Brown v. State

Full title: JAMIE MARSHALL BROWN, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Dec 15, 2005

No. 05-05-00453-CR (Tex. App. Dec. 15, 2005)

Opinion

No. 05-05-00453-CR

Opinion Filed December 15, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 401st District Court, Collin County, Texas, Trial Court Cause No. 401-80716-01. Affirm.

Before Justices O'NEILL, FITZGERALD, and LANG.

MEMORANDUM OPINION

Opinion By Justice FITZGERALD.

Jamie Marshall Brown appeals his conviction for indecency with a child following a trial before the court. After finding appellant guilty the trial court sentenced appellant to five years' imprisonment. Appellant brings six points of error asserting ineffective assistance of counsel, void waiver of the right to a jury trial, and seeking specific enforcement of an alleged agreement that appellant could change his "not guilty" plea to "guilty" and seek deferred adjudication after the trial court found appellant guilty. We affirm the trial court's judgment.

PROCEDURAL BACKGROUND

The trial court imposed appellant's sentence on October 23, 2002. Appellant filed a motion for new trial. The motion was file stamped on November 26, 2002, but the certificate of service states it was mailed on November 22, 2002, thirty days after imposition of sentence. Appellant filed an untimely amended motion for new trial on December 3, 2002, forty-one days after imposition of sentence. On January 6, 2003, the seventy-fifth day after imposition of sentence, the motion for new trial was overruled by operation of law. The trial court held an untimely hearing on the motion for new trial on January 10, 2003, seventy-nine days after imposition of sentence, and entered an order purporting to deny the motion. Appellant filed an untimely notice of appeal on January 27, 2003, ninety-six days after imposition. This Court dismissed appellant's appeal for want of jurisdiction. See Brown v. State, No. 05-03-00129-CR, 2003 WL 21674743 (Tex.App.-Dallas July 18, 2003, no pet.) (per curiam) (mem. op.) (not designated for publication). The court of criminal appeals subsequently granted appellant an out-of-time appeal and ordered:

Habeas corpus relief is granted and Applicant is granted an out-of-time appeal from his conviction in cause number 401-80716-01 from the 401st District Court of Collin County. The proper remedy in a case such as this is to return Applicant to the point at which he can give notice of appeal. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the conviction had been entered on the day that the mandate of this Court issues. We hold that Applicant, should he desire to prosecute an appeal, must take affirmative steps to see that notice of appeal is given within thirty days after the mandate of this Court has issued.

Ex parte Brown, No. AP-75,068, 2005 WL 774386 (Tex.Crim.App. Jan. 26, 2005) (not designated for publication). The court of criminal appeals' mandate issued on March 2, 2005. Appellant timely filed a notice of appeal on April 1, 2005, but before doing so, he filed a motion for new trial on March 17, 2005. On April 8, 2005, the trial court refused to rule on the motion for new trial or to have a hearing on the motion.

HEARING ON MOTION FOR NEW TRIAL

Appellant asserts that the evidence presented at the untimely January 10, 2003 hearing on his motion for new trial is necessary for some of his arguments on appeal, and he asks that we either consider the record from the January 10, 2003 hearing or that we abate the appeal and order the trial court to conduct a hearing on appellant's March 17, 2005 motion for new trial. We cannot do either. After appellant's original motion for new trial was overruled by operation of law, the motion became a nullity, and the trial court had no jurisdiction to grant the motion or hold a hearing on it. See Morrison v. State, 132 S.W.3d 37, 48 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). Accordingly, the hearing from the motion for new trial is not properly before us, and we cannot consider it. See id. As for appellant's March 17, 2005 motion for new trial, the order of the court of criminal appeals granting appellant an out-of-time appeal did not authorize the filing of another motion for new trial. Accordingly, we cannot consider the motion or abate for the trial court to conduct a hearing on the motion. See Mestas v. State, 165 S.W.3d 917, 919 (Tex.App.-Dallas 2005, pet. granted).

THE TRIAL

Before hearing evidence, the trial court admonished appellant on his right to a jury trial, the ability of a jury and the inability of the trial court to grant probation for the charged offenses, and the trial court's ability to defer adjudication and place appellant on probation if appellant pleaded guilty. Appellant stated he understood all these issues and had no questions about them. Appellant agreed with the trial court that he had waived a jury. Before entering his plea, the following discussion occurred:

The Court: Now, I understood informally yesterday and I want to confirm this in your hearing though, the State has said-I heard the prosecutor, Ms. Voirin, tell your attorney yesterday, that if you wanted to change your plea during the course of this trial in front of me that they would have no objection to you doing that. Is that your understanding?

The Defendant: Yes, sir.

[Defense Counsel]: Yes, sir, it is, Your Honor.

The Court: Because I don't know what your plea is going to be. We're going to get to that next.

But what I anticipate maybe and sometimes it happens is a person in trial before the court, which is what this is, enters a plea of not guilty initially. Then at some point in the trial, for whatever reason-but in order that they can be eligible for deferred adjudication probation change their plea to no contest or nolo contendere. If that happens, I understand from the State and your attorney that they would have no objection, and I would certainly permit you to do it.

I'm not saying I would end up doing deferred adjudication, but I would certainly permit you to do it. I didn't know if you knew that or not but you now understand that certainly is an option?

The Defendant: Yes, sir.

Appellant then pleaded not guilty, and the trial proceeded. After hearing all the evidence and argument, the trial court found appellant guilty. Appellant then tried to change his plea:

[Defense Counsel]: Your Honor, initially we had talked about changing our plea if the court felt that —

The Court: Well, we'll let the State input on that. I didn't-I wasn't asked to-whether or not to consider that. I certainly-if the State-I certainly found the evidence sufficient, if nothing else. I'll see what the State's position on that is.

