Vickers v. State
| Decision Date | 27 April 2015 |
| Docket Number | No. 06–14–00072–CR,06–14–00072–CR |
| Citation | 467 S.W.3d 90 |
| Parties | Kenneth Craig Vickers, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
Heather E. Hoblit, Attorney at Law, Conroe, TX, for appellant.
William W. Ramsay, Dist. Atty., Peter I. Morgan, Asst. Dist. Atty., Sulphur Springs, TX, for appellee
Before Morriss, C.J., Moseley and Burgess, JJ.
Kenneth Craig Vickers was indicted for burglary of a habitation with intent to commit aggravated assault and aggravated kidnapping. After entering an open plea of guilty to the indicted offense, Vickers elected to have the trial court decide punishment. After hearing the evidence, the trial court found Vickers guilty, entered a finding that he used or exhibited a deadly weapon, and sentenced him to fifty years' imprisonment. On appeal, Vickers contends (1) that his plea was involuntary because the written and oral admonishments failed to put him on notice that he was pleading guilty to an offense involving a deadly weapon and (2) that he did not receive a fair trial because the trial court failed to base its ruling solely upon the evidence adduced at trial. We affirm the trial court's judgment.
Around 4:30 a.m. on April 20, 2013, Jake Sewell arrived at Kenneth Craig Vickers' home and claimed that Cody Ramsey had robbed him. Sewell had learned that Ramsey was staying at Angelina Vallentine's apartment in Sulphur Springs, Texas, with Angelina's son, Jamie Lindsey. Accordingly, Sewell and Vickers travelled to Vallentine's apartment to find Ramsey. When they arrived, Sewell stayed in the car while Vickers went to the apartment, even though Vickers did not know Ramsey. Vickers knocked on the door, and when Angelina's four-year-old daughter, Sierra, opened it, Vickers brushed past her into the apartment and chastised her for allowing a complete stranger to enter her home. Once inside, Vickers pulled a “big gun” from inside his coat, yelled at Angelina's husband, Jesse, and put the gun against Jesse's head.
Vickers then took Jesse, Angelina, and Sierra to the parking lot to speak with Sewell, at which point the two men realized that none of them were Ramsey. All five of them then went back into the apartment and waited for Ramsey to return. A short time later, Ramsey arrived together with Jamie Lindsey. When Ramsey and Jamie entered the apartment and saw Sewell, Ramsey ran away, Sewell chased him, and the two men fought. When Ramsey broke free from Sewell and ran away again, Vickers and Sewell left in their vehicle to find Ramsey, taking Jamie with them.1 Vickers and Sewell were arrested soon thereafter.
At trial, Vickers admitted that he “had been high for days” when Sewell arrived at his house that morning and that the drugs had put him “in a rage of some kind.” He argued that drugs were the root of his problem and that he used methamphetamines so he could “forget about all the hardships” in his life. He also testified that using methamphetamines made him “feel powerful, like nothing [could] hurt [him].” He did not deny the events of the day in question, and even though he claimed he did not remember everything that happened, he admitted to doing “horrible things” and apologized to the Vallentines. He admitted going with Sewell to Angelina's apartment, but claimed he only intended to scare Ramsey. He also testified that he “never meant to hurt anybody.”
Vickers' mother testified that when he was using drugs, his behavior “terrified” her. She testified that she could not “see him doing that under normal circumstances,” but admitted it was possible if he was “on drugs and knowing the way it changes his attitude.” She also testified that Vickers had suffered a serious fall as a child that caused him to have a lazy eye. As a result, he endured bullying when he was in grade school. Vickers began drinking alcohol when he was six years old and began taking drugs when he was a teenager. Vickers has a long history of using methamphetamine,2 and his drug use has cost him much—his parental rights to his two children were terminated, and both children have since been adopted.3
In his first point of error, Vickers argues that his guilty pleas were not made knowingly and voluntarily because the oral and written plea admonishments failed to put him on notice that he was pleading guilty to an offense involving a deadly weapon.4 Vickers relies on Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which holds that to support a conviction based on a guilty plea, the record must affirmatively disclose that the defendant entered his plea knowingly and voluntarily. Id. at 243, 89 S.Ct. 1709 ; Davison v. State, 405 S.W.3d 682, 687 (Tex.Crim.App.2013). In determining whether a guilty plea was entered knowingly and voluntarily, we consider the totality of the circumstances viewed in light of the entire record. Griffin v. State, 703 S.W.2d 193, 196–97 (Tex.Crim.App.1986) ; Fluellen v. State, 443 S.W.3d 365, 368 (Tex.App.–Texarkana 2014, no pet.) ; Ybarra v. State, 93 S.W.3d 922, 925 (Tex.App.–Corpus Christi 2002, no pet.).
