Charles Edward Moore v. State

11th Court of Appeals Eastland, Texas Opinion Charles Edward Moore Appellant Vs. Nos. 11-01-00259-CR & 11-01-00260-CR -- Appeals from Dallas County State of Texas Appellee Appellant entered open guilty pleas to two charges of aggravated assault. The punishment range for each charge was enhanced to a first degree felony based on appellant=s previous felony conviction. The trial court assessed appellant=s sentence at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 30 years on each charge to run concurrently. Appellant is pro se on appeal. He has filed 4 briefs containing approximately 21 issues on appeal. We affirm. The indictment in Cause No. 11-01-00259-CR alleged that appellant committed aggravated assault on or about January 29, 2001, against a female victim by: (1) using a deadly weapon, a tire tool, during the commission of the assault and (2) by causing serious bodily injury to the victim by striking her with a deadly weapon, a tire tool. The indictment in Cause No. 11-01-00260-CR alleged that appellant committed aggravated assault on or about February 2, 2001, against the same female victim by: (1) using a deadly weapon, a tire tool and a tire jack, during the commission of the assault and (2) by causing serious bodily injury to the victim by striking her with a deadly weapon, a tire tool and tire jack. The record reflects that the victim and appellant had been romantically involved for some time prior to the two alleged incidents. The appellate record includes a pretrial hearing where appellant presented a motion to the trial court seeking to defend himself pro se at trial. The trial court granted appellant=s motion by discharging his court-appointed public defender. The case proceeded to a bench trial approximately three weeks later based upon appellant=s waiver of his right to a jury trial. Appellant became frustrated soon after the trial commenced during the victim=s direct testimony. After unsuccessfully seeking a continuance and a mistrial, appellant announced to the court that he would like to change his plea of not guilty to guilty.[1] Appellant executed two judicial confessions which tracked the exact language of each indictment in connection with his guilty plea. Both judicial confessions were admitted into evidence. Appellant also pleaded true to the enhancement paragraphs of each indictment. The trial court admonished appellant extensively prior to accepting his plea of guilty. The following dialogue occurred during this stage of the proceedings: [PROSECUTOR]: [Appellant], you are saying that on February 2, 2001, and January 29, 2001, that you did intentionally and knowingly cause bodily injury to [the victim] by striking her multiple times about her face and her body with a tire tool or a tire jack, and that by doing that you did cause serious bodily injury to her. Is that what you=re admitting to? [APPELLANT]: Yes, ma=am. [PROSECUTOR]: And you are also stipulating that a tire tool or a tire jack, by using it in that manner, that is by striking a person over the head and their body several times with it, that that is, in fact, a deadly weapon capable of causing death or serious bodily injury to a person? [APPELLANT]: I don=t understand that question. [PROSECUTOR]: Are you stipulating that you=re guilty of each and every element to the offense as set out in the indictment? [APPELLANT]: Yes, ma=am. The trial court accepted appellant=s guilty plea. The court ascertained on the record that the State offered a plea agreement of a term of imprisonment of 20 years and a fine of $2,000 for each charge. Appellant rejected this offer and elected to make an open plea to the court as to punishment. It appears that appellant rejected the State=s offer in hopes of receiving deferred adjudication. In addition to sentencing appellant to a term of imprisonment of 30 years for each offense, the trial court also made an affirmative finding regarding the use of a deadly weapon. In Issue No. 5, appellant attacks the legal sufficiency of the evidence supporting his convictions. Evidence is legally sufficient when, viewed in the light most favorable to the prosecution, it is sufficient to permit a rational trier of fact to find all the essential elements of the charged crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). A defendant's judicial confession is adequate to find the evidence legally sufficient to support his conviction. Johnson v. State, 722 S.W.2d 417, 422 (Tex.Cr.App.1986), overruled in part on other grounds, McKenna