Ex parte Morrow

Citation952 S.W.2d 530
Decision Date21 May 1997
Docket NumberNo. 72593,72593
PartiesEx parte Ricky Eugene MORROW.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
OPINION

MANSFIELD, Judge.

We ordered applicant Ricky Eugene Morrow's post-conviction application for writ of habeas corpus filed and set for submission to consider whether his guilty pleas were involuntary. 1 Pursuant to a plea bargain, applicant pleaded guilty to, and was convicted of, an aggravated robbery and two attempted capital murders. Applicant was then sentenced to three fifty-year concurrent sentences. No appeal was taken. Applicant now contends his guilty pleas were involuntary because: (1) the pleas were improperly induced by the State's offer to return money that belonged to him, and (2) he received ineffective assistance of counsel. 2 Applicant requests that this Court "grant a writ of habeas corpus and order the State to show cause why applicant should not be granted a new trial." We will deny relief.

Relevant Facts

The convicting court held an evidentiary hearing on applicant's claims and made findings of fact. See Tex.Code Crim. Proc. art 11.07, § 2(d). Those findings, in pertinent part, are as follows: On January 19, 1982, applicant and his common-law wife, Linda Ferguson, went to a Dallas pawn shop and purchased two pistols. That afternoon they went to a Dallas bank. While Ferguson waited in the car, applicant went inside the bank and committed a robbery. Applicant and Ferguson then proceeded to a second bank. While Ferguson again waited in the car, applicant went inside and committed a second robbery, during which he shot and killed a bank employee. The two fled to a nearby motel and checked into a room with their weapons and proceeds from the two bank robberies. Within minutes, after a police officer observed their car in the motel parking lot, their room was surrounded by police officers demanding their surrender. Ferguson surrendered voluntarily. Applicant refused and remained inside the motel room. After applicant fired two shots, 3 the police responded with a barrage of gunfire into the motel room. Applicant subsequently surrendered and was arrested.

Applicant was charged as follows: capital murder (cause no. F-82-83550); aggravated robbery (cause no. F-82-83706); and two attempted capital murders of the officers who were surrounding applicant's motel room (cause nos. F-82-82402, F-82-82403). The trial court appointed counsel who remained applicant's counsel during the disposition of all four cases.

The capital murder charge was disposed of first. Applicant was tried and convicted of capital murder (cause no. F-82-83550). On November 9, 1983, the jury assessed his punishment at death. Direct appeal to this Court was automatic.

On November 23, 1983, while the above conviction was on appeal, applicant entered into a plea bargain to dispose of the remaining charges of aggravated robbery and two attempted capital murders. Pursuant to the plea bargain, applicant pleaded guilty to each of the three charges. In return, applicant received three fifty-year sentences, which were to run concurrently, and all funds seized from him and Ferguson that were not related to the two bank robberies were to be returned to him.

On March 30, 1988, this Court reversed applicant's capital murder conviction. Morrow v. State, 753 S.W.2d 372 (Tex.Cr.App.1988). The trial court appointed new counsel to represent applicant at his retrial, which began in 1990. During this second trial, applicant testified on his own behalf at the guilt-innocence stage. When he testified as to the facts surrounding the two attempted capital murders and aggravated robbery, the State offered evidence of his judicial confessions, guilty pleas, convictions and fifty-year sentences to impeach his testimony. Likewise, such pleas, confessions, convictions, and sentences were used as evidence of applicant's prior criminal record at the punishment stage. Applicant was again convicted of capital murder and his punishment assessed at death. Applicant now challenges the voluntariness of his guilty pleas in the two attempted capital murders and the aggravated robbery case.

"Involuntariness" under T.C.C.P article 26.13(b)

Applicant contends his three guilty pleas were "involuntary" because they were improperly induced by the State's promise to return his money as part of the plea bargain. Applicant submits that the plea bargain was premised on the State's promise to return to him all the money seized from him and Ferguson that was not related to the two bank robberies. Applicant claims "he agreed to accept the plea bargain primarily to obtain the return of the money which he believed to be approximately $5,000.00."

Applicant's testimony at the habeas corpus hearing reflects he was persistent in trying to get the money returned even before the plea bargaining process began. Applicant testified that as early as the first interview with his court-appointed counsel, he was "trying to get that money back."

Applicant's counsel testified that he believed the State's promise to return applicant's money was not the reason applicant pled guilty. Counsel testified that although he did not know for sure applicant's reason for pleading guilty, counsel was certain the money was not a "quid pro quo for applicant's plea of guilty." Finally, counsel stated that applicant insisted that counsel get the State to agree to return the money as part of the plea bargain.

Likewise, the assistant district attorney who negotiated the plea bargain with applicant's counsel testified that he believed the money was not used as an inducement for applicant to plead guilty. The assistant district attorney testified that "it was applicant's property and he was going to get it back."

The trial court began its analysis of applicant's claim by finding that the "the trial court in each of the guilty plea hearings properly admonished applicant of the consequences of the guilty pleas, accepted applicant's guilty pleas as voluntarily and intelligently entered based upon those admonishments, and sentenced applicant in accord with the plea bargain." 4 The trial court, relying on the testimony of applicant's counsel and the prosecuting district attorney, found that although the plea bargain included a provision dealing with the return of money, the plea bargain was not predicated on the return of money, and applicant's decision to plead guilty was based on the evaluation of several factors, including "the surety of conviction based on the evidence available to the State, the beneficial offer by the State of the less-than-maximum concurrent sentences, and the necessity to dispose of the cases." In addition, the trial court found that, contrary to applicant's contention, the State did not "induce" the pleas by offering to return money, but rather it was applicant who insisted that the provision regarding the return of money be included in the plea bargain.

