Champion v. State

• Decision Date: 30 January 2004
• Docket Number: No. 07-00-0576-CR.,No. 07-00-0575-CR.,07-00-0575-CR.,07-00-0576-CR.
• Citation: 126 S.W.3d 686
• Parties: Ollie Gray CHAMPION, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

126 S.W.3d 686

Ollie Gray CHAMPION, Appellant, v. The STATE of Texas, Appellee.

No. 07-00-0575-CR.

No. 07-00-0576-CR.

Court of Appeals of Texas, Amarillo.

January 30, 2004.

Rehearing Overruled March 3, 2004.

Ollie Gray Champion, Dalhart, pro se.

Ted Doebbler, Attorney At Law, Houston, for Appellant.

Carol M. Cameron, Asst. Dist. Atty., Houston, for Appellee.

Before JOHNSON, C.J., REAVIS, J., and JOHN T. BOYD, S.J.¹ JOHN T. BOYD, Senior Justice (Assigned).

This will be our fourth opportunity to address the companion appeals brought by appellant Ollie Gray Champion.² In the appeals, he challenges his conviction, after an open plea of guilty, on two counts of aggravated sexual assault. His challenges are premised on claims that he was deprived of the effective assistance of counsel and his pleas were not made knowingly and intelligently because his trial counsel misled him as to the range of punishment attached to the offenses. Disagreeing that reversal is required, we affirm the judgments of the trial court.

As a result of an investigation of several sexual assaults involving the same victim, in January 2000, appellant gave police a statement in which he admitted committing two offenses. In April 2000, he was charged with the two counts of aggravated sexual assault. He was represented in both cases by retained counsel.

Appellant pled guilty to both charges without an agreement as to punishment. In the course of his pleas, he made a judicial confession and executed a waiver of his rights to jury trials or to confront or cross-examine witnesses. In each case, he also executed a waiver of his right to appeal. The trial court accepted the pleas, found appellant guilty, and ordered the preparation of a pre-sentence investigation report. See Tex.Code Crim. Proc. Ann. art. 42.12 § 9 (Vernon Supp.2004). At the hearing on the report, appellant presented testimony and exhibits. The trial court assessed appellant's punishment in each case at 35 years confinement in the Institutional Division of the Texas Department of Criminal Justice and a $10,000 fine.

On November 2, 2000, appellant filed pro se motions for new trial and notices of appeal in each case. In his pleadings, he sought to challenge the voluntariness of his plea, the punishment assessed and the effectiveness of his trial counsel. He also filed an affidavit of indigence and requested the appointment of appellate counsel. In his motions for new trial, he asserted he was not properly informed as to his waiver of rights and his pleas were induced by his attorney's representations that he would receive probation. However, because the motions were not presented to the trial court as required by Texas Rule of Appellate Procedure 21.6, no hearing was held and it was overruled by operation of law. Tex.R.App. P. 21.8(c).

In a February 21, 2001 opinion, we abated the appeals for the appointment of counsel on appeal. In June 2001, appellant's first appellate counsel submitted an Anders³ brief in which he certified that there were no meritorious issues on which to predicate an appeal. He also sought leave to withdraw from the case. Appellant filed a pro se brief in which he advanced several grounds asserting he was entitled to a hearing on his motions for new trial. In our second opinion, issued on October 4, 2001, we found the factual and procedural posture of the cases mirrored those discussed in Prudhomme v. State, 28 S.W.3d 114 (Tex.App.-Texarkana 2000, no pet.). In that case, the court held the filing of a motion for new trial to be a critical stage implicating the constitutional right to the effective assistance of counsel. In that opinion, we abated the appeals for the appointment of new appellate counsel to consider and argue any grounds that might support the appeals.

Appellant's second appellate counsel filed a brief in January 2002, arguing appellant was entitled to a hearing on his motions for new trial as a necessary prerequisite to preserving appellant's claim that his guilty pleas were not made knowingly and voluntarily. We agreed and, in a third opinion issued on April 16, 2002, again abated the appeals to the trial court to conduct a hearing on appellant's motions for new trial. Champion, 82 S.W.3d at 83-84.

