Graves v. State

• Decision Date: 06 December 1990
• Docket Number: No. C14-89-01059-CR,C14-89-01059-CR
• Parties: Brad Lee GRAVES, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 342

803 S.W.2d 342

Brad Lee GRAVES, Appellant, v. The STATE of Texas, Appellee.

No. C14-89-01059-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Dec. 6, 1990.

David Cunningham, Houston, for appellant.

Lester Blizzard, Houston, for appellee.

Before ROBERTSON, CANNON and ELLIS, JJ.

OPINION

ELLIS, Justice.

Appellant, Brad Lee Graves, appeals his judgment of conviction for the offense of murder. TEX.PENAL CODE ANN. § 19.02 (Vernon 1989). Appellant entered a plea of guilty to the court and the State agreed to stand silent on the issue of punishment. The court then assessed punishment at 25 years confinement in the Texas Department of Criminal Justice. We affirm.

Appellant assigns four points of error on appeal. In his first point of error, appellant contends that the erroneous advice of his trial counsel concerning the possibility of probation rendered his guilty plea involuntary. In his second point of error, appellant argues the trial court erred in not withdrawing appellant's plea of guilty when it became apparent that there was a fact issue as to innocence. In his third point of error, appellant asserted that he was denied effective assistance of counsel by the failure of trial counsel to investigate the defense of accident. In his fourth point of error, appellant states that he was denied the effective assistance of counsel by the failure of his trial counsel to properly advise him about his eligibility for probation for this offense.

Appellant's conviction arises from the fatal shooting of one Anthony Simpson, estranged husband of Jocelyn Simpson. Upon the arrival of the police at the crime scene, Mrs. Simpson reported the events leading up to the fatal episode as follows: She was trying to retrieve her welfare check from Anthony Simpson who had knocked her down onto the floor when appellant entered, carrying a gun. Appellant stated "Don't hit her no more!" Appellant's gun then discharged, hitting and killing Anthony Simpson. Mrs. Simpson further stated that appellant said "The gun went off, I didn't try to do it." Upon the arrival of police, appellant was arrested and charged with murder. Appellant gave the police a statement indicating that the shooting was an accident.

In his first point of error, appellant contends that his guilty plea is involuntary due to the erroneous advice of his counsel about the possibility of probation. Appellant reasons that TEX.CODE CRIM.PROC.ANN. art. 42.12 § 3g precludes probation and shock probation for the instant offense. Contrary to appellant's assertion, he was eligible for probation at the time of his plea. Accordingly, appellant's trial counsel did not erroneously advise appellant as to his eligibility for probation. Appellant pled guilty to murder. TEX.PENAL CODE ANN. § 19.02 art. (a)(2). ¹ Thus, he failed to plead to any of the specific offenses as to which TEX.CODE CRIM.PROC.ANN. art. 42.12 § 3g bars probation as a possible alternative to confinement. Further, at the time of sentencing, the trial court had not made an affirmative finding on the use of a deadly weapon. An oral finding of guilt does not amount to an affirmative finding of a deadly weapon. The trial court made its affirmative finding of a deadly weapon after sentencing the appellant to twenty five years. Therefore, TEX.CODE CRIM.PROC.ANN. art. 42.12 § 3g(b) would not have prevented the trial court from granting probation.

TEX.CODE CRIM.PROC.ANN. art. 42.12 § 3g (Vernon 1989) provides:

(a) The provisions of Sections 3 and 3c of this Article do not apply (1) to a defendant adjudged guilty of an offense defined by the following sections of the Penal Code:

(A) Section 19.03 (Capital Murder)

(B) Section 20.04 (Aggravated Kidnapping)

(C) Section 22.021 (Aggravated Sexual Assault)

(D) Section 29.03 (Aggravated Robbery); or

(2) to a defendant when it is shown that the defendant used or exhibited a deadly weapon as defined in Section 1.07(a)(11), Penal Code, during the commission of a felony offense or during immediate flight therefrom. Upon affirmative finding that the defendant used or exhibited a deadly weapon during the commission of an offense or during immediate flight therefrom, the trial court shall enter the finding in the judgment of the court. Upon an affirmative finding that the deadly weapon the defendant used or exhibited was a firearm, the court shall enter that finding in its judgment. (Emphasis added).

Moreover, even if there were an affirmative finding on the use of a deadly weapon in the instant offense, TEX.CODE CRIM.PROC.ANN. art. 42.12 § 3g(b) specifically permits shock probation for second degree felony offenses or greater when there is an affirmative finding of a deadly weapon.

