Barnes, Dandra Lee v. State ( 2004 )

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Affirmed and Memorandum Opinion filed January 13, 2004

Affirmed and Memorandum Opinion filed January 13, 2004.

In The

Fourteenth Court of Appeals

_______________

NOS. 14-02-01201-CR &

      14-02-01202-CR

DANDRA LEE BARNES, Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause Nos. 883,930 and 883,931

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M E M O R A N D U M   O P I N I O N

            This is an appeal from two convictions for aggravated robbery. In eight issues, appellant Dandra Lee Barnes contends (1) the trial court failed to comply with certain statutory requirements when it accepted his guilty plea; (2) his guilty plea was involuntary; (3) he received ineffective assistance of counsel; and (4) the trial court erred in overruling his objections to the acceptance of his pleas, his motion to withdraw his guilty pleas, and his motion for new trial. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.

Background

            Appellant was twice charged with aggravated robbery. On August 28, 2002, he pled guilty without an agreed recommendation from the State as to his punishment. The cases were reset for sentencing. On September 10, 2002, the State and appellant agreed to seven years’ confinement as punishment, and the trial court followed this agreement.^{^[1]} After he was sentenced, appellant filed a motion to withdraw his guilty pleas, a motion for new trial, and objections to the acceptance of his pleas. Appellant’s motions were denied, but the trial court granted permission to appeal. See Tex. R. App. P. 25.2(a)(2).

Statutory Requirements

            In his first three issues, appellant contends the trial court erred by failing to comply with certain statutory requirements in accepting his guilty pleas. Specifically, appellant claims the trial court failed to (1) obtain written jury trial waivers, see Tex. Code Crim. Proc. Ann. art. 1.13(a) (Vernon Supp. 2004); (2) approve in writing the agreement to stipulate the evidence of his guilt,^{^[2]} see Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2004); and (3) admonish him of the consequences of his pleas, see Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2004). Appellant claims he entered two separate guilty pleas to each charge—one without an agreed punishment recommendation from the State, and a subsequent plea with an agreed punishment recommendation. According to the record, the trial court complied with all statutory requirements for acceptance of guilty pleas, and appellant pled guilty to both aggravated robbery charges on August 28, 2002. Subsequently, the State offered and appellant accepted a punishment recommendation. Appellant contends that the trial court was required to comply with the statutory requisites for acceptance of guilty pleas again because he entered subsequent guilty pleas with an agreed punishment recommendation. However, once a guilty plea has been accepted following compliance with the statutory requirements, the statutory admonishments need not be repeated even though the defendant and the State enter into a different sentencing agreement. See Munoz v. State, 840 S.W.2d 69, 72 (Tex. App.—Corpus Christi 1992, pet. ref’d). Because the trial court complied with the statutory requirements when it accepted appellant’s guilty pleas, we overrule appellant’s issues one, two, and three.

Voluntariness of Plea

            In his fourth issue, appellant claims his guilty pleas were involuntary because (1) circumstances changed between the time he pled guilty and the time he was sentenced; (2) he did not understand that the plea papers he signed without an agreed punishment recommendation would apply to a subsequent sentencing agreement; (3) he was forced to accept the seven year sentencing agreement; and (4) he did not voluntarily waive his rights. The voluntariness of a guilty plea is determined by the totality of the circumstances. Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App. 1986). There is prima facie proof that a guilty plea was knowing and voluntary when the record shows that a defendant was admonished by the trial judge. Ex parte Williams, 704 S.W.2d 773, 775 (Tex. Crim. App. 1986). The record in this case shows appellant was properly admonished by the court.^{^[3]} Therefore, this is prima facie proof appellant’s pleas were voluntary.

            Once prima facie proof has been presented that a guilty plea was voluntary, the burden then shifts to the defendant to show he did not understand the consequences of his plea. Miller v. State, 879 S.W.2d 336, 338 (Tex. App.—Houston [14th Dist.] 1994, writ ref’d) (citing Fuentes v. State, 688 S.W.2d 542, 544 (Tex. Crim. App. 1985)). A defendant who attests that he understands the nature of his plea and that it is voluntary has a heavy appellate burden to prove involuntariness. Edwards v. State, 921 S.W.2d 477, 479 (Tex. App.—Houston [1st Dist.] 1996, no writ). The only evidence appellant presented at the hearing on his motion for new trial were his statements as follows: (1) he did not freely and voluntarily waive his rights; (2) he was forced to accept the State’s punishment recommendation (although he does not explain how); and (3) he did not understand that his plea papers would apply to the punishment agreement he made with the state. We find appellant’s unsupported assertions insufficient to prove that his pleas were involuntary. See Alvear v. State, 25 S.W.3d 241, 246 (Tex. App.—San Antonio 2000, no pet.) (citing Disheroon v. State, 687 S.W.2d 332, 334 (Tex. Crim. App. 1985)).

Ineffective Assistance of Counsel

            In his fifth issue, appellant claims his attorney was ineffective for failing to explain the consequences of his guilty plea. Because appellant raised this issue in his motion for new trial, we will consider this as a challenge to the denial of his motion for new trial. Melancon v. State, 66 S.W.3d 375, 378 n.3 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). We review a trial court’s denial of a motion for new trial for abuse of discretion. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001).