Such a hearing was conducted by the trial court on September 23, 2002, and the record has been supplemented with a reporter's record of the hearing. The trial court also appointed attorney Ted Doebbler on appeal. On January 13, 2003, we reinstated the appeals. After appointed counsel missed two deadlines set by us for filing an appellate brief, appellant sought dismissal of the appointed counsel. We overruled appellant's motion and extended the time for filing an appellate brief, which resulted in Doebbler filing an Anders brief. However, because that brief did not comply with the applicable Rules of Appellate Procedure, appellate counsel was instructed to submit a corrected brief. We denied appellant's motion to dismiss his appellate counsel. In August 2003, having received no corrected brief from appellate counsel, we granted appellant permission to file a pro se brief and reiterated appellate counsel's obligation to file a corrected brief. On August 26, 2003, appellant filed a pro se brief in which he asserted seven points of error. He has since filed three "supplemental briefs" in which he raised additional issues. Appellate counsel has filed a second brief in which he again posits the record does not show reversible error. The State has now filed a brief in which it challenges the trial court's jurisdiction to conduct the new trial hearing, as well as appellant's supplemental briefs.

Appellant's nine points of error present two core issues. In his first six points, as well as his ninth point, he argues he did not receive the effective assistance of counsel mandated by the federal constitution. In each point, he alleges a separate theory why his trial counsel's performance was deficient. In his remaining points, he challenges the accuracy of the record. In his seventh point, he particularly assigns error to the admission of affidavits at the hearing on his motion for new trial. In his eighth point, appellant argues he is entitled to a new trial because exhibits that should have been included in the record were "lost."

In its brief, the State initially argues the trial court had no jurisdiction to conduct a new trial hearing and we should not consider the evidence presented at that hearing. It also contends appellant has failed to show his counsel's performance was deficient or that he suffered any prejudice. The State challenges appellant's eighth and ninth points on the ground that his supplemental briefs did not properly present those issues for our consideration.

We must first determine if appellant's pleas of guilty or his assertions to the trial court at trial that he was satisfied with his representation preclude him from raising any of the issues presented in his briefs. In Young v. State, 8 S.W.3d 656 (Tex.Crim.App.2000), the court held "a valid plea of guilty or nolo contendere `waives' or forfeits the right to appeal a claim of error only when the judgment of guilt was rendered independent of, and is not supported by, the error." Id. at 667. The grounds offered by appellant in support of his ineffective assistance of counsel claims include a challenge to the validity of his pleas because his trial counsel failed to notify him of a plea bargain offered by the State, and further, that his counsel assured him he would receive probation. He also includes a claim of deficient counsel performance at the punishment hearing. Inasmuch as appellant challenges the validity of his guilty pleas and counsel's representation after that plea, his claims are not waived by the plea, nor are they waived by his statement regarding his representation up to his guilty plea.⁴

We next address the State's argument that we may not consider the evidence taken at the September 2002 hearing on appellant's motions for new trial. The State bases that argument on the provision in Rule of Appellate Procedure 21.8 requiring a ruling on a motion for new trial within 75 days after a sentence is imposed. However, that argument ignores the constitutional basis of our April 16, 2002 opinion and judgment abating the appeals. Additionally, it represents a collateral attack on that judgment. The cases relied upon by the State either did not involve deprivations of the Sixth Amendment right to counsel in pursuing a motion for new trial, see e.g., State ex rel. Cobb v. Godfrey, 739 S.W.2d 47 (Tex.Crim. App.1987), or held that procedural rules must yield to constitutional rights. See Trevino v. State, 565 S.W.2d 938, 941 (Tex. Crim.App.1978) (conduct of hearing on motion for new trial in absence of defense counsel near the end of the time permitted by rule was "not a permissible alternative"). Moreover, the State failed to challenge our April 16, 2002 judgment within the time allotted by the Rules of Appellate Procedure. It may not do so now.

Because it bears upon our consideration of his remaining points, we next address appellant's eighth point, in which he argues he is entitled to a new trial because the reporter's "records have been lost or destroyed without the appellant's fault." In support of that proposition, he cited Rule of Appellate Procedure 50(e) and the cases interpreting that rule. The State responds that new issues presented in a supplemental brief are "not properly before the trial court for review," citing Allen v. State, 795 S.W.2d 15 (Tex.App.-Houston [14th Dist.] 1990, no pet.). In that opinion, the Allen court relied upon cases construing 1982 and 1990 Rules of Appellate Procedure and, citing Rochelle v. State, 791 S.W.2d 121, 124 (Tex.Crim.App. 1990), held that because the permission of the court had not first been obtained, a point of error raised for the first time in a supplemental brief would not be considered. Allen v. State, 795...