Stevie Lynn Johnson v. State ( 2008 )

Opinion issued October 23, 2008

  In The

Court of Appeals

For The

First District of Texas

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NO. 01-07-01117-CR

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STEVIE LYNN JOHNSON, Appellant

v.

THE STATE OF TEXAS, Appellee

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On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 1099764  

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MEMORANDUM OPINION

          Appellant, Stevie Lynn Johnson, was charged by indictment with the first-degree felony offense of aggregate theft of two-hundred-thousand dollars or more. See Tex. Penal Code Ann. § 31.03(e)(7) (Vernon Supp. 2008). Appellant pleaded guilty, without an agreement with the State regarding punishment, and filed a motion for community supervision. The trial court assessed punishment at 40 years’ confinement.

          In what we construe as two issues, appellant contends (1) that he received ineffective assistance of counsel, which rendered his plea involuntary, and (2) that “[t]he State engaged in prosecutorial misconduct by failing to disclose information to trial counsel regarding the prosecutor’s personal experiences with the trial court and acceptance of pleas.” (Emphasis omitted.)

          We affirm.

Background

          Only those facts pertinent to the disposition of this appeal are stated. Appellant, who was employed as an escrow officer for Chicago Title, used his position to transact various mortgage schemes and to misappropriate for his own use $200,000 or more in funds from approximately 440 complainants.

          Appellant’s trial counsel, Juanita Barner, whose representation is the subject of this appeal, successfully petitioned the trial court for a reduction in appellant’s bond—from $3.5 million to $300,000. Counsel reviewed the State’s files several times, including one time with appellant, and attempted to negotiate a plea agreement with the State. The State refused to offer community supervision, but offered various terms of confinement.

          After reviewing the evidence, researching similar cases, and negotiating with the State, counsel discussed several options with appellant. Based on the nature of the case and the quantity of documentary evidence against him, counsel recommended that appellant either accept the State’s offer or request that the trial court assess punishment. Counsel explained to appellant that an assessment of community supervision was possible, but could not be guaranteed.

          Ultimately, appellant pleaded guilty without an agreed recommendation and offered proof to the trial court that he could pay over $380,000 in restitution. The trial court assessed punishment at 40 years’ confinement.

          Subsequently, appellant moved for a new trial, alleging that his plea was involuntary because it was the product of ineffective assistance of counsel and prosecutorial misconduct. Appellant contended that his counsel was ineffective because she had advised him that “there was a possibility of his receiving probation in the trial court,” but that she had failed to investigate “the trial court’s recent history concerning its feelings toward probation.” Specifically, appellant asserted that, after punishment was assessed, counsel received telephone calls from local defense attorneys who expressed the opinion that the 176th District Court is reluctant to grant community supervision in theft cases. Appellant complained that, had his counsel properly investigated, she would have discovered that “rarely, if at all, did this Court ever grant probation to a person charged with theft and that [appellant] would be best advised to accept the State’s 10 year offer.”

          In addition, appellant contended that the prosecutor committed misconduct because she misled counsel during plea negotiations by omitting that she had personally witnessed a refusal by the 176th District Court to consider community supervision in another theft case.

          To his motion, appellant appended the affidavit of his counsel; his own affidavit and that of his wife, Erika Johnson; that of Arnold S. Cohn, an expert on mortgage fraud involving title company escrow services; and the affidavits of six attorneys, four of whom attested that it was their opinion that seeking community supervision in the 176th District Court in a case involving theft of over $200,000 could not be considered reasonable trial strategy.

          After a hearing, appellant’s motion for new trial was denied. This appeal ensued.  

Ineffective Assistance of Counsel

          In his first issue, appellant contends that his counsel was ineffective because she failed to investigate the history of the trial court concerning the probability that community supervision would be granted and that such failure rendered his plea involuntary because it was predicated on advice that there was a reasonable probability of receiving community supervision. Appellant asserts that, had his counsel interviewed more experienced attorneys or discussed the case with anyone “who actually practiced in the 176th Judicial District Court,” she would have learned that it was unlikely that appellant would be granted community supervision. Appellant asserts that his outcome would have been different because he would have accepted the State’s plea bargain. Appellant further contends that counsel failed to learn that the prosecutor had previously observed the 176th District Court decline to assess community supervision in a theft case, even though restitution was offered.  

