George v State

• Decision Date: 30 March 2000
• Parties: <!--20 S.W.3d 130 (Tex.App.-Houston 2000) TOM GEORGE, Appellant v. THE STATE OF TEXAS, Appellee NO. 14-98-01315-CR In The Majority and Dissenting Opinions filed
• Court: Texas Court of Appeals

Page 130

20 S.W.3d 130 (Tex.App.-Houston[14th Dist.] 2000)

TOM GEORGE, Appellant v. THE STATE OF TEXAS, Appellee

NO. 14-98-01315-CR

In The Fourteenth Court of Appeals

Majority and Dissenting Opinions filed March 30, 2000.

On Appeal from the County Criminal Court at Law No. 13 Harris County, Texas Trial Court Cause No. 98-19972

[Copyrighted Material Omitted] Panel consists of Chief Justice Murphy and Justices Hudson and Wittig.

MAJORITY OPINION

J. Harvey Hudson, Justice

The appellant, Tom George, was charged by information with the misdemeanor offense of driving while intoxicated. Appellant initially entered a plea of not guilty, and the parties proceeded to trial. When the jury, after lengthy deliberations, appeared deadlocked, the parties negotiated a plea agreement. Appellant then entered a plea of guilty to the court. In accordance with the plea bargain, the court assessed appellant's punishment at confinement in the Harris County Jail for one hundred days, probated for one year, and a fine of four hundred dollars. Appellant filed a general notice of appeal and now raises four points of error, i.e., the trial judge (1) prejudiced his right to a jury trial; (2) interfered with plea negotiations; (3) coerced a plea of guilty; and (4) erred in presiding over the motion for new trial hearing. We affirm.

JURISDICTION

Appellant's first three points of error all relate to his contention that his plea of guilty was coerced by the trial judge who, after it became apparent the jury was deadlocked, allegedly threatened to impose, as a condition of community supervision, a thirty-day period of confinement in the county jail if appellant did not immediately reach a plea agreement with the State's attorney. The State contends we have no jurisdiction to entertain these points of error because appellant did not specify in his notice of appeal that (1) the appeal is for a jurisdictional defect; (2) the substance of the appeal was raised by written motion and ruled on before trial; or (3) the trial court granted permission to appeal. See TEX. R. APP. P. 25.2(b)(3).

There is a split of authority regarding whether, under the current Rules of Appellate Procedure, a general notice of appeal will confer jurisdiction upon an appellate court to consider the voluntariness of a plea entered pursuant to a plea agreement. A similar split of authority arose under the former rules and was resolved by the Court of Criminal Appeals in Flowers v. State, 935 S.W.2d 131, 134 (Tex. Crim. App. 1996). There the court held that an appellant may always "raise the issue of whether his plea was voluntary." Id. However, ten months after Flowers was decided, the Rules of Appellate Procedure were revised. Rule 40(b)(1) of the former rules was replaced by the current Rule 25.2(b)(3).

While Rule 25.2(b)(3) restructures the phrases found in Rule 40(b)(1), the substantive meaning of the rule remains, on its face, unchanged.¹ However, because the Court of Criminal Appeals did not expressly incorporate within the new rule an exception for the voluntariness of the plea, some courts have theorized the Court of Criminal Appeals intended to partially overrule Flowers when it adopted Rule 25.2(b)(3).² On the other hand, some courts have noted the facial similarity of the two rules and concluded that Flowers remains fully viable.³

This court, as well as others, have held that inherent in the concept of "a plea" is the notion that it be free and voluntary.⁴ In fact, a court has no authority to accept a plea unless it be made voluntarily. See TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (Vernon 1989). A declaration of guilt made under compulsion, duress, or coercion is simply not a plea. Thus, the restrictions on an appeal from a negotiated plea contained in Rule 25.2(3) have no application where the plea was not entered voluntarily. Rejecting the State's contention, we assume jurisdiction and address appellant's points of error.

VOLUNTARINESS OF THE PLEA

In his first three points of error, appellant contends the trial judge used intimidation, threats, and hostile remarks to coerce a guilty plea. We have no direct record from the plea hearing, but appellant's trial counsel offered testimony at a hearing on appellant's motion for new trial regarding the events preceding his plea. Moreover, at least a portion, if not all, of court reporter's notes from the plea hearing were read into the record at the motion for new trial hearing.

