Gomez v. State, No. 07-07-0178-CR (Tex. App. 1/4/2008)
| Decision Date | 04 January 2008 |
| Docket Number | No. 07-07-0178-CR.,No. 07-07-0179-CR.,No. 07-07-0186-CR.,07-07-0178-CR.,07-07-0179-CR.,07-07-0186-CR. |
| Parties | JUAN MANUEL GOMEZ, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 299th District Court of Travis County, Nos. D-1-DC-06-300050, D-1-DC-06-300153, D-1-DC-06-300049, Honorable Charles F. Baird, Judge.
Panel A: Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant Juan Gomez appeals three convictions and sentences committing him to the Texas Department of Criminal Justice, Institutional Division, for the offenses of aggravated robbery, aggravated kidnapping, and robbery. In two of the appeals appellant presents an argument on the merits, but in the third case his counsel filed an Anders brief1 and motion to withdraw. For the reasons that follow, we affirm the judgments of the trial court in each case and grant counsel's motion to withdraw.
Testimony showed that, about 10:00 p.m. on December 20, 2005, appellant and two other men approached Ester Maldonado and her adult daughter Tomi Cepeda in an Austin laundromat. One of the three pulled a gun on Maldonado and Cepeda and demanded money. Another frisked Cepeda, who was eight months pregnant. When Cepeda asked the trio to leave because she was pregnant, appellant, who apparently frisked Cepeda, convinced the gunman they should depart. The trio then left the laundromat.
Testimony also showed that during the early morning of January 4, 2006, appellant and two men approached Jeremiah Murphy near the entry of his girlfriend's Austin apartment. One of the three brandished a gun and ordered Murphy to the ground. On discovering he had no cash but an ATM card, they took the keys to his vehicle and forced him to leave the apartment grounds with them. In the vehicle, appellant, seated in the passenger seat, held a gun on Murphy. Another member of the trio drove and the third rode in the bed of the truck. Unbeknownst to the kidnappers, Murphy's girlfriend witnessed the events from her apartment and summoned police. Outside the apartment complex a police cruiser gave chase.
Appellant was subsequently apprehended and indicted for the aggravated robbery2 and aggravated kidnapping3 of Murphy and the aggravated robbery of Maldonado. The State filed these allegations as separate offenses in cause numbers D-1-DC-06-300153, the robbery of Maldonado; D-1-DC-06-30049, the aggravated kidnapping of Murphy; and D-1-DC-06-30050, the aggravated robbery of Murphy.4 Appellant plead guilty to each offense although by agreement the charge of aggravated robbery of Maldonado was reduced to the lesser offense of robbery.5 Unable to reach a punishment agreement with the State, appellant elected to have the court set punishment. The court accepted appellant's guilty pleas but deferred sentencing for preparation of a pre-sentence investigation report.
Appellant testified during the punishment hearing, as did his father and girlfriend. By his testimony, appellant admitted his involvement in the offenses.
The court sentenced appellant to concurrent terms in the Texas Department of Criminal Justice, Institutional Division of twenty years for the robbery of Maldonado, fifteen years for the aggravated kidnapping of Murphy, and thirty years for the aggravated robbery of Murphy.
Appellant filed motions for new trial in each case which the court denied without a hearing. These appeals followed.
In a single issue, appellant contends in cause numbers 049 and 050:
"The trial court abused its discretion in denying appellant's motion for new trial without conducting an evidentiary hearing on the issues of an involuntary plea/ineffective assistance of counsel."
We review a trial court's denial of an evidentiary hearing on a motion for new trial for an abuse of discretion. Wallace v. State, 106 S.W.3d 103, 108 (Tex.Crim.App. 2003). A defendant's right to a hearing on a motion for new trial is not absolute. Rozell v. State, 176 S.W.3d 228, 230 (Tex.Crim.App. 2005). Thus, a trial court is not required to conduct a hearing of the defendant's motion for new trial if the matters raised in the motion are determinable from the record, or if the motion and supporting affidavits are not sufficient to put the trial court on notice that reasonable grounds for a new trial may exist. Jordan v. State, 883 S.W.2d 664, 665 (Tex.Crim.App. 1994).
