Thomas Brandon Walls v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-314-CR
THOMAS BRANDON WALLS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Thomas Brandon Walls was indicted for aggravated robbery
with a deadly weapon. He entered an open plea of guilty, and the trial court
postponed sentencing pending a presentence investigation report (PSI). He was
represented by Attorney Number One.
1
… See Tex. R. App. P. 47.4.
At the punishment hearing, Appellant was represented by Attorney
Number One and Attorney Number Two. At the conclusion of the punishment
hearing, the trial court sentenced Appellant to twenty years’ confinement.
Attorney Number Two filed a motion for new trial, alleging that the trial court
had abused its discretion in assessing punishment. Attorney Number One filed
a motion for new trial, alleging that the verdict was contrary to the law and the
evidence. Attorney Number Three was then substituted for Attorney Number
One, and Attorney Number Three filed a third motion for new trial, alleging that
Appellant’s plea was involuntary and that the verdict was contrary to the law
and the evidence.
At the August 15, 2008 hearing on the motions for new trial, Appellant
and his parents testified that Attorney Number One had represented to them
that if Appellant pled guilty, he would be placed on community supervision.
They testified that Attorney Number One had told them that he had a special
relationship with the judge, that they had gone to law school together, and that
he and the judge had entered into an agreement regarding Appellant’s
punishment, provided Appellant entered a plea of guilty. Appellant and his
parents denied that Attorney Number One had told them that there was any
possibility of penitentiary time if Appellant entered a guilty plea. When asked
to explain what Attorney Number One had promised him, Appellant testified
2
that Attorney Number One had told him that he could only receive deferred
adjudication community supervision if he entered a plea of guilty. Appellant
also testified that Attorney Number One had told him that he would not be able
to receive deferred adjudication if he insisted on a jury trial.
On August 25, 2008, the trial court held a further hearing on the motions
for new trial. Attorney Number One testified that he never guaranteed either
Appellant or his parents that Appellant would receive community supervision.
He testified that he had told Appellant that he thought that Appellant had a
good chance of receiving community supervision, but Attorney Number One
denied that he had made any promises. He also denied that he had told
Appellant that he had a special relationship with the judge. Attorney Number
Three attempted to ask Attorney Number One about disciplinary action the
State Bar had taken against him, but the trial court sustained the State’s
objection and did not allow the testimony.
Appellant appealed to this court, arguing in one of his three issues that
the trial court erred by sustaining the State’s objection to the question about
the State Bar’s disciplinary actions against Attorney Number One. The State
confessed error, and this court abated the case, remanding it to the trial court
to allow Appellant to question Attorney Number One concerning the disciplinary
3
action and to allow the trial court to reconsider its ruling in light of that
evidence.
At the hearing on remand, Appellant called Attorney Number One’s
former paralegal to testify. The paralegal testified that in his presence,
Attorney Number One had represented to Appellant and his parents that
Appellant would receive community supervision because of an agreement
Attorney Number One had made with the trial judge. The paralegal also
testified that he had heard Attorney Number One tell Appellant and his parents
that Attorney Number One had a special relationship with the judge. The
paralegal testified that his son is a former client of Attorney Number One and
that Attorney Number One had given his son a similar guarantee of community
supervision. The paralegal also admitted that he has a criminal record and has
been to the penitentiary two or three times.
Attorney Number One admitted that he has been disciplined by the State
Bar and has received a fully probated suspension for failing to handle clients’
cases in a timely manner, refusing to return a file after he had been discharged,
and engaging in other conduct not clearly described in the abatement hearing.
Attorney Number One testified that
the other one was . . . a guy working for me. He took some money
from his family that they lent him to represent him. The guy was
in jail. The court in Dallas appointed him an attorney to represent
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him. The attorney got a really good deal for him, got it reduced to
a misdemeanor, and pled the case out.
And I was not aware that took place, so they said, “Well, you
should have done a better job of supervising the people that work
in your office.”
I said, “You know what? You’re absolutely right. I’ll accept
the punishment for that.” And I got rid of the paralegal that I had.
Attorney Number One explained that the disciplinary order was an agreed order,
resulting in the fully probated suspension.
No one designated the trial judge as a witness, called the trial judge as a
witness, or moved to recuse the trial judge because the trial judge was a fact
witness. The trial judge did not voluntarily step down. The same trial judge
presided over all posttrial hearings. At the conclusion of the abatement hearing,
the trial court again denied Appellant’s motions for new trial.
There are two remaining issues before this court: (1) whether Appellant’s
plea was entered knowingly, intelligently, and voluntarily, and (2) whether
Appellant was denied effective assistance of counsel when he entered his guilty
plea on December 13, 2007, or at the punishment hearing on June 13, 2008.
