Hodges v. State

• Decision Date: 14 August 2003
• Docket Number: No. 13-01-00104-CR.,No. 13-01-00102-CR.,13-01-00102-CR.,13-01-00104-CR.
• Citation: 116 S.W.3d 289
• Parties: Robert Stapleton HODGES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

116 S.W.3d 289

Robert Stapleton HODGES, Appellant, v.The STATE of Texas, Appellee.

No. 13-01-00102-CR.

No. 13-01-00104-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

August 14, 2003.

Rehearing Overruled October 23, 2003.

Larry Warner, Brownsville, for Appellant.

John A. Olson, Cameron County Commissioner's Court, Civil Legal Division, Yolanda De Leon, Dist. Atty., Brownsville, for State.

Before Justices HINOJOSA, CASTILLO, and DORSEY.¹

OPINION

Opinion by Justice HINOJOSA.

Without a plea agreement, appellant, Robert Stapleton Hodges, pleaded nolo contendere in cause number 13-01-00104-CR² to one count of aggravated sexual assault of a child³ and one count of indecency with a child.⁴The trial court found him guilty of both offenses, assessed his punishment at twenty-five years' imprisonment for the aggravated sexual assault charge and ten years imprisonment for the indecency charge, and ordered that the ten-year sentence be served consecutively after he served the twenty-five year sentence.Without a plea agreement, appellant pleaded nolo contendere in cause number 13-01-00102-CR⁵ to one count of indecency with a child.The trial court found him guilty of this offense, assessed his punishment at ten years' imprisonment, and ordered that this sentence run concurrently with the sentences in cause number 13-01-00104-CR.The trial court has certified that these cases are not plea-bargain cases and "the defendant has the right of appeal."SeeTex.R.App. P. 25.2(a)(2).

In seven issues, appellant contends: (1)he did not receive effective assistance of counsel during trial; (2)the trial court erred in overruling his motion for new trial; (3)the trial court erred in accepting his pleas of nolo contendere; (4)the trial court erred in overruling his motion to suppress; (5)the trial court erred by admitting evidence of an unadjudicated offense during the punishment phase of trial; (6)the trial court's cumulation order is void; and (7)appellant's absence from voir dire was fundamental error.We affirm in part, and reverse and remand in part.

A.PROCEDURAL HISTORY

In cause number 13-01-00104-CR, appellant was charged by indictment with one count of aggravated sexual assault of a child and one count of indecency with a child.By separate indictment, in cause number 13-01-00102-CR, appellant was charged with two counts of aggravated sexual assault of a child and three counts of indecency with a child.The indictments alleged the offenses were committed against four different children.

Appellant initially pleaded not guilty to both indictments, and both cases were set for trial before a jury.A jury was later chosen, and both cases were tried together.At the close of the evidence in the guilt/innocence phase of the trial, without a plea agreement, appellant waived the jury and changed his plea to nolo contendere in both cases.The trial court admonished appellant, both orally and in writing, regarding whether his pleas were voluntarily and understandingly made.After determining that appellant's pleas were voluntarily made, the trial court accepted the pleas.⁶

B.SIXTH AMENDMENT RIGHT TO COUNSEL

In his first issue, appellant contends he did not receive effective assistance of counsel because his counsel was involuntarily absent during the punishment phase of his trial.

The Sixth Amendment to the United States Constitution guarantees that "in all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense."U.S. Const., amend. VI.The Sixth Amendment right to counsel has long been held to mean the right to the effective assistance of counsel.McMann v. Richardson,397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763(1970).Normally, to establish ineffective assistance of counsela defendant must prove counsel's performance was deficient and this deficiency was prejudicial.Strickland v. Washington,466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).However, in certain Sixth Amendment contexts, prejudice is presumed."Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice."Id. at 692, 104 S.Ct. 2052.

The Supreme Court"has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding."United States v. Cronic,466 U.S. 648, 659 n. 25, 104 S.Ct. 2039, 80 L.Ed.2d 657(1984);see, e.g., Burdine v. Johnson,262 F.3d 336, 345(5th Cir.2001)(sleeping counsel is equivalent to no counsel).Thus, when an appellant can establish that defense counsel was not merely incompetent but inert, Strickland prejudice will be presumed.Childress v. Johnson,103 F.3d 1221, 1228(5th Cir.1997).

