Opinion
Nos. 14-05-00993-CR, 14-05-00994-CR, 14-05-00995-CR
March 13, 2007. DO NOT PUBLISH. C TEX. R. APP. P. 47.2(B).
Appeal from the 228th District Court Harris County, Texas, Trial Court Cause Nos. 1010644, 1010645, 1018553.
Panel consists of Justices FOWLER, EDELMAN, and FROST.
MEMORANDUM OPINION
On original briefing, appellant Andrew Westell challenged his felony theft convictions alleging he received ineffective assistance of counsel. This court abated his appeals and remanded to the trial court for appointment of counsel and an opportunity to file a motion for new trial. On remand to the trial court, appellant filed a motion for new trial based on ineffective-assistance-of-counsel grounds and the trial court denied it. Concluding the trial court did not abuse its discretion in denying appellant's motion for new trial, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged with two counts of felony theft in cause numbers 1010644 and 1010645, and one count of aggregate felony theft from an elderly person in cause number 1018553. On December 28, 2004, after trial counsel was appointed to represent him in these cases, appellant pled guilty to all three counts, without an agreed recommendation from the State as to punishment. The trial court ordered a pre-sentence investigation ("PSI") and, on September 16, 2005, conducted a sentencing hearing. The trial court found appellant guilty on all three counts and for each count sentenced him to nine years' confinement in the Institutional Division of the Texas Department of Criminal Justice. On the day appellant was sentenced, his appointed counsel filed a notice of appeal in all three cases and sought permission to withdraw from his representation of appellant. The trial court granted appointed counsel's motion to withdraw that day, leaving appellant without representation. On October 17, 2005, appellant's mother filed a declaration requesting that appellate counsel be appointed for her son. No counsel was appointed in the trial court. In his appeal to this court, appellant voiced various complaints, including that the trial court should have appointed counsel to represent him after allowing his trial counsel to withdraw. On November 9, 2006, after the parties submitted appellate briefs, this court abated the appeals and remanded these cases to the trial court so that the trial court could appoint counsel and give appellant thirty days to file and present motions for new trial. See Andrew Westell v. The State of Texas, Nos. 14-05-00993-CR, 14-05-00994-CR, 14-05-00995-CR (Tex.App.-Houston [14th Dist.] Nov. 9, 2006) (order). On remand, appellant filed motions for new trial in these cases, contending that his counsel was ineffective in several respects. Following abatement and remand, the trial court denied appellant's motion for new trial.II. ISSUES AND ANALYSIS
At the heart of appellant's challenge to his felony theft convictions is his contention that he was denied effective assistance of counsel during the guilt-innocence phase as well as the punishment phase of his trial. Either in his appellate brief or in his motion for new trial, appellant has asserted that his trial counsel was deficient in the following respects:(1) failing to adequately confer with him before he entered his guilty plea;
(2) failing to adequately prepare him to testify at sentencing;
(3) failing to interview defense witnesses to testify at sentencing;
(4) failing to prepare defense witnesses to testify at sentencing;
(5) failing to interview any of the potential witnesses who allegedly would have provided mitigation evidence at sentencing;
(6) failing to adequately object to alleged deficiencies in the PSI report;
(7) failing to check the appropriate boxes in the notice-of-appeal form, thereby hindering him from properly filing a motion for new trial and making an adequate record for appeal.According to appellant, his trial counsel's allegedly deficient conduct caused him to enter involuntary pleas. Appellant argues that he would have been in a better position to make a fully informed decision on whether to plead guilty or take his cases to trial if his trial counsel had done a better job of communicating with him and investigating his cases. This failure, appellant argues, rendered his pleas unknowing and involuntary. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, '10; TEX. CODE CRIM. PROC. art. 1.051 (Vernon 2005). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex.Crim.App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 688B92. Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). We review the trial court's decision to deny appellant's motion for new trial for an abuse of discretion. Holden v. State, 201 S.W.3d 761, 763 (Tex.Crim.App. 2006). We do not substitute our judgment for that of the trial court; rather, we decide whether the trial court's decision was arbitrary or unreasonable. Id. 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. In assessing appellant's claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). We presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Absent an opportunity for trial counsel to explain his actions, appellate courts should not find ineffective assistance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)).
A. Did the trial court abuse its discretion in denying appellant's motion for new trial on his claim that his trial counsel was ineffective for failing to adequately confer with appellant before appellant entered his guilty pleas?
In his first claim for ineffective assistance of counsel, appellant contends that his counsel failed to adequately confer with him before he pled guilty, rendering his pleas involuntary. Appellant contends that his attorney did not properly advise him on the law applicable to his cases or the alternatives available to him and, therefore, appellant asserts, his guilty pleas were not knowing and voluntary. In determining the voluntariness of the pleas, we consider the entire record. Williams v. State, 522 S.W.2d 483, 485 (Tex.Crim.App. 1975). When a defendant enters his plea upon the advice of counsel and subsequently challenges the voluntariness of that plea based on alleged ineffective assistance of counsel, the voluntariness of such plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and, if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 56, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (holding the two part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) applies to challenges to guilty pleas based on ineffective assistance of counsel); Ex Parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App. 1997). Therefore, the question posed in this case is whether the trial court abused its discretion in determining that appellant did not meet his burden of proving that: (1) counsel's alleged failure to properly advise appellant on the law applicable to his cases or the alternatives available to him, including the availability of the jury to assess punishment, was outside the range of competence demanded of attorneys in criminal cases; and (2) but for defense counsel's errors, appellant would not have pleaded guilty and would have insisted on going to trial. See Morrow, 952 S.W.2d at 536. The record of the hearing on appellant's motion for new trial does not show the trial court abused its discretion. Despite appellant's contentions, his trial counsel testified that he met with appellant in his law office, and talked to appellant on several occasions to discuss his cases and defense. During many conversations, appellant's counsel discussed the option of restitution with him, which, in turn, might have opened up the possibility of probation. Appellant's counsel informed him that, unless appellant paid restitution, the State would not consider probation. More specifically, the record reflects the following during direct examination of appellant's trial counsel, R. P. "Skip" Cornelius:[Appellant's counsel]: Okay. Going — going back to the day of trial. You were set June 27th, 2005, according to the record. You had some discussions with him prior to that date about restitution, how much he could make. And obviously it's failed.
Did you ever discuss with him the possibility or suggest to him that it was better to go to the Judge for punishment because in all likelihood he would get probation, rather than from the State?
[Cornelius]: No. From the State? You mean from a jury?
[Appellant's counsel]: Well, from "or that he was never" you were never going to be able to enter a plea agreement with the State for probation. So, your best option is to go the Judge because he'll give you probation. Did you ever suggest anything like that to him?
[Cornelius]: No. And never I felt [should "never" be after "I"?] the Judge would give him probation.
[Appellant's counsel]: Okay.
[Cornelius ]: And I thought his best option was to go to trial with a jury, but he didn't want to do that.
[Appellant's counsel]: When, if you can recall, was the decision made to go to the Judge rather than to the Jury?
[Cornelius]: I don't know. When it was made, I don't know.
[Appellant's counsel]: Okay. Well, it would had to have been — would you agree with me it had to have been made at some point on that day in deciding whether to go to trial or plea because he pled that day that you were set for trial?
[Cornelius]: No. I don't know if we talked about it beforehand. Was that the only trial setting?
[Appellant's counsel]: That was the only trial setting according —
[Cornelius]: Okay.
[Appellant's counsel]: According — according to the record, that was the only trial setting.
[Cornelius]: I really don't know because my — my recollection is that up to the last second, his promises were that he was going to get the restitution. And — and the case had just been reset so many times for him to get the restitution, that the State just wasn't going to agree to it any further.
But even after it was set for trial, he promised to get the restitution, all of it. And he had some story as to how he was going to get it. And it just didn't happen. But he may have told me before the day of trial that it wasn't going to come to fruition. And maybe the decision was made at that point. I don't really remember. It was his decision. And he chose to plead to the Judge. He could have had a jury, you know, and he just decided to go to the Judge.
[Appellant's counsel]: And you never — never suggested to him at all that it was better to go to the Judge because this Judge would give him probation?
[Cornelius]: No, I never said that.
[Appellant's counsel]: Sorry. If my client had stated that the first time he heard about the aggregate theft and the charge of aggregate theft against him was June 27th, the day he reviewed the plea papers, would be that correct or incorrect?
[Cornelius]: Incorrect.
[Appellant's counsel]: Okay. And yet again, you told him — you never told him even as you were signing the plea papers — let me rephrase that.
At any point when you were filling out the plea papers with him, did you prepare him for the possibility of getting jail time? Had y'all had a discussion about jail time versus probation?
[Cornelius]: Absolutely.
[Appellant's counsel]: And what did you tell him?
