Rivera v. State, 01-02-00041-CR.
| Decision Date | 28 August 2003 |
| Docket Number | No. 01-02-00043-CR.,No. 01-02-00042-CR.,No. 01-02-00041-CR.,01-02-00041-CR.,01-02-00042-CR.,01-02-00043-CR. |
| Parties | John Paul RIVERA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
James M. Leitner, Houston, TX, for Appellant.
Charles A. Rosenthal, Jr., District Attorney—Harris County, Bridget Holloway, Assistant District Attorney—Harris County, Houston, TX, for Appellee.
Panel consists of Justices HEDGES, KEYES, and DUGGAN.*
John Paul Rivera, appellant, pleaded guilty to three offenses of aggravated robbery. Following a pre-sentence investigation (PSI) hearing, the trial court assessed punishment at 20 years' confinement in each case, with the sentences to run concurrently. In three issues, appellant argues that he was denied effective assistance of counsel, that the court erred in denying his counsel at least 10 days to prepare for the pre-sentence investigation hearing, and that the court erred in not withdrawing appellant's plea of guilty. We affirm.
Appellant was charged with three separate offenses of aggravated robbery. The first indictment, Cause Number 867829 accused appellant of threatening Maria Dejesus Guerrero with a knife while robbing her on May 9, 2000. The second indictment, Cause Number 867831, accused appellant of threatening Santos Mendez with a stick while robbing him on May 6, 2000. The third indictment, Cause Number 878870, accused appellant of threatening Zacarias Charon with a stick while robbing him on May 9, 2000.
Brian D. Coyne was appointed as appellant's counsel. Coyne reset the cases for trial several times. He withdrew as appellant's counsel on July 17, 2001.
On July 17, 2001, appellant hired Gerald B. Scheve. On August 16, 2001, appellant entered a plea of guilty in each case without a plea bargain. In each case, appellant signed a sworn "waiver of constitutional rights, agreement to stipulate, and judicial confession" that, among other things, waived a jury and included the statement, "I intend to enter a plea of guilty and plead guilty to aggravated robbery with deadly weapon to a presentence investigation[,] unlimited argument." [Sic.] Appellant also initialed each of the applicable admonishments. He thus acknowledged in each case that, if convicted of a first degree felony, he faced a term of five years to 99 years or life in prison and a fine not to exceed $10,000. Finally, appellant initialed his understanding of the consequences of his plea and his acknowledgment that he had fully consulted with his attorney, that he understood the admonishments, and that he was "totally satisfied with the representation provided by my counsel and I received effective and competent representation."
The PSI sentencing hearing was scheduled for October 23, 2001, and subsequently reset to November 15, 2001. On November 15, Scheve failed to appear in court. His secretary called in for him, stating that he was ill, and the PSI hearing was rescheduled to November 26. Again, Scheve called in sick, and the PSI hearing was rescheduled to December 10. On December 10, appellant appeared in court without an attorney, and the hearing was again postponed.
On December 12, 2001, Scheve filed a request to withdraw as counsel. In his written statement, Scheve stated that he had been suffering for two years from an illness that affected his ability to walk and that Judges Belinda Hill and Jeannine Barr had insisted that he employ an associate to help with his cases. His associate had left in May, 2001. Since November 1, 2001, he had suffered from dizziness, apparently caused by his medication, that affected his ability to walk and to think. On December 13, 2001, the trial court granted Scheve's request to withdraw as counsel.
On December 12, 2001, the court appointed Layton Duer as appellant's new counsel. The sentencing hearing was reset for December 21, 2001, nine days after Duer's appointment. Duer did not request additional time to prepare for the hearing.
At the commencement of the sentencing hearing, the court announced that Duer had had an opportunity to examine the PSI report and asked whether he wished to add anything. Duer declined, but asked that appellant be sworn as a witness. Duer elicited testimony from appellant that he had visited appellant in jail on the day he was appointed, that they had then discussed the PSI report, and that Duer had subsequently talked with appellant about his court appearance. Duer then gave appellant an opportunity to read a prepared statement asking the court for leniency and afterwards began his direct examination of appellant.
