Willie Deshotel v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-97-00691-CR Willie Deshotel, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF ANGELINA COUNTY, 159TH JUDICIAL DISTRICT NO. 18,491, HONORABLE GERALD A. GOODWIN, JUDGE PRESIDING Appellant Willie Deshotel appeals his conviction for aggravated robbery. See Tex. Penal Code Ann. §§ 29.02 (a)(2), 29.03 (a)(2) (West 1994). He pleaded guilty to the trial court without a plea bargain. The court sentenced him to twelve years imprisonment. The sole issue is whether appellant's plea of guilty was voluntary. We will affirm. Background The indictment alleged that appellant committed aggravated robbery with a deadly weapon on or about October 30, 1995. The indictment was presented November 14, 1995. Appellant pleaded guilty on November 30, 1995. There was no plea bargain. The trial court ordered a presentence investigation. Appellant failed to appear for his sentencing hearing on June 6, 1996, and a capias issued. At a sentencing hearing on July 8, 1997, appellant's confession was admitted and he testified in detail about the offense. The evidence showed that appellant and three others were riding around and decided to "rob a faggot." The four lured the victim to a back road. In the attack, appellant's role was to choke the victim while two others pulled him out of his car and another menaced him with a baseball bat. They took his wallet and a CD player. Appellant shared in the proceeds of the robbery. The record of the sentencing hearing shows the community corrections department's presentence report recommendation was for deferred adjudication. The State argued that deferred adjudication would not be appropriate in light of appellant's failure to appear for the scheduled sentencing hearing, absenting himself from the county for over a year, and, during that absence, impregnating a fifteen-year-old girl. She testified at the sentencing hearing. The trial court indicated that the seriousness of the original aggravated robbery and appellant's conduct in absenting himself from the court's jurisdiction militated against following the probation department's recommendation of deferred adjudication. The trial court sentenced appellant to twelve years imprisonment. Appellant timely moved for new trial on September 9, 1997, a hearing was held on October 23, 1997, and the trial court denied the motion upon completion of the hearing. In his motion for new trial, appellant contended that his plea was not voluntary because he did not understand the consequences of entering his plea of guilty and believed that he would get deferred adjudication probation. He also contended that he was not informed and did not understand that if he were sentenced to prison he would actually have to serve a portion of the sentence before being considered for parole. Appellant further contends that his limited education and difficulty in learning hampered his understanding of the consequences of his plea of guilty. The only witnesses at the hearing on the motion for new trial were appellant and his trial attorney. Appellant testified that he believed that if he pleaded guilty and the presentence investigation revealed no other felonies, he would get deferred adjudication probation. He understood that he was not eligible for regular probation. His attorney explained to him that there was a possibility that a jury would find him guilty if he had a jury trial. His attorney told him that he was eligible for deferred adjudication. (1) He acknowledged that his lawyer never told him that he was assured of getting deferred adjudication. He testified that the judge told him that he faced between five and ninety-nine years in prison and that the judge never told him he was assured of deferred adjudication. Appellant testified that he quit school in the tenth grade, had attended special school because his learning was slow, but could read "fairly well" and could write. He testified that before his lawyer was appointed, his bondsman told him to plead guilty and get probation. The lawyer testified it is his habit and practice to go over the document designated "admonishments, written waiver and plea of guilty" with his client. He never told appellant that he was assured of receiving deferred adjudication probation. He advised his client of the range of punishment of five to ninety-nine years. He said he did not recall knowing that appellant had a limited education or learning disability. However, the lawyer said he always puts the information in simple terms that a nine-year-old can understand. The lawyer testified that he did not say anything that would lead appellant to believe that he would definitely get deferred adjudication probation, and appellant did not say anything to him indicating that he expected deferred adjudication probation. Discussion and Holding Appellant relies on Brady v. United States, 397 U.S. 742, 748 (1970), for the proposition that a guilty plea, as a waiver of constitutional rights, not only must be voluntary, but must be a knowing, intelligent act done with sufficient awareness of the relevant circumstances and likely consequences. This Court has applied this rule. See In re E. Q., 839 S.W.2d 144,146 (Tex. App.