Here, the indictment alleged that Vickers “intentionally and knowingly enter [sic] a habitation without the effective consent of Jesse Ballentine,[ [5 ] the owner thereof, and attempted to commit or committed the felony offense[s] of Aggravated Assault and Aggravated Kidnapping.” At the plea hearing, the trial court advised Vickers that he was charged with “burglary of a habitation with intent to commit an aggravated assault.” The trial court explained that “[w]ith a plea of guilty, the Court can do anything from defer adjudicating you, known as deferred adjudication community supervision—the Court can find you guilty, sentence you to as little as 5 years in the penitentiary all the way up to 99 years or a term of life.” Vickers indicated that he understood, stated that he had discussed the issue with his mother and his attorney, and expressed his intent to waive his right to a jury and enter an open plea of guilty to the charged offense. The “deadly weapon” issue was not discussed during the plea hearing.
The written plea admonishments state that Vickers was charged with “burglary habitation intend other felony” and that Vickers faced punishment for a first degree felony, having a range from five years to ninety-nine years or life. In his judicial confession, Vickers admitted that he was “guilty of each and every act as alleged in the charging instrument.” On appeal, Vickers contends that the admonishments failed to provide him with notice of the possibility of a deadly-weapon finding in his case.
When the State seeks a deadly-weapon finding against a defendant, it must provide notice of that fact to the defendant before trial. Ex parte Beck, 769 S.W.2d 525, 527 (Tex.Crim.App.1989) (citing Ex parte Patterson, 740 S.W.2d 766 (Tex.Crim.App.1987) ).6 However, under certain circumstances, a defendant may receive adequate notice of a deadly-weapon issue based simply on the offense charged. Blount, 257 S.W.3d 712.
In Blount, a jury found the defendant guilty of committing or attempting to commit aggravated assault in connection with the burglary of a habitation. Id. at 713. Blount was also found to have used a deadly weapon. Id. On appeal, he argued that he was not given adequate notice of the State's intent to seek a deadly-weapon finding. Id. The Court of Criminal Appeals held that because a deadly weapon is “ ‘anything that in the manner of its use or intended use is capable of causing death or serious bodily injury,’ ” and because aggravated assault can only be committed by either using a deadly weapon or by causing serious bodily injury, then “an allegation that a defendant committed [or attempted to commit] aggravated assault gives him notice that the deadly nature of the weapon alleged in the indictment would be an issue at trial and that the State may seek an affirmative finding on the use of the weapon.”Id. at 714 ;7 Crumpton, 301 S.W.3d at 664.
In the present case, the State alleged that Vickers did “intentionally and knowingly enter a habitation without the effective consent of Jesse Ballentine, the owner thereof, and attempted to commit or committed the felony offense[s] of Aggravated Assault and Aggravated Kidnapping.” Unlike the indictment in Blount, the indictment here does not charge Vickers with aggravated assault, but with burglary of a habitation with the intent to commit aggravated assault and aggravated kidnapping. Moreover, burglary of a habitation and aggravated kidnapping can be committed without the use of a deadly weapon or without using “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Id. Thus, Vickers argues that Blount is inapplicable and that the indictment cannot provide the required deadly-weapon notice.
Nevertheless, Vickers received a copy of the indictment at his arraignment. The indictment charges him with burglary of a habitation with intent to commit aggravated assault and aggravated kidnapping. At his plea hearing, the trial court told him that he was charged with “burglary of a habitation with intent to commit an aggravated assault.” Vickers pled guilty to the charge pending against him in this case, which was burglary of a habitation with intent to commit aggravated assault and aggravated kidnapping. Because the charge to which he pled guilty included both theories and because the first theory cannot be committed without either using a deadly weapon or causing serious bodily injury, then Blount applies and Vickers was on notice that the State would seek a deadly-weapon finding in this case.8
In his second point of error, Vickers contends that he did not receive a fair trial before an impartial...
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... ... case was not sufficient to give him adequate notice ... "When ... the State seeks a deadly-weapon finding against a defendant, ... it must provide notice of that fact to the defendant before ... trial." Vickers v. State, 467 S.W.3d 90, 94 ... (Tex. App.-Texarkana 2015, pet. ref'd) (citing Ex ... parte Beck, 769 S.W.2d 525, 527 (Tex. Crim. App. 1989)) ... "However, under certain circumstances, a defendant may ... receive adequate notice of a deadly-weapon issue based simply ... ...