NUMBER 13-10-128-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

CLAYTON JOHNSON, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 28th District Court 

of Nueces County, Texas.

 

MEMORANDUM OPINION

Before Justices Garza, Benavides, and Vela 

Memorandum Opinion by Justice Vela

Clayton Johnson appeals his convictions for intoxication manslaughter, a 

second-degree felony, see TEX. PENAL CODE ANN. § 49.08(a), (b) (West Supp. 2010), and 

intoxication assault, a third-degree felony. See id. § 49.07(a), (c). Appellant pleaded 

guilty to both charges before the court without a plea-bargain agreement. After 
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presentation of evidence, the jury assessed punishment at fifteen years’ and nine years’ 

imprisonment, respectively, plus a $10,000 fine for each offense. The trial court ordered 

the sentences to run consecutively. In one issue, appellant contends he did not enter his 

pleas freely and voluntarily. We affirm.

I. FACTUAL BACKGROUND

On June 5, 2009, appellant, intending to celebrate his high-school graduation, 

bought a bottle of vodka and a 30-pack of beer. He and three friends began drinking 

alcohol and smoking marihuana. Shortly before 9:00 p.m., appellant drove a Mercury 

Sable east onto South Padre Island Drive at a high rate of speed. At that time, Christobal 

Isaac, a local musician, was driving two friends, Sethen Waid and John Saenz, to a movie 

theater. As Isaac approached Airline Road, the appellant rear-ended Isaac's vehicle, a 

Honda Element, at a speed in excess of ninety miles per hour. The Honda went over the 

guardrail and rolled over two times, landing on the access road. Isaac and Waid were 

ejected from the vehicle. The medical evidence showed that Isaac died from blunt-force 

injuries consistent with a high-speed collision. Waid suffered a severe skull fracture 

along with traumatic brain injury. At the time of appellant's punishment trial, Waid was 

bedridden and "unresponsive." Saenz, who was wearing his seatbelt, received minor 

injuries.

Jonathan Barraza, who was traveling on SPID at the time of the collision, 

approached the Mercury just as appellant was getting out of it. When appellant exited 

his vehicle, he told Barraza, "'I'm sorry.'" Barraza testified there was "[n]o question at all" 

that appellant was driving the vehicle that rear-ended Isaac's Honda.
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Officer Leopoldo Hernandez, who investigated the collision, testified there was no 

evidence to show that any other vehicle struck Isaac's Honda. Appellant testified that 

shortly before the collision, he drank "an excessive amount" of alcohol. After the 

collision, laboratory analysis of appellant's blood showed he had a 0.22 blood-alcohol 

level.

II. APPLICABLE LAW

"A guilty plea constitutes a waiver of three constitutional rights: the right to a jury 

trial, the right to confront one's accusers, and the right not to incriminate oneself." Kniatt 

v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) (citing Boykin v. Alabama, 395 U.S. 

238, 243 (1969)). Consequently, a person must enter a guilty plea knowingly, 

intelligently, and voluntarily so that the plea is consistent with due process of law. Id. 

(citing Boykin, 395 U.S. at 242). "To be 'voluntary,' a guilty plea must be the expression 

of the defendant's own free will and must not be induced by threats, misrepresentations, 

or improper promises." Id. (citing Brady v. United States, 397 U.S. 742, 755 (1970)). In 

Aguirre-Mata v. State, the court of criminal appeals said that the Boykin Court stated 

"generally that state courts should make sure that a guilty-pleading defendant has a full 

understanding of what the plea connotes and of its consequences." 125 S.W.3d 473, 

475 (Tex. Crim. App. 2003) (internal quotes omitted).

III. DISCUSSION

In his sole issue, appellant argues he did not enter his guilty pleas freely and 

voluntarily. Specifically, he contends his pleas were not knowing, intelligent, and 

voluntary because the trial court did not substantially comply with the requirements of 
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code of criminal procedure article 26.13(a) and (b) when admonishing him about: (1) his 

citizenship and immigration status; (2) the range of punishment attached to each offense; 

(3) the trial court’s power to cumulate his sentences; and (4) whether he was competent 

to enter his pleas.

A. Citizenship and Immigration Status

Appellant contends the trial court did not inquire about his citizenship status. 

Article 26.13(a)(4) requires that, before accepting a guilty plea, the trial court admonish 

the defendant of "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[.]" TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(4) (West Supp. 2010). 

