Opinion
No. 02-07-188-CR
Delivered: March 27, 2008.
Appealed from the 396th District Court of Tarrant County.
PANEL F: CAYCE, C.J.; LIVINGSTON, and McCOY, JJ.
OPINION
Introduction
Appellant Rickie Wayne Fagan appeals his conviction for delivery of a controlled substance, gamma hydroxybutyric acid (GHB), of 400 grams or more. In three points, appellant argues that (1) the evidence is insufficient to support his plea of guilty, (2) his plea of guilty was involuntary because of a conflict of interest between him and his trial counsel, and (3) he received ineffective assistance of counsel. We affirm.
Background Facts
On December 20, 2005, a grand jury indicted appellant for delivery of 400 grams or more of GHB. On November 7, 2006, the trial court appointed Roxanne Robinson to represent appellant after appellant's retained counsel filed a motion to withdraw and claimed he could not effectively communicate with appellant.
On November 8, 2006, the trial court dismissed the indictment at the State's request because appellant had been re-indicted on November 3, 2006. The re-indictment added felony offense counts and a habitual offender notice. Also on November 8, 2006, in an open plea before the court and on the record, appellant waived his right to a jury trial, pled guilty to the re-indictment, pled true to the habitual offender notice, and admitted guilt to four other cases in exchange for a bar to prosecution on those cases. Appellant signed the written plea admonishments but failed to sign his judicial confession. The trial court accepted appellant's plea and postponed sentencing appellant until after a presentence investigation report (PSI) could be prepared.
Appellant admitted guilt to two misdemeanors and two felony cases, which were pled and barred. A defendant is granted a plea in bar if the defendant admits guilt to one or more unadjudicated offenses and requests the trial court to take each into account in determining sentencing for the offenses of which the defendant stands adjudged guilty. TEX. PENAL CODE ANN. § 12.45 (Vernon 2003); Hilburn v. State, 946 S.W.2d 885, 886 (Tex.App.-Fort Worth 1997, no pet.).
On November 22, 2006, appellant filed a "Declaration of Conflict Between Attorney and Client" (Declaration of Conflict) stating that he and Robinson had a breakdown of communications. The record contains no evidence to indicate that the trial court ruled on appellant's motion.
The criminal docket sheet indicates that appellant filed a pro se letter on November 22, 2006.
On April 23, 2007, the trial court reconvened to review appellant's PSI report and offered the parties the opportunity to present additional evidence regarding punishment. Robinson continued to represent appellant at this hearing. At that time, the trial court granted appellant's plea in bar and sentenced appellant to twenty years' confinement.
Sufficiency of the Evidence
In his first point, appellant argues that the trial court abused its discretion by adjudicating and sentencing him because the evidence was insufficient to support his plea of guilty. Specifically, appellant contends that there is no evidence to support his conviction because he failed to sign the judicial confession contained within the written plea admonishments, and his guilty plea to the judge alone is insufficient for him to be found guilty. The State replies that appellant failed to address all of the evidence, including the evidence presented at the April 23, 2007 hearing, which can be considered because appellant's hearing was a unitary proceeding.
Standard of Review
When a defendant pleads guilty in open court before a judge to a felony offense, article 1.15 of the code of criminal procedure requires the State to provide evidence, other than the plea of guilty, to support the defendant's guilt. TEX. CODE CRIM. PROC. ANN. art. 1.15 (stating that the State must "introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same"); see Ex Parte Williams, 703 S.W.2d 674, 678 (Tex.Crim.App. 1986); Keller, 125 S.W.3d at 604. We will affirm a trial court's judgment under article 1.15 if the State introduced evidence that embraced every essential element of the offense charged, which is sufficient to establish the defendant's guilt. Chindaphone v. State, 241 S.W.3d 217, 219 (Tex.App.-Fort Worth 2007, pet. ref'd).
Pleas of guilty to a jury are treated differently than pleas of guilty to a court under the code of criminal procedure and need not be supported by independent evidence. TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon 2005); Keller v. State, 125 S.W.3d 600, 604 n. 1 (Tex.App.-Houston [1st Dist.] 2003), pet. dism'd, improvidently granted, 146 S.W.3d 677 (Tex.Crim.App. 2004), cert. denied, 544 U.S. 906 (2005). A defendant who pleads guilty to a felony offense before a jury admits all elements of the offense and waives his right to challenge the legal and factual sufficiency of the evidence. Keller, 125 S.W.3d at 604 n. 1.
