Childress v. State

• Decision Date: 17 December 1992
• Docket Number: No. 01-92-00037-CR,01-92-00037-CR
• Citation: 845 S.W.2d 377
• Parties: Joe David CHILDRESS, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 377

845 S.W.2d 377

Joe David CHILDRESS, Appellant, v. The STATE of Texas, Appellee.

No. 01-92-00037-CR.

Court of Appeals of Texas Houston (1st Dist.).

Dec. 17, 1992.

Discretionary Review Refused May 5, 1993.

George McCall Secrest, Jr., Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Carol M. Cameron, Julian Ramirez, Asst. Dist. Attys., Houston, for appellee.

Before SAM BASS, COHEN and DUNN, JJ.

OPINION

SAM BASS, Justice.

Appellant, Childress, was convicted for failure to stop and render aid. The judge found the enhancement paragraphs true and sentenced appellant to 25-years confinement. Appellant's points of error all involve the enhancement paragraphs.

We affirm.

Childress was arrested in February 1986 after the vehicle he was driving struck and killed a pedestrian and he failed to return to render aid. He was found guilty by a jury and sentenced to 60 years. This Court reversed the punishment phase and remanded for a new punishment hearing. Childress v. State, 756 S.W.2d 11, 14 (Tex.App.--Houston [1st Dist.] 1988), rev'd, 784 S.W.2d 361 (Tex.Crim.App.1990). The Court of Criminal Appeals reversed and remanded to this Court for consideration of the other points of error. Childress v. State, 784 S.W.2d 361, 366 (Tex.Crim.App.1990). On remand, this Court again reversed and remanded to the trial court for a new punishment hearing.

At the second punishment hearing, appellant urged a motion to quash the enhancement paragraphs asserting he had been denied the right to counsel when he pled guilty to the felonies that were used for enhancement. Appellant testified he had no counsel present when he made the deals with the prosecutor, the appointed attorneys were in court only when the pleas were taken, and he had not been informed of his constitutional rights to confront his accusers and to remain silent. Appellant offered the testimony of an attorney, John Cutler, who had been practicing law in Harris County at the time of his second conviction. Cutler corroborated appellant's testimony by outlining the practice at that time for handling noncapital felonies in the criminal courts. The trial judge denied the motion to quash, stating counsel had been present even though assistance had been minimal. The judge suggested the minimal assistance met the standard set out in Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984), found the enhancement paragraphs true, and sentenced appellant to 25 years.

Appellant raises six points of error attacking the enhancement paragraphs. Points of error one and three attack enhancement paragraphs one and two, respectively, on the basis that appellant was denied his right to counsel guaranteed by the sixth and fourteenth amendments of the U.S. Constitution. Points two and four challenge the paragraphs under article 1, section 10 of the Texas Constitution. Points five and six assert he was not admonished regarding his right against self-incrimination, right to trial by jury, and right to confront his accusers, in violation of the fifth, sixth, and fourteenth amendments of the U.S. Constitution.

The only evidence presented in support of appellant's contention that he was denied the right to counsel was his own testimony. Cutler testified relative to the custom of the period, but could not address what actually took place in regards to appellant. The judgment for each prior conviction states appellant was represented by counsel. The recitations in the judgment "are binding in the absence of direct proof of their falsity." Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim.App.1984).

Appellant cites Ex parte Lemay, 525 S.W.2d 1 (Tex.Crim.App.1975), and Ex parte Morse, 591 S.W.2d 904 (Tex.Crim.App.1980), for the proposition that a conviction cannot be used for enhancement if the defendant was not represented by counsel at the time of the conviction. In both of those cases, the docket sheet was in evidence, corroborating the petitioners' testimony that counsel was "appointed on jury waiver." Morse, 591 S.W.2d at 905; Lemay, 525 S.W.2d at 3. The Court of Criminal Appeals stated:

Testimony of the petitioner, if uncorroborated, would be insufficient to overcome the presumption of the validity of the recitations in the judgment.

....

... [T]he statement on the docket sheet sufficiently corroborates petitioner's testimony and overcomes the recitations of the form judgment.

Lemay, 525 S.W.2d at 3.

In Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), also cited by appellant, the record stated on its face that the defendant was not represented by counsel. In the instant case, the record indicates appellant was represented by counsel, and there is insufficient evidence presented to rebut the presumption of validity of the recitation. The burden of proof to bring the full record is on the party attacking the validity of the conviction. West v. State, 720 S.W.2d 511, 519 (Tex.Crim.App.1986), cert. denied, 481 U.S. 1072, 107 S.Ct. 2470, 95 L.Ed.2d 878 (1987). Appellant has not carried his burden.

Appellant's points of error one through four are overruled.

Points of error five and six attack the enhancement paragraphs on the basis that appellant was not admonished about his constitutional rights prior to entering a plea of guilty, citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In Boykin, the United States Supreme Court held a guilty plea, like a confession, requires "an affirmative showing that it was intelligent and voluntary." 395 U.S. at 242, 89 S.Ct. at 1711. The Court, quoting Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962), stated "[p]resuming waiver from a silent record is impermissible." Id. In the instant case, the record is not silent regarding the admonishments given to appellant. Both judgments state appellant "was admonished by the Court of the consequences of his plea, and Defendant persisted in pleading guilty." There is no evidence in the record other than appellant's testimony to rebut the judgment recitations. Appellant's testimony alone is insufficient to disprove the judgment recitations. Haines v. State, 623 S.W.2d 367, 373 (Tex.Crim.App.1981); Lemay, 525 S.W.2d at 3.

Appellant's points of error five and six are overruled.

The judgment is affirmed.

COHEN, J., dissents.

COHEN, Justice, dissenting.

This is a close case. As the majority states, no docket sheet states counsel was appointed solely to waive a jury, as in Ex parte Morse, 591 S.W.2d 904, 905 (Tex.Crim.App.1980), and Ex parte Lemay, 525 S.W.2d 1, 3 (Tex.Crim.App.1975). Thus, the docket sheets do not corroborate appellant's claims that his lawyers were appointed only moments before he pled guilty, after he had made plea bargains with the prosecutors, and that their sole function was to help him waive a jury. The testimony of appellant and Mr. Cutler, however, shows that what happened in Morse and Lemay was similar to what happened here. The trial judge, of course, did not have to believe appellant or Mr. Cutler, but the record shows he did. I interpret the trial judge's statements to mean that he found the testimony of appellant and his expert witness, John Cutler, to be true because it was consistent with the judge's own experience as a Harris County prosecutor in the 1970's, when the similar practices were still being followed.

The trial judge was the Honorable Lupe Salinas, a former assistant district attorney for Harris County. After hearing testimony by appellant and Mr. Cutler, Judge Salinas stated:

THE COURT: --I will go ahead and basically state with regards to the Motion to Quash the Enhancement Paragraphs that basically what I have heard is the claim, the assertion that in 1946 and 1948 the practice in Harris County, Texas, was for individuals charged with a non-capital offense to engage in plea discussions with the accused even if the accused did not have counsel at that time. The Court also has to relate, and y'all tell me if it's appropriate or inappropriate to take judicial notice of the Court's knowledge of other well established practices that might shed some light on the credibility of that 1946, '48 practice. And that is in the early seventies, to wit, 1974 or 75, that practice was still common insofar as misdemeanors were concerned because I as a prosecutor engaged in such activities on behalf of the Harris County District Attorney's Office. So to the extent that that practice was common, it, to me, lends more credibility to the assertion that it was common in 1946 through '48 insofar as felony--non-capital felonies were concerned. Further, to find and conclude from the evidence that a plea bargain would be arranged on the day of the plea, that the defendant would stand before the judge, and that someone such as one of the Heisingfelders would stand in or Mr. Cutler perhaps in later years, would stand in and basically determine whether or not the defendant wanted to withdraw from the plea and that's about as much as I can gather was occurring. But that was the extent of the "right to counsel" quote, unquote, that was occurring in 1946 through 1948 from all indications. And unless counsel for either side wants to point out other things for the Court to consider, that's basically what I've picked up as to what occurred in those years.

MR. SECREST: That's an accurate picture. That's an accurate picture.

THE COURT: And either side has the opportunity to say that I've maybe gone too far or not or whatever. Okay. Based on that background that I have in my mind, based upon the evidence that I heard, what case the defense--as far as what the Court should do with regards to this motion.

....

THE COURT: Well, evidence as I have found it, indicates that Mr. Childress had counsel, a lawyer that appeared with him at that time. He has helped clear up any question about that.

....

THE COURT: The question is, as no doubt he would state, is whether or not that c...