Here, the supplemental record 1included a transcript of the trial court's 

admonishments to appellant. During that proceeding, the trial court asked appellant the 

following questions: (1) "Is your name Clayton Johnson?"; (2) "Do you speak and 

understand the English language?"; and (3) "Are you a citizen of the United States of 

America?" Appellant answered affirmatively to all of these questions. When the record 

shows a defendant is a United States citizen, the trial court's failure to admonish him 

about the immigration consequences of his plea is harmless error. VanNortrick v. State, 

227 S.W.3d 706, 709 (Tex. Crim. App. 2007). 

B. Punishment Range

Appellant contends the trial court failed to admonish him about the punishment 

range for each offense. Article 26.13(a)(1) requires that, before accepting a guilty plea, 

 

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This Court file-stamped the supplemental record on February 11, 2011.
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the trial court must admonish the defendant of "the range of the punishment attached to 

the offense[.]" TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(1). Substantial compliance is 

sufficient unless a defendant affirmatively shows he was not aware of the consequences 

of his plea and that he was misled or harmed by the trial court's admonishment. Id. art. 

26.13(c). However, a trial court does not substantially comply with article 26.13(a)(1) if 

the judge "wholly failed to admonish appellant regarding the applicable range of 

punishment." Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002).

"Failure to admonish a defendant on the direct consequences of his guilty plea is 

statutory rather than constitutional error." Id. In Burnett, the court of criminal appeals 

stated:

Courts of appeals must conduct the harm analysis of statutory errors, 

as a species of "other errors," under rule 44.2(b), disregarding the error 

unless it "affect[ed] [appellant's] substantial rights." For claims of 

non-constitutional error, we, like the Supreme Court, hold that "a conviction 

should not be overturned unless, after examining the record as a whole, a 

court concludes that an error may have had 'substantial influence' on the 

outcome of the proceeding." Put another way, if the reviewing court has "a 

grave doubt" that the result was free from the substantial influence of the 

error, then it must treat the error as if it did. "Grave doubt" means that "in 

the judge's mind, the matter is so evenly balanced that he feels himself in 

virtual equipoise as to the harmlessness of the error." Thus, "in cases of 

grave doubt as to harmlessness the petitioner must win."

"[N]either the State nor appellant must demonstrate harm when [a 

non-constitutional] error has occurred. Rather, it is the appellate court's 

duty to assess harm after a proper review of the record. Accordingly, a 

conviction must be reversed on direct appeal if the record shows that a 

defendant was unaware of the consequences of his plea and that he was 

misled or harmed by the trial court's failure to admonish him regarding the 

range of punishment."

Thus, a reviewing court must independently examine the record for 

indications that a defendant 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 
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admonish him of the punishment range. . . . [T]o warrant a reversal on 

direct appeal, the record must support an inference that appellant did not 

know the consequences of his plea. Reviewing courts must examine the 

entire record to determine whether, on its face, anything in that record 

suggests that a defendant did not know the consequences of his 

plea—here, the range of punishment. Of course, a silent record would 

support such an inference. The reviewing court also may simultaneously 

consider record facts from which one would reasonably infer that a 

defendant did know the consequences of his plea or, in this case, was 

actually aware of the range of punishment. It is ultimately the responsibility 

of the reviewing court to determine whether the record supports or negates 

the defendant's assertion of harm. If, after a conscientious examination of 

the record, the reviewing court is left with "grave doubt" on the matter, the 

error is not harmless.

Id. at 637–39 (emphasis in original) (citations omitted). 

Here, the record contains evidence showing that appellant knew the punishment 

range for both offenses. During voir dire, at which appellant was present, the trial court 

informed2the venire members of the punishment range for each offense. In addition, 

during voir dire, the prosecutor explained the punishment ranges to the jury panel as 

follows:

Let me talk about the range of punishment. . . . Let me take the first 

offense, intoxication manslaughter. The range of punishment as Judge 

Villarreal has indicated is a minimum of two years in prison and a maximum 

of 20 years in prison. . . .

Now also for intoxication assault, probation or community 

supervision is a possible punishment, if the person is qualified. . . . 

* * *

With that said, is there anybody here who could not consider the 

entire range of punishment for an intoxication manslaughter case? That 

would be anywhere from probation to 20 years in prison. . . .

Is there anybody here who could not consider the entire range of 

 

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The trial court told the jury panel: "[T]he range of punishment is from probation all the way to the 

penitentiary. Count 1 [intoxication manslaughter] being from two years to 20 years. And then in Count 2 

[intoxication assault] two years to 10 years."
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punishment of anywhere between two years and 10 years in prison or 

probation for intoxication assault?

Even though appellant was present during voir dire, the record does not show that 

either he or his defense counsel objected or tried to withdraw his guilty pleas during voir 

dire, despite the fact that the trial court and the prosecutor informed the jury about the 

range of punishment for each offense. Furthermore, after the jury of twelve was sworn 

in, appellant formally entered his pleas as follows:

(The State read aloud Count 1.)

THE COURT: How do you plead to Count 1, Mr. Johnson?

THE DEFENDANT: Guilty.

* * *

(The State read aloud Count 2.)

THE COURT: How do you plead to Count 2, guilty or not guilty?

THE DEFENDANT: Guilty.

