Williams v. State

Full title: JONATHAN BRADFORD WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Apr 12, 2005

No. 14-03-01214-CR (Tex. App. Apr. 12, 2005)

Opinion

No. 14-03-01214-CR

Opinion filed April 12, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 183^rd District Court, Harris County, Texas, Trial Court Cause No. 952,421. Affirmed.

Panel consists of Justices ANDERSON, HUDSON, and FROST. (ANDERSON, J., concurs in the result only.)

OPINION

J. HARVEY HUDSON, Justice.

Appellant, Jonathan Bradford Williams, was charged by indictment with criminally negligent homicide, a state jail felony. See Tex. Pen. Code Ann. § 19.05 (Vernon 2003). Appellant entered a plea of "guilty" without an agreed recommendation on punishment. The court made an affirmative finding that appellant used a deadly weapon, namely, his vehicle, to commit the offense. After finding two felony enhancement paragraphs true, the court sentenced appellant to twenty-five (25) years' confinement in the Texas Department of Criminal Justice, Institutional Division. In eight points of error, appellant contends his counsel was ineffective, his plea was involuntary, the trial court lacked jurisdiction, his due process rights and right to speedy trial were violated, his sentence exceeds the legal punishment range, and there was no affirmative finding that he used a deadly weapon in the commission of the alleged offense. On September 30, 2002, at approximately 7:20 p.m., appellant was driving a rented Ryder truck southbound on South Post Oak Road. As he drove through the intersection at the South Sam Houston Parkway frontage road, he struck the complainant's vehicle broadside. Ms. Helen Otis, who was traveling westbound at the time of the collision, was killed.¹ Initially, appellant was charged with the offenses of criminally negligent homicide in trial court cause number 925,970, escape in cause number 925,971, and failure to stop and render aid in cause number 934,869. On June 26, 2003, the trial court dismissed cause number 925,970, the criminally negligent homicide charge, and re-filed the case under cause number 952,421 — the only cause now pending before this court.² Appellant subsequently pled guilty to the charge, and the court convicted and sentenced him accordingly.