--Austin 1992, no writ). We have said: "A defendant who enters a plea may always appeal the issue of voluntariness." Delatorre v. State, 957 S.W.2d 145, 150 (Tex. App.--Austin 1997, pet. ref'd); see Flowers v. State, 935 S.W.2d 131, 133 (Tex. Crim. App. 1996). Appellant's complaints about his lack of comprehension of his plea consist of three parts. First, he asserts that he entered his plea believing that he would get deferred adjudication probation. Second, he contends that he did not understand that if he were sentenced to prison, he would actually have to serve a fixed amount of time before becoming eligible for parole. Finally, he cites his limited education and a learning disability as reasons for his lack of appreciation of what he was doing when he pled guilty. The purpose of the statute governing guilty plea admonitions is to assure that only a constitutionally valid plea is entered and accepted by the trial court. Ex parte Morrow, 952 S.W.2d 530, 534 (Tex. Crim. App. 1997). The statutory procedure is to assure that a defendant does not plead guilty without a full understanding of the charges against him and the consequences of his plea. Delatorre, 957 S.W.2d at 152; see Tex. Code Crim. Proc. Ann. art. 26.13 (West 1989 & Supp. 1999). Once substantial compliance with the statute is shown, the burden shifts to the defendant to affirmatively show that he entered his plea without understanding the consequences of his actions and that he suffered harm from the misunderstanding. Fuentes v. State, 688 S.W.2d 542, 544 (Tex. Crim. App. 1985); Delatorre, 957 S.W.2d at 151. The record contains appellant's written plea and admonishments signed by him, his counsel and the trial court. The docket sheet states that the court admonished appellant. The judgment reflects that the court admonished appellant of the consequences of his plea, and states that it plainly appeared that he was mentally competent and that the plea was free and voluntary. Numerous court of criminal appeals cases have held that the recitations in the judgment and other portions of the record are binding on an appellant in the absence of direct proof to the contrary, and that the appellant has the burden of overcoming the presumptions raised by the record in such cases. See, e.g., Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986) (op. on reh'g) (presumption of voluntary plea absent evidence of erroneous advice from attorney). We determine that the record reflects substantial compliance with the statutory admonishments. Appellant acknowledges in his brief that he has the burden to show that counsel made a misrepresentation or omission so substantial it resulted in the plea being involuntary. Appellant cites West v. State, 702 S.W.2d 629 (Tex. Crim. App. 1986), withdrawn on procedural grounds, 725 S.W.2d 718, 719 (Tex. Crim. App. 1987), to support his position that trial counsel's failure to inform appellant fully caused appellant to lack adequate understanding of the possible consequences of his plea. In West, counsel advised the defendant to reject the state's plea bargain offer of fifteen years and plead guilty without a negotiated agreement because the defendant was eligible for deferred adjudication and in counsel's opinion, even if the trial court did not grant deferred adjudication, he would assess lower punishment than the State had offered. The strategy was unsuccessful and defendant was sentenced to a greater sentence than he expected, twenty-five years. The court held that defense counsel's advice was not outside the range of competence demanded of attorneys in criminal cases and that the advice did not render defendant's guilty plea unknowing or involuntary. West does not support appellant's position. To the contrary, it has been cited for the proposition that a plea of guilty is a trial strategy, and the plea is not involuntary merely because the resulting sentence is greater than expected. See Culver v. State, 786 S.W.2d 7, 9 (Tex. App.