See Burnett, 88 S.W.3d at 640 (where trial court failed to admonish accused about the 

punishment range in accordance with article 26.13(a)(1), the court of criminal appeals 

considered that accused was present during voir dire, that during voir dire the judge, 

prosecutor, and defense counsel admonished the jury on the punishment range, that 

accused did not seek to withdraw his guilty plea during voir dire, and after the jury was 

sworn, formally pleaded guilty). In addition, the trial court in the case before us read the 

punishment charge to the jury in open court. The charge detailed the range of 

punishment for each offense. Defense counsel did not object, and there was no 

on-the-record reaction or protest from appellant when the charge was read. Neither 
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appellant nor his defense counsel ever objected that appellant was not aware of the 

punishment range for either offense. The record does not include a motion for new trial, 

alleging appellant was not aware of the range of punishment for each offense.

There is in fact nothing in the record to show that appellant was unaware of the 

range of punishment for each offense. Without any evidence in the record to support an 

inference that appellant did not know the range of punishment for each offense, we 

cannot find that the trial court's failure to admonish him regarding the range of punishment 

misled or harmed him. See id. at 641. 

C. Whether Appellant Entered His Guilty Pleas Freely and Voluntarily

Appellant states the record "is silent on whether [he] entered his pleas freely and 

voluntarily." Trial courts are not required to make an "express inquiry" with regard to 

whether a plea was freely and voluntarily made to comply with article 26.13. See 

Basham v. State, 608 S.W.2d 677, 678–79 (Tex. Crim. App. 1980). Nevertheless, we 

note that, before appellant pleaded guilty to both offenses, he, his defense counsel, and 

the prosecutor signed a document entitled ―Judicial Confession and Stipulation," which 

stated, in relevant part, ―I am pleading guilty to the offense of COUNT 1: 

INTOXICATION MANSLAUGHTER and COUNT 2: INTOXICATION ASSAULT 

because I am guilty. My plea is freely, voluntarily, knowingly, and intelligently given.‖ 

The record shows that appellant's guilty pleas were the expression of his own free will. 

Nothing in the record shows that his guilty pleas were induced by threats, 

misrepresentations, or improper promises.
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D. Consecutive Sentencing

Appellant states the record is silent on the issue of whether he "was aware . . . of 

the Trial Court's [sic] power to order that the sentences be served consecutively." 

Appellant does not cite any authority, or provide any argument, with respect to how the 

trial court's failure to admonish on the possibility of stacking his sentences prevented him 

from entering his pleas freely and voluntarily. "The brief must contain a clear and 

concise argument for the contentions made, with appropriate citations to authorities and 

to the record." TEX. R. APP. P. 38.1(i). Appellant's failure to brief this issue constitutes a 

waiver of the argument. See Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000) 

(stating that failure to cite relevant authority waives error). 

Nevertheless, we hold appellant's argument lacks merit. Even though the trial 

court did not admonish him that it could order his sentences to run consecutively, "a guilty 

plea is considered voluntary if the defendant was made fully aware of the direct 

consequences. It will not be rendered involuntary by lack of knowledge as to some 

collateral consequence." State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App. 

1999). The court of criminal appeals has further explained that direct consequences are 

those that are "definite and largely or completely automatic," and that a trial court is only 

required to advise a defendant of direct consequences that are "punitive in nature or 

specifically enunciated in the law." Mitschke v. State, 129 S.W.3d 130, 135, 136 (Tex. 

Crim. App. 2004).

We note that article 26.13 does not require the trial court to admonish on 

consecutive or cumulative sentences. See TEX. CODE CRIM. PROC. ANN. art. 26.13. In 
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McGrew v. State, we stated, after citing case law from several federal appellate courts, 

"[w]e agree that the imposition of consecutive sentences is not a direct consequence of a 

guilty plea, and a plea is not rendered involuntary by the trial court's failure to warn of such 

a possibility." 286 S.W.3d 387, 391 (Tex. App.—Corpus Christi 2008, no pet.). 

Because the trial court's ability to cumulate appellant's sentences was a collateral 

consequence of his guilty pleas, he has failed to establish that his pleas were involuntary 

due to the trial court's failure to warn of that consequence. See id.

E. Competency

Appellant states the record "is silent on whether [he] was competent to enter his 

pleas." However, appellant does not cite any authority, or provide any argument, with 

respect to how the trial court's failure to inquire about his competency to enter his guilty 

pleas prevented him from entering his pleas freely and voluntarily. "The brief must 

contain a clear and concise argument for the contentions made, with appropriate citations 

to authorities and to the record." TEX. R. APP. P. 38.1(i). Appellant's failure to brief this 

issue constitutes a waiver of the argument. See Tong, 25 S.W.3d at 710. Furthermore, 

appellant does not argue, and the record does not show, that he was incompetent at any 

time, including the time he pleaded guilty to the offenses. The sole issue for review is 

overruled.
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IV. CONCLUSION

We affirm the trial court's judgment.

ROSE VELA

Justice

Do not publish.

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

Delivered and filed the 

3rd day of November, 2011.