Article 26.13(b) of the Texas Code of Criminal Procedure provides that no plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary. The purpose and function of Article 26.13 are to ensure that only a constitutionally valid plea is entered and accepted by the trial court. See Meyers v. State, 623 S.W.2d 397 (Tex.Cr.App.1981). In Ex parte Shuflin, 528 S.W.2d 610, 615 (Tex.Cr.App.1975), this Court, citing Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), recognized the requirements of a constitutionally valid plea of guilty:

[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes). Brady v. United States, 397 U.S. at 755, 90 S.Ct. at 1472.

In addition, in a post-conviction habeas corpus hearing, the burden of proof is upon the applicant. Ex parte Slaton, 484 S.W.2d 102 (Tex.Cr.App.1972). This Court is not bound by the findings of the trial judge in post-conviction habeas corpus proceedings. Ex parte Adams, 707 S.W.2d 646 (Tex.Cr.App.1986); Ex parte Williams, 486 S.W.2d 566 (Tex.Cr.App.1972). But such findings are considered, if supported by the record. Ex parte Hurd, 613 S.W.2d 742 (Tex.Cr.App.1981).

In the instant case, the plea papers show, among other things, that one of the provisions of the plea bargain stated that all funds seized from applicant and Ferguson would be returned to applicant. However, the mere inclusion of such a provision in the plea bargain does not render applicant's pleas "involuntary." After all, at one level most pleas of guilty or nolo contendere are induced because they are entered to avoid more severe possible sentences upon a conviction following trial. See George E. Dix & Robert O. Dawson, Criminal Practice and Procedure, ch. 34, § 34.45, p. 407. Therefore, a showing of an inducement beyond that implicit in the plea bargaining process must be made to prevail on a claim that the pleas were "involuntary" because they were improperly induced. Id.

From the record before us, applicant has failed to prove by a preponderance of the evidence that his guilty pleas were "involuntary" because they were induced by threats, misrepresentations or improper promises. Brady, 397 U.S. at 755, 90 S.Ct. at 1472. On the other hand, the record does support the trial court's findings that applicant's guilty pleas were not predicated on the return of money but were the...

To continue reading

Request your trial
356 cases
  • Houston v. State, 14-04-00725-CR.
    • United States
    • Court of Appeals of Texas
    • August 10, 2006
    ...made on the erroneous advice of counsel are usually reviewed through a claim of ineffective assistance of counsel. Ex Parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App.1997); Ex parte Battle, 817 S.W.2d 81, 83 (Tex.Crim.App.1991); Morrow v. State, 139 S.W.3d 736, 744 (Tex. App.-Texarkana 2004......
  • Aguirre-Mata v. State, 2115-00.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 14, 2003
    ...1998). 4. See Carranza v. State, 980 S.W.2d 653 (Tex. Crim.App.1998). 5. See Aguirre-Mata, 992 S.W.2d at 498. 6. See Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App.1997). 7. Boykin v. Alabama, 395 U.S. 238, 242, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274 8. Id. at 244, 89 S.Ct. 1709. 9. Brady v......
  • Briggs v. State, NUMBER 13–15–00147–CR
    • United States
    • Court of Appeals of Texas
    • November 21, 2017
    ...of counsel and subsequently challenges the voluntariness of that plea based on ineffective assistance of counsel." Ex parte Morrow , 952 S.W.2d 530, 536 (Tex. Crim. App. 1997)see Ex parte Harrington , 310 S.W.3d 452, 459 (Tex. Crim. App. 2010) ("When counsel's representation falls below [th......
  • Garcia v. Director, CIVIL ACTION NO. 1:08-cv-720
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • November 10, 2014
    ...(1984).9. Even if there was an arguable objection, it was not beyond the realm of reasonable performance not to object. Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997).11. [Garcia] has not shown harm or that his counsel's action fell below those constituting reasonable professio......
  • Request a trial to view additional results
23 books & journal articles
  • Pretrial Motions
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2021 Contents
    • August 16, 2021
    ...consequences of the guilty plea. Collateral consequences of a guilty plea are those which are not definite consequences. Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997). The Code of Criminal Procedure does not require the trial court to admonish the defendant of the consequences of d......
  • Right to Counsel and Effective Assistance of Counsel
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2021 Contents
    • August 16, 2021
    ...suspension of driving privileges, dishonorable discharge from the military and the loss of the right to bear firearms. Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997). Trial counsel has the duty to consult with and fully advise his client concerning the meaning and effect of a judgme......
  • Pretrial Motions
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2015 Contents
    • August 17, 2015
    ...consequences of the guilty plea. Collateral consequences of a guilty plea are those which are not definite consequences. Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997). The Code of Criminal Procedure does not require the trial court to admonish the defendant of the consequences of d......
  • Right to Counsel and Effective Assistance of Counsel
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2015 Contents
    • August 17, 2015
    ...suspension of driving privileges, dishonorable discharge from the military and the loss of the right to bear firearms. Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997). Trial counsel has the duty to consult with and fully advise his client concerning the meaning and effect of a judgme......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT