Rainbolt, Anthony Lee v. State ( 2005 )

Affirmed and Memorandum Opinion filed November 10, 2005

Affirmed and Memorandum Opinion filed November 10, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00617-CR

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ANTHONY LEE RAINBOLT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182^nd District Court

Harris County, Texas

Trial Court Cause No. 962,922

M E M O R A N D U M   O P I N I O N

Appellant, Anthony Lee Rainbolt, pled guilty to aggravated robbery in a bench trial. He was subsequently convicted and sentenced to seven years= imprisonment.  On appeal, appellant contends the trial judge erred by assessing punishment after appellant made a written election for jury punishment and by failing to withdraw the guilty plea after appellant maintained his innocence. Appellant also claims he received ineffective assistance of counsel.  We affirm.

Appellant pled guilty on March 15, 2004; there was no plea agreement.^[1]  The trial court accepted appellant=s guilty plea but deferred a finding of guilt, resetting the case so a presentence investigation (APSI@) could be conducted and a PSI report prepared. Although he pled guilty, appellant asserted his innocence in the PSI report and at the subsequent PSI/sentencing hearing.  Appellant made no objection when the judge assessed punishment.

Appeal Waiver

The trial judge certified that appellant has the right of appeal, but that he waived that right.  AAppeal waived.  No permission to appeal granted@ was stamped next to the judge=s signature on the judgment.  We must, therefore, determine whether appellant waived his right to appeal nonjurisdictional issues arising after the entry of his guilty plea.

A defendant may waive his right to appeal in non-capital felony cases.  Tex. Code Crim. Proc. Ann. art. 1.14  (Vernon 2005), art. 44.02 (Vernon 1979 & Supp. 2005); Monreal v. State, 99 S.W.3d 615, 617 (Tex. Crim. App. 2003).  Entering a non-negotiated guilty plea will not, on its own, waive the appeal of error occurring at or after entry of a guilty plea.  Jack v. State, 871 S.W.2d 741, 744 (Tex. Crim. App. 1994).  Moreover, any waiver of appeal must be made knowingly, voluntarily and intelligently. See Monreal, 99 S.W.3d at 618, 620 (explaining relevant issue in distinction between valid appeal waiver made with plea bargain before sentencing and valid appeal waiver made without plea bargain after sentencing is the timing of the waiver and whether defendant was in a position to know what the punishment would be and what errors would occur after the plea); Tufele v. State, 130 S.W.3d 267, 270 (Tex. App.CHouston [14th Dist.] 2004, no pet.) (holding appellant could not have waived his right to appeal error occurring after entry of his guilty plea at the time he entered his plea).  The record indicates appellant could only have attempted to waive his right to appeal at the March 15, 2004 hearing.^[2]  Appellant could not have knowingly waived his right to appeal sentencing error when he entered his guilty plea on March 15, 2004, as he neither bargained for a sentencing recommendation nor waived appeal after sentencing on June 9, 2004.  We therefore address the merits of appellant=s complaints.

Election for Jury Sentencing

Appellant first argues the trial judge erroneously assessed punishment after appellant timely filed an election for jury sentencing.  When a defendant elects at the beginning of trial to have a jury assess punishment, it is presumed he has agreed at the end of trial for the court to assess punishment when the court does so, and no objection by either party appears in the record.  Hackey v. State, 500 S.W.2d 520, 521 (Tex. Crim. App. 1973); Prudhomme v. State, 47 S.W.3d 683, 690 (Tex. App.CTexarkana 2001, pet. ref=d).  Here, neither appellant nor the State objected to the trial judge=s assessment of punishment, and appellant points to nothing in the record to refute the presumption he agreed to such practice.^[3]  Absent an objection or any indication appellant did not agree to sentencing at the bench, we hold appellant has waived this issue.  Accordingly, appellant=s first point of error is overruled.

Failure to Withdraw Guilty Plea

Appellant next argues the trial judge erred by accepting and not sua sponte withdrawing appellant=s guilty plea once appellant testified to his innocence at the PSI/sentencing hearing.