Analysis
Appellant argues that because he failed to sign the judicial confession contained with the written plea admonishments, there was insufficient evidence to sustain his conviction based on his open plea of guilty alone. On November 8, 2006, appellant pled guilty in an open plea on the record to delivery of a controlled substance of 400 grams or more. Appellant also admitted guilt to four other cases in accordance with a plea in bar. Additionally, appellant signed standard written plea admonishments, which recited the charge against him, stated that the plea was open but made in exchange for the plea in bar, and included admonishments required by the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 26.13 (Vernon Supp. 2007). Although appellant did not sign the judicial confession that was included with the admonishments, the trial court accepted appellant's plea. The trial court did not immediately assess punishment at the November 8, 2006 hearing but deferred sentencing for preparation of a PSI report in accordance with code of criminal procedure article 42.12, section 9. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 9(a) (Vernon Supp. 2007) (requiring a judge to direct a supervision officer to report to the judge in writing on the circumstances of the charged offense including the defendant's criminal and social history). The compilation of a PSI report requires the trial court to recess until the report is prepared, at which time the trial court will reconvene and assess punishment.
At the continued hearing on April 23, 2007, the trial court reviewed the PSI report and allowed the parties to present additional evidence regarding the PSI report. Appellant also took the stand. He testified that he was not manufacturing GHB but that he did participate in the process by helping to transport it. Appellant stated that he got the GHB from Chris Cornwell and then delivered it to someone who was going to sell it. The seller was actually an undercover police officer. Appellant also testified that he had a drug problem and said that "as far as manufacturing stuff, the large quantity I had of that stuff, like I said, I sort of got thrown in the mix that I shouldn't have been in. And I wish like heck I wouldn't have because all I ever did it for was for the drugs." Thus, although appellant denied making the GHB, he did admit to participating in its delivery.
Because the trial was a unitary proceeding, the trial judge could consider all the evidence presented, including appellant's testimony on April 23. Barfield v. State, 63 S.W.3d 446, 449-50 (Tex.Crim.App. 2001); Saldana v. State, 150 S.W.3d 486, 489 (Tex.App.-Austin 2004, no pet.).
A judicial confession, which is a confession made in open court, satisfies the requirements of article 1.15 and sustains a conviction upon a guilty plea. Dinnery v. State, 592 S.W.2d 343, 352-53 (Tex.Crim.App. 1979) (op. on reh'g); Chindaphone, 241 S.W.3d at 219. In this case, the fact that appellant failed to sign the written judicial confession is irrelevant because he testified in open court and admitted his guilt. Appellant's confession satisfies the requirements of article 1.15 that the State produce sufficient evidence of appellant's guilt. Dinnery, 592 S.W.2d at 352-53; Chindaphone, 241 S.W.3d at 219.
We hold that appellant's testimony, in light of his guilty plea, is sufficient evidence that embraced every essential element of the offense of delivery of a controlled substance of 400 grams or more and sufficiently establishes appellant's guilt. TEX. CODE CRIM. PROC. ANN. art. 1.15; Dinnery, 592 S.W.2d at 353; Chindaphone, 241 S.W.3d at 219. We overrule appellant's first point.
Conflict of Interest
In his second point, appellant argues that there was a conflict of interest with his trial counsel, which rendered his pleas of guilty and true involuntary.
Standard of Review
The proper standard by which to analyze claims of ineffective assistance of counsel due to a conflict of interest is the rule set out in Cuyler v. Sullivan, that is, the appellant must show that his trial counsel had an actual conflict of interest and that the conflict actually colored counsel's actions during trial. 446 U.S. 335, 100 S. Ct. 1708 (1980); Acosta v. State, 233 S.W.3d 349, 352-53 (Tex.Crim.App. 2007). If a defendant actually proves a conflict of interest by counsel, prejudice is presumed. See Monreal v. State, 947 S.W.2d 559, 565 (Tex.Crim.App. 1997) (holding defendant failed to prove actual conflict of interest); Banda v. State, 890 S.W.2d 42, 60 (Tex.Crim.App. 1994) (holding defendant did not prove conflict of interest), cert. denied, 515 U.S. 1105 (1995); Ex parte Meltzer, 180 S.W.3d 252, 256-57 (Tex.App.-Fort Worth 2005, no pet.) (holding appellant failed to establish actual conflict of interest from her attorney's prior representation of her boyfriend). An "actual conflict of interest" exists if counsel is required to make a choice between advancing his or her client's interest in a fair trial or advancing other interests to the detriment of his or her client's interests. See James v. State, 763 S.W.2d 776, 779 (Tex.Crim.App. 1989); Macon v. State, No. 2-05-00195-CR, 2007 WL 79714, at *3 (Tex.App.-Fort Worth Jan. 11, 2007, no pet.) (mem. op., not designated for publication).