1 There is some indication in the record that appellant had traces of PCP in his blood at the time of the collision.

2 The indictments in cause numbers 925,971 and 934,869 were also dismissed and were not re-filed.

Ineffective Assistance

In his first two points of error, appellant contends he was provided ineffective assistance of counsel and argues that, as a result, his guilty plea was entered involuntarily. Specifically, appellant complains that his appointed counsel failed to perform the necessary investigation of the offense and refused to file motions that he had requested she file. Appellant also alleges that he wanted to proceed to trial and that only after realizing how inept his appointed counsel was did he agree to plead guilty. A counsel's ineffectiveness may render a plea of guilty involuntary. See Hayes v. State, 790 S.W.2d 824, 828 (Tex.App.-Austin 1983, no pet.). Claims of ineffective assistance of counsel are evaluated under the two-step analysis articulated in Strickland v. Washington, 466 U.S. 668 (1984). First, appellant must demonstrate counsel's performance was deficient and not reasonably effective. Id. at 688-92. To satisfy this step, appellant must identify the acts or omissions of counsel alleged as ineffective assistance and affirmatively prove they fell below the professional norm of reasonableness. See id.; McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). Second, appellant must demonstrate the deficient performance prejudiced the defense. Strickland, 466 U.S. at 693. To establish prejudice, an appellant must prove that but for counsel's deficient performance, the result of the proceeding would have been different. See id. at 694; Lemke v. State, 13 S.W.3d 791, 796 (Tex.Crim.App. 2000). In this case, that means appellant must prove that, but for counsel's errors, he would not have pled guilty. See Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App. 1997); Tabora v. State, 14 S.W.3d 332, 336 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Judicial scrutiny of counsel's performance must be highly deferential, and we are to indulge the strong presumption that counsel was effective. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). Appellant has the burden of rebutting this presumption by presenting evidence illustrating why trial counsel did what she did. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (en banc). Therefore, any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). "[R]arely will the trial court record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation: `[i]n the majority of cases, the record on direct appeal is simply underdeveloped and cannot adequately reflect the failings of trial counsel.'" Bone, 77 S.W.3d at 833 (quoting Thompson, 9 S.W.3d at 813-14)). When the record contains no evidence of the reasoning behind trial counsel's actions, we cannot conclude counsel's performance was deficient. Thompson, 9 S.W.3d at 813; see also Jackson, 877 S.W.2d at 771. Here, appellant does not direct us to any evidence in the record which indicates the rationale, strategy, or defensive scheme considered and pursued by counsel. Counsel's effectiveness is not to be judged solely by the results of his or her representation, but rather is to be assessed against the backdrop of counsel's tactical motivations for his or her actions. While appellant makes numerous assertions in his brief that his counsel's performance was deficient, such unfounded assertions alone cannot provide sufficient evidence to sustain an ineffective assistance claim. See Thompson, 9 S.W.3d at 813-14 (holding that when the record provides no explanation as to the motivations behind trial counsel's actions, an appellate court should be hesitant to declare ineffective assistance of counsel). Moreover, appellant did not file a motion for new trial and therefore, the record is silent as to the reasoning behind counsel's actions. See Safari v. State, 961 S.W.2d 437, 445 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd, untimely filed) (explaining that in the absence of a motion for new trial, it would be speculative to find ineffective assistance of counsel). An appellate court is not required to speculate on the reasons behind trial counsel's actions when confronted with a silent record. Jackson, 771; see also Thompson, 9 S.W.3d at 814; Safari, 961 S.W.2d at 445. Because appellant fails to provide any evidence in the record to affirmatively demonstrate the ineffectiveness of his trial counsel, he has not satisfied his burden to rebut the presumption that he received reasonably effective assistance. Furthermore, the record does not support appellant's contention that his plea was involuntary. In his brief, appellant argues that his counsel's ineffectiveness led him to believe he could not receive a fair trial and that this belief was his motivation for pleading guilty. As we already have determined, the record before us is insufficient to find appellant's counsel was ineffective. More importantly, the record reflects that appellant received written admonishments from the trial court prior to pleading guilty.³ These admonishments, which were signed by appellant, plainly state that appellant's plea was voluntary and that he received effective assistance of counsel. Therefore, even if the record rebutted the presumption of sound trial strategy, appellant has not provided sufficient evidence in the record to indicate he disagreed with pleading guilty and preferred to proceed with trial. See Powers v. State, 727 S.W.2d 313, 315-16 (Tex.App.-Houston [1st Dist.] 1987, pet. ref'd) (holding a defendant's claim that his plea was involuntary due to ineffective assistance was not supported by the record); see also Dusenberry v. State, 915 S.W.2d 947, 949-52 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd) (explaining when a defendant attests to the voluntariness of a plea, he has a heavy burden to later show lack of voluntariness). Therefore, appellant has not demonstrated that trial counsel's performance prejudiced his defense; thus he also has failed to meet the second prong of the Strickland test. Accordingly, we overrule appellant's first two points of error.

