in Re: The State of Texas, Ex Relatione Armando R. Villalobos, County (Criminal District) Attorney, Cameron County, Texas

NUMBER 13-05-370-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG IN RE: THE STATE OF TEXAS EX REL ARMANDO R. VILLALOBOS COUNTY (CRIMINAL DISTRICT) ATTORNEY, CAMERON COUNTY, TEXAS On appeal from the County Court at Law No. 3 of Cameron County, Texas. DISSENTING MEMORANDUM OPINION Before Justices Yañez, Castillo, and Garza Dissenting Memorandum Opinion by Justice Castillo At a hearing convened on a plea of no contest, the trial court entered a judgment of acquittal on grounds of legally insufficient evidence. The relator seeks a writ of mandamus from this Court directing the respondent trial court to vacate that judgment. In denying extraordinary relief, the majority concludes that the trial court retained discretion to enter a judgment of acquittal on grounds that the State failed to show that entry of a judgment of conviction, in lieu of acquittal, was a ministerial task. Because the accused confessed guilt, I conclude that the evidence is legally sufficient. Accordingly, the trial court had a non-discretionary duty to enter a judgment of conviction. Thus, I would conditionally grant relief because binding rules and precedent from a court of superior jurisdiction compel entry of a judgment of conviction. I. Relevant Facts The information alleged that, on or about November 20, 2004, the defendant unlawfully operated a motor vehicle in a public place while intoxicated. The record contains a document signed by the accused, his defense counsel, and the prosecutor, confessing guilt. That document contains the following statement: I confess that I committed the offense as alleged in the State's information and that each element of the State's pleading is true. In open court I freely and voluntarily enter my plea of guilty/nolo contendere to the offense charged in the information and request the Court to make immediate disposition of this case based upon my plea. The document also reflects the trial court's finding as follows: After consulting with the defendant and informing the defendant of the nature of the charges, all rights and the consequences of the plea of guilty/nolo contendere, the defendant waived arraignment and with the advice of counsel, decided not to contest the case. The Court finds that the defendant is competent and that the plea was entered only after the defendant knowingly, intelligently, and voluntarily waived the right to a trial by jury; and all other rights set out above. The Court hereby accepts this plea which is (is not) the result of a plea bargain agreement with the prosecuting attorney. . . . The Court finds that there is sufficient information in the record to permit the meaningful exercise of sentencing discretion. The document was executed by the parties and the trial court on March 30, 2005, the same date of the plea hearing. During the plea hearing, on the trial court's questioning as to plea agreements on three charges stemming from the same incident, the defendant responded, "I understood the offer to allow me to enter a no contest plea on a deferred adjudication to the one charge. . . . And although I don't think there is evidence on that charge, I was willing to do that and did agree to that."[1] This colloquy ensued: The Court: So since the pleaBwhatever was offered is a little bit different from what you understood, if you enter a plea, you would be entering a cold plea on all three as cold pleas. The defendant: On no contest? The Court: No contest. The Defendant: I think I would prefer to do that, Judge. The Court: Very well. That's fine. Let me go ahead and we'll get some plea forms for you. Can you get some for Mr. Wright? The trial court provided the statutory admonishments including, among other things, that the effect of the defendant's plea was to waive the constitutional right to force the State to prove the allegations beyond a reasonable doubt. The trial court asked the defendant if he understood his constitutional rights, and he responded he did. The trial court further admonished: If you enter a plea of guilty or nolo contendere, no contest, the effect of these pleas is that you waive these constitutional rights; you allow the Court to listen to the testimony. Based on what I hear that's read into the record off a report or a statement, I can decide your guilt or innocence, I can decide your punishment. Do you understand the effect of your pleas? The defendant responded affirmatively. The trial court effected the written admonishments: The Court: Very well. These three plea forms, one in each case, they set out this information I just explained to you. If you'll please review these forms, sign the back where it reads "defendant," I'll keep those forms in your file as evidence that you have been admonished of these very important rights. Next, the trial court accepted the plea of nolo contendere. The trial court found that the defendant was competent and that the plea was voluntarily and intelligently made. After the prosecutor summarized the evidence, the trial court asked the defendant what happened. Admitted into evidence was the defendant's affidavit, attesting, among other things, that he "consumed no alcoholic beverages prior to [his] arrest on November 20, 2004." In