Hayden v. State, s. 13-91-090-C

• Decision Date: 24 October 1991
• Docket Number: 13-91-091-CR,Nos. 13-91-090-C,s. 13-91-090-C
• Citation: 818 S.W.2d 194
• Parties: Ryland Edward HAYDEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 194

818 S.W.2d 194

Ryland Edward HAYDEN, Appellant, v. The STATE of Texas, Appellee.

Nos. 13-91-090-CR, 13-91-091-CR.

Court of Appeals of Texas Corpus Christi.

Oct. 24, 1991.

Patrick J. McGuire, Corpus Christi, for appellant.

Grant Jones, Corpus Christi, for appellee.

Before NYE, C.J., and SEERDEN and BISSETT ¹, JJ.

OPINION

NYE, Chief Justice.

Appellant pleaded guilty to the charges of burglary of a habitation and credit card abuse. Punishment was assessed at ten years' confinement for each offense, to run concurrently. He now complains of insufficient evidence to support his guilty plea, abuse of discretion by the trial court in denying appellant's motion to withdraw his plea of guilt, and ineffective assistance of counsel. We affirm.

In his first point of error, appellant contends that there was insufficient evidence to support his plea of guilty. In Texas, a plea of guilty must be supported by sufficient evidence. Tex. Code Crim.Proc.Ann. art. 1.15 (Vernon 1977). To prove credit card abuse, the State must show that appellant, with the intent to obtain property or service fraudulently, presented or used a credit card with knowledge that the card has not been issued to him and is not used with the effective consent of the cardholder. Tex. Penal Code Ann. § 32.31(b)(1)(A) (Vernon 1989). In order to prove burglary, the State must establish that, without the effective consent of the owner, appellant entered a building or habitation, not then open to the public, with the intent to commit a felony or theft. Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 1989). The State introduced appellant's judicial confessions and stipulations, which were entered into evidence without objection by appellant. A judicial confession, standing alone, is sufficient to support a guilty plea and conviction. Potts v. State, 571 S.W.2d 180, 182 (Tex.Crim.App.1978); Richardson v. State, 482 S.W.2d 645, 646 (Tex.Crim.App.1972); Elliott v. State, 768 S.W.2d 351, 353 (Tex.App.--Corpus Christi 1989, no pet.); Harmon v. State, 649 S.W.2d 93, 95 (Tex.App.--Corpus Christi 1982, no pet). Although appellant later moved to withdraw his guilty plea, he did not then claim that his reason for doing so was because the evidence was insufficient, nor did he introduce any evidence which tended to exculpate him. Appellant also failed to request withdrawal of his judicial confession and stipulations. Since the confession and stipulations had not been retracted or otherwise rendered inadmissible, they were sufficient to support his pleas and convictions. Cammack v. State, 645 S.W.2d 866, 868-69 (Tex.App.--Dallas 1983, no pet.). Viewing, then, the evidence in the light most favorable to the judgment, we conclude that there was sufficient evidence to find the essential elements of the crime beyond a reasonable doubt, and the trial court's entry of the judgments of guilt was proper. Johnson v. State, 803 S.W.2d 272, 279 (Tex.Crim.App.1990). Point one is overruled.

In his second and third points of error, appellant claims that the trial court abused its discretion by denying appellant's motion to change his plea. In point two, he claims that his guilty plea was involuntary and the trial court should have permitted him to withdraw it. A reviewing court must examine the record as a whole to determine the voluntariness of a guilty plea, and when a defendant attests at his original plea hearing to the voluntary nature of his plea, a heavy burden is placed on him at a subsequent hearing to show lack of voluntariness. Richards v. State, 562 S.W.2d 456 (Tex.Crim.App.1978); Sawyer v. State, 778 S.W.2d 541, 543 (Tex.App.--Corpus Christi 1990, pet. ref'd).

