Angela Holden v. State ( 2005 )

                              NUMBER 13-03-624-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG 

ANGELA HOLDEN,                                                                         Appellant,

v.

THE STATE OF TEXAS,                                                                 Appellee.

          On appeal from the 176th District Court of Harris County, Texas.

                                MEMORANDUM OPINION

                         Before Justices Hinojosa, Yañez, and Garza

                            Memorandum Opinion by Justice Yañez

On June 2, 2003, appellant, Angela Holden, without an agreed punishment recommendation, pleaded nolo contendere to theft by a public servant.^[1]  The trial court assessed her punishment at seven years= imprisonment in the Texas Department of Criminal JusticeBInstitutional Division and ordered restitution of $74,732.95.

The record contains the trial court=s certification that this is not a plea-bargain case, and the defendant has a right to appeal.^[2]

In three issues appellant contends (1) her trial counsel was ineffective, (2) the trial court erred in denying her motion for new trial, and (3) the trial court=s final judgment incorrectly reflects that she was convicted of a first degree felony rather than a second degree felony.  We modify the trial court=s judgment and affirm it as modified.^[3]           

Background

Appellant was indicted on one count of theft by a public servant as a result of accounting irregularities that were discovered during an audit of a Harris County Constable=s office.  Appellant was employed as the chief clerk and was responsible for the office=s finances, including issuing payroll checks and collecting and paying monies relating to accounts payable and accounts receivable.  The audit revealed that several hundred duplicate hours worked had been reported by appellant and other employees and contractors related to appellant. According to the audit, appellant had been overpaid by $79,000 or $89,000, in addition to benefits.  The audit also revealed that temporary employees had been overpaid commissions of approximately $4,000. 

Ineffective Assistance of Counsel

By appellant=s first issue, she contends her trial counsel was ineffective because he (1) failed to advise her that lack of intent was a defense to the charge, and (2) failed to inform her that she should not deny guilt during a pre-sentence investigation. Appellant further argues that her counsel=s ineffectiveness caused her to involuntarily enter a plea of nolo contendere.  As a preliminary matter, we must address whether appellant waived this issue when she pleaded nolo contendere.

A valid plea of guilty or nolo contendere "waives" or forfeits the right to appeal a claim of error only when the judgment of guilt was rendered independent of, and is not supported by, the error.^[4]  A claim of ineffective assistance may or may not have a direct nexus with a defendant's guilt or innocence.^[5]  Here, the record includes a pre-sentence report, in which appellant stated that she did not intend to commit the theft.  In her motion for new trial, appellant claimed her counsel was ineffective for failing to advise her that lack of intent was a defense to the theft charge.  In the motion, she asserts that but for her counsel=s ineffectiveness, she would not have pleaded nolo and instead, would have proceeded to trial. We conclude that in these circumstances, the judgment was not rendered independent of appellant=s allegations of ineffectiveness.^[6]    

A defendant's election to plead guilty or nolo contendere when based upon erroneous advice of counsel is not done voluntarily and knowingly.^[7]  When the plea is not voluntarily given, the waiver rule does not apply.^[8]  Here, appellant claims she did not enter her plea voluntarily because it was based on the erroneous advice of counsel.  Accordingly, we conclude appellant has not waived her complaints regarding the voluntariness of her plea allegedly caused by her counsel=s ineffectiveness.^[9]

The standard for reviewing claims of ineffective assistance of counsel is set forth in Strickland v. Washington.^[10]  If a guilty plea is entered on the advice of counsel, that counsel must be competent and render effective assistance.^[11]  When a defendant challenges the voluntariness of a plea entered on the advice of counsel, contending that his counsel was ineffective, "the voluntariness of the plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."^[12]

No plea of guilty or plea of nolo contendere shall be accepted by a trial court unless it appears that the defendant is mentally competent and the plea is free and voluntary.^[13]  When we review the voluntariness of a plea, we examine the record as a whole and determine whether the plea was entered voluntarily based on the totality of the circumstances.^[14]                                                      