After eliciting testimony that appellant had been in jail for 18 months, Duer made the following statement:
Q [Mr. Duer]: Now, I'm not familiar with the offenses in these cases. What I have read is the summary of the offense reports that are included in the PSI that I have here in front of me. As I understand it that you were never accused of actually having any sort of a weapon in your possession; is that correct?
A [Appellant]: That's correct.
Q [Mr. Duer]: Is it true that during these three episodes, three robberies, that you never actually had a weapon in your hand?
A [Appellant]: I never had a weapon.
Q [Mr. Duer]: Did you ever personally injure anybody during any of these episodes?
A [Appellant]: No.
Q [Mr. Duer]: Now, I understand also that you do have no prior criminal record; is that correct?
A [Appellant]: That's correct, sir.
(Emphasis added.)
In response to these questions and answers, the trial court directed Duer to pages six and seven of the PSI report, which stated that appellant had been convicted for theft and escape while in custody for assault/domestic violence. These reports demonstrated that appellant's testimony that he had "no prior criminal record" was inconsistent with the PSI report.
The PSI report in each of the three cases also contained a detailed summary of the offenses with which appellant was charged. Each offense report summary described injury, or threat of imminent bodily injury, to the complainant, together with the use of a deadly weapon, by appellant and two other men. Each PSI report also included descriptions of three extraneous offenses with which the three men had not been charged. The offense report summaries make it clear that Duer's understanding that appellant had never been "accused of actually having any sort of a weapon in your possession" was inconsistent with the PSI report.
During further brief questioning of appellant, Duer referred to the prior offenses to which the court had appointed him as "a misdemeanor, two misdemeanor convictions"; then, when appellant began to testify that he had been convicted of misdemeanor theft for stealing "baby milk" for his son, Duer interjected, The court interrupted Duer's questions of appellant again to check the age of appellant's son at the time appellant was convicted of the theft of baby formula, determined that the son was five years old, stated, "You weren't stealing for your son like you told him," and directed Duer to continue. After a few more questions regarding appellant's support for his children, Duer passed the witness.
During cross-examination by the prosecutor, appellant testified in detail about each charged offense. Each of the three assaults was committed by "a party of three," himself, his twin brother, and his uncle. He "took the lady's purse" in Cause Number 867829 and was "on the other two," but did nothing because he was too high on "crack" cocaine, which he had been using for two years. Because he did not have money to buy crack, "I went with my brother when we did those last three" behind Northline Mall. When he stole the purse, he was high and on his way to buy crack with his brother and their girlfriends and he "didn't feel like going all the way back to southwest and ask my boss for money," so he got out of the car and demanded the purse. The lady said he had a knife, but he did not.
Appellant denied committing the offense in Cause Number 867831, in which Mendez was beaten with a stick on the side of his head, his pants torn, his wallet taken, and a necklace snatched from around his neck; he testified that he was in jail that day, May 6. Subsequent questioning from the State and the court established, however, that appellant had been released from jail. When confronted by the State with his confession of his active role in the assault—described in the PSI report as appellant's hitting Mendez on the side of his head with a stick, then ripping his pants pocket and grabbing the wallet, then snatching his necklace from his neck while a second man grabbed Mendez's arms and held them behind his back—appellant denied knowing what he had told the police.
Appellant's recollection of the third offense was somewhat better:
Q [Ms. Escobedo]: What about the other offense in which you stated that your uncle, your brother, Paul, was driving the same 1987 Toyota that you said your uncle was armed with the same club and that you and [your uncle] Felix confronted the complainant? You stated Felix beat the complainant severely all over his body causing serious bodily injury. Stated blood spattered everywhere. Felix continued to beat the complainant with a stick. I stole the man's wallet. And you guys fled in the vehicle. You said the complainant only had $4 in his wallet. You remember that?
A [Appellant]: I remember something like that.
Appellant continued, however, to distance himself from his confession, to excuse his behavior and to deny responsibility for the charged offenses, blaming his uncle and twin brother.
Appellant also testified on cross-examination that he was...
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