open court, the defendant admitted he drank the night before: The Court: All right. The officer, I heard from the evidence, smelled an odor of alcohol. Do you know what thatB The Defendant: I had not had any alcoholic beverage on the 20th. The Court: Which was that day, evening, nighttime . . . . Had you been drinking the evening before, earlier? The Defendant: Much earlier. I was at a birthday dinner for Mr. Rodriguez. The Court: Okay. Do you recall what you consumed, what you were drinking? Wine? The Defendant: Beer. I had I think one glass of wine and I had two beers. The judgment of acquittal reflects that (1) the cause was regularly reached and called for trial and that the parties announced ready for trial, (2) the defendant entered a plea of not guilty to the charge, (3) the plea was entered of record in the minutes of the court, (4) the defendant and the State agreed in writing to waive a jury and submit the cause to the court, and (5) having heard the State's evidence, the trial court found the defendant not guilty.[2] II. Relief by Mandamus Mandamus may compel a trial court to rule a certain way on an issue that is clear and indisputable, such that its merits are beyond dispute, or when the law clearly spells out the duty to be performed with such certainty that nothing is left to the discretion or judgment, whether that law is derived from statute, rule, or opinion of a superior court. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 n.3 (Tex. Crim. App. 2003) (citing State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927-28 n.3, n. 5 (Tex. Crim. App. 2001)). Mandamus will not lie even under these circumstances if the aggrieved party has a right to appeal since the right to appeal is usually considered an adequate legal remedy. Hill, 34 S.W.3d at 928 n.5. III. Nolo Contendere Plea and Legal Sufficiency When a defendant enters a nolo contendere plea before the trial court in a misdemeanor case, he, in effect, is admitting every element of the offense charged. See Dees v. State, 676 S.W.2d 403, 404 (Tex. Crim. App. 1984). A plea of nolo contendere in a misdemeanor case may be made either (1) by the defendant or (2) by his counsel in open court, and (3) in such case, the defendant or his counsel may waive a jury, and (4) the punishment may be assessed by the court either upon or without evidence, at the discretion of the trial court. See Tex. Code Crim. Proc. Ann. art. 27.14(a) (Vernon Supp. 2005). Prior to accepting a plea of nolo contendere, the court shall provide certain statutory admonitions. Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2005). The admonitions may be oral or in writing. Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon Supp. 2005). If the court makes the admonitions in writing, it must receive a statement signed by the defendant and the defendant's attorney that evidences the defendant understands the admonitions and is aware of the consequences of his plea. Id. The trial court shall not accept the plea unless it appears that the defendant is mentally competent and the plea is free and voluntary. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2005). The defendant may waive any rights secured him by law. Tex. Code Crim. Proc. Ann. art. 1.14(a) (Vernon 2005). Upon entering a plea, the defendant shall have the right to waive the right of trial by jury, provided that such waiver must be made (1) in person by the defendant (2) in writing, (3) in open court, and (4) with the consent and approval of both the court and the attorney representing the State. Tex. Code Crim. Proc. Ann. art. 1.13(a) (Vernon 2005). The consent and approval by the court shall be entered on the record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea. Id. The legal effect of a plea of nolo contendere in a misdemeanor case is the same as that of a plea of guilty. Tex. Code Crim. Proc. Ann. art. 27.02(5) (Vernon 1989); Lucero v. State, 502 S.W.2d 750, 752 (Tex. Crim. App. 1973). A plea of guilty is sufficient in a misdemeanor case to sustain a conviction. Brown v. State, 507 S.W.2d 235, 238 (Tex. Crim. App. 1974). IV. Application of the Law to The Facts The plain language of articles 1.13(a) and 27.14(a) of the code of criminal procedure contemplates that, where the plea of nolo contendere in a misdemeanor case is before the trial court, (1) the defendant must waive his right to trial by jury in writing in open court, and (2) the trial court may assess punishment, with or without evidence. Lucero, 502 S.W.2d at 752 (citing Tex. Code Crim. Proc. Ann. art. 27.02(5) (Vernon 1989)). A judicial confession, standing alone, is an acceptable method of providing sufficient evidence to sustain a conviction on a nolo contendere plea. See Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. [Panel Op.] 1980) (per curiam) (op. on reh'g) (stating that a judicial confession is generally defined as a confession made in a legal proceeding). Because the defendant by his nolo contendere plea admits every element of the offense and because he waives in open court his right to confront witnesses, the trial court need not hear evidence on the plea. See Tex. Code Crim. Proc. art. 1.13, art. 27.14(a) (Vernon 2005), Dees, 676 S.W.2d at 404. Thus, because a plea of nolo contendere in a misdemeanor case is conclusive of culpability, there