(b) If there is an affirmative finding that the defendant convicted of a felony of the second degree or higher used or exhibited a firearm during the commission or flight from commission of the offense and the defendant is granted probation, the court may order the defendant confined in the Texas Department of Corrections for not less than 60 and not more than 120 days. At any time after the defendant has served 60 days in the custody of the Department of Corrections, the sentencing judge, on his own motion or on the motion of the defendant, may order the defendant released to probation. The Department of Corrections shall release the defendant to probation after he has served 120 days. (Emphasis added).

Further, appellant was not excluded from deferred adjudication probation under TEX.CODE CRIM.PROC.ANN. art. 42.12 § 3d(a) (Vernon 1989), which provides in part:

Except as provided by Subsection (d) of this section, when in its opinion the best interest of society and the defendant will be served, the court may, after receiving a plea of guilt or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on probation. In a felony case, the period of probation may not exceed 10 years. (Emphasis added).

Thus, appellant's trial counsel did not misinform him regarding his eligibility for probation. Although probation during deferred adjudication of guilt is distinguished in several respects from ordinary probation, the fact remains that it is a sub-species of probation. Hudson v. State, 772 S.W.2d 180 (Tex.App.--Houston [14th Dist.] 1989, pet. ref'd). At the hearing on the motion for new trial, appellant's defense counsel specifically testified that he hoped the appellant would receive deferred adjudication, the minimum possible punishment.

In West v. State, 702 S.W.2d 629, 634 (Tex.Crim.App.1987) (opinion withdrawn in part on procedural grounds) the court of criminal appeals wrote:

The Legislature has prescribed methods the courts may use to grant post-conviction probation. Article 42.12 § 3, V.A.C.C.P., authorized a form commonly known as "regular" or "initial" probation, in contrast to the form authorized in Sec. 3e, known as "shock" probation.

Yet another form of probation is authorized by Art. 42.12, Sec. 3d,--known as deferred adjudication or unadjudication probation.

Favorably citing this opinion, Judge Clinton wrote in his concurrence in Ex Parte Austin 746 S.W.2d 226, 232 (Tex.Crim.App.1988):

Article 42.12, supra, provides the statutory mechanisms by which a trial judge may grant "regular" or "initial" probation in §§ 3 and 3c, deferred adjudication or "unadjudicated probation" in § 3d, or shock probation in § 3e (shock probation) ...

Section 3g(a) is not a complete ban on the power of the trial court to grant probation; it does not purport to bar application of § 3d, or shock probation in § 3e (shock probation) ...

Therefore, since the trial court could have granted "regular probation," "shock probation" or "deferred adjudication probation," at the time of his plea, appellant was not misinformed by his trial counsel. This court has found that defense counsel's unsuccessful strategy in advising an appellant to plead guilty, predicting a lesser sentence than that received, did not render the plea unknowing or involuntary. Enard v. State, 764 S.W.2d 574, 575 (Tex.App.--Houston [14th Dist.] 1989, no pet.); see also, West v. State, supra; Kirven v. State, 492 S.W.2d 468 (Tex.Crim.App.1973). (The fact that appellant relied on his attorney's professional opinion does not make the plea involuntary; Medford v. State, 766 S.W.2d 398, 401 (Tex.App.--Austin 1989, pet. ref'd). Texas probation laws allow probation for most offenses, the chief exclusions being certain aggravated crimes and where the sentence is over ten years. Neither appellant's conviction for murder nor his use of a deadly weapon make him per se ineligible for probation. Appellant's situation is clearly distinguished from the cases he cites where the defendants were advised that they were eligible for probation when they were statutorily barred from probation. In Ex parte Kelly, 676 S.W.2d 132 (Tex.Crim.App.1984) appellant was advised he was eligible for probation when this was a legal impossibility due to his guilty plea to aggravated sexual assault. In the case before us, appellant was eligible for probation up until the point the judge imposed a sentence of 25 years. Had the judge imposed a sentence of less than ten years or granted shock probation appellant could have received probation. Appellant's first point of error is overruled.

In appellant's second point of error he complains that the trial court erred in failing to withdraw appellant's plea of guilty sua sponte. Appellant argues that certain statements in his pre-sentence investigation report indicate that he shot the victim accidentally. Appellant concludes that such statements reasonably and fairly raised an issue of his innocence requiring a withdrawal of his plea of guilty.

On July 3, 1989, appellant waived a jury and entered a plea of guilty to the offense of murder before the Court. Appellant was admonished...