Mark Anthony Jones v. State ( 2009 )

Affirmed and Memorandum Opinion filed March 31, 2009

Affirmed and Memorandum Opinion filed March 31, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00008-CR

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MARK ANTHONY JONES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 1099749

M E M O R A N D U M  O P I N I O N

Appellant, Mark Jones, pleaded guilty to the offense of aggregate theft of more than two hundred thousand dollars.  The trial court found appellant guilty and assessed punishment at twenty-five years= confinement.  In two issues, appellant contends (1) the trial court violated appellant=s rights under the United States and Texas constitutions by accepting his guilty plea when it was not supported by sufficient evidence and (2) appellant received ineffective assistance of counsel.  Because all dispositive issues are settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Background

The State charged appellant with theft.  Appellant pleaded guilty without a recommendation on punishment.  On July 20, 2007, the trial court conducted a hearing on appellant=s plea.  After hearing appellant=s and the State=s explanations of the circumstances of the offense, the trial court stated it found sufficient evidence to convict appellant, but made no formal findings.  The trial court deferred a determination on punishment until after preparation of a presentence investigation report and a sentencing hearing.

On October 5, 2007, the trial court conducted a sentencing hearing.  At the outset of the hearing, appellant moved to withdraw his guilty plea.  The trial court denied the motion.  After hearing evidence on punishment, the trial court sentenced appellant to twenty-five years= confinement.

II.  Discussion

A.  Sufficiency of the Evidence to Support Appellant=s Guilty Plea

In his first issue, appellant contends the trial court violated appellant=s rights under the United States and Texas constitutions by accepting his guilty plea when it was not supported by sufficient evidence.^[1]  Although appellant asserts the trial court violated his constitutional rights by accepting his guilty plea without sufficient supporting evidence, he fails to identify the constitutional rights purportedly violated.  See Tex. R. App. P. 38.1(h) (providing appellant=s brief must contain arguments for contentions made, with appropriate citation to authority and record). Appellant also did not argue to the trial court that acceptance of his guilty plea violated any constitutional rights.  Even constitutional errors may be waived by failure to object at trial.  Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).  In sum, appellant has failed to preserve any complaint that the trial court violated his constitutional rights by accepting his plea.  See Tex. R. App. P. 33.1(a) (providing, to preserve error for appeal, the record must show that a party made a timely and specific objection to the trial court). Additionally, there is no federal constitutional requirement that evidence of guilt must be offered to corroborate a guilty or nolo contendere plea in a state criminal prosecution.  Ex parte Williams, 703 S.W.2d 674, 682 (Tex. Crim. App. 1986).

Appellant does, however, argue there was insufficient evidence in the record to support his guilty plea as required by article 1.15 of the Texas Code of Criminal Procedure.  Under article 1.15, when a defendant pleads guilty, the State must Aintroduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same.@  Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005).  The supporting evidence must embrace every essential element of the charged offense.  See Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996).  The Jackson v. Virginia standard, however, does not apply to our review of the legal sufficiency of this evidence.  Keller v. State, 125 S.W.3d 600, 604B05 & 604 n.2 (Tex. App.CHouston [1st Dist.] 2003) (citing Jackson v. Virginia, 443 U.S. 307, 318B19 (1979)), pet. dism=d, improvidently granted, 146 S.W.3d 677 (Tex. 2004) (per curiam).

Appellant was charged with aggregate theft.  A person commits theft Aif he unlawfully appropriates property with intent to deprive the owner of property.@  Tex. Penal Code Ann. ' 31.03(a) (Vernon Supp. 2008).  AAppropriation of property is unlawful if . . . it is without the owner=s effective consent@ or if the property is stolen and the actor appropriates it knowing another person stole it.  Id. (b)(1), (2).  AConsent is not effective if . . . induced by force, threat, or fraud.@  Id. ' 1.07(a)(19)(A).  Appellant contends the State failed to present evidence supporting every element of this offense.

Appellant, however, signed a AWaiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession,@ in which he acknowledged, in pertinent part:

The charges against me allege that in Harris County, Texas, [appellant], heretofore on or about VARIOUS DATES BETWEEN OCTOBER 29, 2001 THRU [sic] JULY 10, 2003, did then and there unlawfully, pursuant to one scheme and continuing course of conduct, appropriate, by acquiring and otherwise exercising control over property, namely, money, owned by one or more of the below named complainants, with the intent to deprive one or more of the below named complainants of said property and the total value of the property appropriated from one or more of the below named complainants was two hundred thousand dollars or more.

[Listing twenty-three complainants]

. . .

I understand the above allegations and I confess that they are true and that the acts alleged above were committed on various dates between Oct. 29, 2001 thru [sic] July 10, 2003.

At the plea hearing, appellant confirmed he understood this document and executed it of his own free will.  Because this judicial confession encompassed all elements of theft, it could suffice to support appellant=s guilty plea.  See Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1980) (op. on reh=g) (stating, it is well settled a judicial confession, standing alone, is sufficient to sustain conviction on guilty plea); Breaux v. State, 16 S.W.3d 854, 856 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d) (AA judicial confession alone is sufficient to support a guilty plea.@).  When, as here, the record indicates that a judicial confession and agreement to stipulate evidence were filed and approved by the trial court and relied on by the court in its acceptance of the defendant=s plea, those documents constitute sufficient evidence to sustain the plea whether properly introduced into evidence or not.  Palacios v. State, 942 S.W.2d 748, 750 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d).