--Beaumont 1990, pet. ref'd). Nothing in the record suggests that appellant's attorney misinformed appellant about any aspect of the case. Appellant has not borne his burden to show that he was misled by his lawyer, or by the court or anyone else in a position of authority, into believing that he was guaranteed to get deferred adjudication. Everything in the record is to the contrary and appellant testified that neither the lawyer nor trial court told him he would get deferred adjudication probation. The next part of appellant's complaint is that no one told him that if he were sent to prison he would have to serve a certain period of time before becoming eligible for parole. The record does not show that anyone undertook to advise appellant of the laws or rules relating to parole, thus there was no misinformation given on this subject. Even if there had been erroneous advice about parole eligibility and appellant relied upon it, this would not necessarily render the plea involuntary. The attainment of parole is so speculative that erroneous advice regarding the number of years to be served before being eligible for parole would not itself render a guilty plea involuntary. Ex parte Stephenson, 722 S.W.2d 426, 428 (Tex. Crim. App. 1987); Ex parte Wilson, 716 S.W.2d 953, 958 (Tex. Crim. App. 1986); Ex parte Hughling, 706 S.W.2d 662, 663 (Tex. Crim. App. 1986); Ex parte Evans, 690 S.W.2d 274, 279 (Tex. Crim. App. 1985); Curry v. State, 861 S.W.2d 479, 483 (Tex. App.--Fort Worth 1993, pet. ref'd). If, however, parole eligibility was an element of the plea bargain, the plea of guilty may be rendered involuntary. See Ex parte Pruitt, 689 S.W.2d 905 (Tex. Crim. App. 1985). There was no plea bargain here, and appellant has not shown that he relied on any representation by anyone in a position of authority regarding his possible parole eligibility in deciding to plead guilty. Finally, appellant suggests that his limited education and learning disability affected his comprehension and understanding of making a plea of guilty. Appellant does not pose this part of his argument in terms of competency to stand trial, but we believe that standard is the one appellant must meet in order to prevail on this part of his argument. Competency to stand trial is presumed, and if a hearing is held on the issue, incompetency must be proved by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 46.02, § 2(b) (West 1979). The test for competency is whether the person has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or whether he has a rational as well as factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46.02, § 1(a). See Arnold v. State, 873 S.W.2d 27, 36-37 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 830 (1994). There is no evidence in the record that raised an issue of mental competency. When the plea was taken, the trial court, the defense attorney and appellant all indicated that they thought appellant was competent to stand trial. The judgment states that it plainly appeared to the trial court that appellant was mentally competent. Appellant's testimony that he was a slow learner in school and dropped out in the tenth grade is not sufficient to raise an issue of competence. Testimony that a defendant had learning disabilities and was in special education classes did not raise the issue of competency in Culley v. State, 505 S.W.2d 567, 569 (Tex. Crim. App. 1974). In Ortiz v. State, 866 S.W.2d 312, 316 (Tex. App.--Houston [14th Dist.] 1993, pet. ref'd), that court held that evidence of learning disabilities alone was not sufficient to show that defendant was not competent to stand trial. Evidence that a person has been judicially determined to be incompetent to handle his own affairs is not conclusive evidence of incompetency to stand trial. See Koehler v. State, 830 S.W.2d 665, 666-67 (Tex. App.--San Antonio 1992, no pet.). The fact that a defendant rebelled against authority, was socially maladjusted, had learning disabilities and possible neurological problems did not raise the issue of competency to enter his guilty pleas. Brown v. State, 960 S.W.2d 772, 778-79 (Tex. App.--Dallas 1997, pet. ref'd). The admission of a confession requires a determination of voluntariness, just as the making of a plea of guilty does. We find cases on confessions analogous and helpful in considering appellant's argument that his slowness in learning and limited education made him unable to comprehend the proceedings and his actions in them. Mental deficiency is a factor, but not alone determinative, in ascertaining the voluntariness of a confession and the waiver of rights necessary to give a confession. Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995). The court of criminal appeals has found confessions to have been voluntarily made despite the person's illiteracy. Westley v. State, 754 S.W.2d 224, 227 (Tex. Crim. App. 1988) (inability to read and write, low level of intellect and little educational experience did not prevent defendant from understanding warnings read to him and waiving them); Combs v. State, 643 S.W.2d 709, 711-14 (Tex. Crim. App. 1982) (mentally retarded person with I.Q. of 55 to 70, with a functioning age level of 5 to 8 years, and unable to read or write, was mentally capable of voluntarily waiving his constitutional rights); Casias v. State, 452 S.W.2d 483, 488 (Tex. Crim. App. 1970) (confession admissible even though defendant had I.Q. of 68, was illiterate, and had mental age of eight to ten years); White v. State, 591 S.W.2d 851, 858 (Tex. Crim. App. 1979) (confession admissible even though defendant was borderline mentally retarded); Bell v. State, 582 S.W.2d 800, 809 (Tex. Crim. App. 1979) (mildly retarded person who participated in a special education program was not incapable of waiving rights and making confession); Grayson v. State, 438 S.W.2d 553, 555 (Tex. Crim. App. 1969) (statements admissible from defendant with I.Q. of 51 and mental age of six years). This Court has said that the mere fact that a defendant is uneducated and illiterate does not mean that he does not understand the nature of the rights he is waiving and cannot voluntarily give a confession. Peacock v. State, 819 S.W.2d 233, 235 (Tex. App.