Trial Court Jurisdiction

In his third point of error, appellant contends the trial court lacked jurisdiction because the charging instrument failed to properly allege an offense. However, he proceeds in his brief to argue that the facts of the case, as described in the offense report, are contrary to the allegations. Thus, he appears to aver that he was not fully apprised of the actual charges against him. Generally, an indictment must contain every element that must be proven at trial. Dinkins v. State, 894 S.W.2d 330, 338 (Tex.Crim.App. 1995). However, an indictment is sufficient to vest the trial court with jurisdiction if it accuses someone of a crime with sufficient clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the indictment is otherwise defective. See Duron v. State, 956 S.W.2d 547, 550-51 (Tex.Crim.App. 1997); see also TEX. CODE CRIM. PROC. ANN. art. 15.05 (Vernon 1977) (outlining the minimum substantive requirements for a complaint to be valid). Section 19.05 of the Texas Penal Code outlines the elements of criminally negligent homicide. The section states "[a] person commits an offense if he causes the death of an individual by criminal negligence." The indictment in this case stated, in pertinent part, that appellant, "did then and there unlawfully, cause the death of Helen Otis . . . by criminal negligence, namely by operating a motor vehicle and failing to stop at a designated stopping point and failing to control speed and failing to maintain proper lookout." (Emphasis added). The indictment continued ". . . at the time the Defendant committed the felony offense of Criminally Negligent Homicide . . . he used and exhibited a deadly weapon, namely a motor vehicle during commission of and during the immediate flight therefrom." It is apparent from this language that the indictment sufficiently alleged the elements of an offense under section 19.05 of the penal code. Furthermore, the indictment stated that appellant was charged with criminally negligent homicide. As such, it provided sufficient clarity and specificity to identify the penal statute under which the State intended to prosecute appellant and properly conferred jurisdiction on the trial court. See Duron, 956 S.W.2d at 550-51. We overrule appellant's third point of error.

Plea Admonishments

In his fourth point of error, appellant contends that his plea was involuntary because the trial court failed to properly admonish him as required by Article 26.13 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 26.13 (Vernon 1989 Supp. 2004-2005). Specifically, he argues that he understood his offense to be a state jail felony with a punishment range of 180 days' to two years' confinement and claims that he would not have pled guilty had the court properly warned him that the sentence would be twenty-five years' confinement. Article 26.13(a) of the Texas Code of Criminal Procedure mandates that before accepting a guilty plea, the trial court must admonish a defendant of, among other things, the possible punishment range of his sentence. Tex. Code Crim. Proc. Ann. art. 26.13 (a)(1) (Vernon Supp. 2004-2005); Ruffin v. State, 3 S.W.3d 140, 144-145 (Tex.App.-Houston [14 Dist.] 1999, pet. ref'd). The admonishments may be made either orally or in writing. See TEX. CODE CRIM. PROC. ANN. art. 26.13(d); Ruffin, 3 S.W.3d at 145. If the admonishments are made in writing, the defendant and his lawyer must file a statement that the defendant understood the admonitions and was aware of the consequences of the guilty plea. See TEX. CODE CRIM. PROC. ANN. art. 26.13(d); Ruffin, 3 S.W.3d at 145 ("The purpose and function of article 26.13 is to ensure only a constitutionally valid plea is entered by the defendant and accepted by the trial court."). If a trial court substantially complies with article 26.13, there exists a prima facie case that the plea was valid. See TEX. CODE CRIM. PROC. ANN. art. 26.13(c); Ruffin, 3 S.W.3d at 145. To substantially comply with article 26.13, the trial court need not advise the defendant of every aspect of law relevant to his case or sentencing, only the direct consequences of entering a guilty plea. See State v. Vasquez, 889 S.W.2d 588, 590 (Tex.App.-Houston [14th Dist.] 1994, no pet.). In this context, direct consequences of a plea are generally held to be those listed in article 26.13. See id. at 590 (explaining that a guilty plea is voluntary if the defendant is advised of all direct consequences of the plea and that ignorance of a collateral consequence does not render the plea involuntary). Once a prima facie case is established, the burden then shifts to the defendant to affirmatively show that he was not aware of the consequences of his plea, and that he was misled or harmed by the admonishments, or lack thereof. See TEX. CODE CRIM. PROC. ANN. art. 26.13(c); Fuentes v. State, 688 S.W.2d 542, 544 (Tex.Crim.App. 1985). Here, the trial court provided appellant with a three-page document entitled "Written Plea Admonishments." The first page of this document had all sentencing ranges clearly marked out other than a paragraph entitled "habitual offender range." This paragraph was circled, indicating that the only range of punishment to which appellant would be subject was under the habitual offender statute. See TEX. PENAL CODE § 12.42(d) (Vernon Supp. 2004-2005) (explaining that, upon conviction of a felony other than a state jail felony, a defendant who has two prior felony convictions shall be punished by imprisonment of between twenty-five (25) to ninety-nine (99) years, or life). The paragraph further explicitly stated that appellant was subject to a sentence range of "a term of life or any term not more than 99 years or less than 25 years confinement in the Institutional Division of the Texas Department of Criminal Justice." Appellant placed his initials beside this paragraph, thereby attesting that he "fully understood" the punishment range. The third and final page of this document contained a paragraph stating that appellant fully understood the admonishments, was aware of the consequences of a guilty plea, and freely and voluntarily pled guilty. Both appellant and appellant's counsel signed this document. As such, the requirements of article 26.13 were met and a prima facie case was established showing that his plea was valid. While appellant contends he did not receive proper admonishments about the potential sentence range, nothing in the record supports this contention. No testimony or oral statements were recorded and no record was made while appellant was signing the admonishments and entering his plea. In the absence of evidence to the contrary, appellant has failed to meet his burden to prove that the admonishments in this case were insufficient or that his plea was invalid. Accordingly, we must overrule appellant's fourth point of error.