v. State, 780 S.W.2d 797 (Tex.Cr.App.1989); see TEX. CODE CRIM. PRO. ANN. art. 1.15 (Vernon Supp. 2002). Moreover, a defendant's judicial admission of guilt will waive any complaint against the legal sufficiency of the evidence. McGlothlin v. State, 896 S.W.2d 183, 186 (Tex.Cr.App.1995); Lasker v. State, 573 S.W.2d 539, 543 (Tex.Cr.App.1978); Boothe v. State, 474 S.W.2d 219, 221 (Tex.Cr.App.1971). Appellant presents a recurring theme in his briefs that he was only guilty of simple assault punishable as a misdemeanor as opposed to aggravated assault punishable as a felony. Appellant focuses his legal sufficiency challenge on the two elements which elevated his conduct to an aggravated assault. He argues that there is no evidence that the tire tool and tire jack were deadly weapons and that there is no evidence that the victim suffered serious bodily injury. Appellant=s argument ignores the fact that he judicially admitted both orally and in writing the deadly weapon and serious bodily injury elements. Appellant=s fifth issue is overruled. Appellant attacks the factual sufficiency of the evidence in Issue No. 6. When reviewing the factual sufficiency of the evidence, we review all the evidence but not in the light most favorable to the prosecution. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Cr.App.1996); Reaves v. State, 970 S.W.2d 111, 116 (Tex.App. - Dallas 1998, no pet=n). We reverse only if: (1) the evidence in support of the verdict, considered as standing alone, is factually too weak to support it or (2) the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Goodman v. State, 66 S.W.3d 283, 285-86 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Cr.App.2000). A decision is not clearly wrong and unjust merely because the fact finder resolved conflicting evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 408 (Tex.Cr.App.1997). By judicially admitting his guilt, appellant waived any complaint against the factual sufficiency of the evidence to support his conviction. See Hoffman v. State, 922 S.W.2d 663, 672 (Tex.App. - Waco 1996, pet=n ref=d). Moreover, our review of the record indicates that the evidence supporting appellant=s convictions is overwhelming. Appellant=s sixth issue is overruled. Appellant contends in his first issue that the trial court erroneously admonished him concerning the applicable punishment range during the hearing on appellant=s motion to proceed pro se. The trial court asked several questions of appellant during the hearing in an effort to assess his desire to represent himself. The trial court asked appellant if he knew that he was charged with two counts of aggravated assault carrying a punishment range of 2 to 20 years. Appellant contends that the trial court provided him with erroneous information because the enhancement paragraphs in each indictment increased the punishment range to that of a first degree felony. Appellant=s complaint is without merit. Prior to accepting appellant=s guilty plea, the trial court subsequently admonished him as follows: You understand the effect of the enhancement paragraph and plea of true to the enhancement paragraph is that it increases the range of punishment from a second degree felony range to a first degree range, which is not less than 5 nor more than 99 years or life, a fine of up to $10,000.00 may be assessed. You understand the effect of the enhancement paragraph? Appellant replied, AYes, ma=am, I do.@ Additionally, appellant executed written plea agreements which advised him of the applicable punishment range. Appellant=s Issue No. 1 is overruled. Appellant asserts in his second issue that his guilty pleas were involuntarily entered. He alleges two bases for this contention: (1) his lack of knowledge of purported exculpatory evidence and (2) being misled as to his eligibility for deferred adjudication. A guilty plea may be accepted by the trial court only when the defendant is competent and the plea is free and voluntary. TEX. CODE CRIM. PRO. ANN. art. 26.13 (Vernon 1989 & Supp. 2002). A finding that a defendant was duly admonished creates a prima facie showing that a guilty plea was entered knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Cr.App.1998); Ex parte Gibauitch, 688 S.W.2d 868 (Tex.Cr.App.1985). A defendant may still raise the claim that his plea was not voluntary; however, the burden shifts to the defendant to demonstrate that he did not fully understand the consequences of his plea and that he suffered harm. Martinez v. State, supra at 