Opinion
NO. 01-11-00082-CR
12-29-2011
CHRISTOPHER RIOS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 14
Harris County, Texas
Trial Court Case No. 1547542
MEMORANDUM OPINION
Christopher Rios appeals the trial court's order denying his application for a writ of habeas corpus. Rios pleaded guilty to a charge of driving while intoxicated. When the State subsequently informed him that the intoxilyzer results showing his blood alcohol concentration to be approximately twice the legal limit were invalid, Rios applied for the writ. We have reviewed the record and conclude that the trial court did not abuse its discretion in denying Rios habeas relief. We therefore affirm.
Background
At around 2:00 a.m. on August 31, 2008, police officers stopped Rios after he failed to stop for a stop signal. He explained that "he ran it" because mechanical problems caused him to "run" the stop signal. After speaking with officers and performing field sobriety tests, which were recorded, Rios was arrested for driving while intoxicated. Rios provided breath samples for an intoxilyzer test that showed his blood alcohol concentration at 0.149 and 0.161.The record before this court does not show how much time elapsed between the time Rios was pulled over and the time he provided the breath samples.
Rios pleaded guilty pursuant to a plea bargain. He was sentenced to 180 days' confinement and fined $200, but the trial court suspended his sentence and placed him on community supervision for one year. The State later moved to revoke his community supervision, alleging a number of violations of his community supervisionconditions.
The State later discovered that the technician in charge of the intoxilyzer on which Rios was testedhadfalsified the calibration records for that machine. After the State informed him of these facts, Rios applied for a writ of habeas corpus, alleging as the sole ground that his plea had been involuntary because he relied on the intoxilyzer results showing he had a blood alcohol concentration of approximately twice the legal limit a few hours after driving on the night in question.
At the hearing on his application, Rios testified that he pleaded guilty based on the intoxilyzer results. Under questioning from the court, Rios admitted that he had consumed alcohol on the night of his arrest. He also admitted that he violated the terms of community supervision in a number of ways, including violating the prohibition against alcohol consumption.He also failed to attend required meetings with his community supervision officer, although he testified that he always tried to call and explain why we could not attend.At the conclusion of the hearing, the trial judge stated that Rios's assertion that he only pleaded guilty because of the intoxilyzer results was not credible. The trial judge then denied the application for writ of habeas corpus in open court and by written order on January 3, 2011.The trial court also granted the State's motion to revoke community supervision.
A few weeks later, the trial judgesigned Findings of Fact and Conclusions of Law in support of his ruling. In these findings of fact, the trial judge concluded that Rios was not credible and stated that he did not believe Rios's testimony regarding his motivation for pleading guilty. The trial court also noted that the information alleged only that Rios was intoxicated, but did not specify a blood alcohol concentration or otherwise refer to the intoxilyzer results. Although the issue of intoxication was not directly before the trial court at the time of the hearing and the videotape was not presented to the trial court at that time, the trial court specifically stated in his subsequent fact findings that the videotape supported a finding that Rios did not have the normal use of his mental or physical faculties on the night in question. SeeTEX. PENAL CODE ANN. § 49.01(2) (West 2011) (defining "intoxicated" as both "not having the normal use of mental or physical faculties by reason of the introduction of alcohol . . . into the body" and "having an alcohol concentration of 0.08 or more"). The trial judge further found that Rios was aware of the evidence against him and pleaded guilty in order to "secure a favorable plea bargain and for no other reason. "The trial judge ultimately concluded that Rios's guilty plea was "knowingly and voluntarily entered."
Standard of Review
An applicant for a writ of habeas corpus seeking relief on the basis of an involuntary guilty plea must prove his claim by a preponderance of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). A trial court's ruling on an application for habeas relief must be reviewed in the light most favorable to the ruling, and a reviewing court will uphold the ruling absent an abuse of discretion. Id. "We afford almost total deference to a trial court's factual findings in habeas proceedings, especially when those findings are based upon credibility and demeanor." Ex parte White, 160 S.W.3d 46, 50 (Tex. Crim. App. 2004).The trial court, as the finder of fact in a habeas proceeding, may accept or reject all or any part of any witness's testimony. Ex parte Peterson, 117 S.W.3d 804, 819 n.68 (Tex. Crim. App. 2003), overruled on other grounds byEx parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007) (citing Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993)).
Did Rios prove his plea was involuntary?
The sole ground raised in Rios's application for a writ of habeas corpus is that his guilty plea was involuntary because he did not know that the intoxilyzer results were inadmissible. But for that erroneous information, Rios contends, he would not have pleaded guilty. On appeal, Rios asserts that he was denied due process because his plea was based on test results that, unknown to him, were not reliable or admissible.