To deter "fishing expeditions," a prerequisite to a hearing on a motion for new trial is that the motion must be supported by an affidavit showing the truth of the grounds of attack. Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim.App. 1993). The affidavit offered in support "must reflect that reasonable grounds exist for holding that such relief could be granted." Martinez v. State, 74 S.W.3d 19, 21 (Tex.Crim.App. 2002) (quoting Jordan, 883 S.W.2d at 665). Generally, a hearing is necessary if the motion and attached affidavit or affidavits raise matters not determinable from the record that could entitle the defendant to relief. Wallace, 106 S.W.3d at 108. In reviewing a trial court's failure to conduct a hearing of a motion for new trial, the appellate court must ask "whether, on this record, the trial court could have reasonably denied appellant a hearing on his motion for new trial." Wallace, 106 S.W.3d at 108 (emphasis in original). The trial court does not abuse its discretion when it overrules the motion without a hearing if the motion and accompanying affidavits do not show the movant could be entitled to relief. See Wallace, 106 S.W.3d at 108.
Besides a timely filed motion with supporting affidavits that demonstrate reasonable grounds for relief, the rule requires timely presentation of the motion to the trial court. See Tex. R. App. P. 21.6;Rozell, 176 S.W.3d at 230. "[T]o present a motion in the context of a motion for new trial, the defendant must give the trial court actual notice that he timely filed a motion for new trial and [that he] requests a hearing on the motion for new trial." Rozell, 176 S.W.3d at 230. In other words, if a defendant desires a hearing on a motion for new trial, he must request one. Id. Absent a request for a hearing, the reviewing court need not decide whether the trial court abused its discretion in failing to hold a hearing on a motion for new trial. Id.
Here, appellant timely filed motions for new trial on March 6, 2007. Absent from the record is evidence of an express request for a hearing on the motions.6 For purposes of this opinion, we will assume, but do not decide, that appellant requested an evidentiary hearing when he delivered generic orders to the court at the time of presentment of the motions.
We proceed, then, to the inquiry whether appellant's motions and affidavits show reasonable grounds entitling him to a hearing of the motions. Jordan, 883 S.W.2d at 665. A trial court may not accept a plea of guilty unless it appears the plea was entered freely and voluntarily. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2007). A prima facie showing that the plea of an accused was knowing and voluntary is made when the record shows the accused received admonishments in compliance with article 26.13 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2007); Smith v. State, 857 S.W.2d 71, 73 (Tex.App.-Dallas 1993, pet. ref'd); Soto v. State, 837 S.W.2d 401, 405 (Tex.App.-Dallas 1992, no pet.). The burden then shifts to the defendant to show he did not understand the consequences of his plea. See Smith, 857 S.W.2d at 73-74; Soto, 837 S.W.2d at 405. An appellant who claims his plea was involuntary due to ineffective assistance of counsel must show by a preponderance of the evidence that counsel's performance fell below an objective standard of reasonableness, and the deficiency rendered his guilty plea unknowing and involuntary. Dusenberry v. State, 915 S.W.2d 947, 949 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd), citing Rodriguez v. State, 899 S.W.2d 658, 664-66 (Tex.Crim.App.1995), cert. denied, 516 U.S. 946, 133 L. Ed. 2d 307, 116 S. Ct. 385 (1995). See also Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Significant misinformation by counsel that induces a guilty plea makes the plea involuntary. Ex parte Kelly, 676 S.W.2d 132, 134-35 (Tex.Crim.App. 1984); Fimberg v. State, 922 S.W.2d 205, 208 (Tex.App.-Houston [1st Dist.], pet. ref'd).
By his affidavits supporting his motions for new trial, appellant averred his trial counsel misled him into guilty pleas with no agreement for punishment under the belief the court would render a more lenient sentence than the State's plea bargain offer on punishment of fifteen years confinement. In his brief, appellant tells us that he "did not recognize that he could receive more than the State's offer by following his attorney's advice."
Appellant does not contend the trial court's admonitions concerning the possible sentencing range were inadequate, and we find the court properly admonished appellant concerning the range of punishment, both orally and in writing. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2007).7 After placing appellant under oath, the court determined that appellant had no mental illness, his attorney had answered all his questions, and he understood the purpose of the hearing. In response to the court's questioning, appellant admitted guilt for the offenses alleged. According to appellant, his plea was not based on a promise or compulsion. Appellant agreed with the court that his counsel and the State were unable to reach an agreement for punishment. Appellant acknowledged his decision that the court set punishment. The court then explained the available sentencing range spanned five years to life in prison. Appellant acknowledged his understanding of the punishment possibilities....
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