James L. Menefee v. State ( 2013 )

Opinion issued August 15, 2013
In The
Court of Appeals
For The
First District of Texas
NO. 01-09-00090-CR
NO. 01-09-00091-CR
JAMES L. MENEFEE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause Nos. 1153928, 1153929
MEMORANDUM OPINION
James L. Menefee pleaded guilty to two third-degree felony offenses of
violating a protective order, without agreed recommendations on punishment.1
The trial court assessed his punishment at eight years’ confinement in TDCJ in
each case and ordered the sentences to run concurrently. In two issues on appeal,
Menefee contends that the trial court erred or abused its discretion by denying his
motion to withdraw his guilty pleas, and that the evidence supporting his pleas was
insufficient.
Finding no error in the trial court’s judgments, we affirm.
Background
On August 30, 2005, the trial court issued a temporary protective order
prohibiting Menefee from, inter alia, direct communication with the complainant in
a threatening or harassing manner or going near her residence. At the September
14, 2005 hearing on the complainant’s motion for a permanent order (at which
Menefee was a no-show), the trial court found that the complainant and Menefee
were in a dating relationship, and thus Menefee had committed family violence.
The trial court then issued a permanent protective order with prohibitions identical
to those recited in the temporary order.
On October 3, 2007, Menefee was charged by indictment with intentionally
and knowingly (1) communicating directly with the complainant in a threatening or
1
See TEX. PENAL CODE ANN. § 25.07(a)(2)(A), (a)(3)(A), (g) (West 2012).
2
harassing manner on or about July 17, 2007 2 and (2) going to or near the
complainant’s residence on or about July 12, 2007 3 in violation of the permanent
protective order. 4 Each offense was enhanced by two prior convictions for
violating a protective order.
Menefee was arraigned on November 6, 2008 and pleaded not guilty to both
offenses. The next day, however, Menefee waived his rights to trial by jury, the
appearance, confrontation, and cross-examination of witnesses, and his right
against self-incrimination, and pleaded guilty to both offenses without a
recommendation as to punishment from the State. He also signed written
admonishments in which, inter alia, he waived his “right to have a court reporter
record [his] plea” and his right to have a pre-sentence investigation report
prepared. Menefee further represented to the trial court that he was mentally
competent and that his pleas were being made freely and voluntarily. The trial
court admonished Menefee as to the consequences of his pleas, and determined
that he was mentally competent to enter the pleas and that he did so freely and
voluntarily.
Specifically, in trial court case number 1153928, Menefee stipulated that it
2
Trial court case number 1153928, 01-09-00090-CR.
3
Trial court case number 1153929, 01-09-00091-CR.
4
The permanent protective order was attached as Exhibit A to both indictments.
3
was alleged that, on or about July 17, 2007, he “did then and there unlawfully, in
violation of a Protective Order issued under Chapter 85, of the Family Code and
attached hereto as Exhibit A, intentionally and knowingly directly communicate
with [the complainant] in a threatening and harassing manner.” Menefee judicially
confessed that the allegations against him were true and that the acts alleged were
committed on July 12, 2007.
In trial court case number 1153929, Menefee stipulated that the charges
against him alleged that on or about July 12, 2007, he “did then and there
unlawfully, in violation of a Protective Order issued under Chapter 85, of the
Family Code and attached hereto as Exhibit A, intentionally and knowingly go to
or near the residence described in said Protective Order, of [the complainant], the
protected individual.” Menefee judicially confessed that the allegations against
him were true and that the acts alleged were committed on July 17, 2007. The
protective order attached as Exhibit A to both sets of plea papers, however, was not
the permanent protective order in effect in July 2007 as alleged in (and attached to)
the indictments, but instead, the expired temporary protective order.
Four days later, on November 11, 2008, the trial court held a hearing in both
cases during which time both Menefee and the complainant testified. Although it
is not entirely clear from the record, the hearing appears to have been part of the
sentencing phase of Menefee’s proceedings pursuant to his plea, at the conclusion
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of which the court recessed the case for two months and ordered a psychiatric
evaluation to determine Menefee’s competency to proceed. Menefee was
subsequently found competent.
A final hearing in both cases was held on January 16, 2009, at the beginning
of which, Menefee’s counsel made an oral motion to withdraw both guilty pleas:
Your Honor, at this time the Defense would like to make a motion for
request of Defendant to withdraw his plea for reasons that he feels like
I misled him at the time of his plea. He felt like I did not adequately
inform him as to ramifications of his plea. He’s informed me he
would like to withdraw his plea on both cases. So, I’m asking the
Court at this time to allow him to withdraw his plea.
The court noted that it had already heard testimony from both Menefee and the
complainant and denied the motion. Both sides then made closing arguments, the
State asked the court to assess the maximum ten years’ confinement, and Menefee
sought the minimum two years. The court sentenced Menefee to eight years in
TDCJ in each case and ordered the sentences to run concurrently. Menefee filed a
notice of appeal.
