Rouse v. State, No. 03-07-00214-CR (Tex. App. 6/27/2008)
| Decision Date | 27 June 2008 |
| Docket Number | No. 03-07-00214-CR.,03-07-00214-CR. |
| Parties | JEFFREY ROUSE, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the District Court of Travis County, 331st Judicial District, No. 2020119, Honorable Bob Perkins, Judge Presiding.
Reversed and Remanded.
Before Justices PEMBERTON, WALDROP and ONION*.
Appellant Jeffrey Rouse appeals his conviction for robbery. See Tex. Penal Code Ann. § 29.02 (West 2003). Appellant waived trial by jury and entered a plea of guilty before the trial court. Punishment was assessed at twelve years' imprisonment.
Appellant advances three points of error. First, he claims his guilty plea was not knowingly and voluntarily entered. Second, he argues that he was denied the effective assistance of trial counsel. Third, appellant asserts that this cause should be remanded to the trial court for a hearing on his motion for new trial based, inter alia, on his claims his guilty plea was involuntary and that he was denied the effective assistance of counsel.
This is an out-of-time appeal ordered by the Texas Court of Criminal Appeals in order to accord appellant "a meaningful appeal." A recitation of the facts is vital to the proper understanding of the issues.
The instant indictment alleged the primary offense of second-degree robbery on or about January 11, 2002. The second paragraph alleged a prior conviction for burglary of a habitation in Hays County occurring on September 23, 1988, which became final before the commission of the primary offense.1 The third paragraph of the indictment alleged jointly prior convictions for burglary of a habitation in Travis County, both convictions occurring on June 24, 1988.2
On May 1, 2002, appellant appeared in open court with his retained counsel and waived trial by jury. His unitary trial3 before the trial court, though not neatly structured, commenced with appellant waiving the reading of the indictment. When the trial court asked how he pleaded to the robbery charge, appellant responded: "Guilty." The trial court informed appellant that the range of punishment for robbery was not less than two years nor more than twenty years' imprisonment with a possible fine not to exceed $10,000. A question of "habitualization" was mentioned and the trial court informed appellant that in view of allegations of prior convictions, he could be punished as a habitual criminal by a term of not less than twenty-five years nor more than ninety-nine years' imprisonment or life imprisonment. See Id. § 12.42(a) (West Supp. 2007).
The trial court then determined that there was no plea bargain in the case. Upon the tender into evidence of the "waiver of rights" by appellant's counsel, the trial court observed that in those papers, appellant was pleading guilty only to robbery but not to being a habitual criminal. The State insisted that it intended to establish appellant as a habitual offender. Upon questioning by the trial court, appellant stated that he was "maintaining" his guilty plea to "this charge of robbery, habitual."
Indicating that it believed appellant desired to testify, the trial court swore appellant as a witness. Appellant's counsel asked no questions. Appellant's entire testimony consisted of cross-examination by the State. Appellant admitted most of the bare allegations of the indictment as to the robbery, except that he denied he had kicked the victim in the torso as alleged. In this matter, he persisted. Appellant was not asked and did not testify about the facts surrounding the robbery offense.4 Appellant did acknowledge his prior convictions as alleged, but offered no testimony as to the sequence required concerning the two June 14, 1988 convictions alleged in the third paragraph. See id. § 12.42(d) (West Supp. 2007).
After appellant's testimony, the prosecutor introduced State's exhibit one. It was entitled "Defendant's Plea of Guilty, Waiver, Stipulation, Judicial Confession & The Admonitions of the court." This exhibit appears to be the same as the "Waiver of Rights" tendered by appellant. There was no stipulation of facts included nor was it sworn to by appellant, and thus, does not constitute a judicial confession. The exhibit reflected that appellant was entering a plea of guilty only to the robbery charge. At this junction, without more, the trial court accepted appellant's guilty plea to the charge of robbery and found him guilty only of that offense. Neither party had rested or closed. Nevertheless, the trial court immediately turned to the issue of punishment, noting that the State was recommending seventeen years' imprisonment but was open to a counteroffer. The trial court then addressed the lead prosecutor:
The prosecutor acknowledged, in response to the trial court's questions, that it would possibly recommend a lesser penalty if there were negotiations, but none had occurred.
