Jehashiba P. Doubout v. State , 388 S.W.3d 863 ( 2012 )


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  • Affirmed and Opinion filed November 29, 2012.
    In The
    Fourteenth Court of Appeals
    NO. 14-11-01041-CR
    JEHASHIBA P. DOUBOUT, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 184th District Court
    Harris County, Texas
    Trial Court Cause No. 1245830
    OPINION
    Appellant Jehashiba Doubout appeals from his conviction for aggravated sexual
    assault of a child under 14 years old.      Appellant pleaded guilty without an agreed
    punishment recommendation, and the trial court found him guilty. After a pre-sentence
    investigation was prepared, and at the conclusion of a hearing to the bench, the trial judge
    sentenced appellant to twenty-five years in prison. On appeal, appellant contends that his
    guilty plea was involuntary because he was mentally incompetent to understand the
    consequences of the plea. We affirm.
    Background
    Appellant was accused of performing oral sex on a six year old girl. The child’s
    mother, who knew appellant as the brother of a friend and who had allowed appellant to
    live in her home, described discovering appellant in the act, pulling him away and hitting
    him. Appellant confessed in a statement to police, although he later told a different story,
    denying the assault occurred. Laboratory testing on the girl’s underwear revealed a high
    likelihood that appellant’s DNA was present on the garment.
    Appellant pleaded guilty to the court, and the trial judge found him guilty and
    ordered the preparation of a presentence investigation (PSI) report. At a subsequent PSI
    hearing, appellant’s counsel represented that appellant had always maintained his
    innocence and desired to change his plea to not guilty and proceed to trial. Counsel then
    moved to withdraw appellant’s guilty plea. Counsel stated that he had never had any
    problems communicating with appellant but that appellant was “slow.”               Counsel
    acknowledged appellant knew right from wrong.
    In considering the motion, the trial judge referenced competency and sanity
    evaluations that he had earlier ordered to be conducted on appellant. In the competency
    evaluation, clinical psychologist Dr. Stephen McCary stated that appellant’s “cognitive
    abilities appeared to be reasonably intact.” Appellant had been able to correctly answer a
    number of simple questions but also failed to answer a number of simple questions.
    According to McCary, appellant’s ability to concentrate was adequate but his judgment
    and insight were poor. Appellant had attended school through the eleventh grade but
    apparently took special education classes and had never worked. McCary further stated
    that appellant claimed at the time of the interview to not know the charge against him and
    stated he could not recall committing the offense. Appellant understood, however, that if
    convicted he “would probably do some time in prison.” Appellant was able to describe
    the difference between a guilty plea and a not guilty plea, understood the adversarial
    nature of the legal process, and stated that he thought he could make appropriate choices
    regarding his legal options. McCary further concluded that appellant “demonstrated the
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    sufficient cognitive and emotional capacities to be able to engage in a reasoned choice of
    legal strategies and options.” McCary diagnosed appellant with “Borderline Intellectual
    Functioning,” but determined he was competent to stand trial and did “not demonstrate a
    mental illness or a mental defect of the type or degree that would prevent him from
    appropriately participating in his case.” Lastly, McCary stated appellant exhibited “the
    ability to engage with counsel in a reasonable and rational manner.” In a separate report,
    McCary also found that appellant was sane at the time the offense was allegedly
    committed.
    The trial judge indicated at the hearing that he only accepted appellant’s plea
    because he believed it was freely and voluntarily entered. Defense counsel also produced
    a letter from an inmate where appellant was then incarcerated. In the letter, the inmate
    states that appellant was “very slow,” “doesn’t understand much,” and insists that he is
    innocent. Counsel concluded, however, that “I just can’t say that he is not competent.”
    The judge denied the motion to withdraw the guilty plea.
    Analysis
    In his sole issue on appeal, appellant contends that his guilty plea was involuntary
    because he did not understand the consequences of his plea.1 No guilty plea may be
    accepted unless it appears that the defendant was mentally competent and entered the
    plea freely and voluntarily. Tex. Code Crim. Proc. art. 26.13(b). We consider the entire
    record in assessing the voluntariness of a guilty plea. Martinez v. State, 
    981 S.W.2d 195
    ,
    197 (Tex. Crim. App. 1998). If a defendant is properly admonished before entering his
    or her plea, a prima facie showing is established that the plea was entered knowingly and
    voluntary. 
    Id. The burden
    then shifts to the defendant to show he pleaded guilty without
    understanding the consequences of his plea and, consequently, suffered harm.                        Id.;
    Houston v. State, 
    201 S.W.3d 212
    , 217 (Tex. App.—Houston [14th Dist.] 2006, no pet.).
    1
    Appellant does not contend that the trial court abused its discretion in denying the motion to
    withdraw the plea. See generally Jackson v. State, 
    590 S.W.2d 514
    , 515 (Tex. Crim. App.1979); Jagaroo
    v. State, 
    180 S.W.3d 793
    , 802 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).
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    A defendant who attests during the initial plea hearing that his plea is voluntary bears a
    “heavy burden” to prove in a subsequent hearing that he entered the plea involuntarily.
    