Due Process

In appellant's fifth point of error, he complains of various due process violations. Appellant first argues that the trial court improperly refused to rule on a writ of habeas corpus for illegal detainment and two writs of habeas corpus seeking a reduction in excessive bail. We begin by observing that during many of the pretrial proceedings, appellant was represented by counsel. During these periods of representation, appellant was not authorized to file or obtain any ruling upon his pro se motions, writs, etc. Meyer v. State, 27 S.W.3d 644, 648 (Tex.App.-Waco 2000, pet. ref'd); Stelbacky v. State, 22 S.W.3d 583, 586 (Tex.App.-Amarillo 2000, no pet.). Moreover, even if appellant did not have the services of an attorney during some portion of time the aforementioned writs were pending, the remedy for a court's failure to consider a writ of habeas corpus is simply to file the writ with another court. See In re Piper, 105 S.W.3d 107, 110 (Tex.App.-Waco 2003, orig. proceeding). Thus, the well-established rule of law is that when an application for habeas corpus alleging unlawful restraint is presented to a judge who refuses to issue a writ commanding the person having the applicant in custody to produce him for a determination of the allegations in the application, no appeal lies. Ex parte Okere, 56 S.W.3d 846, 849 (Tex.App.-Fort Worth 2001, pet. ref'd). Appellant next contends he was not properly taken before a magistrate after being arrested as required by articles 14.06, 15.16, and 15.17 of the code of criminal procedure. The purpose of these statutes is to advise the accused of his legal rights so that he does not incriminate himself involuntarily or under duress. State v. Vogel, 852 S.W.2d 567, 569-70 (Tex.App.-Dallas 1992, pet. ref'd). However, absent some causal connection between the officer's failure to take the suspect before a magistrate and the recovery of some incriminating evidence against him, e.g., a confession, the failure to take the accused before a magistrate immediately after his arrest does not constitute reversible error. Rocha v. State, 16 S.W.3d 1, 29 (Tex.Crim.App. 2000); Zarychta v. State, 44 S.W.3d 155, 169 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). Here, appellant has not demonstrated any causal connection between the officers' failure to take him before a magistrate and the acquisition of any evidence against him. Finally, appellant claims his rights were violated when the State refused to allow discovery of the State's evidence against him. A criminal defendant, however, has no constitutional right of discovery apart from any exculpatory evidence in the State's possession. In re State, 116 S.W.3d 376, 381 (Tex.App.-El Paso 2003, no pet.). In other words, there is no general constitutional right to discovery in a criminal case. Id. at 382.

Accordingly, appellant's fifth point of error is overruled.