When the record shows that the trial court gave an admonishment, there is a prima facie showing of a knowing and voluntary plea.^[15]  The burden then shifts to the defendant to show that he pleaded without understanding the consequences of his plea and, consequently, suffered harm.^[16]  Once a defendant has pleaded and attested to the voluntary nature of his plea, he bears a heavy burden at a subsequent hearing to demonstrate a lack of voluntariness.^[17]     

       After appellant was sentenced by the trial court, she retained new counsel, Mr. Schaffer, for post-trial proceedings related to her conviction.   On September 26, 2003 Mr. Shaffer filed a motion for new trial on appellant=s behalf, alleging ineffective assistance of her previous trial counsel, Mr. Williams, who had advised appellant up to and shortly after her plea.  Attached to the motion was an affidavit from appellant. In response to the allegation of ineffectiveness, Mr. Williams filed a reply along with an affidavit that provided his account regarding his representation of appellant. 

The record shows that after appellant entered her plea of nolo contendere, the court deferred sentencing pending a pre-sentence investigation report, which was subsequently considered by the court in assessing her punishment.  Part of the investigation required appellant to submit a statement to an investigator regarding her account of the factual circumstances giving rise to the charge.  In her statement, appellant claimed she had never intended to commit theft but that she accepted responsibility for her mistakes. 

On appeal, appellant claims that prior to submitting her statement, Mr. Williams should have advised her that in her statement, she should fully accept responsibility for the allegations of theft.  As a result of counsel=s alleged failure, appellant argues that her statement resulted in her receiving a longer sentence than she would have otherwise received had she been properly advised.          

In response to appellant=s allegations of ineffectiveness, Mr. Williams stated in his affidavit, in relevant part

Ms. Holden . . . state[d] that she did not intend to commit theft but she offered no explanation as to the facts except that she had made a mistake.  She couldn=t explain her negotiating large checks from the county and from a county temporary agency. She could not explain the auditor=s records that showed her putting in for work hours in excess of 24 and significant amounts of duplicate work hours.  I believed that one or more of the co-defendants would testify that she knew that the time sheets were falsified and that she was a party to their theft . . . It was my opinion that she could be characterized as the ringleader or head of the scheme.  Additionally, the grand jury testimony of her son, nephew, cousin, and co-worker, was strong, credible evidence of her guilt.  For these reasons, I did not believe that she would prevail with a defense based on a lack of intent or knowledge.  Although Ms. Holden stated that her actions were the result of mistaken conduct, after my assessment, she told me that she could see how a jury would convict her. . . During the pre-sentence investigation, Ms. Holden gave the probation officer a written statement in which she denied acting with intent to commit theft.  I was not present when they met.  I first saw the statement when I received a copy of the pre-sentence report.  I recognized that the judge might penalize her for not accepting responsibility for the crime.  I also advised her that the Judge might refuse her plea and not go through with her sentence. . . I counseled with Ms. Holden as to her options in this case.  I used my experience and the evidence in this case to try to best inform my client.  I left up to Ms. Holden the decision to plead or take her case to trial.  I at no time coerced her into pleading.

In contrast, appellant stated in her affidavit, in relevant part

I pled no contest without an agreed recommendation on punishment, and Jon Hughes sentenced me to seven years imprisonment after a pre-sentence investigation.  I told [counsel] from the outset of his representation that I did not intend to commit theft and that any discrepancies . . . were the results of honest mistakes.  I told him that I wanted to go to trial, but he said that a jury probably would convict me because the facts were too complicated to explain.  He did not tell me that a lack of intent to commit theft was a defense . . . Had he given me this advice, I would have pled not guilty and gone to trial.  I entered a no contest plea in reliance on Mr. William=s advice that a jury would convict me if I went to trial.  I told him that I would not plead guilty and admit to stealing money that I did not intentionally steal. . .   

