Albert Wagner v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-04-099 CR ____________________ ALBERT WAGNER, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 217th District Court Angelina County, Texas Trial Cause No. CR-24072 MEMORANDUM OPINION (1) Albert Wagner, Jr., entered an open plea of guilty to aggravated robbery. See Tex. Pen. Code Ann. § 29.03(a)(2) (Vernon 2003). The trial court convicted Wagner and imposed a fifteen year sentence of incarceration. The sole point of error raised on appeal contends a new hearing on punishment is required due to a violation of Wagner's right to remain silent at punishment. We find a valid waiver of Wagner's Fifth Amendment rights, and affirm the judgment. Wagner appeared in open court on January 20, 2004. The written plea admonishments, stipulations, and waivers signed by Wagner on that day included the following, set in bold type: "I give up my right to remain silent, both at the guilt-innocence and punishment phases of my trial." The trial court admitted the waivers and stipulations into evidence and accepted Wagner's guilty plea. After preparation of a pre-sentence investigation report, the appellant again appeared before the trial court. The prosecutor stated, "I would like to call Albert Wagner, Jr., to the stand." Defense counsel replied, "I have no objection to that." The prosecutor mentioned the waiver from the earlier hearing. A defendant who pleads guilty retains the right to remain silent during sentencing. Mitchell v. U.S., 526 U.S. 314, 321, 119 S.Ct. 1307, 1311, 143 L.Ed.2d 424, 433 (1999). A defendant's rights fall into one of three categories: (1) absolute requirements and prohibitions; (2) rights which must be implemented unless expressly waived; and (3) rights implemented only upon request. Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993). On appeal, Wagner concedes the Fifth Amendment right to remain silent is a Marin category two right subject to waiver, but contends the trial court failed to admonish Wagner that he had a right to remain silent. To the contrary, the written admonishments, waivers, and stipulations expressly refer to the right to remain silent at punishment, and expressly waive the right. In contrast to the general waivers present in Carroll v. State, the waiver signed in this case expressly extended to the punishment phase. See Carroll v. State, 42 S.W.3d 129, 132-33 (Tex. Crim. App. 2001). In the punishment hearing, the trial court was not required to re-advise Wagner of his right not to testify during punishment, because in the plea proceeding Wagner had already expressly waived the right to remain silent during punishment. The participants' behavior in the subsequent hearing, including defense counsel's express declination of objection, the appellant's lack of hesitation during his testimony, and defense counsel's extensive cross-examination about the robbery all support a conclusion that the waiver was knowing and voluntary. See Birdsong v. State, 82 S.W.3d 538, 544 (Tex. App.--Austin 2002, no pet.). We overrule the sole point of error and affirm the judgment. AFFIRMED. _____________________________ STEVE MCKEITHEN Chief Justice Submitted on March 24, 2005 Opinion Delivered March 30, 2005 Do Not Publish Before McKeithen, C.J., Gaultney and Kreger, JJ. 1. Tex. R. App. P. 47.4.