Opinion
No. 05-16-00397-CR
03-21-2017
CHRISTOPHER DAVIS NORRIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 59th Judicial District Court Grayson County, Texas
Trial Court Cause No. 065795
MEMORANDUM OPINION
Before Justices Lang, Brown, and Whitehill
Opinion by Justice Brown
Christopher Davis Norris appeals his conviction, on an open plea of guilty, for theft. In a single issue, appellant contends he received ineffective assistance of counsel because trial counsel failed to inform him of the ramifications of an open plea, specifically, that he was subject to the full range of punishment. We affirm the trial court's judgment.
BACKGROUND
Plea Hearing
Appellant was indicted for the offense of theft of property in Grayson County. Based on the value of the property, the offense was a state jail felony. At a hearing on January 14, 2016, appellant entered an open plea of guilty. He told the trial court he understood that the range of punishment for the offense was 180 days to two years in state jail and a possible $10,000 fine. In addition, appellant and his attorney signed a stipulation of evidence and a document titled "Judge's Admonishment." In the Judge's Admonishment, appellant also acknowledged he understood that the range of punishment for the offense was 180 days to two years in state jail. Appellant told the trial court he signed the documents freely and voluntarily and only after he had the chance to have his attorney explain them to him. Appellant said he did not have any questions about the documents or anything the court had told him. The trial court found that appellant's plea was freely and voluntarily made and found the evidence sufficient to establish appellant's guilt. The court set the case for a punishment hearing and ordered the preparation of a presentence investigation report.
Punishment Hearing
At a March 10, 2016 punishment hearing, the State asked the court to take judicial notice of the presentence investigation report and then rested. Appellant called two witnesses. Steven Turner, a former coworker of appellant's, testified that appellant had once been a mentor to him, but later became "unrecognizable," due to what Turner suspected was drug use. Turner cut ties with appellant. In the weeks before the hearing, they began communicating regularly again, and appellant was taking steps to get things back on track. In Turner's opinion, time in state jail would not be a good option for appellant because he was very fragile and not mentally ready for jail. Turner thought appellant should be placed on probation.
Appellant testified that he got into trouble after he started using methamphetamine to deal with past trauma and job loss. Appellant testified he was currently on probation in Dallas County and in Collin County for offenses that occurred when he was using methamphetamine. One offense occurred before the Grayson County theft and the other occurred after it. All three occurred within a ten-month period. Appellant testified he has a job and has been going to meetings and seeking counseling. His attorney asked him what his plan was "if [he was] granted probation." Appellant said his plan was to prove that he could be a productive member of society. His attorney later asked him if he would go to inpatient drug treatment "if Judge Nall is willing to put you on probation of any kind." Appellant answered affirmatively. Appellant testified that state jail would not be appropriate because it would kill his will to be a productive member of society. He asked the court for "deferred probation" so that he could continue to work and have a second chance.
In rebuttal, the State called the Grayson County Adult Probation Officer who performed the presentence investigation in this case. She testified that appellant was a questionable candidate for probation.
In closing arguments, defense counsel asked the court to grant appellant probation. The prosecutor argued that appellant needed to go to jail. The trial court assessed the maximum punishment of two years in state jail.
Motion for New Trial
Three weeks later, on March 31, 2016, appellant's counsel moved to withdraw. The trial court granted the motion and appointed new counsel for appellant. Appellant timely filed a motion for new trial in which he asserted that his sentence was contrary to the law and evidence presented.
Appellant testified at a hearing on the motion for new trial. He stated that he had understood he was going to be given "a deferred probationary sentence" at the sentencing hearing. He believed that because it was his first offense and because of the way his presentence investigation interview had gone and "from [his] attorney." On cross-examination, the prosecutor asked appellant if he understood that "when you go open to the Judge you're taking a gamble." Appellant said he had not been aware it was a gamble. He had been advised by his attorney to take an open plea. On re-direct, defense counsel asked appellant if he understood that when he pleaded guilty, he left himself open to the full range of punishment. Appellant answered, "I do now." Appellant said that had not been explained to him when he entered his plea and that he would have taken another course of action regarding punishment if he had known.
The trial judge then asked appellant if he was trying to say that on the day he pleaded guilty he did not understand that the court was going to be determining what his punishment was. Appellant said, "Yes, sir." The judge then asked appellant why he thought the court heard testimony at the punishment hearing. Appellant stated he thought it was to go to trial and see what the result would be. He clarified that the result was "[w]hatever my probation that I was going to get." He understood he was going to get probation, not two years in jail.
Appellant's father also testified that appellant did not understand that the judge was going to sentence him at the hearing in March and did not understand that he could get jail time. He and appellant understood that a plea deal had been arranged through the attorneys and appellant would get a probated sentence.