We conclude there was sufficient evidence in the record to support appellant=s guilty plea as required by article 1.15 of the Texas Code of Criminal Procedure.  Accordingly, we overrule appellant=s first issue.

B.  Alleged Ineffective Assistance of Counsel

In his second issue, appellant contends his trial counsel provided ineffective assistance by (1) not conducting a reasonable investigation, (2) giving incorrect legal advice, (3) not conducting an independent investigation, and (4) not filing any motions on appellant=s behalf.  To prevail on an ineffective assistance claim, appellant must prove by a preponderance of the evidence that (1) counsel=s performance was so deficient as to fall below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different.  Thompson v. State, 9 S.W.3d 808, 812B13 (Tex. Crim. App. 1999); see Strickland v. Washington, 466 U.S. 668, 687B88, 694 (1984). To defeat the presumption of reasonable professional assistance, any allegation of ineffective assistance must be firmly founded in the record and the record must affirmatively demonstrate the ineffective assistance. Thompson, 9 S.W.3d at 814.

The Strickland v. Washington standard applies to challenges to guilty pleas.  Hill v. Lockhart, 474 U.S. 52, 58 (1985).  To satisfy the second prong of the test enunciated in Strickland v. Washington, appellant must show there is a reasonable probability that, but for counsel=s errors, he would not have pleaded guilty, but would instead have insisted on going to trial.  Id. at 59.  If appellant has not met the second prong, we may resolve the issue on that ground and need not address counsel=s performance.  Strickland v. Washington, 466 U.S. at 697.

Although appellant requested the court to permit him to withdraw his plea, he did not testify at the hearing on the motion for new trial.  He also did not submit an affidavit or declaration setting forth any nexus between counsel=s representation and his desire to withdraw his plea.  Appellant has not met his burden of establishing prejudice.  See Munoz v. State, 840 S.W.2d 69, 75 (Tex. App.CCorpus Christi 1992, pet. ref=d) (holding same when neither appellant nor trial counsel testified at hearing on motion for new trial).

Neither has appellant established counsel provided less than reasonable professional assistance.  In assessing appellant=s claims, we apply a strong presumption trial counsel was competent.  See Thompson, 9 S.W.3d at 813. We presume trial counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy unless appellant rebuts that presumption. See id. at 813B14; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Courts have never interpreted this standard to mean the accused is entitled to errorless or perfect counsel.  Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). When reviewing a claim of ineffective assistance, we look to the totality of the representation.  See Thompson, 9 S.W.3d at 813.

Appellant complains counsel did not perform an adequate investigation or an independent investigation.  The record does not support these allegations.  Appellant=s attorney, Lori Gray, testified she met with appellant several times, went to the district attorney=s office on numerous occasions to review the State=s file, which comprised sixty-five boxes of materials, and did not rely entirely on those files, but conducted her own investigation.  In the course of her own investigation, each of the experts she consulted expressed concerns about the bank records appellant provided.

Appellant also complains Gray gave incorrect legal advice, a complaint he ties to her not having filed a motion to quash the indictment.  He contends, had Gray filed a motion to quash, the State would have been forced to chose between whether appellant appropriated the money by deception or by taking the money knowing it was stolen.  Again, the record does not support appellant=s contentions.

Gray testified that, based on her defense of appellant in a civil case brought by one of the complainants in the present case, she knew the criminal charge involved theft by deception.  The presentence investigation report confirms her evaluation.  Gray testified she did not file a motion to quash because she fully understood the charge and was satisfied with the notice provided in the indictment.

Finally, to the extent appellant may be claiming Gray=s incorrect advice consisted of  her advising him to plead guilty, such a claim is contrary to Gray=s testimony.  Gray testified she did not instruct appellant to plead guilty, but only presented his options and allowed him to chose how he wanted to proceed.  Gray also explained to appellant the inconsistencies her experts had found in appellant=s accounts and the problems those might present for appellant.

Appellant has not proved by a preponderance of the evidence deficient performance or prejudice in relation to counsel=s representation.  We therefore overrule his second issue.

III.  Conclusion

Having overruled appellant=s two issues, we affirm the judgment of the trial court.

/s/        Charles W. Seymore

Justice

Panel consists of Justices Yates, Seymore, and Boyce.

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

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^[1]  Under this heading, appellant also argues (1) the indictment was Adefective and insufficient@ and (2) the trial court Acommitted reversible error in not allowing [appellant] to withdraw his plea.@  An issue that contains more than one specific ground of error is a multifarious issue, and we may refuse to consider it.  See, e.g.,  Marcum v. State, 983 S.W.2d 762, 767 n.1 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d).  Nevertheless, we may consider multifarious issues if we can determine, with reasonable certainty, the alleged error about which the complaint is made.  McCain v. State, 995 S.W.2d 229, 243 n.7 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d, untimely filed).  We hold appellant has forfeited his complaint regarding any alleged deficiency in the indictment by not raising that issue until after he entered his guilty plea.  See Teal v. State, 230 S.W.3d 172, 176B78 (Tex. Crim. App. 2007) (holding defendant must object to any error in indictment before trial).  We further hold that, given the almost two and one-half months that elapsed between the time the court took the case under advisement and the defendant=s request to withdraw his pleaCmade moments before the trial court assessed punishmentCthe trial court did not abuse its discretion in denying appellant=s request.  See Stone v. State, 951 S.W.2d 205, 207 (Tex. App.CHouston [14th Dist.] 1997, no pet.).