A.      Standard of Review  

          An involuntary guilty plea must be set aside. Fimberg v. State, 922 S.W.2d 205, 207 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d). A plea is not voluntary if made as a result of ineffective assistance of counsel. Id. When a defendant challenges the voluntariness of a plea entered upon 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, the defendant would not have pled guilty and would have insisted on going to trial. Ex parte Moody, 991 S.W.2d 856, 857–58 (Tex. Crim. App. 1999) (applying Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)); Arreola v. State, 207 S.W.3d 387, 391 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (stating that Strickland should be considered “controlling authority for all ineffective assistance of counsel claims”).

          First, appellant must overcome the presumption of reasonable professional assistance, and “any allegation of ineffectiveness must be firmly founded in the record.” Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). The failure to advise a defendant about the consequences of a plea can constitute ineffective assistance. See Arreola, 207 S.W.3d at 392. However, a defendant’s claim that “he was misinformed by counsel, standing alone, is not enough for us to hold his plea was involuntary.” Fimberg, 922 S.W.2d at 208. Appellant must prove by a preponderance of the evidence that his counsel’s representation fell below professional standards. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).

          Further, appellant must show that the deficient performance prejudiced his defense. Id. That is, that there is a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is one sufficient to undermine confidence in the outcome. Id. Under Moody, appellant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty, but would have insisted on going to trial. See Moody, 991 S.W.2d at 857–58.

B.      Analysis

          First, appellant’s burden is to demonstrate that his counsel’s advice was not within the range of competence demanded of attorneys in criminal cases. See Moody, 991 S.W.2d at 857–58.

          Appellant contends that his counsel was ineffective because she failed to talk to more experienced attorneys and “failed to talk to anyone who had practiced in the 176th District Court.” By affidavit attached to appellant’s motion for new trial, which was admitted as evidence at the hearing on the motion, and through her testimony at the hearing, appellant’s counsel attested that she is an experienced attorney—having represented clients in “well over 700 or more cases” and in at least 25 PSI hearings in the Harris County area. Contrary to appellant’s assertion, counsel attested in her affidavit that she has handled at least 10 cases in the 176th District Court, although she had never before “presented a PSI hearing” in that court. Counsel also attested that she discussed punishment possibilities in this case with more experienced defense attorneys and that the consensus was that mortgage fraud cases were “a fairly new occurrence in Harris County” and that “it was difficult to predict the possible outcome.” Further, counsel attested that she attempted to gain information from the prosecutor concerning the 176th District Court. Hence, the record does not support appellant’s contention.

          Appellant directs us to certain affidavits that he appended to his motion for new trial in which four attorneys expressed an opinion that seeking community supervision in the 176th District Court in a case involving theft of over $200,000 could not be considered reasonable trial strategy. Ineffectiveness is not to be determined, however, by hindsight comparison with how other counsel might have handled the case. Pryor v. State, 719 S.W.2d 628, 633 (Tex. App.—Dallas 1986, pet. ref’d). That a particular strategy fails to yield what might subjectively be determined to be the optimum outcome for a particular defendant does not render counsel ineffective. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066.

          Appellant next contends that counsel failed to “investigate the trial court” and that he was “blindly advised” to plead guilty without an agreed recommendation. An attorney representing a criminal defendant has a duty to make reasonable investigations. Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. Appellant does not direct us to any authority, however, and we find none, that suggests that a “failure to investigate the trial court” is an appropriate basis for an ineffective assistance of counsel claim. Each trial is unique and the manner in which the trial court exercises its discretion will vary with the facts and circumstances of each case. See Pryor, 719 S.W.2d at 633. Moreover, here, the record does not support appellant’s contention that “rarely, if at all, did [the trial court] ever grant probation to a person charged with theft.” Linda Colgate, a liaison officer for the 176th District Court, testified that the 176th District Court granted community supervision in 38 cases, 14 of which involved theft, during the period from August to November 2007.

          Nothing in the record suggests that counsel made any promises concerning the likelihood that appellant would receive community supervision upon pleading guilty. Counsel attested in detail in her affidavit and testified at the hearing concerning her extensive review of the files—some 60 boxes—in this case. Counsel testified at the hearing that she discussed appellant’s case with four other attorneys, all of whom advised her that it would be “hard to imagine turning down the possibility of a client actually being able to make restitution.” Here, appellant was able to demonstrate to the trial court an ability to make $380,000 in restitution. Counsel testified concerning the plea negotiations she undertook with the State on appellant’s behalf. Counsel also stated that she had had “at least two conversations at two separate times” with the prosecutor concerning the likelihood of receiving community supervision in this case and that she formed the impression that the prosecutor had not had a previous experience in that regard.