At this point, the trial court inquired as to appellant's previous employment with the Railroad Commission. Appellant was permitted to address the trial court about his baseball injury and addiction to drugs. Appellant said that he did not know how the incident had escalated into a robbery. Appellant's counsel recommended probation and drug treatment at the Central Texas Treatment Center. The trial court announced that it needed "to think about this more" and that it would decide the next morning.
The next day, May 2, 2002, the trial court stated that it had a proposed solution—"almost in the nature of a plea bargain" of ten years' imprisonment instead of proceeding with the enhancement provisions of the indictment. The trial court described the plea bargain as "unnegotiated" because the State and the defense were not parties to it. The trial court stated that "if this settlement is not accepted then—we need to go forward with the enhancement counts [allegations]." Appellant was confused and asked for an explanation. The trial court stated that if the proof showed appellant to be a habitual criminal, the minimum punishment would be twenty-five years' imprisonment. Appellant personally asked for a new attorney and another chance to renegotiate. A lengthy colloquy ensued between the trial court, appellant and, occasionally, his counsel. Appellant told the trial court of counsel's promises of probation and no prison time and said that otherwise, he would not have pleaded guilty. From time to time, appellant questioned whether the facts constituted robbery. Appellant and counsel began to argue. The trial court interrupted, stating that it would not grant probation and sided with defense counsel's version of statements made. Appellant's request to "start over again" was rejected.
When the appellant rejected the trial court's plea bargain offer of ten years' imprisonment, the trial court immediately assessed appellant's punishment at twelve years' imprisonment for robbery. Immediately thereafter, defense counsel agreed that appellant was ready for sentencing, to which appellant responded, "What is going on here?" After telling the trial court that he was misled and wanted a new attorney, appellant was sentenced. The trial court then announced that it would not proceed with the enhancement allegations.
On June 3, 2002, appellant's counsel faxed to the court coordinator a document entitled "Motion for Appeal."5 This was 31 days after the imposition of sentence on May 2, 2002. The motion mistakenly referred to the date of sentencing as May 3, 2002. On June 6, 2002, the said motion for appeal was filed with the district clerk. Other than the label on the motion, no mention of an appeal was made and there was no request for a new trial.
The motion for appeal signed and filed by appellant's retained trial counsel, as an officer of the court, alleged that prior to the plea, counsel had advised appellant that if the "sentence" imposed by the court was not acceptable to appellant, he could then withdraw his guilty plea. The motion further alleged that counsel and appellant were of the same mind about these circumstances. Counsel alleged in the motion that he learned on the day of sentencing that the trial court would not permit the withdrawal of the guilty plea and because appellant had entered the courtroom that day from a jail holding tank, counsel was never able to explain to appellant that the withdrawal of the plea would not be possible. The motion concluded with a prayer that appellant now be allowed to withdraw his plea. No action was taken on the motion after it was filed.
No motion for new trial was filed. See Tex. R. App. P. 21.4(a). No notice of appeal was filed. See Tex. R. App. P. 26.2(a)(1), (2). Other than the "motion for appeal," appellant's counsel took no further action and, in effect, abandoned appellant. No appeal was taken although appellant had stated on the record his desire to appeal and was assured by the trial court that he had a right to appeal.
On January 9, 2006, appellant acting pro se filed a post-conviction application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07 (West Supp. 2007). He complained therein inter alia, that he had been denied his right of appeal; that his guilty plea had not been freely, intelligently, and voluntarily made; that he had been misled by his trial counsel; and that he had been denied the effective assistance of counsel. Appellant further asserted that the trial judge had improperly...
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