Ivy L. Johnson v. State ( 2003 )

NO. 07-02-0296-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

APRIL 10, 2003 ______________________________

IVY JOHNSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE 217^TH DISTRICT COURT OF ANGELINA COUNTY;

NO. CR-22,878; HON. DAVID V. WILSON, PRESIDING _______________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J. ⁽¹⁾

Appellant, Ivy Johnson, appeals his conviction of unlawfully possessing a firearm. Through two issues on appeal, he attacks the voluntariness of his open guilty plea. Specifically, he contends that his plea was involuntary because it was based upon a misrepresentation by his counsel and because his counsel was ineffective when uttering the purported misrepresentation. The misrepresentation involved the alleged statement that appellant would receive probation if he entered an open plea of guilty. We affirm the judgment of the trial court.

Background

Appellant was indicted for the offense of unlawful possession of a firearm. On May 3, 2002, he entered a guilty plea without a recommendation as to punishment. A pre-sentence investigation report was prepared and, on May 31, 2002, the court sentenced him to five years imprisonment. The record before us contains no evidence of any statements made by counsel to appellant concerning probation or appellant's eligibility for it. And, to the extent that appellant applied to the court for probation, the written document only contains the signature of appellant and the deputy court clerk. Counsel's signature appears nowhere on the instrument.

Nevertheless, the following does appear of record. Appellant signed written plea admonishments, waivers and stipulations. So too did he represent to the trial court at the plea hearing that 1) he had not been forced to enter a plea, 2) there was no plea bargain, 3) he was not promised anything in return for his plea, 4) he was pleading guilty because he was guilty, 5) he understood his right to a jury trial and gave up that right, 6) he gave up his right to require the State to call witnesses against him and agreed to the stipulation of evidence, 7) he was not under the influence of any medication, drugs, or alcohol, 8) he had never been committed to a mental institution or under the care of a psychiatrist, 9) he was not "crazy," and 10) he had been given an opportunity to talk to his counsel and "was satisfied with his services."   

Authority and Its Application

When there is no plea bargain, a knowing and voluntary guilty plea waives all non-jurisdictional defects occurring before the plea. Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997). However, a defendant may raise on appeal the question of the voluntariness of his plea. Cantu v. State, 993 S.W.2d 712, 716 (Tex. App.--San Antonio 1999, pet. ref'd). ⁽²⁾ Additionally, a guilty plea based on erroneous advice or significant misinformation provided by defense counsel is not voluntary. Cardenas v. State, 960 S.W.2d 941, 943 (Tex. App.--Texarkana 1998, pet. ref'd); Fimberg v. State, 922 S.W.2d 205, 207 (Tex. App.--Houston [1^st Dist.] 1996, pet. ref'd).

Next, the standards by which we review claims of ineffective assistance of counsel are well established and recited in Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002). The litigants are referred to that case for an explanation of them. Furthermore, we note not only that the claim of ineffectiveness must be firmly founded in the record, Rios v. State, 990 S.W.2d 382, 385 (Tex. App.--Amarillo 1999, no pet.), but also that counsel's actions are presumed both reasonable and professional until appellant establishes otherwise. Bone v. State, 77 S.W.3d at 833. Finally, when a defendant enters a plea upon advice of counsel and later challenges the voluntariness of that plea based upon a claim of ineffective assistance, the voluntariness of the plea depends upon whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and, if not, whether there is a reasonable probability that, but for counsel's mistakes, he would not have pled guilty but would have insisted on going to trial. Ex parte Moody, 991 S.W.2d 856, 857 (Tex. Crim. App. 1999); Malley v. State, 9 S.W.3d 925, 927 (Tex. App.--Beaumont 2000, pet. ref'd).

As to the contention that the plea was involuntary due to counsel's purported misstatement that appellant would receive probation, appellant cites us to no evidence illustrating that counsel made such a statement. Nor does our own review of the record uncover any. And, the fact that appellant may have pled guilty and filed an application for probation is not basis upon which one can reasonably infer that the applicant was told by anyone, much less his attorney, that he would receive probation if he pled guilty. Moreover, we have before us evidence that appellant was 1) admonished about the full range of punishment (which included an extended prison term) and 2) told that a jury could not award him probation, though it appeared that the trial court could. Appellant stated that he understood this. Additionally, appellant acknowledged before the trial court that 1) he had not been forced to enter a plea, 2) there existed no plea bargain, 3) he was not promised anything in return for his plea, 4) he was pleading guilty because he was guilty, 5) he understood his right to trial by jury and waived that right, 6) he waived his right to require the State to call witnesses against him and agreed to the stipulation of evidence, 7) he was not at the time under the influence of any intoxicant or medication, 8) he had never been committed to a mental institution or the care of a psychiatrist, 9) he was not "crazy," and 10) he had been given an opportunity to talk to his counsel and "was satisfied with [counsel's] services." This evidence establishes a prima facie showing that his plea was voluntary. Cantu v. State, 993 S.W.2d at 718. Finally, that appellant received greater punishment than originally expected (even if that expectation was raised by his attorney) did not of itself render the plea involuntary. Flowers v. State, 951 S.W.2d 883, 885 (Tex. App.--San Antonio 1997, no pet.).

