Houston v. State

• Citation: 201 S.W.3d 212
• Decision Date: 10 August 2006
• Docket Number: No. 14-04-00725-CR.,14-04-00725-CR.
• Parties: Anton Devon Nikkynuebe HOUSTON a/k/a Anton N. Robertson, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

201 S.W.3d 212

Anton Devon Nikkynuebe HOUSTON a/k/a Anton N. Robertson, Appellant v. The STATE of Texas, Appellee.

No. 14-04-00725-CR.

Court of Appeals of Texas, Houston (14th Dist.).

August 10, 2006.

COPYRIGHT MATERIAL OMITTED

Wayne T. Hill, Houston, for appellants.

Bridget Holloway, Houston, for appellees.

Panel consists of Justices HUDSON, FROST, and SEYMORE.

OPINION

J. HARVEY HUDSON, Justice.

Appellant, Anton Devon Nikkynuebe Houston,¹ was charged by indictment with the state jail felony of driving while intoxicated with a child passenger. Tex. Pen.Code Ann. § 49.045 (Vernon Supp. 2005). The indictment also alleged appellant had been previously convicted of (1) felony attempted possession of a controlled substance and (2) felony possession of a controlled substance. Appellant entered a plea of guilty to the primary offense, and a plea of true to the enhancement allegations without the benefit of a plea bargain agreement.² The trial court subsequently found appellant guilty, found the enhancement allegations to be true, and assessed appellant's punishment at confinement in the state penitentiary for a term of 6 years and a $10,000 fine. In two points of error, appellant contends the trial court erred by (1) failing to withdraw his guilty plea and (2) failing to admonish him that he had no right to hybrid representation. We affirm.

In his first point of error, appellant alleges the "trial court erred in failing to withdraw his plea of guilty based upon erroneous advice from [his] attorney that he would receive probation." Outside of this naked allegation, appellant provides no explanation of the alleged error. Rather, appellant states in his brief that if "an attorney conveys erroneous information to his client, a plea of guilty based upon that misinformation is involuntary." This, of course, is a well established principle of law that no one disputes,³ but how it relates to the case before us is not explained. Without further analysis, appellant then concludes his argument by stating, "The trial court failed to act as a gate keeper to protect Appellant's rights in this matter and thus abused its discretion in not authorizing the withdrawal of Appellant's ... plea of guilty."

Appellant has, in short, filed a superficial brief that, with very little guidance, and simply invites this court to find any kind of reversible error associated with appellant's plea of guilty if we can find it within our creative power to do so. This court, however, is not appellant's counsel, and a skeletal brief is an impermissible burden on the appellate process. Walker v. State, 654 S.W.2d 61, 62 (Tex App.-Austin 1983, pet. ref'd). Both the State and this court must speculate upon appellant's position, and the issue is, thus, poorly presented for disposition. We will, nevertheless, in the interest of justice, attempt a review of appellant's contentions to the extent we understand them.

Appellant cites authority for the proposition that misinformation supplied by counsel may lead to an involuntary plea. However, appellant does not expressly seek a reversal due to an involuntary plea. Moreover, arguments that a plea was involuntarily made on the erroneous advice of counsel are usually reviewed through a claim of ineffective assistance of counsel. Ex Parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App.1997); Ex parte Battle, 817 S.W.2d 81, 83 (Tex.Crim.App.1991); Morrow v. State, 139 S.W.3d 736, 744 (Tex. App.-Texarkana 2004, no pet.). However, appellant makes no assertion that his conviction should be reversed for ineffective assistance of counsel. Instead, appellant appears to base his claim of reversible error on his contention that the trial court abused its discretion by failing to withdraw his guilty plea. In presenting this argument, appellant claims he attempted to withdraw his plea, and the trial court refused his request.

