Messer v. State
| Decision Date | 21 July 1988 |
| Docket Number | No. 01-87-00568-CR,01-87-00568-CR |
| Citation | 757 S.W.2d 820 |
| Parties | James Henry MESSER, Appellant, v. The STATE of Texas, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Stanley Schneider, Houston, for appellant.
John B. Holmes, Dist. Atty., Harvey Hudson, Asst. Dist. Atty., Harris County, for the State.
Before EVANS, C.J., and SAM BOSS and DUNN, JJ.
ON MOTION FOR REHEARING
The State's motion for rehearing is granted, this Court's original opinion delivered March 3, 1988, is withdrawn, and the following opinion is substituted. The trial court's judgment is affirmed.
Appellant was indicted for the offense of murder. He waived his right to a trial by jury and entered a plea of "no contest." On that plea, the court found him guilty of the offense charged and assessed his punishment at 25 years confinement.
In three points of error, appellant contends, in effect, that his plea of no contest was based upon his trial counsel's erroneous and misleading advice, which rendered his plea involuntary and caused him to be denied effective assistance of counsel at trial.
After a number of trial settings, appellant's case was scheduled for a non-jury trial in December 1986. According to appellant's testimony at the hearing on his motion for new trial, appellant's trial counsel, Ms. Jan Woodward Fox, advised him at the December hearing that the trial court had offered to "grant" him eight years' probation with a $1,000 fine if he would plead guilty to the charge of murder. Appellant testified that, in response to that advice, he told Ms. Fox that he did not want to plead "guilty" to a murder charge but that he would be willing to plead "no-contest" if the judge would still give him probation.
The case was reset for trial for February 6, 1987, and on that date, appellant's counsel, Ms. Fox, and the prosecutor, Ms. Gaynelle Jones, met with the trial judge, the Honorable Thomas Routt, in his chambers. Both counsel testified, at the hearing on the motion for new trial, that the purpose of their informal meeting with the judge was to determine whether he would consider "the entire range of punishment" in a plea on a pre-sentence investigation. It appears to be undisputed that the trial judge made a comment during the conference to the effect that he "would consider" a sentence of eight years' probation and $1,000 fine.
The case was re-set for a later trial date on February 27, 1987. At that time, appellant signed a waiver of his right to trial by jury, an agreement to stipulate evidence, and a judicial confession. He also entered a plea of "no contest." Before the court accepted that plea, it asked the following questions to determine the voluntariness of the plea:
Later, after stating the range of punishment, the court asked:
I understand that you and the State have not reached an agreement as to the punishment to be recommended in this case; is that right, sir?
The Court will consider all alternatives to that punishment as well. However, the Court is not required to grant you that alternative treatment just because you qualify.
The Court would order a Pre-Sentence Investigation in this case and use that report to assist it in assessing the punishment it feels appropriate.
The State further is reserving the right to argue for whatever punishment it feels appropriate at a later hearing.
Understanding all of what I have told you, Mr. Messer, are you continuing your plea of Nolo Contendere in this matter?
THE DEFENDANT: I am, Your Honor.
The court then ordered a pre-sentence investigation report and scheduled a hearing for punishment and sentencing on April 16, 1987. At that time, the court considered appellant's pre-sentence investigation report, heard appellant's testimony in his own behalf, and then sentenced appellant to 25 years confinement.
At the hearing on his motion for new trial, appellant testified that his trial counsel, Ms. Fox, told him "there would be no problem" getting probation if he had not lied about his police record. He said that he entered his plea of no contest and made the stipulation of evidence based entirely on her advice that he would receive a sentence of eight years probation and $1,000 fine. He testified that if he had not received such advice, he would not have signed the no-contest plea and the stipulation of evidence. He said that he understood, based on his conversations with his trial counsel, that the judge intended, in deciding on punishment, to consider the information in the pre-sentence investigation report only if the report indicated that he had lied. Appellant testified that when he entered his plea, he believed that the judge had already made the decision to give him probation, provided that his pre-sentence investigation did not show that he had lied about his past record.
The appellant's pre-sentence investigation report did not contain any information that appellant had not earlier disclosed to Ms. Fox. But according to Ms. Fox's testimony at the hearing on appellant's motion for new trial, she never informed the court of the circumstances surrounding appellant's arrest for carrying a weapon. Ms. Fox gave the following testimony at that hearing:
Q. As to the Defendant's criminal history, that's what the question is in reference to. The only items you would have conveyed to the Court, if you did, during the conversation, would have been concerning the carrying of a weapon and a prior accosting a female?
A. With--with--respect to Mr. Messer's record?
Q. Criminal history.
A. Yes, ma'am, and the circumstances of this offense.
* * *
Q. Had Mr. Messer told you or had you told Judge Routt, prior to the Judge getting the PSI, that Mr. Messer had taken--his pistol over to someone's house and confronted this person with the possibility of his having had an affair with his wife and that this had occurred back in 1973?
A. Mr. Messer had told me that in previous conversations, yes, ma'am.
Q. But you had not conveyed that to the Court at the time of your discussions of the possible consideration?
A. I did not convey that to Judge Routt, no, ma'am, I did not.
Q. You also did not convey to the Court the other portion of the contained in "Adult Court History" where it said, "He then," that's subsequent to his having gone over to this friend's house in '73 and confronted him, "He then went to the parents' home of the woman--of his wife and kicked down the door but found no one home?"
A. I did not convey that to--I had that information, I had from previous conversations with Mr. Messer. That was not specifically--in fact, that was not even generally discussed, as I recall, with Judge Routt--
Q. So--
A. --at the time that Miss Jones and I were meeting or at any time, other than the--the actual--Sentencing Hearing.
That new information was contained in the pre-sentence investigation report.
Ms. Fox testified that she informed appellant, after the December meeting with the court and Ms. Jones, that she thought he would get probation. She also testified that when she met with Ms. Jones in the judge's chambers, it was mentioned that the court would be able to grant probation if the court made no finding regarding the use of a deadly weapon.
Ms. Fox testified that, based on her conversations with the court, she advised appellant that if he entered his plea of no contest, he would be placed on probation for eight years and fined $1,000. She repeated this advice several times, once after the December meeting with the court and Ms. Jones, once after a February meeting with the court and Ms. Jones just before appellant pleaded no contest, and finally, the night before the sentencing hearing after she had reviewed the pre-sentence investigation report with appellant.
Ms. Fox testified that she warned appellant that if he had lied about anything, the judge could be disposed to "undo" what she understood to be an agreement. She testified that appellant told her that if confinement were a possibility, he would prefer a trial. She further testified that, based on the information she had given the judge and the information contained in the PSI, she believed that appellant would receive the anticipated probated sentence and fine. She testified that it was her understanding, at the time of appellant's plea, that the sole purpose of the PSI was to give the victim's family "a chance to ventilate" and to provide the court an opportunity to confirm appellant's work history, psychiatric background, and criminal record. She said she believed that as long as the PSI report contained no additional criminal record, it was simply a formality. She further testified that she asked the judge, And the judge replied, "I would consider it, but ... it would be an uphill battle."
Ms. Fox testified that she believed the court was committed to a probated sentence because the court had first mentioned it at the December meeting, and it was discussed again at the February meeting. She further testified that when she asked the court, at appellant's request, if the plea could be no contest rather than guilty, the court agreed to the no contest...
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