Meyers v. State, 67925

• Decision Date: 04 November 1981
• Docket Number: No. 2,No. 67925,67925,2
• Citation: 623 S.W.2d 397
• Parties: Louise MEYERS, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 397

623 S.W.2d 397

Louise MEYERS, Appellant, v. The STATE of Texas, Appellee.

No. 67925.

Court of Criminal Appeals of Texas, Panel No. 2.

Nov. 4, 1981.

Douglas M. O'Brien, Houston, court appointed on appeal only, for appellant.

John B. Holmes, Jr., Dist. Atty., Bill Willms and Matthew Leeper, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, CLINTON and TEAGUE, JJ.

OPINION

CLINTON, Judge.

Appeal is taken from a conviction for forgery by possessing a forged instrument with intent to utter it, knowing it was forged, upon a plea of guilty; the trial court assessed appellant's punishment at five years confinement in the Texas Department of Corrections. However, there is much more to the case than that, for appellant presents a single ground of error that is more troublesome under the facts of the matter than the bare statement suggests. The ground is:

"The trial court erred by accepting the appellant's plea of guilty without fully inquiring into whether appellant received effective assistance of counsel." ¹

The thrust of the contention advanced by appellant is that where it is made to appear to the trial court that effectiveness of assistance of counsel is being impugned, the prohibition in Article 26.13(b), V.A.C.C.P. that a plea of guilty not be accepted unless it is "free and voluntary" ² mandates a thorough inquiry by the trial court into the matter. ³ We now examine what was made to appear to the judge of the court.

Appellant, physically restrained by store personnel when the check she had attempted to pass was found to be forged, was arrested under the name of Marie Faye Hill on April 3, 1980, the alleged date of the instant offense, and immediately incarcerated. A written charge of the offense of forgery by possession was lodged April 5, 1980, and included were habitual allegations as well as a notation "No Bond." By letter dated April 15, 1980 and addressed to the judge of the trial court appellant complained that she had not yet entered a courtroom, ⁴ had not been told of charges against her, needed but did not have an attorney and, meaning no "disrespect," "I need some help." She was indicted, consistently with the charge, April 18, 1980, still "No Bond." April 24, 1980 she executed a pauper's oath, counsel was appointed and the cause set for pretrial hearing May 14, 1980. She made a court appearance on that day, but the cause was reset for the same purpose over to June 26, 1980 because, it seems, the prosecuting attorney and counsel for appellant joined in a motion for and the court ordered a psychiatric examination to determine competency to stand trial and sanity at the time of the offense.

Before the examinations were held, dated May 29, 1980, appellant made a pro se written application for a writ of habeas corpus for fixing of reasonable bail; it was forwarded by the clerk of the court to the judge on or about June 5, 1980, but we do not find any action taken.

Meanwhile on June 3, 1980, the Harris County Psychiatric Hospital made its written competency and sanity evaluation report to the court, ⁵ that seems to have been filed July 10, 1980. The scheduled pretrial hearing came and went, without anything being presented for determination so far as the record shows, and the case was set for trial August 18, 1980. ⁶

The State announced ready. An announcement by counsel for appellant is not recorded, but he did file a motion to quash the first alleged enhancement, citing the deficiency found in the indictment by this Court in Landry v. State, 583 S.W.2d 620 (Tex.Cr.App.1979). ⁷ For whatever reason, the case was reset for jury trial August 25, 1980.

With the prospective jurors on the way to the courtroom, and through informal prearrangement, the judge allowed counsel for appellant a "pretrial hearing," which the latter stated was to spread on the record "some information regarding plea bargaining." He then called his client to the stand and, after preliminary matters were covered and he moved into what he had explained to her, came an exchange followed about the nature and quality of their attorney-client relationship. We excerpt pertinent portions in the margin. ⁸

It is at once obvious that appellant's attorney was undertaking to protect himself against the very charge of ineffective assistance impliedly suggested now. ⁹ It is just as clear that, while appellant converted the occasion into illuminating her grievances against her attorney, she never did reject the proposed plea bargain. ¹⁰ Nevertheless the cautious trial judge turned to examine appellant about her relations with counsel and her defensive posture in the case. Omitting only redundant material, we set out their colloquy in the margin. ¹¹

From that dialogue the judge could, and no doubt did, discern that her earlier diagnosed "hostile and demanding" attitude focused more on a hope for release to a drug abuse program than mounting a defense to the forgery charge, the commission of which she had professed not to remember. When this "streetwise" accused had nothing more for the court to know, she was promptly arraigned and permitted her attorney to enter a plea of not guilty.

