OPINION The State charged Appellant by information with driving while intoxicated while in possession of an open alcohol container. TEX. PEN. CODE ANN. § 49.04(a)(c). Appellant entered an open plea of guilty and elected for the trial court to assess punishment. The trial court assessed punishment and sentenced Appellant to confinement for 170 days and $200 in restitution. In a single issue, Appellant now contends that his plea was involuntary under Boykin v. Alabama, 395 U.S. 238 (1969). We affirm. I. Factual and Procedural Background Appellant was arrested and charged for driving while intoxicated with an open alcohol container. Appellant proceeded to trial. During jury selection, Appellant was present while the trial court, his counsel, and the State questioned potential jurors about the presumption of innocence and Appellant’s right to not testify. The trial court also informed the potential jurors of the charged crime and potential punishment range in the presence of Appellant. At the conclusion of jury selection, the panel was sworn, the trial court read the charge, and Appellant entered an open plea of guilty. The trial court accepted Appellant’s plea and proceeded to the punishment phase of trial. On appeal, Appellant now challenges his plea as involuntary. II. Preservation Appellant’s sole issue is whether the trial court violated his due process rights. To support his contention, Appellant relies on Boykin, asserting that the record is silent as to whether he knowingly and voluntarily pled guilty. The State contends that Appellant’s issue is not preserved because he failed to raise it during sentencing or in a motion for new trial. The Court of Criminal Appeals has rejected the State’s position, holding that a Boykin claim “is not subject to ordinary principles of procedural default.” Davison v. State, 405 S.W.3d 682, 690 (Tex. Crim. App. 2013). Instead, a defendant’s claim that the record is silent with respect to whether a guilty plea was voluntarily entered is analogous to the systemic right that the trial court properly admonish a defendant. Id. at 690–91; see also, Bessey v. State, 239 S.W.3d 809, 812 (Tex. Crim. App. 2007). Accordingly, Appellant may raise his Boykin claim that his plea was involuntary for the first time on appeal. III. Boykin Boykin, which involved a felony charge, held that, to comport with due process, when a defendant enters a guilty plea, the record must affirmatively demonstrate that the plea was entered voluntarily and knowingly. Boykin, 395 U.S. at 243–44; see also Davison, 405 S.W.3d at 691. When a record is silent, courts may not presume the voluntary waiver of important constitutional rights such as a jury trial, confrontation, and self-incrimination. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) (citing id. at 243). A “voluntary” guilty plea is one that was not “induced by threats, misrepresentations, or improper promises.” Id. We review the voluntariness of a plea by examining the totality of the circumstances and the entire record. Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App. 1986) (en banc). “A defendant’s knowledge of his constitutional rights and the voluntariness of his plea may be inferred from the record, including statements made by counsel in the defendant’s presence.” Dominguez v. State, 535 S.W.3d 125, 133 (Tex. App.—El Paso 2017, no pet.) (citing Gardner v. State, 164 S.W.3d 393, 399 (Tex. Crim. App. 2005)). Any constitutional errors in the record are governed by Rule 44.2(a). See Davison, 405 S.W.3d at 691; TEX. R. APP. P. 44.2(a). Appellant contends this is a question of first impression—whether Boykin‘s presumption that a guilty plea accompanied by a silent record is involuntary also applies in misdemeanor cases and should be reversed on appeal on due process grounds. Even though the Court of Criminal Appeals has not extended Boykin to misdemeanor cases, for the reasons below, we conclude we do not need to decide the issue in this case. See Buchanan v. State, 480 S.W.2d 207, 210–11 (Tex. Crim. App. 1972) (analyzing the record, in the confrontation context, for Boykin factors in a misdemeanor offense without holding that Boykin applies to misdemeanors). Even assuming Boykin applies to a misdemeanor charge, the record in this case does not support Appellant’s due process claim that his plea was involuntary. See id. Although Appellant is correct that the trial court did not formally admonish him about the rights he waived when entering a guilty plea, Boykin does not require an express admonishment.[1] See Gardner, 164 S.W.3d at 399 n. 5. Instead, the Court of Criminal Appeals has noted Boykin did not specifically set out what must be “spread on the record” to satisfy due process. Id. at 399 (citing Aguirre–Mata v. State, 125 S.W.3d 473, 475 (Tex. Crim. App. 2003)) (en banc). The constitutional rights waived by a guilty plea mentioned by Boykin are: “the privilege against compelled self-incrimination, the right to a jury trial and the right to confront one’s accusers.” Id. (citing Boykin, 395 U.S. at 243– 44). We conclude, unlike the record in Boykin, the record before us is not silent on these constitutional rights. Appellant was present throughout the jury selection process before entering his plea, and he was present during jury selection when the State discussed its burden of proof and Appellant’s right to not testify. Similarly, Appellant was present when the trial court confirmed the State’s list of witnesses that would have confronted him had Appellant chosen to forgo his guilty plea. Additionally, although not required by Boykin, the trial court provided the range of punishment before jury selection in Appellant’s presence. See Davison, 405 S.W.3d at 687 (citing Aguirre–Mata, 125 S.W.3d 475–76). Finally, Appellant was represented by counsel, and when Appellant entered his guilty plea, the trial court asked Appellant’s counsel if “guilty” was the correct plea—Appellant’s counsel replied that the decision was Appellant’s to make. We believe a review of the record as a whole affirmatively shows Appellant was made aware of the rights he was waiving by entering an open plea of guilty. We therefore conclude that due process was satisfied, and Boykin is inapplicable to these facts because the record is not silent and adequately shows that Appellant freely, knowingly, and voluntarily pleaded guilty. We overrule Appellant’s sole issue. IV. CONCLUSION The judgment of the trial court is affirmed. SANDEE B. MARION, Chief Justice (Ret.) January 27, 2023 Before Rodriguez, C.J., Soto, J., and Marion, C.J. (Ret.) Marion, C.J. (Ret.) (Sitting by Assignment) (Do Not Publish)
