Opinion filed August 3, 2017



### In The 

# Eleventh Court of Appeals

__________ No s . 11

- 16

- 00131

- CR & 11

- 16

- 00132

- CR

__________ STEPHANIE RENE VALADEZ STEVENS , Appellant
V.
THE STATE OF TEXAS , Appellee

On Appeal from the 35th District Court Brown County, Texas Trial Court Cause No s . CR24040 & CR24041

O P I N I O N

The grand jury indicted Appellant for possession with intent to deliver a controlled substance, namely methamphetamine in the amount of four grams or more but less than 200 grams , in a drug

- free zone

. The grand jury also indicted her for
the offense of tampering with or fabricating physical evidence

. In each case, Appellant waived her right to a jury trial and entered open guilty ple a s

. The trial

court found Appellant guilt y of both offenses, assessed punishment at confinement
for ten years for the possession offense and at two years for the tampering offense,2

and ordered that the sentences were to run consecutively

. In each appeal, Appellant challenges the voluntariness of her plea. We affirm.
I. Background Facts
Law enforcement officers executed a search warrant at Appellant’s home after receiving a confiden tial tip from an informant that narcotics were located in Appellant’s home and that children in the home might be at risk. As law
enforcement officers entered the house, Appellant threw more than six grams of methamphetamine in to a toilet. When l aw enforcement officers searched Appellant’s home , they found approximately forty grams of “ methamphetamine cut,” which is a substance “used to bulk up methamphetamine for distribution.” During the entry of her guilty plea s , the trial court asked Appellant whether she understood the charges leveled against her and the possible punishment that she
faced. B efore the trial court accepted Appellant’s guilty plea in each cause , the trial court asked Appellant about her age and education level and her ability to read and write the English language

. The trial court also asked whether she understood that she had waived her right to a jury trial, whether her mental health was impaired, and whether she understood that no plea bargain had been arranged in each cause. The
trial court also explained that it would decide her punishment within the applicable range and asked if her plea wa s made freely and voluntarily. The trial court then explained to Appellant how the drug

- free zone statute would enhance the possession charge and how her punishment in the possession case could be stacked upon punishment in the tampering

- with

- evidence case

. Appellant told the trial court that she understood the consequences explained to her and that she wished to freely and voluntarily enter an open plea of guilty to each offense

. II. Analysis Appellant claims in a single issue on appeal in both causes that her open plea s of guilty were not voluntary. A guilty plea involves a waiver of several3

constitutional rights. Ex parte Barnaby , 475 S.W.3d 316, 322 (Tex. Crim. App. 2015) (citing Boykin v. Alabama , 395 U.S. 238, 242

– 43 (1969) ) ( a guilty plea involves, among other things, a waiver of a defendant ’ s federal constitutional rights to be tried by a jury, to confront his accusers, to ha ve a speedy and public trial, and to invoke his privilege against compulsory self

- incrimination); see Ex parte Palmberg , 491 S.W.3d 804, 807 (Tex. Crim. App. 2016). Although a defendant has an absolute right to a jury trial, he also has a right to waive i t. Adams v. United States
ex rel. McCann , 317 U.S. 269, 275 (1942); see T EX

. C ODE C RIM

. P ROC

. A NN

. art

. 1.13(a) (West Supp. 2016). The defendant must make the waiver in person and in writing, in open court, and do so with the consent and approval of both the court
and the State. C RIM

. P ROC

. art. 1.13(a). In addition, “[f]ederal due process requires that ‘[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant
circ umst ances and likely consequences.’ ” Davison v. State , 405 S.W.3d 682, 686 (Tex. Crim. App. 2013) (second alteration in original) (quoting Brady v. United
States , 397 U.S. 742, 748 (1970)) ; see Dansby v. State
, 448 S.W.3d 441, 451 (Tex.
Crim. App. 2014). When we consider the voluntariness of a plea, we examine the record as a
whole. Martinez v. State , 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). “The crucial issue is whether, under all the facts and circumstances, the plea was truly voluntary.” Barnaby
, 475 S.W.3d at 323 (quoting Gaither v. State , 479 S.W.2d 50, 51 (Tex. Crim. App. 1972)); see Salvaggio v. State , No. 11

- 15

- 00027

- CR, 2017 WL 922509, at *1 (Tex. App.

— Eastland Feb. 2 8, 2017, no pet.) (mem. op., not designated for publication). Pleas are only involuntary when induced by threats, misrepresentation, or improper promises. Khamissi v. State
, No. 11

- 10

- 00020

- CR, 2010 WL 3796225, at *3 (Tex. App.

— Eastland Sept. 30, 2010, pet. ref ’ d) (mem. op., not designated for publication) (citing Brady , 397 U.S. at 755). The fact that a4

trial court duly admonished a defendant about her rights and the consequences of her guilty plea creates a prima facie showing that the defendant knowingly and voluntarily entered the plea. Martinez , 981 S.W.2d at 197

. Appel lant asserts that her plea was not voluntary because she was unaware that the Court of Criminal Appeals might revise the mens rea element of the drug

free zone enhancement. While her appeal was before this c ourt, the Court of Criminal Appeals considered White v. State to decide whether the State must prove
that the defendant kn e w that he wa s in a drug

- free zone. 509 S.W.3d 307 (Tex. Crim. App. 2017)

. In White , the court held that no such mens rea requirement was
necessary. Id

. at 315

. A n accused need not be aware that , when he possessed an illegal drug , he was in a drug

- free zone. Id. In both causes, the trial court properly admonished Appellant as to her rights, her understanding of the charges against her, and the consequences of her guilty plea s

. We note that Appellant does not claim that her guilty plea s were the product of any threat, misrepresentation, or any improper promise. The open plea to the possession offense is not related in any way to the separate tampering offense for
which she al so entered an open plea. Furthermore, a defendant’s failure to anticipate a potential change in the law at the time of her guilty plea does not impugn the truth or reliability of that plea. Brady , 397 U.S. at 757. We overrule Appellant’s single
issue on appeal in each ca u se. III. This Court’s Ruling
We affirm the judgment s of the trial court.

August 3, 2017 MIKE WILLSON
P ublish. See T EX

. R. A PP

. P. 47.2(b)

. JUSTICE Panel consists of: Wright, C.J., Willson, J., and Bailey, J.