Absent waiver, the right to counsel automatically becomes effective at the inception of adversarial judicial criminal proceedings and must be implemented by the State at every critical stage of those proceedings.Fuller v. State,829 S.W.2d 191, 205(Tex.Crim.App.1992).Determining whether a particular proceeding is a "critical stage" generally turns on an assessment of the usefulness of counsel to the accused at that particular proceeding.Upton v. State,853 S.W.2d 548, 553(Tex.Crim.App.1993).The Supreme Court has interpreted "critical stage" to mean any stage of a criminal proceeding where substantial rights of a criminal defendant may be affected.Mempa v. Rhay,389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336(1967).Absent a knowing and intelligent waiver by the accused, the trial court may not require a defendant to "stand alone against the State."United States v. Wade,388 U.S. 218, 226, 87 S.Ct. 1926, 18 L.Ed.2d 1149(1967).

Here, appellant's counsel was involuntarily absent from a portion of the testimony of Thomas Marin, a Nevada detective who testified during the punishment phase of the trial regarding the events of a prior extraneous offense committed by appellant.Marin testified that the prior case was originally filed as a felony, but appellant later pleaded guilty to a misdemeanor.Defense counsel's absence prevented effective cross-examination of the adverse witness.

Because the trial court had considerable discretion in sentencing appellant, defense counsel's usefulness to the accused in effectively cross-examining the adverse witness was tantamount to protecting the reliability of the punishment proceeding.The right to the assistance of counsel ensures a criminal defendant the opportunity to participate fully and fairly in the adversarial fact-finding process.Herring v. New York,422 U.S. 853, 858, 95 S.Ct. 2550, 45 L.Ed.2d 593(1975).

The court of criminal appeals has held that a criminal defendant is entitled to the assistance of counsel at sentencing because sentencing is a "stage of a criminal proceeding where substantial rights may be affected."Ex parte Vestal,468 S.W.2d 372, 373(Tex.Crim.App.1971).We conclude that the direct testimony of an adverse witness during the punishment phase of a criminal trial is a critical stage of the trial, entitling the defendant to the presence of defense counsel.Accordingly, because appellant temporarily had no attorney present during a critical stage of his criminal proceeding, we conclude he was denied the effective assistance of counsel.

However, this conclusion does not end our inquiry.We must next consider whether the attorney's temporary absence during the taking of testimony was harmful error.SeeTex.R.App. P. 44.2(a);⁷Cain v. State,947 S.W.2d 262, 264(Tex.Crim.App.1997)(Except for certain Federal constitutional errors labeled structural by the Supreme Court, no error is categorically immune to a harmless error analysis.).

Here, the trial court had discretion to sentence appellant to a wide range of punishment.Such considerable discretion mandated the assistance of counsel during the punishment phase of the trial.Because appellant was unable to effectively cross-examine an adverse witness, and the trial court sentenced appellant to more than the minimum punishment available, we hold that the absence of defense counsel, however temporary, during the presentation of extraneous offense evidence was a sufficient breakdown of the adversarial process that it rendered the punishment hearing unreliable.

Thus, on these facts, we cannot conclude beyond a reasonable doubt that the temporary denial of the effective assistance of counsel at the punishment phase of the trial did not harm appellant by contributing to his punishment.Appellant's first issue is sustained.

However, the temporary absence of counsel during the punishment phase of trial does not invalidate the judgment of guilt.The proper remedy is to remand for a new punishment hearing.SeeTex.Code Crim. Proc. Ann. art. 44.29(b)(Vernon Supp.2003);Rent v. State,982 S.W.2d 382, 385(Tex.Crim.App.1998).

C. DEFENDANT'S PLEAS OF NOLO CONTENDERE

By his third issue, appellant contends the trial court erred in accepting his pleas of nolo contendere despite his repeated denial of the charges.

If a defendant pleads guilty to a felony, before a jury, and evidence is introduced which reasonably and fairly raises a question of fact regarding his innocence, and such evidence is not withdrawn, the trial court must sua sponte withdraw the guilty plea.Griffin v. State,703 S.W.2d 193, 195(Tex.Crim.App.1986);Saenz v. State,807 S.W.2d 10, 11(Tex.App.-Corpus Christi 1991, no pet.).

However, if a defendant's plea of guilty or nolo contendere is to the court, not a jury, the trial court has no obligation to sua sponte withdraw the plea, even if evidence is presented which makes evident the innocence of the defendant or reasonably and fairly raises an issue thereto.Thomas v. State,599 S.W.2d 823, 824(Tex.Crim.App.1980);Moon v. State,572 S.W.2d 681, 682(Tex.Crim.App.1978).The trial court need not withdraw the plea in such a case because, as the trier...