The trial judge then obtained a transcript of appellant's testimony at the plea hearing and read some of it back to appellant. The judge asked appellant if he remembered the judge saying that the range of punishment for the offense was 180 days to two years in state jail and a possible $10,000 fine. Appellant replied, "Gosh - - yes." The trial court denied appellant's motion for new trial.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his sole issue in this appeal, appellant contends he received ineffective assistance of counsel. Specifically, appellant contends trial counsel was deficient because she failed to provide him with an understanding of the consequences of an open plea. He maintains he did not understand that he was subject to the full range of punishment and that the judge was going to decide his punishment. Appellant asserts he believed the punishment hearing was solely for the judge to determine how long his probation would last. He further asserts that as a result, his plea was not knowing and voluntarily.
To prevail on a claim of ineffective assistance of counsel, an appellant must show the following: 1) counsel's performance fell below an objective standard of reasonableness; and 2) a reasonable probability exists that, but for counsel's errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); see Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App. 2005). An 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 (Tex. Crim. App. 1999). Judicial review of a claim of ineffective assistance of counsel must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Id. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id.
When an appellant presents his ineffective assistance claim to the trial court in a motion for new trial, an appellate court analyzes this issue as a challenge to the denial of the motion for new trial. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004), superseded by statute as stated in State v. Herndon, 215 S.W.3d 901 (Tex. Crim. App. 2007). As such, an appellate court reviews the Strickland test through an abuse of discretion standard. We do not substitute our judgment for the trial court's, but rather we decide whether the trial court's resolution of the ineffective assistance claim was arbitrary or unreasonable. Id. We must view the evidence in the light most favorable to the trial court's ruling and presume that all reasonable factual findings that could have been made against the losing party were made against that losing party. Thus, a trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Id. At a motion for new trial hearing, the trial court alone determines the credibility of the witnesses. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014).
Appellant's claim of ineffective assistance is not firmly founded in the record. The record prior to sentencing reflects that appellant knew jail time was an option and thus that probation was not guaranteed. At the plea hearing, appellant stated he understood that the range of punishment was 180 days to two years in state jail. The focus of the punishment hearing was on whether appellant should be given jail time or probation. Appellant presented witnesses, including himself, who testified that time in state jail would not be an appropriate punishment for him. Appellant's counsel twice asked him about his plans "if" he was granted probation. Also, appellant specifically told the court he was asking for deferred probation.
Appellant maintains the record from the punishment hearing reflects his clear belief that he was essentially already on probation for the offense. He points out that he told the court he was extremely sorry for what he had done and was "fully committed to the rehabilitation process and to continue on with a deferred sentence so I'm able to regain my life back." On cross-examination, appellant made reference to "finish[ing] . . . deferred adjudication probation." In view of the fact that appellant was on probation in Dallas and Collin counties at that time, his statements could have referred to those probated sentences. Even if they did not, in light of the totality of the evidence and argument at the punishment hearing, the two statements do not amount to proof appellant's trial counsel did not inform him jail time was a possibility.
The only affirmative evidence in the record to support appellant's claim that he did not understand the consequences of his open plea comes from testimony at the hearing on his motion for new trial. As previously stated, appellant testified he had been under the impression, in part "from [his] attorney," that he was going to be given deferred probation at the punishment hearing. He further testified that it was not explained to him at the time of his plea that he was subject to the full range of punishment. He told the court he did not understand that the court was going to be determining what his punishment was and thought he was going to get probation. Appellant's father corroborated this testimony.
Appellant did not expressly raise ineffective assistance of counsel in his written motion for new trial or at the hearing on the motion. His new attorney argued that the two-year sentence was contrary to the law and evidence presented and, if the court had the opportunity to hear additional testimony, the sentence may have been different. But, in effect, the trial court had the opportunity to consider appellant's claim that his trial counsel had not informed him of the consequences of his open plea. In denying appellant's motion for new trial, the court rejected this claim. Viewing the evidence in the light most favorable to the trial court's ruling, we presume the trial judge, as the sole judge of the credibility of the witnesses, did not believe appellant's self-serving testimony at the new trial hearing. Appellant even admitted that he remembered being advised by the judge at the plea hearing that the range of punishment was 180 days to two years in state jail. We cannot conclude the trial court abused its discretion in denying appellant's motion for new trial. Appellant has failed to establish his trial counsel's performance fell below an objective standard of reasonableness, the first prong of Strickland. We overrule appellant's sole issue.
We affirm the trial court's judgment.
/Ada Brown/
ADA BROWN
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b). 160397F.U05
JUDGMENT
On Appeal from the 59th Judicial District Court, Grayson County, Texas
Trial Court Cause No. 065795.
Opinion delivered by Justice Brown, Justices Lang and Whitehill participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 21st day of March, 2017.