Jeffrey Mickens v. State ( 2020 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-19-00198-CR
JEFFREY MICKENS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 123rd District Court
Panola County, Texas
Trial Court No. 2018-C-084
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Jeffery Mickens appeals his conviction for attempted capital murder.1 Mickens waived a
jury and, in a single proceeding, pled guilty to this and four other indictments. All indictments
alleged offenses from one evening in February 2018. In a single brief, he appeals all five
convictions. We modify the trial court’s judgment in this case by deleting the assessment of
court costs and affirm this conviction and its sentence,2 because, not only did Mickens validly
exercise his right to represent himself and waive a jury, as are addressed elsewhere,
(1) Mickens’s plea of guilty in this case was made voluntarily and freely, and (2) court costs
must be removed from this case.
In our opinion in cause number 06-19-00195-CR, we addressed Mickens’s points of error
complaining that the trial court did not warn him sufficiently regarding self-representation in
compliance with Faretta v. California3 and that the trial court did not make sure Mickens’s
waiver of a jury trial was made knowingly and voluntarily. We refer the reader to our analysis in
that case and overrule Mickens’s claims on those points based on the reasons expressed in 06-19-
00195-CR. We address Mickens’s plea of guilty in this case independently and conclude that he
made it voluntarily and freely.
1
See TEX. PENAL CODE ANN. §§ 15.01, 19.03 (Supp).
2
On even date herewith, we also affirm Mickens’s other four convictions in these cause numbers: 06-19-00195-CR,
aggravated kidnapping of Regina; 06-19-00196-CR, aggravated kidnapping of Regina’s infant daughter, Barbara;
06-19-00197-CR, murder of Eleanor; 06-19-00199-CR, aggravated assault with a deadly weapon of Regina.
3
422 U.S. 806 (1975).
2
(1) Mickens’s Plea of Guilty in this Case Was Made Voluntarily and Freely
In our opinion in cause number 06-19-00195-CR, we described the standards for
determining whether a plea of guilty is made freely and voluntarily and addressed Mickens’s
plea in that case. We refer the reader to our opinion in that case for a summary of the events at
Mickens’s trial and the law we applied to those events. In brief, we consider the totality of the
circumstances viewed in light of the entire record. Griffin v. State, 703 S.W.2d 193, 196 (Tex.
Crim. App. 1986); Fluellen v. State, 443 S.W.3d 365, 368 (Tex. App.—Texarkana 2014, no
pet.). In that process, “the record must affirmatively disclose that the defendant . . . entered his
plea understandingly and voluntarily.” Brady v. United States, 397 U.S. 742, 747 n.4 (1970); see
Boykin v. Alabama, 395 U.S. 238, 243–44 (1969); see also Davison v. State, 405 S.W.3d 682,
687 (Tex. Crim. App. 2013). The trial court must admonish the defendant in substantial
compliance with the requisites of Article 26.13 of the Texas Code of Criminal Procedure. See
TEX. CODE CRIM. PROC. ANN. art. 26.13 (Supp.).
In this case, the trial court accepted Mickens’s plea of guilty to the instant charge of
attempted capital murder after Mickens stated that he pled guilty because he was in fact guilty,
that he had not been forced or threatened to plead guilty, and that his plea was made freely and
voluntarily. The trial court asked Mickens if he understood the range of punishment; Mickens
said he did. The trial court, however, failed to admonish Mickens that the crime was a first-
degree felony or to articulate the range of punishment.
Shortly before his plea to the instant indictment for attempted capital murder, Mickens
had pled guilty to two indictments alleging aggravated kidnapping—also first-degree felonies.
3
In admonishing Mickens on both of those charges, the court told Mickens that those crimes were
first-degree felonies, bearing punishment ranges of five to ninety-nine years or life
imprisonment. Immediately after pleading guilty to those felonies, and before pleading guilty to
the instant attempted capital murder indictment, Mickens pled guilty to murder in cause number
06-19-00197-CR. In that case, the court told Mickens that the crime was a first-degree felony
offense; the trial court did not, however, articulate the range of punishment. Mickens though,
said he understood the range of punishment for that offense.
We find that this sequence of events did not render Mickens’s plea of guilty to this
particular charge involuntary or not freely made. “The record contains references to the correct
punishment range and there is nothing in the record that shows appellant was unaware of the
consequences of his plea or that he was misled or harmed.” Aguirre-Mata v. State, 125 S.W.3d
473, 476–77 (Tex. Crim. App. 2003). In Aguirre-Mata, the State, during voir dire, had three
times “correctly stated the punishment range. Nothing shows that [Aguirre-Mata] did not hear
and understand that . . . or that his attorney had not already told him the same thing.” Aguirre-
Mata v. State, 26 S.W.3d 922, 925 (Tex. App.—Houston [1st Dist.] 2000, pet. granted).
Granted, there was no voir dire in Mickens’s case. But the correct range of punishment for two
other first-degree felonies had just been recited. Also, a week before Mickens’s plea of guilty,
an earlier plea offer of forty-five years’ incarceration was discussed.4
4
There was an argument between Mickens’s appointed attorney, Hagan, and two attorneys for the State about
whether such offer had been made. The State said that, even if any offer had been extended, it had expired by that
date. Cf. Rodriguez v. State, 763 S.W.2d 893, 895 (Tex. App.—San Antonio 1988, pet. ref’d). In the context of a
point of error complaining that he had not been sufficiently admonished about the hazards of self-representation,
Rodriguez complained that the range of punishment had not been explained to him. Pointing out that “the State had
at first offered [Rodriguez] forty years on a guilty plea that was later changed to thirty years,” Rodriguez “was aware
4
We find that his plea was made freely and voluntarily. This point of error is overruled.
(2) Court Costs Must Be Removed from this Case
Mickens correctly points out that, while court costs were properly assessed against him in
cause number 06-19-00195-CR, the trial court erred by also assessing court costs in this case.
Where a defendant is convicted of two or more offenses in a single criminal action, court costs
may be assessed only once. See TEX. CODE CRIM. PROC. ANN. art. 102.073. The State concedes
this error. “This Court has the power to correct and modify the judgment of the trial court for
accuracy when the necessary data and information are part of the record.” Anthony v. State, 531
S.W.3d 739, 743 (Tex. App.—Texarkana 2016, no pet.) (citing TEX. R. APP. P. 43.2(b); Bigley v.
State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex.
App.—Dallas 1991, pet. ref’d)). “The authority of an appellate court to reform incorrect
judgments is not dependent on the request of any party, nor does it turn on the question of
whether a party has or has not objected in the trial court.” Id. (quoting Asberry, 813 S.W.2d at
529–30).
that a finding of guilty could possibly mean the same or a stiffer sentence.” Id. He was ultimately sentenced to
forty-five years’ incarceration. Id.
5
 We modify the trial court’s judgment by deleting the assessment of court costs in this
case. As modified, the conviction for murder is affirmed.5
Josh R. Morriss, III
Chief Justice
Date Submitted: August 26, 2020
Date Decided: October 9, 2020
Do Not Publish
5
Mickens claims that his conviction in cause number 06-19-00199-CR for aggravated assault of Regina is precluded,
based on double jeopardy, by the conviction in this case for aggravated kidnapping of Regina. We address that
complaint in our opinion in cause number 06-19-00199-CR.
6