As to the claim of ineffectiveness, we again note the utter lack of evidence depicting what, if anything, trial counsel told appellant regarding pleading guilty, in general, and probation, in particular. That appellant may have executed and filed a sworn request for probation does not fill the void. Again, the claim of ineffectiveness must be firmly founded on the record. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). So, we cannot presume the nature of an attorney's advice from the mere record of his conduct at trial without actual evidence that the defendant was misinformed. Shepherd v. State, 673 S.W.2d 263, 267 (Tex. App.--Houston [1^st Dist.] 1984, no pet.). Simply put, we cannot find counsel ineffective and, therefore, appellant's plea involuntary without evidence of what counsel said.

Accordingly, both issues are overruled, and the judgment of the trial court is affirmed.

Brian Quinn

Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).

2.

Appellant signed a waiver of his right to appeal at the time of his plea but prior to sentencing. Although he has not separately attacked the voluntariness of the waiver of his right to appeal, we will treat it as subsumed within his claim that his plea was involuntary.

appeal are jurisdictional amendments. Id. Once jurisdiction is lost, an appellate court lacks the power to invoke any rule to thereafter obtain jurisdiction. Id. at 413; see TRAP 2. Dismissal of an issue or the entire matter is appropriate unless the form of the notice of appeal is proper to perfect appeal as to the issue or matter. See White, 61 S.W.3d at 428.

The deferred adjudication judgments complied with the plea bargain agreements in placing appellant on deferred adjudication and imposing jail time as a condition of probation. In such situation, the trial judge did not exceed the recommendation of the State when, upon proceeding to an adjudication of guilt, the judge later assessed punishment within the range allowed by law. See Woods, 68 S.W.3d at 669; Watson, 924 S.W.2d at 714. Thus, appellant's original general notices of appeal do not contain allegations necessary to invoke our appellate jurisdiction as to issues two, three and four because the requirements of TRAP 25.2(b)(3) apply to appeal of such issues. See Vidaurri, 49 S.W.3d at 884-85; Watson, 924 S.W.2d at 714. And, the amended notices were not timely so as to invoke appellate jurisdiction. See Riewe, 13 S.W.3d at 413-14. We have jurisdiction only to dismiss the appeals as to appellant's second, third and fourth issues.

Appellant's first issue, however, asserts that the judgments placing her on deferred adjudication are void, and that the subsequent judgments adjudicating her guilty and sentencing her are, therefore, void because they are based on the void deferred adjudication judgments. Her assertion is that the interlineations in the judgments providing that she serve 60 days in Collingsworth County Jail as condition of probation were alterations of the deferred adjudication judgments without any showing in the record as to when the interlineations were made. Under such circumstances, she urges, the alterations caused the judgments to be void. Such issue may be considered on direct appeal. See Nix v. State, 2001 WL 717453, *2 (Tex.Crim.App. 2001).

VOID JUDGMENTS - ISSUE 1

In considering appellant's first issue asserting that the deferred adjudication judgments were void, precedent requires that we indulge every presumption in favor of the regularity of the documents in the trial court. See McCloud v. State, 527 S.W.2d 885, 887 (Tex.Crim.App. 1975); Nichols v. State, 511 S.W.2d 945, 947-48 (Tex.Crim.App. 1974). The formal judgment of the trial court carries with it a presumption of regularity and truthfulness, and such is never to be lightly set aside. See Ex parte Morgan, 412 S.W.2d 657, 659 (Tex.Crim.App. 1967). For a judgment to be void, the record must leave no question about the existence of the fundamental defect. See Nix, 2001 WL 717453 at *2. If the record is incomplete and the missing portion could conceivably show that the defect does not in fact exist, then the judgment is not void, even though the available portions of the record tend to support the existence of the defect. Id.

As appellant notes in her brief, the record does not show when the interlineations in the deferred adjudication judgments were made or who made them. In such instance, we will not presume that the interlineations were improperly made or made after the trial judge signed the judgments. See id.; McCloud, 527 S.W.2d at 887. The record does not unquestionably show any of the three deferred adjudication judgments to be void. ⁽³⁾ Accordingly, we overrule issue one.

CONCLUSION

Having dismissed appellant's second, third and fourth issues for want of jurisdiction, and having overruled her first issue, we affirm the judgments of the trial court.

Phil Johnson

Justice

Do not publish.

1. Trial court Cause No. 2353 is appellate No. 07-98-0205-CR. Trial court Cause No. 2354 is appellate No. 07-98-0206-CR. Trial court Cause No. 2355 is appellate No. 07-98-0207-CR.

2. A rule of appellate procedure will be referred to as "TRAP_" hereafter.

3. Because of our disposition of appellant's issue, we need not and do not consider whether interlineation of conditions of probation in the judgments could have resulted in void judgments. See Tex. Crim. Proc. Code Ann. art. 42.12 §§ 2(2), 3(a) (Vernon 2002); Speth v. State, 6 S.W.3d 530, 532, 534 (Tex.Crim.App. 1999) (community supervision involves suspension of a defendant's sentence; is in lieu of sentence and not part of the sentence; terms are part of a contract between the trial court and the defendant; and conditions not objected to at the time community supervision is granted are affirmatively accepted as terms of the contract).