Nancy Lynn Tyree v. State

Opinion

NO. 07-10-0411-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

SEPTEMBER 7, 2011 _____________________________

NANCY LYNN TYREE,

Appellant v.

THE STATE OF TEXAS,

Appellee _____________________________

FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY;

NO. 1189902D; HONORABLE MOLLEE WESTFALL, PRESIDING _____________________________

Memorandum Opinion _____________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Nancy Lynn Tyree pled guilty to the offense of possessing a controlled substance

(marijuana) in an amount of 2,000 pounds or less but more than fifty pounds, and the

jury assessed her punishment at ten years imprisonment. Appellant argues that

because the trial court failed to admonish her about her right against self-incrimination

before pleading guilty and testifying at the punishment phase of the trial, both her plea

and sentence “requir[e] reversal.” We overrule the issue and affirm the judgment. First, a trial court has no general duty to advise a testifying defendant

represented by counsel of the defendant’s right to forego testifying. Johnson v. State,

169 S.W.3d 223, 235 (Tex. Crim. App. 2005). That duty lies with the defendant’s

counsel. Id. Nor must the trial court afford such an admonishment prior to accepting a

guilty plea. See TEX. CODE CRIM. PROC. ANN. art. 26.13(A) (Vernon Supp. 2010)

(itemizing the admonishments that must be given before accepting a guilty plea);

Delgado v. State, 849 S.W.2d 904, 906 (Tex. App.–Fort Worth 1993, pet. ref’d) (stating

that nothing in art. 26.13 nor in the case law requires a trial judge to admonish an

accused who has pled guilty of his right against self-incrimination under the Texas

Constitution before he testifies at a non-jury trial).

Third, before appellant pled guilty at bar, the trial court asked whether she opted

to do so because she was guilty and for no other reason, whether she understood “the

implications of pleading guilty . . .,” and whether her “attorney thoroughly explained to

you the rights that you’re giving up in pleading guilty.” In response to each inquiry,

appellant replied “yes ma’am.” Next, appellant’s counsel was asked by the trial court

whether he had “gone over the rights that your client is giving up.” Counsel answered

“Judge, we have . . . ” and that she was also aware of the range of punishment and that

“she is fully aware and cognizant of what she’s doing today.” The appellate record

further discloses that during voir dire, in the presence of appellant, and before she

testified in the punishment phase, the State told the venire: “if you’re charged with an

offense, you have the right to remain silent and not to say anything that can be used

against you, right, a Fifth Amendment right.” Given these circumstances, we cannot say

that appellant’s plea and sentence are reversible because the trial court failed to inform

2 her of her right against self-incrimination or that her plea was otherwise uninformed and

involuntary.

Accordingly, the judgment is affirmed.

Brian Quinn Chief Justice

Do not publish.