A judge is not required to sua sponte withdraw a guilty plea if evidence is brought to the judge=s attention raising an issue as to innocence (even if it makes defendant=s innocence evident), when the right to a jury trial has been waived and proceedings are before the court only.  Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App. 1978); Fisher v. State, 104 S.W.3d 923, 924 (Tex. App.CHouston [14th Dist.] 2003, no pet.).  This is because the judge is free to make any finding based on the evidence before herCguilty, not guilty, or guilty of a lesser-included offenseCregardless of the plea.  Moon, 572 S.W.2d at 682; Rivera v. State, 123 S.W.3d 21, 32B33 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d); Solis v. State, 945 S.W.2d 300, 302B03 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d); Graves v. State, 803 S.W.2d 342, 346 (Tex. App.CHouston [14th Dist.] 1990, pet. ref=d).  Here, the trial judge, as the trier of the facts, considered the evidence and, after determining appellant=s plea was knowingly, intelligently and voluntarily made, accepted his plea and sentenced him accordingly.  The trial judge did not err by not sua sponte withdrawing appellant=s plea of guilt.  See Fisher, 104 S.W.3d at 924 (finding no error in refusing to withdraw guilty plea when appellant entered valid plea to judge but PSI report raised issue as to innocence).

Before a judge may accept a plea of guilty, she  must make certain admonishments to the defendant and determine whether the defendant is mentally competent.  Tex. Code Crim. Proc. Ann. Art. 26.13(a) (Vernon Supp. 2004B05); see also Brady v. United States, 397 U.S. 742, 748 (1970) (explaining guilty plea must be voluntary expression of defendant=s own choice).  If the record establishes the trial court properly admonished the defendant regarding the consequences of his plea, there is a prima facie showing the guilty plea was entered knowingly and voluntarily.  Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985); Pena v. State, 132 S.W.3d 663, 666 (Tex. App.CCorpus Christi 2004, no pet.); Dorsey v. State, 55 S.W.3d 227, 235 (Tex. App.CCorpus Christi 2001, no pet.).  The burden then shifts to the defendant to show he pled guilty without understanding the consequences of his plea and, consequently, suffered harm. Gibauitch, 688 S.W.2d at 871; Dorsey, 55 S.W.3d at 235.  Appellant does not argue he was improperly admonished, and the record shows he signed each of the requisite admonishments.  Appellant does not contend he did not understand the consequences of his plea, and he was found to be mentally competent when his plea was entered.  Accordingly, we find his plea was properly accepted by the trial judge and appellant=s second issue is overruled.

Insufficiency of the Evidence

In his third issue, appellant argues the trial court should have sua sponte withdrawn his guilty plea after hearing evidence of his innocence. Appellant contends this would allow him to challenge the sufficiency of the evidence on appeal.  He argues his judicial confession would cause any evidentiary challenge to be summarily denied on appeal.  See Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1979) (holding defendant=s judicial confession alone is sufficient to sustain conviction upon guilty plea).  In effect, appellant attempts to say there will be legally and factually insufficient evidence to convict if his guilty plea is withdrawn.  It is well established that the entry of  a guilty plea supported by a judicial confession relieves the State of its burden to prove the defendant=s guilt beyond a reasonable doubt.  Thus, the evidence supporting a conviction will always be insufficient once a defendant is permitted to withdraw his plea.  However, nothing in our jurisprudence suggests the State has any obligation to marshal all the evidence for inclusion in the PSI report.  We do not assess potential sufficiency of the evidence from the contents of a PSI reportClegal and factual sufficiency review do not apply to convictions on pleas of guilty.^[4]  See Ex parte Williams, 703 S.W.2d 674, 682 (Tex. Crim. App. 1986) (explaining sufficiency of the evidence review applies only when the federal constitution places the burden on the prosecution to establish guilt beyond a reasonable doubt and does not apply when a defendant knowingly, intelligently and voluntarily enters a guilty plea); see Ybarra v. State, 960 S.W.2d 742, 745 (Tex. App.CDallas 1997, no pet.) (finding defendant who pled guilty to court by executing a valid judicial confession waived any challenge to factual sufficiency of the evidence).  Appellant=s third issue is overruled.

Equal Protection and Due Process of Law

Appellant claims the trial court=s failure to sua sponte order his guilty plea withdrawn resulted in the denial of his rights to equal protection and due process of law. U.S. Const. amend. XIV, ' 1; Tex. Const. art. I, '' 3, 19.  With respect to his equal protection claim, appellant argues defendants who claim innocence but are not burdened by a regretted plea of guilty are treated differently, as they may effectively challenge the sufficiency of the evidence on appeal but he may not, due to his judicial confession.  Appellant neglects the fact that his choice to enter a guilty plea placed him in a different class of defendants than those who choose to go to trial.  The equal protection clause protects those similarly situated individuals who are disparately treated by no fault or choice of their own; it is not a tool to challenge the regrettable results of fair proceedings knowingly entered into by defendants.  See Plyler v. Doe, 457 U.S. 202, 213 (1982) (explaining the AEqual Protection Clause was intended to work nothing less than the abolition of all caste‑based and invidious class‑based legislation.@).  Appellant argues he Awill be denied due process of law if he is not permitted to challenge the sufficiency of the evidence because of a series of procedural bars.@  This slim statement fails to provide any argument or authority; therefore, it is waived on appeal.   Tex. R. App. P. 38.1(h).  Appellant=s fourth point of error is overruled.