To briefly recount the relevant facts, appellant gave a confession to police in which he stated that his friend, Melvin Greer, came to his house late one night and told him that he had killed a man (John Disiena). Appellant then accompanied Greer to the victim's house where they viewed the body and then left. Later, appellant gave a written confession in which he admitted burglarizing Disiena's house, taking the victim's credit cards, and subsequently using them to purchase some gold jewelry and Reebok tennis shoes. At appellant's plea hearing the State introduced the judicial confessions and several affidavits--statements of store clerks who identified appellant as one of the men who used the victim's credit cards to purchase the items mentioned and the statements of pawn shop clerks who identified appellant as the man who tendered the same items to them for cash.

The State and the Defendant--appellant worked out a plea bargain agreement. At the original plea hearing, appellant testified that his plea was voluntary and that he freely chose to enter the plea bargain agreement. Appellant now asserts that he had an absolute right to withdraw his guilty plea. While a liberal practice prevails in Texas for allowing defendants to change their pleas, the general rule in bench-tried cases is that, once the trial court has pronounced judgment or has taken the case under advisement, the defendant may change his plea only at the sound discretion of the court. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App.1979); Stanton v. State, 159 Tex.Crim. 275, 262 S.W.2d 497, 498 (1953).

The record shows that appellant's counsel notified the court of a plea bargain agreement which conditioned the term of punishment upon appellant's cooperation in testifying at Greer's murder trial. Appellant was admonished by the trial court. The State then introduced his judicial confessions and the statements of the store and pawn shop clerks. The trial court received appellant's guilty plea and shortly thereafter recessed the proceedings to allow both appellant and the State to fulfill their obligations under the plea agreement. The trial court, in effect, took the case under advisement pending the outcome of the murder trial. As a part of the plea agreement, appellant was released on bond. The decision to allow appellant to withdraw his guilty plea at the subsequent hearing was discretionary. We find no abuse of discretion in the denial of appellant's motion to withdraw his guilty plea. Point two is overruled.

Appellant claims in his third point of error that the trial court erred in denying his motion to withdraw his guilty plea since circumstances raised an issue of his guilt, and he cites us to Edworthy v. State, 371 S.W.2d 563 (Tex.Crim.App.1963), Malone v. State, 548 S.W.2d 908 (Tex.Crim.App.1977), and Griffin v. State, 703 S.W.2d 193 (Tex.Crim.App.1986). Appellant's reliance on these cases is misplaced. Each of the referenced cases involved jury trials on the issue of punishment. In all three there was conflicting evidence on key elements of the charged offenses. In appellant's case, he introduced no evidence which would have raised an issue of his guilt. Appellant never questioned the sufficiency of the evidence. He merely stated that he had changed his mind and wanted to withdraw his guilty plea. The trial court is only obligated to withdraw a defendant's guilty plea when testimony is introduced which makes the defendant's innocence evident, or which reasonably and fairly raises an issue of such fact. Reyna v. State, 434 S.W.2d 362, 365 (Tex.Crim.App.1968). Appellant claimed that his earlier plea had been induced through coercion. The trial court considered his complaint, but pronounced judgment and sentenced appellant. We find no abuse of discretion here since appellant had already taken the stand, made a judicial confession, and a written judicial confession had been placed in evidence. It is the duty of the trial court to consider the evidence submitted, and as the trier of the facts the court may determine the defendant's guilt or innocence. Moon v. State, 572 S.W.2d 681, 682 (Tex.Crim.App.1978). The trial court was the exclusive judge of the credibility of appellant's testimony and could accept or reject any part or all of it. Sawyer, 778 S.W.2d at 544. The evidence before the trial court supported judgments of guilty against appellant.

In his fourth point of error, appellant claims that his attorney rendered ineffective assistance in two ways. First, counsel failed to discover that it would have been impossible for the State to convict him of the two offenses. As a result of this mistake, counsel advised appellant to plead guilty to the charges when the evidence was insufficient as a matter of law to support his plea. The test for reviewing ineffective assistance of counsel claims was set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The appellant must not only show deficient performance by counsel, but also that counsel's errors so prejudiced him that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. See also Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App.1986); Mowbray v. State, 788 S.W.2d 658, 670 (Tex.App.--Corpus Christi 1990), cert. denied, 498 U.S. 1101, 111 S.Ct. 999, 112 L.Ed.2d 1082 (1991). This two-part test is applicable to cases where ineffective assistance...