Analysis
On November 22, 2006, appellant filed a Declaration of Conflict and claimed the following:
(1) Failure of counsel to file motions requested by client[,]
(2) Failure of counsel to have prose motions heard[,]
(3) Counsel shows no interest in case at hand and only seeks plea bargaining[,]
(4) Failure of counsel to request criminal investigator for defendant[,]
(5) Failure of counsel to meet with defendant and/or acquaint herself with the facts of defendant's case[, and]
(6) Total breakdown of communications between attorney and client.
Appellant contends that the trial court took no action in response to his motion.
The Texas Court of Criminal Appeals explained that once a trial court appoints an attorney to represent an indigent defendant, the defendant has been afforded all of the constitutional protections provided for under the Sixth and Fourteenth Amendments regarding counsel. Malcom v. State, 628 S.W.2d 790, 791-92 (Tex.Crim.App. [Panel op.] 1982); Sexton v. State, Nos. 2-06-00040-CR, 02-06-00041-CR, 2007 WL 439107, at *1 (Tex.App.-Fort Worth Feb. 8, 2007, pet. ref'd) (mem. op., not designated for publication). The Constitution imposes no duty on a trial court judge to sua sponte hold a hearing and assess a defense attorney's effectiveness every time a criminal defendant expresses dissatisfaction with his trial counsel. Malcom, 628 S.W.2d at 792; Sexton, 2007 WL 439107, at *1. Rather, the accused bears the burden of bringing the matter to the attention of the trial court and successfully proving that he is entitled to a change of counsel. Malcom, 628 S.W.2d at 792; Sexton, 2007 WL 439107, at *1. Even though appellant filed a Declaration of Conflict, he neither requested a hearing, obtained a ruling, nor renewed his contention at the April 23, 2007 hearing. Therefore, no error was presented for our review. See Sexton, 2007 WL 439107, at *1.
Moreover, appellant failed to demonstrate how his trial counsel had to choose between advancing his interests and another interest to the detriment of appellant's interests. Instead, appellant alleged that his trial counsel was not providing adequate assistance or representation and that there was a breakdown of communications with trial counsel. However, appellant testified at the April 23, 2007 proceeding that he had sufficient time to discuss his case with his attorney. He also testified that he understood that his attorney was willing to try his case for him, but he instead chose to plead guilty. We thus overrule appellant's second point.
Ineffective Assistance of Counsel
In appellant's third point, he claims that he was denied effective assistance of counsel. Specifically, appellant argues that because he did not sign his judicial confession contained in the written plea admonishments, his plea was involuntary.
Standard of Review
To establish ineffective assistance of counsel, appellant must show by a preponderance of the evidence that his counsel's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005); Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Crim.App. 2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999).
In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether counsel's assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. See Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065. Review of counsel's representation is highly deferential, and the reviewing court indulges a strong presumption that counsel's conduct fell within a wide range of reasonable representation. Bone v State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at 813-14. "In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions." Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. (quoting Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to simply infer ineffective assistance based upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex.Crim.App. 2007). When the record is silent as to possible trial strategies employed by defense counsel, we will not speculate on the reasons for those strategies. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994).
The second prong of Strickland requires a showing that counsel's errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, appellant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. Id. at 697, 104 S. Ct. at 2070.
Analysis
On November 8, 2006, appellant signed the written plea admonishments but did not sign his judicial confession contained within the written plea admonishments. Despite not signing the judicial confession, appellant admitted his guilt in open court that same day and in the subsequent proceeding on April 23, 2007.
This case demonstrates the "inadequacies inherent in evaluating ineffective assistance claims on direct appeal." Patterson v. State, 46 S.W.3d 294, 306 (Tex.App.-Fort Worth 2001, no pet.). Here, there is no evidence that appellant's trial counsel's actions were not adequate or that they affected appellant's plea. Appellant's motion for new trial did not claim ineffective assistance of counsel, and the trial court did not hold a hearing to determine whether appellant's complaints directed at trial counsel involved actions that may or may not have been grounded in sound trial strategy. Appellant presented no evidence supporting the claims in his Declaration of Conflict, and he specifically told the trial court that he was satisfied with his attorney's representation and that he voluntarily pled guilty.
Moreover, there is no evidence as to why appellant failed to sign the judicial confession. During the April 23, 2007 hearing, appellant admitted guilt to the offense of delivery of a controlled substance of 400 grams or more, admitted guilt on four other cases that were pled and barred, and testified that he understood that his attorney was willing to go to trial on these cases. Thus, nothing in the record shows that appellant's trial counsel's action were unreasonable or fell below the standard of prevailing professional norms. Strickland, 466 U.S. at 694, 104 S. Ct. at 2052; Garza, 213 S.W.3d at 348. We overrule appellant's third point.
Conclusion
Having overruled appellant's three points, we affirm the trial court's judgment.