he did know. See Burnett , 88 S.W.3d at 639. The quoted exchange reveals that appellant and his counsel had discussed appellant’s options for pleas and for trial. Further, appellant had recently entered into a plea bargain for another second

- degree felony offense. Consequently, although the trial court erred by failing to admonish appellant as required by article 26.13(a), after reviewing the r ecord as a whole, we do not have “grave doubt” about whether appellant’s conviction “was free from the substantial influence of the error.” See Webb , 156 S.W.3d at 656. We conclude there is “a fair assurance that the defendant’s decision to plead guilty wo uld not have changed had the court admonished him.” See Loch v. State , 621 S.W.3d 279, 282 (Tex. Crim. App. 2021) (concluding that, based on entire record, there was fair assurance appellant would not have changed his plea if properly admonished). Under th ese circumstances, we conclude that appellant’s subst antial rights were not affected, s ee id. , and we decide this portion of appellant’s issue against him. 2. Due process

to him. Appellant then pleaded “not true” to the allegations. At the trial’s conclusion, the court granted the State’s motions and sentenced appellant in all four cases.– 12

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A violation of constitutional due process occurs when a trial court accepts a guilty plea without an affirmative showing “spread on the record” that the guilty plea was voluntary. Boykin , 395 U.S. at 242

– 43 . The Court in Boykin did not define what must be “spread on the record” to satisfy due process other than generally to require that a guilty

- pleading defendant have a “full understanding” of what his plea connotes and its consequences. See Aguirre

- Mata v. State , 125 S.W.3d 473 , 475 (Tex. Crim. App. 2003). Under Boykin , specific admonishments such as those in article 26.13(a) are not required

. See i d. As long as the record otherwise affirmatively discloses that the defendant’s guilty plea was adequately informed, due process is
satisfied. See Davison , 405 S.W.3d at 687

. A s we have discussed, a ppellant’s contention that his due process rights were violated is different from his complaint under article 26.13. I n Davison , the court explained : “We have taken care in our case law to differentiate appellate claims based upon a violation of the statutory admonishment requirement of Article 26.13 from appellate claims based upon due process

— that a guilty plea was involuntary because inadequately i nformed.” Davison , 405 S.W.3d at 691. The State responds
t hat even if this complaint is adequately briefed, appellant was not denied due process by the trial court’s failure to admonish him of the applicable punishment
range. W e review this complaint under the standard of review for constitutional

error. See T EX
. R. A PP
. P. 44.2(a) (standard of review for constitutional error in– 13

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criminal cases); Davison , 405 S.W.3d at 691 (claim of constitutional error under Boykin is governed by rule 44.2(a)). Under this s tandard, we must reverse the judgment of conviction or punishment unless we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment. T EX
. R. A PP
. P. 44.2(a). Boykin requires that “the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.” Davison , 405 S.W.3d at 687 (internal quotation omitted). As the court in Davison explained,
So long as the record otherwise affirmative ly discloses that the defendant’ s guilty plea was adequately informed, due process is satisfied. For the appellant to prevail on his constitutional claim, therefore, it is not enough that the record is unrevealing with respect to whether he was admonished by the trial court; th e record must also be silent with respect to whether he was otherwise provided, or nevertheless aware of, the requisite information to render his guilty plea voluntary and intelligent. Id. “ Boykin clearly did not hold that due process requires the equivale nt of the Article 26.13(a) admonishments or an admonishment on the range of punishment.” Id. (internal quotation omitted). Here, as we have discussed, the record as a whole reflects that appellant’s no

contest pleas were made after discussing the options for trial with his counsel and subsequent to his plea bargain on another second

- degree felony offense. After reviewing the entire record, w e conclude appellant was aware of “the requisite information to render his [no contest] plea voluntary and intelligen t.” See id. Consequently, we conclude beyond a reasonable doubt that the trial court’s error in– 14

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failing to admonish appellant of the punishment range did not contribute to appellant’s conviction or punishment. See T EX
. R. A PP
. P. 44.2(a). We decide appellant’s sole issue against him.
M ODIFICATION OF J UDGMENT S The parties agree that the judgments should be modified to show that appellant did not enter into plea bargain agreements in each of these cases. When the record provides the necessary informati on to correct inaccuracies in the trial court’s judgment, we have the authority to reform the judgment to speak the truth. T EX
. R.
A PP
. P. 43.2(b); Bigley v. State , 865 S.W.2d 26, 27

– 28 (Tex. Crim. App. 1993) (courts of appeals have authority to modify a j udgment); Estrada v. State , 334 S.W.3d 57, 63

– 64 (Tex. App.

— Dallas 2009, no pet.) (same). Accordingly, we modify the judgments in Cause No. F 18

- 76633

- M and Cause
No. F 18

- 76635

- M to reflect that appellant did not enter into a plea bargain agreement in either case. C ONCLUSION As modified, we affirm the trial court’s judgments.

200212f.u05 200213f.u05 D o Not Publish T EX
. R. A PP
. P. 47.2( b) /Leslie Osborne/ / LESLIE OSBORNE JUSTICE– 15

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### Court of Appeals Fifth District of Texas at Dallas

JUDGMENT
JAILEN LATRELL MATTHEWS, Appellant No. 05

- 20

- 00212

- CR V. THE STATE OF TEXAS, Appellee On Appeal from the 194th Judicial District Court, Dallas County, Texas Trial Court Cause No. F

- 1876635

- M. Opinion delivered by Justice Osborne. Justices Pedersen, III and Nowell participating. Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: To reflect that appellant did not enter into a plea bargain agreement.
As REFORMED , the judgment is AFFIRMED

.

Judgment entered this 30 th day of August , 2021

.– 16

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### Court of Appeals Fifth District of Texas at Dallas

JUDGMENT
JAILEN LATRELL MATTHEWS, Appellant No. 05

- 20

- 00213

- CR V. THE STATE OF TEXAS, Appellee On Appeal from the 194th Judicial District Court, Dallas County, Texas Trial Court Cause No. F

- 1876633

- M. Opinion delivered by Justice Osborne. Justices Pedersen, III and Nowell participating. Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: To reflect that appellant did not enter into a plea bargain agreement.
As REFORMED , the judgment is AFFIRMED

.

Judgment entered this 30 th day of August , 2021

.