In analyzing the voluntariness of appellant=s plea and whether her counsel was ineffective, we note that appellant was admonished in writing.^[18]  Appellant signed the admonishments acknowledging that she understood them and was aware of the consequences of her plea.^[19]  The court also admonished her regarding the range of punishment for the charge. Specifically, appellant initialed the following statements contained in the AStatements and Waivers@ section of the written admonishments: (1) AI fully consulted with my attorney before entering this plea;@ (2) AI am totally satisfied with the representation provided by my counsel and I received effective and competent representation;@ (3)  AI am mentally competent and I understand the nature of the charge against me;@ (4) "I understand the admonishments of the trial court set out herein;@ (5) AI fully understand the consequences of my plea herein, and after having fully consulted with my attorney, request that the trial court accept said plea;@ and (6) AI have freely, knowingly, and voluntarily executed this statement in open court with the consent and approval of my attorney."  Appellant also stated at a hearing, prior to entering her plea, that she understood the consequences of her plea. 

Although appellant claims her counsel failed to inform her regarding the defense of lack of intent, counsel explained in his affidavit that he counseled her regarding her options  and that in his opinion, the defense would not be successful because appellant provided an insufficient explanation regarding the allegations.

Based on appellant=s written and oral acknowledgments, counsel=s explanation regarding his strategy, and the lack of evidence supporting appellant=s arguments, we conclude appellant has failed to show that her plea was involuntary or that her counsel was ineffective.^[20]  Appellant=s first issue is overruled.

Denial of Motion for New Trial

In her second issue, appellant contends the court erred in denying her motion for new trial because the court did not allow live witness testimony at the hearing on her motion for new trial.  Appellant claims that live testimony would have fully developed Asignificant omissions@ in trial counsel=s affidavit.

The standard of review applicable to a trial court=s denial of a motion for new trial is an abuse of discretion.^[21]  The only time a trial court=s judgment may be substituted is when a clear abuse has taken place.^[22]  

Rule 21.7 states, in relevant part, A[t]he court may receive evidence at a hearing on a motion for new trial by affidavit or otherwise.@^[23]  This rule grants the court discretion in admitting testimony either by affidavit, live testimony, or both.^[24]  "When an accused presents a motion for new trial raising matters not determinable from the record, upon which the accused could be entitled to relief, the trial judge abuses his discretion in failing to hold a hearing."^[25]  However, a trial court may decide a motion for new trial based on sworn pleadings and affidavits admitted in evidence without hearing oral testimony.^[26]   The current appellate rules do not require the trial court to take live testimony, but simply provide that A[t]he court may receive evidence by affidavit or otherwise.@^[27]

         Here, the record shows appellant=s motion for new trial and affidavits were timely filed.  The record also reflects that the court held a hearing and considered arguments from both sides along with affidavits submitted by appellant and her previous trial counsel prior to rendering its decision.  After considering arguments from both sides and the affidavits, the court denied appellant=s motion for new trial.  Although appellant argues that oral testimony would have developed Asignificant omissions@ in her previous trial counsel=s affidavit, appellant has not demonstrated facts that, if true, would have entitled her to a new trial.  Because the record shows that the court held a hearing and considered arguments and affidavits from both sides prior to rendering its decision on the motion for new trial, we cannot conclude that the court abused its discretion.^[28]  We overrule appellant=s second issue.

 Incorrect Judgment Rendered

In her third issue, appellant contends she pleaded nolo contendere to a second degree felony of theft by a public servant of an amount under $100,000 but over $20,000.^[29]  On appeal, both parties agree that the judgment inaccurately reflects that she was convicted of a first degree felony.  Appellant therefore requests that this Court modify the judgment to appropriately reflect that she was convicted of a second degree felony of theft by a public servant. 

