Victoria Kathryn Holloway A/K/A Victoria Maly v. State ( 2018 )

Opinion filed March 8, 2018
In The
Eleventh Court of Appeals
__________
Nos. 11-16-00057-CR & 11-16-00058-CR
__________
VICTORIA KATHRYN HOLLOWAY
A/K/A VICTORIA MALY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause Nos. CR22715 & CR24306
MEMORANDUM OPINION
The State charged Appellant with possession of a controlled substance,
namely methamphetamine, in a drug-free zone. Appellant waived her right to a jury
trial and pleaded guilty. The trial court assessed punishment at confinement for ten
years, but it suspended the imposition of the sentence and placed Appellant on
community supervision for a term of ten years.
While Appellant was on community supervision, the State charged her with
endangering a child. The State also filed an amended motion to revoke Appellant’s
community supervision in the possession case. Appellant again waived her right to
a jury trial and pleaded guilty to the offense of endangering a child. She also pleaded
true to allegations in the State’s amended motion to revoke.
The trial court found Appellant guilty of the offense of endangering a child
and found that several allegations in the State’s amended motion to revoke
community supervision were true. The trial court assessed punishment at
confinement for two years in a state jail facility for the offense of endangering a
child, reduced the term of confinement to two years in the Institutional Division of
the Texas Department of Criminal Justice for the possession offense, and ordered
that the sentences run consecutively. In each appeal, Appellant challenges the
voluntariness of her plea. We affirm.
Police officers executed a search warrant at Appellant’s house. In the house,
officers found a pipe with a trace amount of methamphetamine residue. Because
Appellant’s house was within 1,000 feet of Howard Payne University, the offense
occurred within a drug-free zone.
The trial court admonished Appellant that, by entering a guilty plea, she
waived various constitutional rights. Appellant indicated that she understood this,
and that was what she wanted to do. Before the trial court accepted Appellant’s
guilty plea to the possession charge, the trial court asked her several questions. The
trial court asked Appellant about her age, education, and ability to read and write
English. The trial court also inquired as to whether Appellant had any mental
problems and whether she was satisfied with her legal representation. The trial court
asked whether she had read and understood the written admonitions that she signed.
Finally, the trial court approved Appellant’s waiver of the right to a jury and record
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and assessed punishment at confinement for ten years, suspended the imposition of
the sentence, and placed Appellant on community supervision for a term of ten years.
Thirteen months later, Appellant was babysitting several children, including
a four-year-old named M.S. M.S. was unsupervised in the backyard 1 when he
obtained a butane torch and used it to set his pants on fire.
When Appellant heard M.S. cry out, she ran outside, picked him up, pulled
off his pants, and carried him into the kitchen. She placed him on the kitchen counter
and covered his legs with cold, wet washcloths. Appellant first called M.S.’s
grandfather, who was M.S.’s legal guardian. When he did not answer, she attempted
to text and call him several more times. Appellant then called her mother, who
immediately left work and drove to Appellant’s house. Appellant never called 9-1-1.
When M.S.’s grandfather arrived, he immediately drove M.S. to the hospital
in Brownwood. According to his grandfather, M.S. was visibly in shock. M.S. was
diagnosed with first-, second-, and third-degree burns and was ultimately transferred
to a burn center in Dallas.
After Appellant waived indictment, the State charged Appellant by
information with endangering a child. Appellant entered an open guilty plea in the
same proceeding. Appellant also pleaded true to six of the eight allegations in the
State’s amended motion to revoke community supervision; the State waived the
remaining allegations.
The trial court again asked Appellant about her age, education, and ability to
read and write English and about whether she claimed to be mentally insane or
incompetent and whether she was satisfied with her legal representation. The trial
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Appellant testified that she was helping another child in the restroom when the incident occurred;
based on information from other children present in Appellant’s house, the State alleged that Appellant was
asleep.
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court asked whether anyone had threatened Appellant to cause her to plead guilty or
true in any of the matters and whether anyone had promised her something to plead
true or guilty. Appellant confirmed that she understood that she was waiving her
right to a jury trial in the child endangerment offense and that she did so intelligently,
knowingly, and voluntarily.
Because of the prior offense of possession in a drug-free zone, the trial court
also informed Appellant that, if it revoked her community supervision and sent her
to prison, that sentence would run consecutively and not concurrently with any
punishment assessed in the child endangerment offense. Appellant confirmed that
she understood.
Appellant claims in a single issue on appeal in both cases that her pleas of
guilty were not voluntary. A guilty plea involves, among other things, a waiver of a
defendant’s rights to be tried by a jury, to confront his accusers, to have a speedy
and public trial, and to invoke his privilege against compulsory self-incrimination.
Boykin v. Alabama, 395 U.S. 238, 243 (1969); Ex parte Palmberg, 491 S.W.3d 804,
807 (Tex. Crim. App. 2016) (orig. proceeding). To be knowing and voluntary, a
guilty plea must be made with sufficient awareness of the relevant circumstances
and likely consequences. McMann v. Richardson, 397 U.S. 759, 766 (1970). When
the record shows that a defendant was properly admonished, it presents a prima facie
showing that the guilty plea was entered knowingly and voluntarily. Martinez v.
State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); Ex parte Gibauitch, 688 S.W.2d
868, 871 (Tex. Crim. App. 1985); see TEX. CODE CRIM. PROC. ANN. art. 26.13 (West
Supp. 2017). Pleas are only involuntary if they are induced by threats,
misrepresentations, or improper promises. Brady v. United States, 397 U.S. 742,
755 (1970).
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Appellant argues that her pleas were not voluntary because she was unaware
that the Court of Criminal Appeals might revise the mens rea element of the drug-
free zone enhancement. However, it is well-settled that a defendant’s failure to
anticipate a potential change in the law at the time of her guilty plea does not render
that plea involuntary. Brady, 397 U.S. at 757 (“[A] voluntary plea of guilty
intelligently made in the light of the then applicable law does not become vulnerable
because later judicial decisions indicate that the plea rested on a faulty premise.”).
Moreover, while Appellant’s appeal was before this court, the Court of Criminal
Appeals decided that the State need not prove that an accused knew that she was in
a drug-free zone at the time she committed an offense. White v. State, 509 S.W.3d
307, 315 (Tex. Crim. App. 2017).
Appellant makes no claim that either of her guilty pleas was the product of
any threat, misrepresentation, or improper promise. The records reveal that, in both
causes, the trial court properly admonished Appellant, both orally and through
written admonitions, as to her rights, her understanding of the charges against her,
and the consequences of her guilty pleas. Therefore, Appellant’s single issue in each
cause is overruled.
We affirm the judgments of the trial court.
JIM R. WRIGHT
March 8, 2018 SENIOR CHIEF JUSTICE
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.2
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Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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