The court took up and ultimately granted her motion to quash the first enhancement paragraph of the indictment, and then correctly admonished appellant as to the resultant reduced range of punishment and, upon her request, caused the record to reflect that the prosecution would be conducted on her true name, Louise Meyers. Addressing her option to have the jury about to be impaneled assess punishment, the court suggested she confer with counsel in this regard and assured her that he "will represent you to the best of his ability" and if she "wish(ed) to cooperate with him" she should "do so at this time." Whereupon the jury panel was to be seated in the courtroom and a short recess was taken.

When court reconvened, that further negotiations had transpired became readily apparent. Upon inquiry by the trial judge, the assistant district attorney announced that the State "waive(d) the enhancement on this case," and the court now admonished appellant that the range of punishment was from two to ten years confinement and a fine up to five thousand dollars. The judge alluded to "this document you have signed"-"Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession," ¹² and ascertained that appellant was then prepared to enter a plea. When she pleaded guilty the trial court admonished her in terms of Article 26.13, supra, that applied. ¹³ Her plea was accepted, the combination waiver, agreement and confession was admitted and appellant personally confirmed her agreement "to the facts stated in the stipulation." Appellant did not offer evidence, but her attorney requested a presentence investigation report-it being the expressed understanding of appellant that "the status of the negotiations" was such that a report would be obtained. The trial court found appellant guilty of the offense of forgery and announced that a presentence investigation and report would be ordered-the probation officer to consider any evidence appellant wished to submit in writing.

When court convened October 27, 1980, neither party proffered additional evidence, the court assessed punishment at five years confinement and, appellant not waiving ten days, reset the cause for sentencing. That occurred November 6, 1980, after a pro forma motion for new trial was overruled. Appellant gave notice of appeal, counsel was permitted to withdraw and arrangements were made for appointment of new counsel.

The constitutional key to validity of a guilty plea is that it be voluntary and intelligently made and, if upon advice of an attorney, that counsel be reasonably competent and render effective assistance. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); cf. Ex parte Harris, 596 S.W.2d 893, 894 (Tex.Cr.App.1980); see also Ex parte Bratchett, 513 S.W.2d 851, 854 (Tex.Cr.App.1974). The purpose and function of the mandates of Article 26.13, then, are to ensure that only a constitutionally valid plea is entered and accepted by the judge of the trial court, and substantial compliance with its dictates is required. Whitten v. State, 587 S.W.2d 156 (Tex.Cr.App.1979). "The overriding concern is whether a defendant has been deprived of due process and due course of law," Ex parte Lewis, 587 S.W.2d 697, 700 (Tex.Cr.App.1979).

The decision on what plea is entered is personal to an accused. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970); Moses, Criminal Defense Sourcebook 548. The Article 26.13 admonishment to appellant is facially impeccable, and there is nothing to show that, between the time the trial judge suggested that she cooperate with counsel and when the trial judge actually accepted her plea of guilty, appellant's decision to change was not her own personal one. At that point she had heard one enhancement paragraph dismissed by the court on the initiative of her attorney, and knew the beneficial consequences to her prospects; there had been further negotiations, to which she was privy, resulting in abandonment and dismissal of all alleged enhancements; she had executed papers properly to implement a plea of guilty before the court and to support a finding of guilt; when admonished she made no more protest about performance of her attorney.

These particulars appellant does not now dispute. The essence of her argument is that (though everything seemed letter-perfect and she made no further plaint) the trial court "should have inquired into the earlier areas of conflict" with counsel. We do not agree.

Thoroughly analyzed and...