197; Gibauitch, supra at 871. In considering the voluntariness of a guilty plea, the court should examine the record as a whole. Martinez v. State, supra at 197; Williams v. State, 522 S.W.2d 483, 485 (Tex.Cr.App.1975). We find that appellant has failed to meet his burden to demonstrate that his pleas were not voluntary. The purported exculpatory evidence consisted of the victim=s medical records which were filed in the cases prior to trial. This evidence was, therefore, available for appellant=s review. With respect to his eligibility for deferred adjudication, appellant was not misled because he was eligible for deferred adjudication. Neither the range of punishment nor appellant=s prior felony convictions precluded the trial court from entering a judgment of deferred adjudication. See TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 5 (Vernon Supp. 2002); Cabezas v. State 848 S.W.2d 693 (Tex.Cr.App.1993). Appellant=s second issue is overruled. Appellant argues in his third and fourth issues that he was sentenced to a term of imprisonment not authorized by law. First, he re-urges the contention that he was only guilty of simple assault which we have previously considered and rejected. Second, he argues that the prior felony alleged in the indictments could not be used for enhancement because he was not represented by counsel and because his plea to the prior felony was not voluntarily made. A[U]ncounselled convictions cannot be used >against a person either to support guilt or enhance punishment for another offense.=@ Parke v. Raley, 506 U.S. 20, 27 (1992)(citing Burgett v. Texas, 389 U.S. 109 (1967)). To properly attack such a conviction, the burden is on the party making the charge to show the conviction's invalidity in the record and preserve the error for appeal. TEX.R.APP.P. 33.1; West v. State, 720 S.W.2d 511, 519 (Tex.Cr.App.1986), cert. den=d, 481 U.S. 1072 (1987). To meet this burden, the defendant must prove the invalidity of the conviction by a preponderance of the evidence. See United States v. Barlow, 17 F.3d 85, 89 (5th Cir. 1994). In order to collaterally attack the validity of his prior conviction on the basis of a denial of his right to counsel, appellant must prove that he did not voluntarily, knowingly, and intelligently waive his right to counsel. Williams v. State, 946 S.W.2d 886, 900 (Tex.App. - Waco 1997, no pet=n). AWhen prior convictions are collaterally attacked, the judgments reflecting those convictions are presumed to be regular, and the accused bears the burden of defeating that presumption.@ Williams v. State, supra at 900; see also Jones v. State, 24 S.W.3d 540, 542-43 (Tex.App. - Fort Worth 2000, no pet=n). With respect to appellant=s contention that he was not represented by counsel for the prior felony, the judgment of conviction notes that he was represented by counsel. AWhere the prior judgment and sentence recite that appellant was represented by counsel, appellant's testimony to the contrary is insufficient, standing alone, to disprove the recitations in those documents.@ Garcia v. State, 630 S.W.2d 727, 730 (Tex.App. - San Antonio 1982, pet=n ref'd); see also Disheroon v. State, 687 S.W.2d 332, 334 (Tex.Cr.App.1985). The appellate record does not indicate that the prior conviction was void. Issues Nos. 3 and 4 are overruled. Appellant asserts in his seventh issue that his convictions were based upon evidence seized pursuant to an unlawful arrest. However, no evidence seized pursuant to his arrest was offered into evidence. A valid plea of guilty forfeits the right to appeal a claim of error which does not contribute to or support the judgment of guilt. Young v. State, 8 S.W.3d 656, 666-67 (Tex.Cr.App.2000). Issue No. 7 is overruled. Appellant asserts in Issue No. 8 that the State withheld exculpatory evidence. The evidence which appellant contends the State withheld is a police report wherein the victim purportedly stated that she had a gun during one of the assaults and that she was faking her injuries. In order to ensure the accused a fair trial, the State has an affirmative duty under the due process clause of the fourteenth amendment to turn over exculpatory or impeachment evidence favorable to the defendant which is material either to guilt or to punishment. Kyles v. Whitley, 514 U.S. 419 (1995); United States v. Bagley, 473 U.S. 667 (1985); Brady v. Maryland, 373 U.S. 83 (1963); see also Thomas v. State, 841 S.W.2d 399, 407 (Tex.Cr.App.1992). Favorable evidence is Amaterial@ if there is a reasonable probability (i.e. a