The cause was initially tried to a jury. The jury began deliberating shortly before noon. Thereafter, the Honorable Mark Atkinson, who was scheduled to attend a judicial conference, asked the Honorable Jean Hughes to receive the verdict for him. At approximately 2:50 p.m., the jury sent out a note indicating they were deadlocked 4 to 2 in favor of a conviction. Judge Hughes gave the jury an Allen charge.⁵ At 3:25 p.m., the jury sent out a second note saying they were still deadlocked and that no juror was willing to change his or her position. Judge Hughes instructed the jury to continue deliberating.

Appellant's counsel testified that he was negotiating with the State's attorney about a possible plea agreement, when the judge called appellant and his counsel before the bench and inquired about the progress of the negotiations. During these discussions, counsel alleges the judge addressed appellant directly and asked what concerns he had regarding a possible plea agreement. When counsel objected to the judge directly questioning his client, he claims the judge berated him as a neophyte. The judge then allegedly proceeded to inform appellant that if he did not reach some plea agreement, she would impose jail time as a condition of any probation he might receive. Counsel also claims the judge then added that appellant, a Gypsy, would emerge from jail "marimae." This is apparently a Gypsy word that is roughly synonymous with "polluted."

Further, counsel claims that during the subsequent negotiations, the judge learned that appellant was illiterate. The judge allegedly told counsel she was going to add, as a condition of probation, that appellant pass an English proficiency skills test. When appellant asked what would happen to him if he did not learn how to read and write, counsel claims the judge told appellant he would remain on probation for ten years or more.⁶ Counsel also testified the judge informed him that if a mistrial had to be declared, the parties would begin a new trial the following day. Counsel informed the court he could not be ready for trial because his witnesses had already been released from their subpoenas.⁷

The record from the plea hearing is silent regarding most of counsel's allegations except for the court's reference to "merimae." The record refutes counsel's assertion that the remark was made during plea negotiations. The comment was made after, not before, appellant entered his plea. At the conclusion of the hearing, appellant asked the court: "How about if I don't learn to read or write for another 30, 40 years? Am I still on probation?" The trial judge responded:

If you go into probation with that attitude, you won't make it one month. Do you understand? You will get a decent attitude or you won't survive probation. You will be doing 100 days in jail and you will be merimae, won't you? You will be polluted.

This comment, coming after the entry of appellant's plea, could not logically have induced the plea.

While appellant's counsel accused the court of misconduct, he offered little, if any, evidence that the alleged improprieties had any influence on appellant's decision to enter a guilty plea. Appellant did not testify at the hearing. Although his verified motion for new trial asserts the plea was involuntary, the motion is merely a pleading, not evidence. See Mattox v. State, 874 S.W.2d 929, 936 (Tex. App.-Houston [1st Dist.] 1994, no pet.). The motion did not prove itself, and absent any evidence offered in support of the motion, it was properly overruled. See Dugard v. State, 688 S.W.2d 524, 529 (Tex. Crim. App. 1985).

Further, there is much direct and circumstantial evidence to indicate the plea was entered freely and voluntarily. Appellant's counsel testified that appellant negotiated directly with the State's attorney, proposing specific numbers he would be willing to accept. After considering the State's offer, appellant agreed to enter a plea against his counsel's advice. As counsel stated, "[I]t was his plea bargain." Before the plea, counsel read the written admonishments to appellant and explained them to him. At the plea hearing, appellant told the court he was pleading guilty for no other reason than that he was guilty. Appellant stated that his attorney had explained the written admonishments to him and that he understood them.

Proper admonishment by a trial court creates a prima facie showing that a guilty plea is both knowing and voluntary. See Ex parte Gibauitch, 688 S.W.2d 868 (Tex. Crim. App.1985); Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.-Dallas 1993, no pet.). A defendant may, of course, still raise the claim that his plea was not voluntary, but the burden shifts to him to demonstrate that he did not fully understand the consequences of his plea such that he suffered harm. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). Further, when a defendant affirmatively indicates at the plea hearing that he understands the nature of the proceeding and is pleading guilty because the allegations in the indictment are true, not because of any outside pressure or influence, he has a heavy burden to prove that his plea was involuntary. See Crawford v. State, 890 S.W.2d 941, 944 (Tex. App.-San Antonio 1994, no pet.); Jones v. State, 855 S.W.2d 82, 84 (Tex. App.-Houston [14th Dist.] 1993, pet. ref'd).

The voluntariness of a plea is determined by the totality of the circumstances. See Hancock v. State, 955 S.W.2d 369, 371 (Tex. App.-San Antonio 1997, no pet.)...