Hernandez v. State, 08-93-00304-CR

• Decision Date: 06 October 1994
• Docket Number: No. 08-93-00304-CR,08-93-00304-CR
• Citation: 885 S.W.2d 597
• Parties: Dalia Arismendez HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 597

885 S.W.2d 597

Dalia Arismendez HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.

No. 08-93-00304-CR.

Court of Appeals of Texas,

El Paso.

Oct. 6, 1994.

Ronnie G. Harrison, Houston, for appellant.

John B. Holmes, Dist. Atty. of Harris County, Houston, for appellee.

Before KOEHLER, LARSEN and McCOLLUM, JJ.

OPINION

McCOLLUM, Justice.

This is an appeal from a conviction for the offense of injury to a child. See TEX.PENAL CODE ANN. § 22.04(a)(1) (Vernon 1994). Appellant waived a jury trial and entered a plea of guilty before the trial court. Upon a finding of guilt, the trial court assessed punishment at imprisonment for a term of forty years. We affirm.

Factual Summary

The record reflects that Appellant lived next door to JoAnne and Michael Dedman. In mid-June of 1992, the Dedmans left their eleven-month-old son, Hunter, in Appellant's care while they were out of town. During the early evening hours of June 17, Appellant carried Hunter, who was limp and purple, to a neighbor's home. Over Appellant's protests, the neighbors called emergency medical services. Carol Wheeler, director of North Channel EMS and a paramedic, was among the EMS personnel that responded to the call. Someone at the scene told Wheeler that the child's airway was blocked by a paper towel, and when she looked, she saw what appeared to be a paper towel covering the back of his throat. She tried to remove it with her fingers, but was unable to reach it due to its depth in the throat. Using curved forceps, she removed a fist-sized wad of paper towel from Hunter's throat. He was transported to Hermann Hospital in Houston by Life Flight. He had suffered severe brain damage as a result of the blockage of his airway and died three days later. Hunter's attending physician, Dr. Charles Thomas Black, and Ms. Wheeler were of the opinion that it was not possible for a child to voluntarily swallow such a large wad of paper towel. Dr. Black concluded that the paper towel was forced down the child's throat based upon a tear to the upper part of his tonsil.

Prior to trial, Appellant told several different stories with regard to what had happened. In one version, she said that she didn't know how the paper towel became lodged in Hunter's throat and implied that her three-year-old daughter might have done it. In another version, she said that Hunter had put a pen in his mouth. In a third statement, she said that she put the paper towels in Hunter's mouth because he was crying. Appellant submitted a written statement as part of the presentence investigation in which she said that as she wiped milk from Hunter's face with wet paper towels, she heard voices which exerted power over her and she didn't know right from wrong. She claimed that when she "came to her senses", she saw the paper towel in Hunter's mouth and her efforts to remove it only forced it farther down his throat. Appellant testified to similar facts at the punishment hearing, again blaming her actions upon "voices" which had told her to put the paper towels in Hunter's mouth.

In a single indictment, Appellant was charged with injury to a child under Section 22.04(a)(1) and murder under both Section 19.02(b)(1) and Section 19.02(b)(2) of the Penal Code. See TEX.PENAL CODE ANN. §§ 19.02(b)(1), 19.02(b)(2), and 22.04(a)(1) (Vernon 1994). Appellant's case was initially set for a jury trial on April 1, 1993. However, Appellant elected to waive her right to a jury trial, and while the jury panel waited in another courtroom, entered a plea of guilty before the trial court to injury to a child. Upon the State's motion, the trial court dismissed the murder paragraphs of the indictment. The trial court found that the evidence substantiated a finding of guilt, but withheld finding Appellant guilty, and recessed the case until June 10, 1993 so that a presentence investigation could be conducted. On July 13, 1993, the court found Appellant guilty, and sentenced her to forty years' confinement with a deadly weapon finding.

Discussion

Appellant attacks her conviction by four related points of error. In Points of Error Nos. One and Two, Appellant contends that the trial court erred in failing to sua sponte withdraw her plea of guilty and in denying Appellant's motion to withdraw her plea of guilty on the ground that it was entered involuntarily. Resolution of Appellant's contentions requires a detailed review of the proceedings below.