    Houston, 201 S.W.3d at 217
    .
    Here, although no record was made of appellant’s plea hearing, appellant does not
    contest that he was properly admonished and pleaded guilty.           The record further
    demonstrates that appellant signed detailed waivers and admonishments along with his
    signed guilty plea. Additionally, the trial judge reflected at the subsequent PSI hearing
    that he would not have accepted appellant’s plea if he had believed it was not freely and
    voluntarily entered.
    The burden therefore shifted to appellant to demonstrate that his guilty plea was in
    fact not voluntary because he did not fully understand the consequences of the plea. See
    
    Martinez, 981 S.W.2d at 197
    . In an effort to meet this burden, appellant begins by
    critiquing the competency evaluation performed by Dr. McCary. Appellant points out
    that a presence of mental retardation in a defendant raises doubt about the defendant’s
    competency, citing Montoya v. State, 
    291 S.W.3d 420
    , 425 (Tex. Crim. App. 2009).
    Appellant further asserts that to assess mental retardation, a mental health professional
    must determine whether a person exhibits “significantly subaverage general intellectual
    functioning that is concurrent with deficits in adaptive behavior and originates during the
    developmental period,” quoting Tex. Health & Safety Code § 591.003. This assessment
    is typically done, appellant further asserts, through standardized assessments, citing Ex
    parte Briseno, 
    135 S.W.3d 1
    , 7 (Tex. Crim. App. 2004).
    Appellant concludes that McCary’s evaluation was deficient because although
    McCary recognized appellant exhibited signs of intellectual impairment, McCary did not
    administer confirmatory testing. The burden regarding the voluntariness of appellant’s
    guilty plea, however, was on appellant, not McCary, the court, or the State.           See
    
    Martinez, 981 S.W.2d at 197
    . McCary, a licensed clinical psychologist, concluded in his
    evaluation that appellant was competent, understood various aspects related to pleading
    guilty (including the likelihood of incarceration), and “demonstrated the sufficient
    4
    cognitive and emotional capacities to be able to engage in a reasoned choice of legal
    strategies and options.”
    Appellant did not offer a countervailing expert report or testimony and did not
    himself testify that he lacked comprehension regarding the consequences of his plea.
    Instead, appellant points to various points in the record suggesting that he is mentally
    “slow,” including statements to that effect by defense counsel and an inmate who wrote a
    letter on appellant’s behalf.   This was not sufficient to carry appellant’s burden of
    demonstrating that he pleaded guilty without understanding the consequences of his plea
    and thereby suffered harm. See id.; see also Ex parte Tomlinson, 
    295 S.W.3d 412
    , 422
    (Tex. App.—Corpus Christi 2009, orig. proc.) (holding defendant failed to meet burden
    to prove plea was involuntary in light of conflicting evidence).
    Lastly, appellant points to defense counsel’s statement to the court that appellant
    told a probation officer and later defense counsel himself that he (appellant) did not
    commit the offense and wanted to change his plea to not guilty and have a trial before a
    jury. While this statement evidences a possible change of heart by appellant, it does not
    establish that appellant failed to understand the consequences of his earlier guilty plea,
    particularly in light of his confession to police, the waivers and admonishments signed by
    appellant, and Dr. McCary’s findings discussed above. Cf. Williams v. State, 
    265 S.W.3d 715
    , 720 (Tex. App.—Texarkana 2008, no pet.) (affirming denial of motion to withdraw
    guilty plea, stating “trial court might have reasonably viewed this sudden change of heart
    with a great degree of skepticism”). Because appellant failed to meet his burden of
    demonstrating that he pleaded guilty without understanding the consequences of his plea
    and, consequently, suffered harm, we overrule his sole issue.
    5
    We affirm the trial court’s judgment.
    /s/       Martha Hill Jamison
    Justice
    Panel consists of Justices Boyce, Christopher, and Jamison.
    Publish — TEX. R. APP. P. 47.2(b).
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