[Prosecutor]: Your Honor, not at this stage. I mean, we have gone through the complete trial, and the court found him guilty. If that was something he wanted to do, he should have done that earlier in the trial if he wanted to change his plea. We could have talked about it then, but not at this stage.

The Court: I would have to agree with the State on that.

[Defense Counsel]: Your Honor, that certainly wasn't the agreement that I had with counsel, and that's the only problem I have with it.

The Court: Well, we can talk about that. Obviously, on a plea of nolo-if the plea had been changed to nolo contendere at anytime before I announced my finding, I would have certainly considered giving him deferred. I would have had to, and I would still want to hear some evidence on it even beyond what I've already heard because I don't have any real-and I don't yet-and this may be what I'm probably still going to get to hear. I don't know-not that it's going to control what I do, what people want me to do, the family or anyone else wants me to do.

I suspect that I've already heard from Mr. and Mrs. Kennemer about their attitude.

But at any rate, I'll stay with my finding that he's guilty until and unless you-all can agree that I can do otherwise. I'm not saying even then that I would not change my mind or that I would change my mind. So I stay with my ruling.

After hearing more evidence and argument, the trial court sentenced appellant to five years' imprisonment.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his first, second, and sixth points of error, appellant asserts he lacked effective assistance of counsel at trial. To prevail on a claim of ineffectiveness of counsel at trial, an appellant must establish: (1) trial counsel's representation fell below an objective standard of reasonableness in that counsel made errors so serious that counsel was not functioning as the reasonably effective counsel guaranteed by the state and federal constitutions; and (2) a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (1986). We indulge a strong presumption that defense counsel's conduct falls within the wide range of reasonable, professional assistance-that the challenged actions might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 770-71 (Tex.Crim.App. 1994). To defeat this presumption," 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, 812 (Tex.Crim.App. 1999). When the record contains no evidence of the reasoning behind trial counsel's actions, we cannot conclude that counsel's performance was deficient. Freeman v. State, 125 S.W.3d 505, 506-07 (Tex.Crim.App. 2003); see Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994); see also Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001); Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). In his first point of error, appellant contends trial counsel was ineffective because counsel "misrepresented to appellant that the bench trial would be a sham in favor of appellant." In his second point of error, appellant contends trial counsel was ineffective because counsel was unaware that the trial court could not impose a probated sentence for this offense. Both points of error rely upon the evidence developed at the untimely hearing on the motion for new trial. As discussed above, the record of that hearing cannot be considered on appeal. Accordingly, these allegations of ineffectiveness are not firmly founded in the record and do not defeat the presumption of effective assistance. We overrule appellant's first and second points of error. In his sixth point of error, appellant contends counsel was ineffective in that he "repeatedly failed to object to damaging, inadmissible testimony." The appellate record contains no explanation from counsel of the reasons for his failure to object. Accordingly, we cannot conclude his representation was deficient. See Freeman, 125 S.W.3d at 506-07. We overrule appellant's sixth point of error.

ENFORCEMENT OF AGREEMENT

In his fifth point of error, appellant contends he "is entitled to specific performance of the agreement that he would be able to seek probation upon an unfavorable advisory verdict because the State lead [sic] counsel to believe and thus to advise appellant that appellant would receive an advisory verdict and would then be able to change his plea to qualify for probation." The only agreement in the record properly before us is that appellant could withdraw his not-guilty plea during the trial and change it to a guilty or nolo contendere plea. The record contains no evidence of any agreement that the trial court's verdict would be advisory or that appellant could change his plea after the trial court had found him guilty. Accordingly, appellant's contention lacks merit. We overrule appellant's fifth point of error.

JURY WAIVER

In his third and fourth points of error, appellant contends his jury waiver is void because the prosecutor's consent to the jury waiver was not filed with the court and the trial court's approval of the waiver was not entered of record. Article 1.13 of the code of criminal procedure states that a defendant's waiver of his right to trial by jury must be made in person, in writing, in open court, with the consent and approval of the court and the prosecutor. The trial court's consent and approval "shall be entered of record on the minutes of the court," and the prosecutor's consent and approval "shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea." Tex. Code Crim. Proc. Ann. art. 1.13(a) (Vernon 2005). The clerk's record contains a written waiver of the right to trial by jury. This waiver is signed by appellant and his attorney, and it is signed as "Approved" by the prosecutor. The place for the trial court to note its consent to the waiver is left blank. No date of filing is noted on the document. Appellant asserts in his brief that "the waiver was never filed" and that the trial court did not put its consent to the waiver into the minutes of the court. Absent a showing to the contrary, a reviewing court presumes the regularity of judgments. Davis v. State, 130 S.W.3d 519, 522 (Tex.App.-Dallas 2004, no pet.). Appellant bears the burden to overcome this presumption. Id. Recitations in the judgment regarding compliance with the formalities of jury waiver are binding on the appellate courts in the absence of an affirmative showing of noncompliance. Breazeale v. State, 683 S.W.2d 446, 450-51 (Tex.Crim.App. 1984) (op. on reh'g). In this case, the judgment recites that the prosecutor's consent was filed with the papers of the cause and the trial court's approval was entered into the minutes.¹ Nothing in the record contradicts these statements in the judgment. Accordingly, we must presume the formalities of jury waiver were complied with. We overrule appellant's third and fourth points of error. We affirm the trial court's judgment.