Andy DeWayne Posey v. State ( 2005 )

NO. 07-04-0569-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JULY 11, 2005 ______________________________

ANDY DEWAYNE POSEY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 181^ST DISTRICT COURT OF RANDALL COUNTY;

NO. 15,058-B; HON. JOHN B. BOARD, PRESIDING _______________________________

Order on Application for Bail

_______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

By opinion dated May 25, 2005, we reversed the conviction of appellant Andy DeWayne Posey and remanded the cause to the trial court for further proceedings. Pending before us is appellant's application for bail.

When a conviction is reversed and the appellant is in custody, article 44.04(h) of the Texas Code of Criminal Procedure requires that he be "entitled to release on reasonable bail, regardless of the length of term of imprisonment, pending final determination of an appeal by the state or the defendant on a motion for discretionary review." Tex. Code Crim. Proc. Ann. art. 44.04(h) (Vernon Supp. 2004-2005). If the defendant requests bail before a petition for discretionary review has been filed, the Court of Appeals shall determine the amount of bail. Id.

We previously asked that appellant provide us with certain information we are required to consider in determining the amount of bail. It includes 1) "the length of the sentence and the nature of the offense," 2) the applicant's "work record, family ties, . . . length of residency, ability to make the bond, prior criminal record, and conformity with previous bond conditions," 3) other outstanding bonds, and 4) the aggravating factors, if any, involved in the offense. Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex. Crim. App. 1981). Appellant seeks bail in the amount of $5,000 which was the amount set by the trial court. However, the State has requested that bail be set in the amount of $100,000 due to appellant's multiple prior convictions, his sentence of 36 years, the fact that the basis for reversal did not relate to the sufficiency of the evidence, and the State's representation that it has the ability to cure (on retrial of the cause) the defect which resulted in the reversal.

The information before the court indicates that appellant does have ties to the community. Yet, it also indicates that he is a convicted felon and has a long history of engaging in criminal activity. So too must we acknowledge that the sentence levied in this cause was far from de mininis and that appellant may well face a long term of incarceration should he again be convicted. This certainly is a consideration when determining whether appellant will appear when the cause is retried. Accordingly, we grant appellant's request for bail and condition his release on his posting bail in the amount of $50,000.

Per Curiam

Do not publish.

N STYLE="font-size: 10pt"> 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.