Melton v. State

• Decision Date: 12 March 1998
• Docket Number: No. 05-96-00611-CR,05-96-00611-CR
• Citation: 987 S.W.2d 72
• Parties: Rodney Dwight MELTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 72

987 S.W.2d 72

Rodney Dwight MELTON, Appellant, v. The STATE of Texas, Appellee.

No. 05-96-00611-CR.

Court of Appeals of Texas Dallas.

March 12, 1998.

Jeanine Howard, Dallas, for Appellant.

Sue Korioth, Lisa L. Braxton, Asst. Dist. Attys., Dallas, for State.

Before LAGARDE, WHITTINGTON and ROACH, JJ.

OPINION

ROACH, Justice.

We must decide whether Rodney Dwight Melton, who contends he was erroneously informed by his court-appointed trial attorney that he had been captured on videotape committing the charged crime, was denied effective assistance of counsel, resulting in an involuntary guilty plea. Appellant pleaded guilty to aggravated robbery and was sentenced to ten years in prison and fined $1000. On appeal, he complains his plea of guilty was involuntary due to ineffective assistance of counsel. We agree with appellant; accordingly, we reverse the trial court's judgment and remand for a new trial.

Appellant was arrested on November 5, 1995 and charged with robbing a pet shop employee at knifepoint one week earlier. Appellant was indigent, and the trial court appointed an attorney to represent him. On January 5, 1996, appellant pleaded guilty to the charge of aggravated robbery without an agreement as to punishment. After a sentencing hearing one week later, the trial court sentenced him to ten years in prison and fined him $1000. Appellant did not testify at either the plea hearing or sentencing hearing.

Appellant timely filed a motion for new trial claiming his plea was involuntary and that he received ineffective assistance of counsel. Specifically, appellant asserted that he suffered alcohol blackouts and had no memory of committing the offense. He asserted that he pleaded guilty only because his trial counsel told him he had been captured on videotape committing the crime when, in fact, no such videotape existed. Once told a videotape existed, appellant "felt that he must have committed the aggravated robbery" even though he could not remember the event.

The trial court conducted a hearing on appellant's motion. At the hearing, appellant testified he told trial counsel at their first meeting he was pleading not guilty. A couple of days later, appellant spoke to trial counsel by telephone. At that time, trial counsel asked him about the robbery, and appellant again told him he was not guilty. Sometime later, appellant spoke with his attorney again. During this conversation, appellant said trial counsel told him the robbery had been videotaped. Appellant testified counsel advised him to "call my wife and tell her that I committed the robbery because they saw me on film committing the robbery and I had to change my plea from not guilty to guilty." Appellant asked to see the videotape, but trial counsel told him there was "no chance" of that. After this conversation, appellant agreed to plead guilty. When asked why he changed his plea, appellant said he had no memory of committing the crime, but "[trial counsel] said they had me on film and they watched me doing the crime, so I must have felt like I had to be guilty." Appellant said he did not remember committing the robbery because he has a drinking problem. Appellant testified he would not have pleaded guilty had he known there was no film of the robbery.

Two of appellant's relatives confirmed that appellant had an alcohol problem and had suffered blackouts in the past. Additionally, they testified that trial counsel represented that a videotape existed of appellant committing the robbery. Nathaniel Williams, appellant's brother-in-law, said he talked with trial counsel a couple of weeks after appellant's arrest. During that telephone conversation, Williams said trial counsel told him it did not "look good" for appellant because "[t]hey got him on tape." Appellant's sister Diane Melton testified she visited trial counsel and asked to see the videotape. Trial counsel told her that would be "difficult and if we forced the issue with the District Attorney's office, that it would make it worse for [appellant]." Ms. Melton said her family, not wanting to "make the case any worse on [appellant]," did not force the issue.