--Austin 1991, no pet.). The record shows that appellant appeared competent by observation of the trial court and appellant's attorney. No issue was raised as to competency at trial. Appellant's vague claim at the hearing on new trial that he did not understand the consequences of his plea is not sufficient to overcome the presumption of mental competence or his written acknowledgment to the contrary that he did understand the consequences of his plea. His claimed mental and educational deficiencies of being a slow learner and a tenth-grade dropout do not approach the level of incompetence necessary to show lack of capacity to voluntarily waive rights and make important decisions as shown by the cases cited above. Appellant has not shown any failure on the part of his trial attorney or the trial judge in communicating the admonishments and fully advising him of the consequences of his plea. Nothing in the record suggests that appellant's attorney misinformed appellant about any aspect of the case. We believe that the record shows that appellant's plea of guilty was voluntarily made. The trial court did not err in denying the motion for new trial. We overrule appellant's point of error. Conclusion Having overruled appellant's point of error, we affirm the trial court's judgment. Mack Kidd, Justice Before Justices Kidd, B. A. Smith and Powers* Affirmed Filed: March 11, 1999 Do Not Publish * Before John E. Powers, Senior Justice, (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998). 1. The parties agree that this was a correct statement of the law. ng of a plea of guilty does. We find cases on confessions analogous and helpful in considering appellant's argument that his slowness in learning and limited education made him unable to comprehend the proceedings and his actions in them. Mental deficiency is a factor, but not alone determinative, in ascertaining the voluntariness of a confession and the waiver of rights necessary to give a confession. Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995). The court of criminal appeals has found confessions to have been voluntarily made despite the person's illiteracy. Westley v. State, 754 S.W.2d 224, 227 (Tex. Crim. App. 1988) (inability to read and write, low level of intellect and little educational experience did not prevent defendant from understanding warnings read to him and waiving them); Combs v. State, 643 S.W.2d 709, 711-14 (Tex. Crim. App. 1982) (mentally retarded person with I.Q. of 55 to 70, with a functioning age level of 5 to 8 years, and unable to read or write, was mentally capable of voluntarily waiving his constitutional rights); Casias v. State, 452 S.W.2d 483, 488 (Tex. Crim. App. 1970) (confession admissible even though defendant had I.Q. of 68, was illiterate, and had mental age of eight to ten years); White v. State, 591 S.W.2d 851, 858 (Tex. Crim. App. 1979) (confession admissible even though defendant was borderline mentally retarded); Bell v. State, 582 S.W.2d 800, 809 (Tex. Crim. App. 1979) (mildly retarded person who participated in a special education program was not incapable of waiving rights and making confession); Grayson v. State, 438 S.W.2d 553, 555 (Tex. Crim. App. 1969) (statements admissible from defendant with I.Q. of 51 and mental age of six years). This Court has said that the mere fact that a defendant is uneducated and illiterate does not mean that he does not understand the nature of the rights he is waiving and cannot voluntarily give a confession. Peacock v. State, 819 S.W.2d 233, 235 (Tex. App.--Austin 1991, no pet.). The record shows that appellant appeared competent by observation of the trial court and appellant's attorney. No issue was raised as to competency at trial. Appellant's vague claim at the hearing on new trial that he did not understand the consequences of his plea is not sufficient to overcome the presumption of mental competence or his written acknowledgment to the contrary that he did understand the consequences of his plea. His claimed mental and educational deficiencies of being a slow learner and a tenth-grade dropout do not approach the level of incompetence necessary to show lack of capacity to voluntarily waive rights and make important decisions as shown by the cases cited above. Appellant has not shown any failure on the part of his trial attorney or the trial judge in communicating the admonishm