After examining the record, we find no such attempt by appellant to withdraw his plea; rather, he insisted on pleading guilty even after he learned of counsel's alleged misinformation. On May 11, 2004, appellant, with his counsel present, waived a court reporter, arraignment, and formal reading of the indictment. He pled guilty to the trial court without a plea bargain. Although there is no reporter's record of the plea hearing, the clerk's record contains a "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession" signed by appellant. In this document, appellant confessed to all facts alleged in the indictment and verified that no plea bargain existed. The trial court's docket sheet indicates appellant was admonished about the consequences of his plea, and appellant signed the necessary written admonishments. TEX.CODE CRIM. PROC. ANN. art. 26.13(d) (Vernon Supp. 2005). These admonishments disclosed the charge against appellant and indicated the appropriate range of punishment.⁴

The record also reflects that appellant initialed a paragraph describing the consequences of violating the conditions of deferred adjudication, should the court grant deferred adjudication.⁵ Appellant declined in writing, to participate in the preparation of a PSI report, and requested that no PSI report be made. Finally, appellant confirmed that he fully understood the consequences of his plea and, after having fully consulted with his attorney, he requested the trial court accept his plea. Although the trial court found sufficient evidence of appellant's guilt at this hearing, the court deferred a finding of guilt and took the case under advisement. Appellant also filed a "Motion for Community Supervision" on the same date, disclosing the two prior felony convictions listed in the indictment and asking the court to place him on community supervision. The trial court scheduled a hearing pending completion of the PSI report.

Approximately two weeks after entering his plea, appellant filed three, handwritten, pro se motions on May 27, 2004. His first motion was entitled "Motion to dismiss court appointed counsel and appoint new counsel to act on behalf of defendant."⁶ In this motion, appellant accused his court-appointed attorney of providing ineffective assistance of counsel for a variety of reasons, but one cryptic notation reads: "Misrepresentation, for as lying to me, telling I'm signing for probation, come to find out it was something different." However, when interviewed by the probation officer who prepared the PSI report, appellant modified his accusation significantly. Appellant told the investigating officer that "his attorney told him the Judge would consider given [sic] him probation if he plead guilty." (emphasis added).

Despite appellant's alleged dissatisfaction with his trial attorney, he thereafter persisted on pleading guilty again. On July 21, 2004, appellant appeared with his attorney before the trial court. No court reporter was present or requested. The court's docket sheet indicates appellant, once again, waived arraignment and a formal reading of the indictment, pled guilty a second time, and was admonished of the consequences of his plea. On this occasion, the trial court found appellant guilty and assessed his punishment.

We recognize that a guilty plea must be entered into voluntarily and freely. Tex.Code Crim. Proc. Ann. art. 26.13(b); Anderson v. State, 182 S.W.3d 914, 921 n. 1 (Tex.Crim.App.2006) (Hervey, J., concurring). When considering the voluntariness of a guilty plea, we must examine the entire record. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App.1998) (per curiam). If the trial court properly admonished the defendant before a guilty plea was entered, there is a prima facie showing the plea was both knowing and voluntary. Id. The burden then shifts to the defendant to show he pled guilty without understanding the consequences of his plea and, consequently, suffered harm. Pena v. State, 132 S.W.3d 663, 666 (Tex. App.-Corpus Christi 2004, no pet.). Therefore, a defendant who attests during the initial plea hearing that his plea is voluntary bears a "heavy burden" to prove in a subsequent hearing that he entered the plea involuntarily. Coronado v. State, 25 S.W.3d 806, 809 (Tex.App.-Waco 2000, pet. ref'd); Cantu v. State, 988 S.W.2d 481, 484 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). A guilty plea is not involuntary simply because the sentence exceeded what an accused expected, even if that expectation was raised by his attorney. Hinkle v. State, 934 S.W.2d 146, 149 (Tex. App.-San Antonio 1996, pet. ref'd).

Here, the defendant's burden is compounded by the absence of a record. A defendant who waives his right to have a court reporter record the proceedings and, thereafter, challenges on appeal the voluntariness of his plea, nevertheless retains his burden to ensure a sufficient record is presented on appeal to establish error. Lopez v. State, 25 S.W.3d 926, 928-29 (Tex. App.-Houston [1st Dist.] 2000, no pet.). Moreover, we presume recitals in court documents are correct unless the record affirmatively shows otherwise. See Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim.App.1984).

A defendant may withdraw his plea as a matter of right, without assigning a reason, until judgment is pronounced or the case is taken under advisement by the trial court. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App.1979). If, however, a defendant desires to withdraw his guilty plea after the court has taken the case under advisement, withdrawal of the plea is within the sound discretion of the court. Jagaroo v. State, 180 S.W.3d 793, 802 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). After a trial court has admonished a defendant, received the plea and evidence, and passed the case for a pre-sentence investigation, the case has been taken under advisement. Id. An abuse of discretion is shown only when the trial court's ruling lies outside the "zone of reasonable disagreement." Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim. App.1990) (op. on...