is no question about the sufficiency of the evidence. See Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986); see also Ex parte Martin, 747 S.W.2d 789, 791-92 (Tex. Crim. App. 1988). In this case, the defendant, represented by counsel, waived the right to trial by jury in writing and in open court with the consent and approval of the trial court and the State. The defendant affirmed that his plea was knowingly and voluntarily made and that he was aware of the consequences of his plea. After being duly admonished orally and in writing, he unequivocally entered in writing a plea of nolo contendere before the trial court and waived in writing the right of confrontation. He made the following judicial admission in writing: I confess that I committed the offense as alleged in the State's information and that each element of the State's pleading is true.[3] The defendant's judicial confession encompasses the essential elements of the charged offense. The defendant's affidavit stating that he consumed no alcoholic beverages on the morning of the arrest does not negate his judicial confession or his open admission to the trial court that he consumed wine and two beers the night before. Once the plea was entered and accepted by the court, there was no longer a question of sufficiency of the evidence as to the defendant's guilt. See Ex Parte Williams, 703 S.W.2d at 678. Because the defendant pleaded nolo contendere, the plea itself is sufficient to support his conviction. See Price v. State, 866 S.W.2d 606, 611 (Tex. Crim. App. 1993); Ex parte Martin, 747 S.W.2d at 792; Ex parte Williams, 703 S.W.2d at 678; Dees, 676 S.W.2d at 404; Avila v. State, 884 S.W.2d 896, 897 (Tex. App.BSan Antonio1994, no pet.). V. Relief Neither party contends that relator has an adequate remedy by way of appeal. Indeed, relator has unsuccessfully attempted an appeal before this Court in State v. Wright, No.13-05-268-CR, 2005 Tex. App. LEXIS ____ (Tex. App.BCorpus Christi November 2005).[4] Thus, relator has satisfied the first requirement for mandamus relief. Rosenthal, 98 S.W.3d at 198; Hill, 34 S.W.3d at 927. However, whether relator has established that he has a clear right to the relief sought, namely to compel a "ministerial" act, is where the majority and I diverge. A trial judge has the discretion to determine facts at issue and the law which governs those facts, unless the court is presented with an issue where there is no factual dispute, and clear, binding and unequivocal precedent compels resolution of the issue in only one manner. See Rosenthal, 98 S.W.3d at 198; State ex rel. Healey v. McMeans, 884 S.W.2d 772, 781 (Tex. Crim. App. 1994) (Baird, J., concurring on reh'g.) In that event, he has a ministerial duty to resolve the matter as compelled by law. Rosenthal, 98 S.W.2d at 198; McMeans, 884 S.W.2d at 781. An act is said to be ministerial when the law clearly spells out the duty to be performed and does so with such certainty that nothing is left to the exercise of discretion or judgment. McMeans, 884 S.W.2d at 774 (citing Texas Dep't of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex. Crim. App. 1981)). Based on these principles, I respectfully conclude that the trial court was presented a matter without a factual dispute, namely the accepting of the nolo contendere plea and entry of judgment of conviction with appropriate punishment. The defendant freely and voluntarily confessed guilt, was statutorily admonished, waived his right to trial by jury, and waived his right to confrontation of the witnesses against him. The question of legal sufficiency to sustain the conviction did not arise. See Tex. Code Crim. Proc. Ann. art. 27.14(a) (Vernon 2005); Ex Parte Williams, 703 S.W.2d at 678. "The defendant who pleads guilty is . . . convicted on his counseled admission in open court that he committed the crime charged against him." Young v. State, 8 S.W.3d 656, 662 (Tex. Crim. App. 2000). "So far as the Constitution of the United States is concerned, a voluntary and knowing plea of guilty is a sufficient basis for a judgment of guilt." Id. at 661. Accordingly, because the judicial action "ignored clear, binding precedent from a court of superior jurisdiction," controlling the issue before it, I respectfully conclude that the trial court had a duty clearly fixed and required by law and, thus, "ministerial." Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (op. on reh'g.). The duty must be accomplished without the exercise of discretion or judgment. Id. at 128. The duty was to enter a judgment of conviction. See Hill, 34 S.W.3d at 929. Mandamus may lie to compel a trial court "to rule a certain way" on an issue that is clear and indisputable such that its merits are beyond dispute or when the law clearly spells out the duty to be performed with such certainty that nothing is left to discretion or judgment, whether that law is derived from statute, rule, or opinion of a superior court. Rosenthal 98 S.W.3d at198 (citing Hill, 34 S.W.3d at 928 n.5). Of course, mandamus will not lie even under these circumstances if the aggrieved party has a right to appeal. Id. VI. Conclusion Because the performance of the act is clearly imposed by law, relator has established that under the relevant law and facts, (1) he has a clear right to the relief sought, namely, to compel a "ministerial act"[5] and (2) he has no adequate remedy by appeal. Rosenthal, 98 S.W.3d at 198. Respectfully, I would conditionally grant the writ.