Ineffective Assistance of Counsel

Appellant, in his final argument, claims his attorney=s failure to seek withdrawal of his guilty plea rendered it involuntary.  Specifically, appellant argues his attorney should not have allowed the plea after appellant stated he was not guilty of the offense, and that there can be no plausible trial strategy in allowing a defendant claiming innocence to plead guilty.

When a defendant enters a plea and later challenges the voluntariness of that plea based on ineffective assistance of counsel, the voluntariness of his 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 error, the defendant would have insisted on going to trial.  Hill v. Lockhart, 474 U.S. 52, 56 (1985); Strickland v. Washington, 466 U.S. 668, 693B94 (1984); Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997).  There is a strong presumption an attorney=s performance fell within a wide range of reasonable professional assistance.  Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  Appellant must rebut this presumption by a preponderance of the evidence; as such, the record must affirmatively demonstrate the alleged ineffectiveness.  McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds by Mosely v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998); Jackson, 877 S.W.2d at 771.  An ineffective assistance claim with a record silent as to trial counsel=s motivations will generally fail, as the presumption that the attorney=s conduct was reasonable has not been overcome.  See Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001) (denying ineffective assistance claim where record is silent as to why counsel did not request guilty plea withdrawn); see Jackson, 877 S.W.2d at 771 (refusing to speculate why trial counsel failed to strike venire member where record is silent on reason behind attorney=s conduct).

While there is no reporter=s record of the entry of appellant=s guilty plea, the record does show he was properly admonishedCthis establishes a prima facie case his plea was knowingly and voluntarily entered. Mallett, 65 S.W.3d at 65. After appellant testified to his innocence, his attorney did not seek to withdraw his guilty plea.  Instead, he requested the court grant deferred adjudication and gave several reasons why deferred adjudication would be appropriate. He also submitted letters from appellant=s family begging the court=s lenience and copies of appellant=s high school transcripts and certificates of completion of fiberoptic and network cabling courses.  From this record, appellant has not shown his trial attorney=s conduct fell outside the wide range of competent representation demanded of attorneys in criminal cases.  Appellant effectively asks this Court to conclude his attorney had no competent trial strategy when he sought deferred adjudication from the judge instead of attempting to withdraw appellant=s guilty pleaCthis we cannot do.  Because appellant has failed to show error, we need not address the second prong of the Hill v. Lockhart test.  474 U.S. at 56.  Appellant=s fifth issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed November 10, 2005.

Panel consists of Justices Yates, Hudson, and Seymore.

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

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^[1]  There is no reporter=s record of the March 15, 2004 hearing.  The clerk=s record reflects that, on that date, appellant elected to have a jury hear and determine punishment and filed a sworn motion for probation.  He also signed a written waiver of constitutional rights, agreement to stipulate, and judicial confession, waiving his right to a jury trial.

^[2]  Appellant entered his plea on March 15, 2004.  On that date he also signed a judicial certification of his right to appeal indicating he waived the right of appeal. The certification was filed on March 15, 2004.  The trial judge scratched out the March 15th date and wrote in AJune 9, 2004" (the date of the PSI/sentencing hearing).  There is nothing in the record to show appellant validly waived any right to appeal on June 9th, after his guilty plea was entered.  Therefore, if any appeal waiver was attempted, it was on March 15th, before any of the issues he now challenges occurred.

^[3]  Appellant cites to Pace v. State to show the trial judge erred in assessing punishment.  630 S.W.2d 765 , 765 (Tex. App.CHouston [1st Dist.] 1982, pet. dism=d). The Pace defendant, however, did not waive a jury trial, and properly preserved the judge-assessed sentencing error.  Id. Pace held a defendant may timely elect jury punishment immediately following a plea made before a jury.  Id. Here, the timeliness of appellant=s election is not in questionCthe issue is whether he waived jury sentencing. 

^[4]  Appellant does not contend there was an insufficient factual basis to support his guilty plea and, had he done so, his claim would fail. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005); see also Jordan v. State, 489 S.W.2d 118, 119 (Tex. Crim. App. 1972) (finding article 1.15 requiring the State to produce sufficient evidence to support guilt was complied with when defendant entered guilty plea, waived jury trial, and entered a sworn, written stipulation of evidence).