Trial Court’s Denial of Motion to Withdraw Guilty Plea
Menefee contends that because the critical question of his competency had
yet to have been resolved, the denial of his motion to withdraw his guilty pleas was
error since neither case had been taken under advisement. Alternatively, Menefee
contends that even had both cases been taken under advisement, the trial court
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nevertheless abused its discretion when it denied his motion because there was
evidence before the court that Menefee’s pleas were involuntary, and that Menefee
did not believe that he was guilty of either offense.
A defendant has an absolute right to withdraw a guilty plea any time before
his plea has been taken under advisement or guilt has been adjudicated. See
Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979). Once a plea has
been taken under advisement or guilt has been adjudicated, however, a request to
withdraw a plea is untimely and the withdrawal of such a plea is within the sound
discretion of the trial court. See DeVary v. State, 615 S.W.2d 739, 740 (Tex. Crim.
App. [Panel Op] 1981) (citing Jackson, 590 S.W.2d at 515). It is well established
that a court takes a case under advisement when it accepts a properly admonished
guilty plea and passes the case for punishment. See Jackson, 590 S.W.2d at 514–
15 (holding case had been taken under advisement, and defendant could not
withdraw guilty plea as matter of right, where court had accepted guilty plea and
passed the case for pre-sentence investigation); Thompson v. State, 852 S.W.2d
268, 270 (Tex. App.—Dallas 1993, no pet.) (holding defendant could not withdraw
guilty plea as matter of right where “only issue remaining to be decided was the
appropriate punishment”); Wissinger v. State, 702 S.W.2d 261, 262–63 (Tex.
App.—Houston [1st Dist.] 1985, pet. ref’d) (holding trial court had discretion to
deny defendant’s motion to withdraw guilty plea at hearing “which was for the sole
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purpose” of determining defendant’s punishment).
Because Menefee waived his right to have the court reporter record his plea
proceedings, the only evidence before this court consists of the clerk’s record
containing the plea and admonishments signed by Menefee on November 7th, and
the reporter’s record from the sentencing hearing on January 16, 2009. See
Montoya v. State, 872 S.W.2d 24, 25 (Tex. App.—Houston [1st Dist.] 1994, pet.
ref’d) (stating defendant who waives presence of court reporter at plea hearing has
burden to bring forth sufficient record on appeal to show error). Absent a
reporter’s record of the plea hearing, there is a presumption of truthfulness and
regularity in the proceedings. Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim.
App. 1984) (op. on reh’g).
Here, the record clearly reflects the trial court’s proper admonishments of
Menefee prior to accepting his guilty pleas on November 7th. Well-established
case law dictates that both cases were taken “under advisement” at that time. See
DeVary, 615 S.W.2d at 740 (holding matter taken under advisement when
defendant pleaded guilty and was properly admonished); Jackson, 590 S.W.2d at
514–15 (holding case had been taken under advisement when court had accepted
guilty plea and passed case for pre-sentence investigation); Thompson, 852 S.W.2d
at 270 (holding matter taken under advisement when “only issue remaining to be
decided was the appropriate punishment”). The record also reflects that the court
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determined that Menefee was mentally competent and had entered both pleas
knowingly and voluntarily when the trial court accepted the pleas on November
7th. The fact that the trial court ordered Menefee to undergo a psychiatric
evaluation after he testified at the punishment hearing on November 11th does not
alter the fact that both cases had already been taken under advisement after the
previous hearing on November 7th. 5
Because Menefee’s request to withdraw his pleas was untimely, the
withdrawal of such pleas is within the sound discretion of the trial court. DeVary,
615 S.W.2d at 740. Menefee argues that the trial court abused its discretion when
it denied his motion to withdraw his pleas because there was evidence before the
court that his pleas were involuntary because they were based on misinformation
that he received from his trial counsel, and that he did not believe that he was
guilty of either offense.
If counsel conveys erroneous information to a defendant, a plea of guilty
based on that misinformation is involuntary. Ex parte Griffin, 679 S.W.2d 15, 17
(Tex. Crim. App. 1984); Rivera v. State, 952 S.W.2d 34, 36 (Tex. App.—San
Antonio 1997, no pet.); Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.—
Houston [1st Dist.] 1996, pet. ref’d). A bare allegation by a defendant that he was
5
Notably, despite whatever concerns the trial court may have had as to Menefee’s
competency after the November 11th hearing, the psychiatrist determined that
Menefee was, in fact, competent to stand trial.
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misled or misinformed by his trial court, however, is insufficient to obtain relief.