          Appellant further complains that counsel failed to discover that the prosecutor had observed, in another case, a refusal by the trial court to grant community supervision. Appellant does not direct us to any authority, however, and we find none, that such contention is an appropriate basis for an ineffective assistance of counsel claim. Moreover, appellant complains in his second issue that the prosecutor in this case committed misconduct for having failed to disclose such information during plea negotiations.

          Counsel explained to appellant that the State would not offer community supervision in this case and that the trial court could assess community supervision, but that there was no guarantee. Counsel also testified that she informed appellant that a similarly situated defendant had received 25 years’ confinement in the 176th District Court. Counsel attested that appellant “made it very clear that he would not agree to prison time” and that he wished to “try for probation.” Appellant attested in his own affidavit that counsel advised him that “the State would not offer [] probation” and that counsel “never promised [] probation.”

          Furthermore, the record reflects that appellant’s plea was voluntary and that the trial court considered community supervision. The record shows that appellant signed under oath a waiver of constitutional rights, agreement to stipulate, and judicial confession. A defendant’s receipt of statutory admonishments constitutes a prima facie showing of the plea’s voluntariness. See Cantu v. State, 988 S.W.2d 481, 484 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). When a defendant attests to the voluntary nature of his plea at the original plea hearing, a heavy burden is placed on him if he later argues that the plea was involuntary. Id.

          The record of the plea hearing shows that the trial court established that appellant understood that the court could consider the entire range of punishment for the offense, which was confinement for 5 to 99 years, or life, plus a fine not to exceed $10,000, and that there was not an agreed recommendation in this case. The trial court explained that a pre-sentence investigation would be conducted regarding community supervision. The court asked appellant if he had been promised or guaranteed any particular sentence in this case, and appellant replied that he had not.

           We conclude that appellant has not shown that his trial counsel’s advice was not within the range of competence demanded of attorneys in criminal cases and that appellant has not overcome the presumption of reasonable professional assistance. See Moody, 991 S.W.2d at 857; Salinas, 163 S.W.3d at 740. Therefore, we conclude that appellant has failed to rebut the presumption that his guilty plea was voluntary.

          Accordingly, we overrule appellant’s first issue.

Prosecutorial Misconduct

          In his second issue, appellant contends that the prosecutor engaged in misconduct by failing to disclose information to appellant’s counsel regarding the prosecutor’s own prior personal experiences in the 176th District Court.

          The record shows that the prosecutor testified at the hearing on the motion for new trial that she had, two years prior, participated in a case before the 176th District Court in which the court declined to accept the State’s recommendation of deferred adjudication in a state jail felony theft. The prosecutor testified that she dismissed the felony charge against the defendant, re-filed the case as a misdemeanor, and then pled the defendant to two years deferred in the misdemeanor court. The prosecutor testified that she had not conveyed this information to appellant’s counsel during plea negotiations, but that she did not “ever make it a habit of conveying plea negotiations in other cases to defense counsel” because she would “be here all day if [she] did that.”

          Appellant contends that the prosecutor deliberately misled his counsel to induce her to advise appellant to plead guilty, citing Texas Code of Criminal Procedure article 2.01. See Tex. Code Crim. Proc. Ann. art. 2.01 (Vernon 2005) (providing, in part, “It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.”) The testimony that appellant directs us to concerning another case, however, does not constitute “suppress[ed] facts or witnesses capable of establishing the innocence of the accused.” See id.

          Appellant also argues that American Bar Association Standard 14-3.1(f) requires that the “prosecuting attorney should not knowingly make false statements or representations as to law or fact in the course of plea discussions with defense counsel or the defendant.” ABA Standards for Criminal Justice: Pleas of Guilty (3d ed., 1999), available at   http://www.abanet.org/crimjust/standards/ guiltypleas_blk.html#3.1. Nothing in the record, however, supports that the prosecutor knowingly made false statements or misrepresentations as to law or fact in the course of plea negotiations. Appellant has not established that the prosecutor had any legal duty to disclose plea negotiations that occurred in other cases or to chronicle her professional experience.

          Accordingly, we overrule appellant’s second issue.

    Conclusion

          We affirm the judgment of the trial court.

                                                             Laura Carter Higley

                                                             Justice

Panel consists of Chief Justice Radack and Justices Nuchia and Higley.

Do not publish. See Tex. R. App. P. 47.2(b).