[Cornelius]: That he probably was not going to get probation because he hadn't paid any restitution, not a dime in all the years. When did this happen? In all the years that had gone by, he had not paid a time [sic] of restitution. And I felt it unlikely he would get probation.During cross-examination, appellant's trial counsel testified on this issue as follows:
[The State]: You said that there was — you don't recall when the decision was made about not going forward with the jury trial, but the decision was his. Can you recall how heChow you were informed that he made the decision he did not want to take the case to a jury?
[Cornelius]: He told me.
[The State]: He here in person, in your office, on the telephone?
[Cornelius]: I can't remember if it was on the telephone before the day of trial or if it was the day of trial. I can't remember.
[The State]: Okay.
[Cornelius]: I can't remember when it was that he finally said I'm not going to be able to get the money.
[The State]: On the day of trial, that's when we entered into the pleaBentered the plea before the Court, correct?
[Cornelius]: If that's what the record shows. I don't really remember.
[The State]: Okay. Well, you and/or I would have completed the paperwork. And did you then sit down and go through the paperwork with him?
[Cornelius]: Yes.
[The State]: Do you recall if he asked you any questions during that time?
[Cornelius]: I don't recall.
[The State]: Okay
[Cornelius]: He B I don't think it was much of a problem. After all, he is, according to him, a lawyer.
[The State]: Okay. Do you remember there being any difficulty in Mr. Westell understanding what was going on around him that day?
[Cornelius]: None.
[The State]: Do you remember being able to speak with him and he answer questions in an appropriate fashion?
[Cornelius]: Yes.
[The State]: Was he coherent to you?
[Cornelius]: Yes.Moreover, appellant and his lawyers signed a document entitled "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession," in which appellant agreed with the following statement: "I am satisfied that the attorney representing me today in court has properly represented me and I have fully discussed this case with him." This document contains the following statement signed by the trial judge:
After I admonished the defendant of the consequences of his plea, I ascertained that he entered it knowingly and voluntarily after discussing the case with his attorney. It appears that the defendant is mentally competent and the plea is free and voluntary. I find that the defendant's attorney is competent and has effectively represented the defendant in this case.On the same day (June 27, 2005), the appellant signed another document entitled "Admonishments" which contains the following statement: "I fully understand the consequences of my plea herein, and after having consulted with my attorney, request that the trial court accept said plea." See Grays v. State, 888 S.W.2d 876, 878 (Tex.App.-Dallas 1994, no pet.) (concluding that when a trial court substantially complies with article 26.13(a), it constitutes a prima facie showing the defendant's guilty plea was entered knowingly and voluntarily, and it is the defendant's burden to show otherwise); Enard v. State, 764 S.W.2d 574, 575 (Tex.App.-Houston [14 Dist.] 1989, no pet.) (holding appellant's guilty plea was not involuntary because it was based on his attorney's erroneous advice where, among other things, appellant's plea papers reflected he entered his guilty plea voluntarily). In this document appellant states: "I am totally satisfied with the representation provided by my counsel and I received effective and competent representation." At a hearing on a motion for new trial, the trial court is the trier of fact and its findings should not be disturbed unless abuse of discretion has been demonstrated. See Reissig v. State, 929 S.W.2d 109, 113 (Tex.App.-Houston [14 Dist.] 1996, pet. ref'd). In addition, the trial court can consider the interest and bias of any witness, and the judge is not required to accept as true the testimony of the accused or any defense witness simply because it was not contradicted. See id. Based on appellant's trial counsel's testimony during the motion-for-new trial hearing, and the documents appellant signed, the trial court did not abuse its discretion by impliedly concluding that the alleged ineffective assistance of appellant's trial counsel did not cause appellant to enter involuntary guilty pleas. See Thomas v. State, 2 S.W.3d 640, 641 (Tex.App.-Dallas 1999, no pet.).B. Did the trial court abuse its discretion in denying appellant's motion for new trial on appellant's claim that his trial counsel was ineffective for failing to adequately prepare appellant to testify at sentencing? In his second ineffective-assistance claim, appellant contends that his counsel was ineffective for failing to adequately prepare him to testify on his own behalf during the punishment hearing. This complaint is based on the false premise that appellant testified at the punishment hearing. He did not. Moreover, there is no evidence from appellant's motion for new trial or from the hearing on that motion to show how appellant's trial counsel was ineffective regarding this issue. Appellant did not raise this issue at the motion-for-new-trial hearing. In his written motion for new trial, appellant made the general statement that his counsel was ineffective for failing to adequately prepare him to testify, but appellant did not offer any facts or explanation in support of this claim. The trial court did not abuse its discretion in impliedly concluding that appellant failed to satisfy both prongs of Strickland on this claim.