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 Nos. F18-76633-M and F18-76635-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 

deadly weapon in Cause Numbers F18-76633-M and F18-76635-M. He entered 

pleas of “no contest” to both charges, and the cases proceeded to trial before the 

court. Finding sufficient evidence of appellant’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 the State agree that the judgment in each 
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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 judgments as agreed and affirm.

BACKGROUND

On October 30, 2018, Justin Villanueva, his girlfriend 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 and 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, broke 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 matters into my own hands at first.” But both Justin and Nina later cooperated 
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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 two 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, alleging that appellant had committed violations 

of his community supervision. Appellant entered pleas of no contest to the 

aggravated 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, and 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 cases.
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ISSUE AND STANDARD OF REVIEW

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 also 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 complaint 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-constitutional 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 courts declined to consider a due process claim combined 

in a single issue with an article 26.13 claim.1In 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 
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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) 

(considering multifarious issue where error complained of was reasonably certain). 

Under these circumstances, we may review appellant’s due process argument 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 justice). We do so, however, only 

after considering appellant’s principal argument under article 26.13.

ADMONISHMENT OF PUNISHMENT RANGE

1. Article 26.13(a)(1)

Before a trial court may accept a plea of nolo contendere, it must admonish 

the defendant of the range of punishment attached to the offense. TEX. CODE CRIM.

PROC. 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 misled or harmed by the admonishment of the court.” 

TEX. CODE CRIM. PROC. art. 26.13(c).

designated for 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.
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“A trial court’s failure to properly admonish a defendant is subject to the harm 

analysis of Rule of 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 error 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 know 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 court 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 believes 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).
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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 strength 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, 88 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 

trial 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 appellant 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 commencement of trial, 

appellant’s trial counsel mentioned “some of the facts” of the case as the basis for 
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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 matters 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 did you want to proceed in this 

matter?
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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 Yes, 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 attorney]: 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 have overheard the offer of ten years on 

these cases, are you accepting or rejecting that 

at this time?

THE DEFENDANT: Rejecting.
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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 appellant 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 

had 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 supervision 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 assaults 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 reflect, 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 Court 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 

received a copy of the State’s motion in each case, and declined the court’s offer to read all the allegations 
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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 range for a seconddegree 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 record 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 would 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 these circumstances, we conclude that 

appellant’s substantial rights were not affected, see 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.
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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 id. 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.

As we have discussed, appellant’s contention that his due process rights were 

violated is different from his complaint under article 26.13. In 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 informed.” Davison, 405 S.W.3d at 691. The State responds 

that 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.

We review this complaint under the standard of review for constitutional 

error. See TEX. R. APP. P. 44.2(a) (standard of review for constitutional error in 
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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 standard, 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. TEX. R. APP.

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 affirmatively 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; the 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 equivalent 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 nocontest 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, we conclude appellant was aware of “the requisite 

information to render his [no contest] plea voluntary and intelligent.” See id.

Consequently, we conclude beyond a reasonable doubt that the trial court’s error in 
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failing to admonish appellant of the punishment range did not contribute to 

appellant’s conviction or punishment. See TEX. R. APP. P. 44.2(a). We decide 

appellant’s sole issue against him.

MODIFICATION OF JUDGMENTS

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 information to correct inaccuracies in the trial court’s 

judgment, we have the authority to reform the judgment to speak the truth. TEX. R.

APP. 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 judgment); 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. F18-76633-M and Cause 

No. F18-76635-M to reflect that appellant did not enter into a plea bargain agreement 

in either case.

CONCLUSION

As modified, we affirm the trial court’s judgments.

200212f.u05

200213f.u05

Do Not Publish

TEX. R. APP. P. 47.2(b)

/Leslie Osborne//

LESLIE OSBORNE

JUSTICE
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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 30th day of August, 2021.
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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 30th day of August, 2021.