After reviewing the record, we agree with the parties= assessment. The record shows that appellant pleaded nolo contendere to a second degree felony.  However, the court=s final judgment incorrectly reflects that she was convicted of a first degree felony. Appellant=s third issue is sustained.  Accordingly, the trial court=s judgment is modified to reflect that appellant was convicted of a second degree felony.^[30]

Conclusion

Having considered appellant=s three issues on appeal, we modify the trial court=s judgment to reflect that appellant was convicted of a second degree felony, and affirm the judgment as modified.                                                                                              

_______________________

LINDA REYNA YAÑEZ,

Justice

Do not publish.                                             

Tex. R. App. P. 47.2(b)

Memorandum Opinion delivered and

filed this the 26th day of August, 2005.

---

^[1] See Tex. Pen. Code Ann. '' 31.03(e)(5), 31.03(f)(1) (Vernon Supp. 2004-05).

^[2] See Tex R. App. P. 25.2 (a)(2).

^[3] See Tex. R. App. P. 43.2(b).

^[4] See Young v. State, 8 S.W.3d 656, 666‑67 (Tex. Crim. App. 2000); Ramirez v. State, 89 S.W.3d 222, 228 (Tex. App.CCorpus Christi 2002, no pet.).

^[5] See Martinez v. State, 109 S.W.3d 800, 803 (Tex. App.CCorpus Christi 2003, no pet.). 

^[6] See Young, 8 S.W.3d at 666‑67. 

^[7] See Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991). 

^[8] See Perez v. State, 129 S.W.3d 282, 289 (Tex. App.CCorpus Christi 2004, no pet.).

^[9] See Young, 8 S.W.3d at 666‑67; Perez, 129 S.W.3d at 289. 

^[10] 466 U.S. 668, 687 (1984).

^[11] See Hill v. Lockhart, 474 U.S. 52, 57 (1985); Ex parte Evans, 690 S.W.2d 274, 276 (Tex. Crim. App. 1985); Gomez v. State, 921 S.W.2d 329, 332 (Tex. App.CCorpus Christi 1996, no pet.). 

^[12] See Strickland, 466 U.S. at 687; Ex parte Moody, 991 S.W.2d 856, 857‑58 (Tex. Crim. App. 1999).

^[13] See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2004-05).

^[14] See Griffin v. State, 703 S.W.2d 193, 195 (Tex. Crim. App. 1986); Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975).

^[15] See Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985); Dorsey v. State, 55 S.W.3d 227, 235 (Tex. App.CCorpus Christi 2001, no pet.). 

^[16] See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2004-05); Dorsey, 55 S.W.3d at 235. 

^[17] See Ybarra v. State, 93 S.W.3d 922, 925 (Tex. App.CCorpus Christi 2002, no pet.).

^[18] See Tex. Code Crim. Proc. Ann  art. 26.13 (Vernon Supp. 2004-05). 

^[19] See id.  

^[20]  See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2004-05); Strickland, 466 U.S. at 687; Ex parte Moody, 991 S.W.2d at 857‑58; Dorsey, 55 S.W.3d at 235. 

^[21] See Hoyos v. State, 951 S.W.2d 503, 511 (Tex. App.CHouston [14th Dist.] 1997), aff'd, 982 S.W.2d 419 (Tex. Crim. App. 1998).

^[22] See id.

^[23] See Tex. R. App. P. 21.7.

^[24] See Scaggs v. State, 18 S.W.3d 277, 281 (Tex. App.CAustin 2000, pet. ref=d).

^[25] See Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993).

^[26] See Scaggs, 18 S.W.3d at 281(citing McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985)). 

^[27] See Rivera v. State, 89 S.W.3d 55, 58-59 n.9 (Tex. Crim. App. 2002).

^[28] See Tex. R. App. P. 21.7; Scaggs, 18 S.W.3d at 281.

^[29] See Tex. Pen. Code Ann.'' 31.03 (e)(5), (f)(1) (Vernon Supp. 2004-05).

^[30] See Tex R. App.P. 43.2(b) (authorizing an appellate court to modify the trial court=s judgment and affirm it as modified).