            To demonstrate ineffective assistance of counsel, a defendant must show that (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688 (1984); Rodriguez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995). In considering the first prong, we indulge a strong presumption that counsel’s actions fell within the range of reasonable professional assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). To overcome this presumption, an allegation of ineffectiveness must be firmly demonstrated in the record. Id.

            In appellant’s motion for new trial, he claimed his attorney never explained that the plea documents he previously signed would apply to a subsequent sentencing agreement. He further contends that he would not have pled guilty if his counsel had explained all of the consequences. Appellant presented no other evidence supporting this claim. Although uncontradicted, the trial court, as trier of fact, was not required to accept appellant’s testimony as true. Reissig v. State, 929 S.W.2d 109, 113 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d). Having failed to rebut the presumption that his counsel’s actions were reasonable, we find the trial court did not abuse its discretion in denying appellant’s motion for new trial. We overrule appellant’s fifth issue.

Withdrawal of Guilty Plea and Motion for New Trial

            In his sixth and seventh issues, appellant contends the trial court erred by overruling his motion to withdraw his guilty pleas and his motion for new trial because there was no documentation to support his guilty plea, and because he stated he was not guilty in each case. Because a motion to withdraw a guilty plea and a motion for new trial are functionally indistinguishable, we will consider these issues together. See Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (citing Evans v. State, 843 S.W.2d 576, 578 (Tex. Crim. App. 1992). As previously discussed, the record contains properly executed plea documents supporting appellant’s guilty pleas entered on August 28. Because this was appellant’s only guilty plea, no additional documentation was necessary.

            After the trial judge entered judgment, appellant stated he was not guilty of the offenses and requested his guilty pleas be withdrawn. The decision to allow a defendant to withdraw his guilty plea after the trial judge has pronounced judgment is within the sound discretion of the trial court. Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979). When appellant made his guilty pleas, he stipulated that the allegations contained in the indictments were true. This judicial confession was sufficient to establish appellant’s guilt. Watson v. State, 974 S.W.2d 763, 764 (Tex. App.—San Antonio 1998, pet. ref’d). Because the trial court had evidence to support appellant’s guilt, denying his request to withdraw his guilty plea upon his later claims of innocence was not an abuse of discretion. Id.

            We will not disturb a trial court’s denial of a motion for new trial absent a clear showing of abuse of discretion. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). We will not substitute our judgment for that of the trial court, but rather we must decide whether the trial court’s decision was arbitrary or unreasonable. Id. Although appellant stated in his motion for new trial that he was not guilty of the offenses, the trial court, as trier of fact, was the sole judge of the credibility of these statements. Messer v. State, 757 S.W.2d 820, 828 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d). Because we have already found that appropriate documentation and proof of guilt supported appellant’s guilty pleas, we also conclude the trial court did not abuse its discretion by denying appellant’s motion for new trial. We overrule appellant’s sixth and seventh issues.

Objections to the Pleas

            In his eighth issue, appellant contends his right to due process was violated when the trial court overruled the objections in his motion for new trial. Specifically, appellant objected to the acceptance of his guilty pleas claiming that because they were involuntary and he received ineffective assistance of counsel, he was denied a fair trial by an impartial jury on guilt and a fair hearing on punishment. We have already concluded that appellant failed to establish that his counsel was ineffective and his guilty pleas were involuntary. Therefore, the trial court did not err by overruling appellant’s objections on these grounds. Additionally, appellant signed a written waiver of his right to a trial by jury. See Tex. Code Crim. Proc. Ann. art. 1.13 (Vernon Supp. 2004). Finally, because appellant entered into a punishment agreement with the State, he was not entitled to a punishment hearing. McDonald v. State, 64 S.W.3d 86, 90 (Tex. App.—Austin 2001, no pet.). Accordingly, we overrule appellant’s eighth issue.

            Having overruled appellant’s issues, the judgment of the trial court is affirmed.

                                                                        /s/        Charles W. Seymore

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed January 13, 2004.

Panel consists of Justices Anderson, Seymore and Guzman.

Do Not Publish — Tex. R. App. P. 47.2(b).

            ^{^[1]} The judgments state there was no agreed punishment recommendation, but to the contrary, the docket sheet indicates, and there is no dispute that an agreement was reached. Therefore, we do not rely on the statement in the judgment that there was no punishment agreement. See Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (holding that recitations in a formal judgment are binding when there is no proof of their falsity).

            ^{^[2]} Appellant claims the trial court failed to sign one document containing appellant’s stipulation of guilt in one of the charges, constituting noncompliance with article 1.15. However, the trial court did sign another document approving appellant’s stipulation.

            ^{^[3]} We do recognize that when appellant was admonished about his guilty pleas, there was no punishment recommendation from the State. Consequently, appellant could appeal his conviction. However, after he reached an agreement with the State as to punishment, his ability to appeal was limited. See former Tex. R. App. P. 25.2(b)(3). Appellant has not claimed that he did not understand this consequence of accepting the State’s recommended punishment, and because appellant was granted permission to appeal, any limitation on his right to appeal was not a direct result of his plea. See Jimenez v. State, 987 S.W.2d 886, 888 & n.6 (Tex. Crim. App. 1999) (holding a plea is not involuntary if the defendant is not aware of a collateral consequence, or one that is within the discretion of the trial court).