"A guilty plea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to confront one's accusers, and the right not to incriminate oneself." Kniatt v. State, 206 S.W.3d at 664. "The 'overriding concern' in reviewing the constitutional validity of a guilty plea is 'whether a defendant has been deprived of due process and due course of law. '" Holland v. State, 761 S.W.2d 307, 322 (Tex. Crim. App. 1988) (quoting Ex parte Lewis, 587 S.W.2d 697, 700 (Tex Crim. App. 1979)). To satisfy due process, a guilty plea "must be entered knowingly, intelligently, and voluntarily." Kniatt, 206 S.W.3d at 664. We consider the entire recordin determining the voluntariness of a guilty plea. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975); Burke v. State, 80 S.W.3d 82, 93 (Tex. App.—Fort Worth 2002, no pet.).When the record reflects that the defendant was duly admonished by the trial court before entering a guilty plea, it presents a prima facie showing that the plea was both knowing and voluntary. Martinez,981 S.W.2d at 197.The burden then shifts to the defendant to show he entered the plea without understanding the consequences of his actions and was harmed as a result. Id. A defendant who attests that he understands the nature of his plea and that it was voluntary has "a formidable barrier in any subsequent collateral proceedings" in attempting to show his plea was involuntary. Kniatt, 206 S.W.3d at 664;see Labib v. State, 239 S.W.3d 322, 332 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
Rios signed a plea agreement in this case. The agreement contained several paragraphs of admonishments and explanations of his rights. One of these paragraphs provides:
We note that the Rios's signed agreement was not introduced into evidence at the hearing on his application. However, the trial court included the standard forms used for a guilty plea on a misdemeanor charge in that court. Rios testified that, before his plea, he spoke with his attorney and filled out and signed plea papers similar to the blank forms introduced at the hearing. We have received a supplemental clerk's record containing Rios's signed plea agreement. Except for being filled out and signed by Rios, his attorney, and the trial court judge, the agreement is substantially similar to the blank forms made part of the record at the hearing. Some differences in wording, primarily concerning the naturalization and deportation consequences of a guilty or nolo contendere plea, appear in the two versions.
I am satisfied that the attorney representing me today in court has properly represented me and I have fully discussed the case with my attorney. . . . I confess that I committed the offense as alleged in the State's information and that each element of the State's pleading is true. In open court I freely and voluntarily enter my plea of guilty/nolo contendere to the offense charged in the information and request the Court to make immediate disposition of this case based upon my plea.The agreement was also signed by Rios's attorney, under a paragraph that stated "I have consulted with the defendant whom I have found to be competent and to whom I have fully explained all of the matters contained in this instrument . . . ." Finally, the agreement contains a paragraph stating:
After consulting with the defendant and informing the defendant of the nature of the charges, all rights and the consequences of the plea of guilty/nolo contendere . . . . The Court finds that the defendant is competent and that the plea was entered only after the defendant knowingly, intelligently and voluntarily waived the right to a trial by jury and all other rights set out above. The Court hereby accepts this plea.Rios testified at the hearing that he discussed the plea papers and the consequences of his plea with his attorney. He also testified that he signed the plea agreement.
In his application for a writ of habeas corpus, Rios asseted one ground for finding his plea involuntary: his plea was based on "inaccurate intoxilyzer information provided by the Department of Public Safety and/or Houston Police Department." On appeal to this court, Rios asserts, "[Rios] stated that but for the inadmissible breath tests results showing him to be intoxicated, he would not have pled guilty."
Rios's First Amended Application for Writ of Habeas Corpus, paragraph II.
Appellant's Brief, Summary of the Argument, page 8.
Rios cites to only one authority concerning the voluntariness of a guilty plea: Ex parte Huerta, 692 S.W.2d 681 (Tex. Crim. App. 1985). Rios argues that, under the holding of that case, this court "must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the unreliable evidence (breath test) did not contribute to the conviction or punishment."Huerta is not so broad. There, the habeas applicant asserted that he "was induced to plead guilty" by agood faith promise by the prosecution, which was included in the judgment, that his state convictions would run concurrently with his sentence in a federal matter. After it was discovered that the applicant's state and federal sentences were not running concurrently, the Court of Criminal Appeals granted habeas relief because "the plea bargain was not kept and thus the defendant's plea of guilty was not voluntarily entered." Id. at 682; accord State v.Moore, 240 S.W.3d 248, 251 (Tex. Crim. App. 2007) (noting that plea bargains are contracts and both State and defendant are entitled to the benefits of those agreements). Huerta does not stand for the proposition that a defendant is relieved from his burden of establishing that, but for certain misinformation, he would not have pleaded guilty. Neither does it require the state to prove voluntariness. The burden of proof remains on the defendant-applicant making a claim of involuntariness. See Kniatt, 206 S.W.3d at 664.