[6] See Healey, 884 S.W.2d 772; Tex. R. App. P. 52.8 (c). ERRLINDA CASTILLO Justice Do not publish. Tex. R. App. 47.2(b). Dissenting Memorandum Opinion delivered and filed this 3rd day of January, 2006. [1] As the majority states, three charges were pending. The record does not show whether all charges involved plea agreement discussions. [2] I pause briefly to review the judgment of acquittal. The judgment in a criminal case merely documents the fact of, and certain important events associated with, the process leading to conviction or acquittal. Tex. Code Crim. Proc. Ann. art. 37.12 (Vernon 1981), art. 42.01 (Vernon Supp. 2004-05); Ex parte George, 913 S.W.2d 523, 526 (Tex. Crim. App. 1995). In the absence of evidence to the contrary, we presume the regularity of the trial court's judgment and records. Jones v. State, 77 S.W.3d 819, 821 (Tex. Crim. App. 2002); Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (op. on reh'g). The presumption of regularity is a judicial construct that requires a reviewing court, absent evidence of impropriety, to indulge every presumption in favor of the regularity of the proceedings and documents in the lower court. See McCloud v. State, 527 S.W.2d 885, 887 (Tex. Crim. App. 1975). In this case, the sole plea before the trial court was a nolo contendere plea. The parties announced ready at a hearing convened on that plea. The record does not demonstrate that the trial court rejected the plea on grounds, for example, that the plea was not freely or voluntarily made. Rather, the trial court accepted the plea. Further, the record does not show that the defendant changed his plea to not guilty or requested to withdraw his plea of nolo contendere. On these facts, the presumption of regularity is negated. See Ex parte George, 913 S.W.2d at 526. [3] This document is found in the record. The trial court pronounced, "I'll keep those forms in your file as evidence that you have been admonished of these very important rights." The trial court, without objection, treated the document as though formally admitted in evidence. Further, the document complies with the requirements that the waiver of the right to a jury trial be in writing and in open court and entered of record. Tex. Code. Crim. Proc. Ann. art. 1.13(a) (Vernon 2005). Thus, the document is properly in the record. Tex. R. App. P. 52.7(a)(1). [4] Concluding that the judgment of acquittal does not fall within one of the statutory categories from which the State is permitted to appeal, we dismissed the appeal for want of jurisdiction. Tex. Code Crim. Proc. Ann. art. 44.01. (Vernon Supp. 2005). "But the limitations in Article 44.01 on the State's right to appeal are no impediment to the State's use of mandamus to correct judicial action that is clearly contrary to well‑settled law, whether that law is derived from a statute, rule, or opinion of a court." State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex. Crim. App. 1994). [5]The ministerial act requirement has also been described as a requirement that the relator have "a clear right to the relief sought." State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927‑928 (Tex. Crim. App. 2001)(citing State ex rel. Rodriguez v. Marquez, 4 S.W.3d 227, 228 (Tex. Crim. App. 1999); Buntion v. Harmon, 827 S.W.2d 945, 947 & 947 n.2 (Tex. Crim. App. 1992); State ex rel. Wade v. Mays, 689 S.W.2d 893, 899 (Tex. Crim. App. 1985)). The relief sought must be "clear and indisputable" such that its merits are "beyond dispute." Id. at 928 (citing Wade, 689 S.W.2d at 897). Under the ministerial act/clear legal right requirement, the law must "clearly spell out the duty to be performed . . . with such certainty that nothing is left to the exercise of discretion or judgment." Id. (citing Wade, 689 S.W.2d at 899). Even a trial court's ruling on a pure question of law is not subject to writ review where that law was unsettled or uncertain. Id. (citing Wade, 689 S.W.2d at 898‑901). The act must be "positively commanded and so plainly prescribed " under the law " as to be free from doubt." Id. (citing Buntion, 827 S.W.2d at 949). In this case, the law is not unsettled or uncertain. [6] Importantly, this conclusion does not run afoul of double jeopardy principles. Double jeopardy "protects against successive prosecutions for the 'same offense' following acquittal." State v. Houth, 845 S.W.2d 853, 856 (Tex. Crim. App. 1992). Because the judgment by which the trial court in this cause purported to acquit the defendant was unauthorized, it was voidable. Ex parte George, 913 S.W.2d at 526-27; Davis v. State, 956 S.W.2d 555, 559 (Tex. Crim. App. 1997) ("errors involving the violation of a statutory procedure have not been deemed to be void, but voidable."). The power to grant mandamus relief in a criminal proceeding is settled. See State v. Westergren, 707 S.W.2d 260, 261 (Tex. App. 1986). Thus, the trial court was subject to a writ of mandamus if relator established a clear right to extraordinary relief. See id. In short, double jeopardy is not implicated or offended. See State v. Savage, 933 S.W.2d 497, 500 (Tex. Crim. App. 1996); Tex. Code Crim. Proc. Ann. art. 1.10 (Vernon 2005).