After Appellant entered a plea of guilty on April 1, her case was recessed so that a presentence investigation (PSI) could be conducted. The PSI was completed, and a report dated May 18, 1993 was received by the trial court around June 1. Both the State and defense counsel received their copies at about the same time. Based upon certain evidence in the PSI, namely letters from Dr. Fred Fason, a psychiatrist, and Alex B. Caldwell, a psychologist, and Appellant's statement that she committed the offense because of voices in her head, the trial court held a conference with the prosecutor and defense counsel on June 8, 1993. At that conference, defense counsel informed the trial court that prior to the entry of Appellant's guilty plea, he was aware of her claims with regard to hearing voices and that he had determined, after conducting an investigation with the assistance of Dr. Fred Fason, that an insanity defense was not viable. Later that same day, defense counsel informed the trial court that he had received a letter from Dr. Karen Brown in which she stated that she had evaluated Appellant on June 8 and was of the professional opinion that Appellant's psychotic symptoms and delusional beliefs motivated her behavior when she killed Hunter. Dr. Brown did not, however, go so far as to state in the letter that Appellant was insane at the time of the commission of the offense. At the trial court's instruction, defense counsel consulted with Dr. Brown regarding her findings.

On June 10, 1993, Appellant filed a motion to withdraw her plea of guilty on the ground that defense counsel had consulted Dr. Brown, and she was of the opinion that Appellant was insane at the time of the commission of the offense. The trial court conducted a hearing on both motions that same day. In support of her motion, Appellant called Dr. Brown, who testified that she had examined Appellant for one hour on June 8 and based upon that examination, she was of the opinion that Appellant was insane at the time of the commission of the offense. She told the trial court that Appellant had reported to her that she did not share information with the other psychiatrist who had examined her because her "voices" told her not to trust him. Appellant testified at the punishment hearing that she confided in Dr. Brown, but did not do so with her attorney and Dr. Fason because her voices told her not to trust them.

Sometime prior to February 22, 1993, Appellant hired Dr. Fred Fason, a psychiatrist for the purposes of determining the viability of an insanity defense. He testified at the June 10 hearing that he had examined Appellant on February 22, March 8, and April 6 of 1993, and was aware of Appellant's claims with regard to hearing voices. In addition to interviewing Appellant, he also had her complete a Minnesota Multiphasic Personality Inventory (MMPI). Both Dr. Fason and Dr. Caldwell evaluated the MMPI. Prior to the entry of Appellant's plea of guilty, Dr. Fason reported to Appellant's trial counsel that although Appellant was mentally ill and might be psychotic, he was unable to obtain sufficient information from her to support an insanity defense. He suggested that Appellant undergo hypnosis in order that he might gain sufficient information to support an insanity defense. At the urging of Appellant's trial counsel, Dr. Fason met with Appellant on April 6, which was after the entry of her plea of guilty, in an effort to convince her to undergo hypnosis, but she refused.

Appellant did not testify at the hearing with regard to the voluntariness of her guilty plea. However, Appellant's attorney testified that at the time Appellant's plea was entered, he did not believe the insanity defense was a viable defense based upon Dr. Fason's report. He told the trial court that due to Dr. Brown's testimony, he now believed that it was a viable defense and he "would never have entertained a plea of guilty" for Appellant had he known that. At the conclusion of the hearing, the trial court sua sponte ordered two independent psychiatrists, Drs. Marvin A. Stone and Ramon A. Laval, to perform psychiatric evaluations of Appellant to determine both her competency to stand trial ¹ and her sanity. The trial court continued the hearing on the motion to withdraw until June 17, 1993. Both Dr. Stone and Dr. Laval concluded after examining Appellant that she was competent to stand trial and sane at the time of the commission of the offense. The trial court denied the motion to withdraw the plea of guilty on June 17, 1993. The trial court subsequently found Appellant guilty and sentenced her.

The validity of a guilty plea depends upon whether it was entered voluntarily and made intelligently and, if upon advice of an attorney, that counsel was reasonably competent and rendered effective assistance. Ex parte Evans, 690 S.W.2d 274, 276 (Tex.Crim.App.1985); TEX.CODE CRIM.PROC.ANN. art. 26.13(b) (Vernon 1989). ² In determining the voluntariness of a plea, the entire record must be considered. Williams v. State, 522 S.W.2d 483, 485 (Tex.Crim.App.1975). The transcript contains the plea papers, ³ the judgment, and the court's docket sheet. These documents reflect that Appellant was fully and properly admonished as required by Article 26.13 and that she entered her plea voluntarily and knowingly. Most significantly, the judgment states that: "The Defendant, waived his [sic] right of trial by jury, and pleaded as indicated above; thereupon the Defendant was admonished by the Court as required by Article 26.13, Code of...