Right to Speedy Trial

Appellant avers, in his sixth point of error, that his right to speedy trial was violated under both the federal and state constitutions and Article 1.05 of the Texas Code of Criminal Procedure. Speedy trial analysis requires us to examine four factors: (1) length of delay; (2) reason for delay; (3) assertion of the right; and (4) prejudice to the accused. Barker v. Wingo, 407 U.S. 514, 530 (1972). Appellant was arrested on September 30, 2002. He was indicted by a grand jury on June 18, 2003, and appellant entered a plea of guilty on August 25, 2003. We find the eleven-month delay between appellant's arrest and his subsequent conviction to be presumptively prejudicial. However, the reason for the delay was due in large measure to appellant's desire to change attorneys. Appellant did not assert his right to a speedy trial until July 16, 2003, two days prior to his indictment and five weeks prior to his guilty plea. Finally, the record demonstrates no prejudice to the appellant resulting from the delay. After considering the four factors outlined above, we find no reversible error stemming from the alleged denial of a speedy trial. Accordingly, appellant's sixth point of error is overruled.

Illegal Sentence

Appellant complains, in his seventh point of error, that his sentence exceeds the punishment range permitted by the Texas Penal Code. He argues that because the offense he committed is listed as a state jail felony, section 12.35 of the Penal Code limits his sentence to no more than two years. Section 12.35 of the Penal Code dictates that the commission of a state jail felony requires a sentence of not more than two years' or less than 180 days' confinement. TEX. PEN. CODE ANN. § 12.35(a) (Vernon 2003). However, if the individual used or exhibited a deadly weapon during the commission of the offense, he is to be punished for a third degree felony. See id. § 12.35(c)(1). Furthermore, section 12.42, otherwise known as the habitual offender statute, provides that an individual shall be punished by imprisonment for life, or for any term not more than ninety-nine (99) years or less than twenty-five (25) years if he was previously convicted of two separate felonies. See id. § 12.42(d) (Vernon Supp. 2004-2005). Here, the trial court made an affirmative finding that appellant used a deadly weapon, namely his automobile, in causing the death of the victim. See generally Ex parte McKithan, 838 S.W.2d 560, 560 (Tex.Crim.App. 1992) (holding that a motor vehicle is clearly capable of causing death or serious bodily injury and therefore can be a deadly weapon under the penal code); Ray v. State, 880 S.W.2d 795, 796-97 (Tex.App.-Houston [1st Dist.] 1994, no pet.) (explaining that while not per se a deadly weapon, an automobile can be a "deadly weapon" under the penal code if the driver uses it in such a manner as to render it capable of causing death or serious bodily injury). This finding supported the increase in appellant's punishment range from that of a state jail felony to that of a third degree felony. Furthermore, the court found the two enhancements paragraphs in the indictment to be true. Therefore, under section 12.42(d) of the penal code, the court did not err in sentencing appellant to twenty-five years' confinement. We overrule appellant's seventh point of error.

Affirmative Finding of a Deadly Weapon

In his final point of error, appellant argues that there was no finding of fact that he used a deadly weapon during commission of the offense. However, the indictment contained an allegation that appellant used a deadly weapon in the commission of the offense. Appellant executed a written judicial confession in which he stipulated that the allegations contained in the indictment were true. Further, the trial court entered an affirmative finding of a deadly weapon in its judgment. See Keller v. State, 125 S.W.3d 600, 605 (Tex.App.-Houston [1st Dist.] 2003), pet. dismissed as improvidently granted, 146 S.W.3d 677 (Tex.Crim.App. 2004) (holding appellant's judicial confession was sufficient evidence to show he used a deadly weapon, and the record need not otherwise provide proof). Appellant cites no authority suggesting the trial court was without authority to enter such a finding based upon appellant's plea and judicial confession, and we have found none. Appellant's final point of error is utterly without merit.

The judgment of the trial court is affirmed.