Fimburg, 922 S.W.2d at 208 (“However exceptional the circumstances, a
defendant’s claim he was misinformed by counsel, standing alone, is not enough
for us to hold his plea was involuntary.”). In such circumstances, we determine
whether the record supports the defendant’s contention that his/her guilty plea was,
in fact, induced by significant misinformation. Russell v. State, 711 S.W.2d 114,
116 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d). In cases in which a guilty
plea has been held involuntary, the record contained confirmation of the
misinformation by counsel or there was documentation properly in evidence
corroborating the defendant’s testimony that reveals the misinformation and
illustrates its conveyance to the defendant. See, e.g., Griffin, 679 S.W.2d at 15; Ex
parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980); Rivera, 952 S.W.2d at
36; Murphy v. State, 663 S.W.2d 604, 610 (Tex. App.—Houston [1st Dist.] 1983,
no pet.). Such evidence is wholly absent here. As such, we cannot say that the
trial court abused its discretion when it denied Menefee’s motion to withdraw his
pleas on this basis.
Menefee additionally argues that the trial court abused its discretion when
the it denied his motion to withdraw his guilty pleas because the psychiatric
evaluation established that Menefee did not believe himself guilty of either
offense. The record before us, however, does not indicate that the psychiatric
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evaluation was ever admitted into evidence. Moreover, the evaluation indicates
that Menefee denied committing only one of the offenses (i.e., threatening the
complainant), but admitted to going to or near the complainant’s residence (i.e.,
throwing a brick through a car window parked in her driveway). Finally, Menefee
did not argue to the trial court that it should allow him to withdraw his guilty pleas
because he believed himself innocent of the alleged offenses; he argued his
entitlement to withdraw his pleas because they were based on erroneous
information conveyed to him by his trial counsel. See Thomas v. State, 599
S.W.2d 823, 824 (Tex. Crim. App. 1980) (stating that trial court has no duty to
withdraw defendant’s “guilty” plea sua sponte after defendant has waived jury
trial, even if evidence fairly raises issue as to defendant’s innocence).
We overrule Menefee’s first issue.
Article 1.15 Sufficiency Requirements
In his second issue, Menefee challenges the sufficiency of the evidence
supporting both guilty pleas. Under Texas Code of Criminal Procedure article
1.15, a court may not enter a conviction in a felony case based on a guilty plea
unless evidence is presented establishing guilt in addition to and independent of the
plea. TEX. CODE CRIM. PROC. art. 1.15; Menefee v. State, 287 S.W.3d 9, 13–14
(Tex. Crim. App. 2009). The evidence does not have to establish the defendant’s
guilt beyond a reasonable doubt but must embrace every element of the offense
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charged. Staggs v. State, 314 S.W.3d 155, 159 (Tex. App.—Houston [1st Dist.]
2010, no pet.).
Evidence substantiating a guilty plea can take several possible forms.
Menefee, 287 S.W.3d at 13. Article 1.15 itself states that a defendant may consent
to the presentation of evidence either by oral testimony or in written form, or to an
oral or written stipulation of what the evidence would be, without necessarily
admitting to its veracity or accuracy. Id. Additionally, courts have recognized that
a defendant may enter a sworn written confession, or may testify under oath in
open court, admitting his culpability or at least acknowledging generally that the
allegations against him are in fact true and correct. Id. A deficiency in one form
of proof may be compensated for by other competent evidence in the record. Id. at
14. Evidence adduced at a sentencing hearing may also suffice to substantiate a
guilty plea. See id. at 18–19 (remanding in part for determination of whether
evidence at sentencing hearing was sufficient to support guilty plea); Menefee v.
State, No. 12–07–00001–CR, 2010 WL 3247816, at *1, *6–7 (Tex. App.—Tyler
Aug. 18, 2010, pet. ref’d) (not designated for publication) (finding evidence at
sentencing hearing sufficient to support guilty plea).
The stipulations of evidence and judicial confessions signed by Menefee in
both cases do indeed contain numerous flaws. Not only were the dates for both
offenses mixed up, but the record reflects that the protective order attached to both
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sets of plea papers (Exhibit A) was not the permanent protective order in effect in
July 2007, but rather, an expired temporary protective order. Notwithstanding
these flaws, we cannot say that the evidence was insufficient to support either plea,
particularly in light of the fact that both the complainant and Menefee testified on
November 11th. Menefee, 287 S.W.3d at 14 (stating deficiency in one form of
proof may be compensated for by other competent evidence). Because there is no
reporter’s record of that hearing, we presume that sufficient evidence to sustain and
support the pleas was introduced into the record at that hearing. See Williams v.
State, 950 S.W.2d 383, 385 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d)
(holding that in order to challenge sufficiency of evidence to support judgment
based on plea of guilty, defendant must bring forward full statement of facts,
including transcript of plea hearing).
We overrule Menefee’s second issue.
Conclusion
We affirm the trial court’s judgments.
Jim Sharp
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
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Justice Keyes, concurring in judgment only.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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