Huerta relied on Ex Parte Burton, 623 S.W.2d 418 (Tex. Crim. App. 1981), a case in which the court, under nearly identical facts as those in Huerta, also concluded that the habeas applicant's plea was not voluntary and could be withdrawn. In that case, the trial court made findings that the defendant was induced to enter into the plea bargain by good faith representations by the prosecution regarding his federal sentence that were later shown to be unenforceable and that he would not have entered into the plea bargain had such representations not been made. Id. at 419.
Likewise, this court has also observed that a defendant can seek to set aside a plea bargain on the basis of a promise made by the prosecutor which subsequently "fails because the law prohibits the benefit promised to the defendant" if that promise "induced the defendant to enter the plea bargain agreement." Ex parte Spicuzza, 903 S.W.2d 381, 384 (Tex. App.—Houston [1st Dist.] 1995, pet. ref'd).
In contrast to Huerta, Burton, and Spicuzza, Rios does not assert that the State made a promise that it could not keep. Nor does Rios contend that he did not understand the consequences of his plea. See Martinez,981S.W.2d at 197. Rios testified that his plea was involuntary because he relied on inaccurate information concerning the results of the intoxilyzer tests. The trial court, however, specifically found Rios was not credible concerning the reasons for entering the plea bargain. The trial court is the sole judge of the credibility of witnesses, and we must afford its credibility determination almost total deference. See Ex parte White, 160 S.W.3d at 50. The trial court could reasonably have concluded that Rios's testimony at his hearing was contradicted by his admission that he reviewed the plea papers with his attorney and signed them and by the plea papers that recite Rios understood the consequences of his plea, made the plea voluntarily, and confessed that he "committed the offense as alleged in the State's information and that each element of the State's pleading is true." Therefore, the trial court did not abuse its discretion. SeeKniatt, 206 S.W.3d at 664; Labib, 239 S.W.3d at 333; see also Ex parte Shah, No. 01-03-00789-CR, 2004 WL 36217, at *2 (Tex. App.— Houston [1st Dist.] Jan. 8, 2004, pet.ref'd) (no abuse of discretion by trial court that was presented with conflicting evidence in habeas proceeding); accordSalazarv. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001) (trial court does not abuse its discretion by overruling a motion for new trial when the evidence adduced at the hearing on the motion is conflicting). Moreover, the trial court was free to reject any of Rios's testimony. See Ex parte Peterson, 117 S.W.3d at 819n.68; see also Kniatt, 206 S.W.3d 664 (noting trial court "could believe or disbelieve any of the witnesses"). Under these facts, we conclude that the trial court did not abuse its discretion by determining that Rios failed to carry his burden of proof of demonstrating that his plea was involuntaryand consequently denying Rios habeas relief.See Labib, 239 S.W.3d at 333 (stating that defendant who claimed plea was involuntary based on misrepresentations of defense counsel had to demonstrate that he would not have pleaded guilty and would instead have gone to trial);see also Ex parte Shah, 2004 WL 36217, at *2 (trial court did not abuse discretion in denying habeas relief when evidence conflicted).
The trial court, in its findings of fact stated, "The defendant's performance on video of the field sobriety tests demonstrated sufficient evidence that reasonable jury could have found him guilty of the offense of which he was accused." The video is difficult to decipher. The sound, in particular, cuts in and out and is often difficult to follow. Reasonable minds, after viewing the videotape, could come to different conclusions concerning the significance of the videotape. Our analysis, however, does not require us to attempt to interpret the video of Rios's field sobriety tests or review the trial court's interpretation of the video.
In Labib, the defendant asserted that his guilty plea was not voluntary because his counsel gave him erroneous information.Labib, 239 S.W.3d at 332. When the claim of an involuntary plea is only supported by the defendant's uncorroborated testimony, the trial court is free to find that the testimony lacks credibility. Id. at 334.
We overrule Rios's sole issue.
We anticipate that the dissent may assert that the State's failure to disclose favorable information to Rios before the entry of his plea—that the intoxilyzer results were not admissible—renders that plea involuntary as a matter of law, even though the favorable facts were unknown to the prosecution at the time of the plea agreement, under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194 (1963)) and its progeny. But Rios did not assert that his rights under Brady v. Maryland were violated. Neither his application in the trial court nor his brief to this court cite or discuss Brady or any cases discussing Brady. Because Rios failed to raise a Bradyviolation before the trial court (or this court), it is waived. See Curry v. State, 186 S.W.3d 39, 42 (Tex. App.—Houston [1st Dist.] 2005, no pet.) ("Constitutional rights, including the rights of due process and due course of law, may be waived if the proper request, objection, or motion is not asserted in the trial court."); see alsoEx parte Bui, 983 S.W.2d 73, 76 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd) (refusing to consider grounds not included in application for writ of habeas corpus to trial court).
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Conclusion
We affirm the order of the trial court.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Sharp and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).