Trial counsel also acknowledged that appellant originally planned to plead not guilty and had told him he had no memory of committing the robbery. When asked specifically whether he told appellant, at any point, that there was a videotape of him committing aggravated robbery, trial counsel gave a lengthy response, in which he acknowledged telling appellant there "might" be a videotape. ¹ Further, on cross-examination, trial counsel testified that he told appellant "if there was a videotape and he turned out to be on the videotape, that that [sic] would be hard to claim that he was innocent of the offense."

Both sides stipulated there was no videotape of the crime for which appellant was charged. In fact, the State told the trial court that "there are no notes made in the prosecution file that there was a videotape." Following testimony and argument, the trial court denied the motion for new trial. Appellant timely appealed. In two points of error, he contends (i) the trial court abused its discretion in denying his motion for new trial because his plea was involuntary due to ineffective assistance of counsel and (ii) he was denied effective assistance of counsel. ²

The grant or denial of a motion for new trial is a matter entirely within the trial court's discretion. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App.1993); Appleman v. State, 531 S.W.2d 806, 810 (Tex.Crim.App.1975). An abuse of discretion occurs when the trial court's decision is so clearly wrong as to lie outside the zone within which reasonable persons disagree. Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993); Helton v. State, 909 S.W.2d 298, 301 (Tex.App.--Beaumont 1995, pet. ref'd). At the hearing on the motion for new trial, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995). The trial judge may properly consider the interest and bias of any witness and is not required to accept as true testimony of the accused or any defense witness simply because it is uncontradicted. Reissig v. State, 929 S.W.2d 109, 113 (Tex.App.--Houston [14th Dist.] 1996, pet. ref'd); Messer v. State, 757 S.W.2d 820, 828 (Tex.App.--Houston [1st Dist.] 1988, pet. ref'd).

In Texas, a defendant in a criminal case is entitled to reasonably effective assistance of counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987). To show ineffective assistance of counsel at the guilt/innocence stage of trial, a convicted defendant must show (1) his trial counsel's performance was deficient, in that counsel made such serious errors he was not functioning effectively as counsel, and (2) the deficient performance prejudiced the defense to such a degree that the defendant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The two-pronged test of Strickland applies to guilty pleas. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); Ex parte Pool, 738 S.W.2d 285, 286 (Tex.Crim.App.1987). To satisfy the second prong of the Strickland test, an appellant must show there is a reasonable probability that, but for counsel's errors, appellant would not have entered his plea and would have insisted on going to trial. Hill, 474 U.S. at 59, 106 S.Ct. at 370-71; Ex parte Pool, 738 S.W.2d at 286.

Whether the Strickland standard has been met is judged by the totality of the representation rather than by isolated acts or omissions of trial counsel, and the test is applied at the time of the trial, not through hindsight. Bridge v. State, 726 S.W.2d 558, 571 (Tex.Crim.App.1986). The convicted defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App.1985). The particular facts and circumstances of each case must be considered in any claim of ineffective assistance. Johnson v. State, 691 S.W.2d 619, 626 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 152 (1985).

In this case, appellant testified he had no memory of committing the aggravated robbery because he suffered alcohol blackouts. From the outset, he planned to plead not guilty. However, he changed his plea when his trial counsel told him he had been captured on videotape committing the crime. At that point, appellant concluded he must have committed the crime during one of his blackout periods.

Two family members corroborated appellant's story about the videotape. His brother-in-law testified that trial counsel told him appellant was "on tape" committing the robbery. His sister testified that appellant told her he had no memory of committing the robbery. Consequently, she went to see trial counsel in hopes of viewing the videotape so there could be "some resolution in our family to know that this had happened ... and accept it if it were true." However, trial counsel told her it would be "very difficult" to get the tape from the district attorney's office, and the family would hurt appellant's case by forcing the issue.

Finally, trial counsel testified at the new trial hearing. When directly and unambigously asked whether he told appellant, at any point, that there was a videotape of appellant committing the crime, trial counsel never directly answered the question. Instead, trial counsel provided a lengthy, nonresponsive answer to a simple question. When asked a second time, he responded, "I relayed everything that I told the defendant." Although the direct answer was within trial counsel's knowledge, he never gave it. Trial counsel had every opportunity to...