A trial court’s ruling denying a defendant’s motion for new trial is
reviewed under an abuse of discretion standard.2 In considering a motion for
2
… Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App.), cert. denied,
534 U.S. 855 (2001); Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App.
5
new trial, the trial court possesses broad discretion in determining the credibility
of the witnesses and in weighing the evidence to determine whether a different
result would occur upon retrial.3 We do not substitute our judgment for that of
the trial court, but rather, we decide whether the trial court’s decision was
arbitrary or unreasonable.4
In the case now before this court, we have a swearing match contesting
whether Attorney Number One represented to Appellant that he had a special
relationship with the judge, whether an ex parte meeting occurred in which the
trial judge and Attorney Number One reached a secret agreement to guarantee
Appellant community supervision, and whether that representation induced
Appellant to enter a plea of guilty that he would otherwise not have entered.
Appellant’s parents and Attorney Number One’s paralegal testified that
Attorney Number One had made those representations to Appellant.
Appellant’s version was slightly different. He testified that Attorney Number
One had made the representations and guarantees about which his parents and
1995); Thomas v. State, 31 S.W.3d 422, 428 (Tex. App.—Fort Worth 2000,
pet. ref’d).
3
… Valle v. State, 963 S.W.2d 904, 908 (Tex. App.—Texarkana 1998,
pet. ref’d); Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.—Houston
[1st Dist.] 1996, pet. ref’d).
4
… Lewis, 911 S.W.2d at 7.
6
the paralegal testified. But he also testified that Attorney Number One had told
him that he would not receive deferred adjudication if he insisted on a jury trial
instead of pleading guilty to the court. All four denied that Attorney Number
One had told them that there was any possibility of penitentiary time if
Appellant entered a guilty plea.
Attorney Number One denied any guarantees or representations
concerning a special relationship with the judge. He testified that he had told
Appellant merely that he thought Appellant had a good chance of receiving
probation if he entered a guilty plea.
In the instant case, Appellant was charged with aggravated robbery with
a deadly weapon, an article 42.12, section 3g offense. 5 This charge was but
one in a long string of criminal accusations beginning in Appellant’s youth.
When Appellant appeared before the trial court in the case now before this
court, he was nineteen years old. He had already been charged with eight
different offenses, including three robberies over a period of five weeks in
December 2003 and January 2004. He successfully completed a juvenile
probation for the third robbery. In January 2005, Appellant was involved in a
car theft and later received deferred adjudication community supervision for an
5
… Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(1)(F) (Vernon Supp.
2009).
7
unrelated possession of marijuana offense. A subsequent March 2006 robbery
charge arising from an attempted drug purchase was dismissed.
When Appellant was seventeen, he and some companions committed two
aggravated robberies with a pistol that Appellant had obtained. In the first one,
he drove the getaway car. Several hours after the first robbery, the group
accosted another man who claimed to have no money, so they moved on to a
second mark and successfully took his money. The second successful
aggravated robbery is the offense at issue in the instant matter.
Appellant entered an open plea of guilty to the second successful
aggravated robbery, and at the subsequent sentencing, he admitted his
complicity in the first aggravated robbery, although he had not been charged
with that offense. He also admitted his previous crimes but assured the trial
court that he had changed his life since attending Kansas State University on
a football scholarship and begged for a lenient sentence.
Never did Appellant claim that he was not actually guilty or that a jury
would have found him not guilty. The plea documents clearly inform him of the
entire range of punishment, and there is no suggestion that Appellant was
unable to read and understand the documents he executed. Indeed, Appellant
testified at a hearing on his motions for new trial that his lawyer had told him
that he could receive deferred adjudication only if he entered a plea of guilty.
8
This is almost correct. Because aggravated robbery with a deadly weapon is
an article 42.12, section 3g offense, a trial judge could not grant Appellant
“regular” community supervision.6 He could receive only deferred adjudication
community supervision from the trial judge, as opposed to regular community
supervision, and then only if he entered a plea of guilty or nolo contendere.7
A plea of not guilty would make him ineligible for deferred adjudication
community supervision, and a jury cannot grant deferred adjudication
community supervision.8
The trial court went beyond the written admonishments and asked
Appellant if he understood that there was no guarantee that his guilty plea
would result in probation and that the full range of punishment was available.
Appellant assured the trial court that his guilty plea was made freely and
voluntarily.
Appellant also testified that he was “not trying to avoid some
punishment.” He explained that, although he did not want to go to prison, he
was open to “doing a little county time.” He also admitted that his prior two
6
… See id. art. 42.12, § 5(d).
7
… See id. art. 42.12, § 5(a), (d).
8
… See id.
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probations “didn’t really work too well” because he had “continued to commit
crimes.”
We hold that the trial court did not abuse its discretion by denying the
motion for new trial because Appellant did not satisfy his burden to show that
his plea was involuntary as a result of Attorney Number One’s advice and did
not satisfy his burden to show ineffective assistance of counsel. We overrule
Appellant’s issues and affirm the trial court’s judgment.
Due to the disturbing allegations in the record concerning Attorney
Number One’s conduct, however, we also order the clerk of this court to
transmit a copy of this opinion to the Office of the Chief Disciplinary Counsel
and the Office of the General Counsel of the State Bar of Texas.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 29, 2009
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