probability sufficient to undermine confidence in the outcome of trial) that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. United States v. Bagley, supra at 682; Thomas v. State, supra at 404. Under the standard Brady analysis, the issue is whether there is a reasonable probability that, had the suppressed evidence been disclosed to the defense, the outcome of the proceeding would have been different. Thomas v. State, supra at 404. The appellate record does not establish that the items cited by appellant were withheld from him prior to trial. Moreover, these items would not have changed the outcome of the proceedings in light of appellant=s pleas of guilty. Furthermore, the factual matters upon which appellant relies were matters that were within his personal knowledge. If he actually knows the facts which are purportedly withheld, a defendant is not entitled to relief based upon the State's failure to disclose the same facts. Wallace v. State, 458 S.W.2d 67, 70 (Tex.Cr.App.1970). Issue No. 8 is overruled. Appellant asserts that the State used perjurious testimony with respect to Issue No. 9. The State is not allowed to use perjured testimony to obtain a conviction. Losada v. State, 721 S.W.2d 305, 311 (Tex.Cr.App.1986). Moreover, the prosecutor=s knowing use of perjured testimony violates the due process clause of the fourteenth amendment to the United States Constitution. Ex parte Castellano, 863 S.W.2d 476, 479 (Tex.Cr.App.1993). The testimony which appellant asserts is perjurious consists of his factual disagreements with evidence of the victim=s medical condition offered during the punishment phase of the trial. Disagreements in testimony do not constitute the use of perjured testimony. Tucker v. State, 15 S.W.3d 229, 234 (Tex.App. - Houston [14th Dist.] 2000, pet=n ref'd). Issue No. 9 is overruled. Appellant alleges in his tenth issue that the indictments were invalid or defective. However, it does not appear that a motion to challenge the indictments was filed prior to trial. If he does not object to a defect, error, or irregularity of form or substance in an indictment before the date on which the trial on the merits commences, a defendant waives the right to object to the defect on appeal. See TEX. CODE CRIM. PRO. ANN. art. 1.14(b) (Vernon Supp. 2002); Duron v. State, 915 S.W.2d 920, 921 (Tex.App. - Houston [1st Dist.] 1996), aff'd, 956 S.W.2d 547 (Tex.Cr.App.1997). Issue No. 10 is overruled. Appellant contends that the prosecutor made improper comments in his eleventh issue. The alleged improper comments were made by the prosecutor concerning appellant=s possession of a gun during the commission of a prior felony. Appellant does not cite to the portion of the reporter=s record where the improper comments were made. The record does reflect that the prosecutor asked appellant if he possessed a gun during a previous burglary which appellant denied. Appellant=s complaint of an improper comment, therefore, involves a factual disagreement. Issue No. 11 is overruled. Issues Nos. 12, 15, and 16 complain of inadmissible evidence being offered during the punishment phase. Our review of the appellate record indicates that no objection was made to the admission of the items which appellant challenges. To preserve a complaint for appellate review, a party must make a timely request, objection, or motion to the trial court stating the grounds for the ruling he desires the court to make. See Rule 33.1(a); TEX.R.EVID. 103(a)(1). Issues Nos. 12, 15, 16 are overruled. Appellant alleges that the trial court abused its discretion in denying his motion for continuance in Issue No. 13. Abuse of discretion is shown only when Athe trial court=s ruling lies outside the >zone of reasonable disagreement.=@ Watson v. State, 974 S.W.2d 763, 765 (Tex.App. - San Antonio 1998, no pet=n)(quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Cr.App.1991). Appellant presented an oral motion for continuance during the direct testimony of the State=s first witness. Appellant contends that a continuance was warranted because he did not have any witnesses present to testify in his behalf and because he was caught by surprise because of letters which were introduced and a change in the victim=s testimony.[2] With respect to the absence of witnesses, appellant does not identify the witnesses he would have called or the testimony they would have provided. Moreover, the trial court specifically instructed appellant that a continuance would not be granted for the absence of any witnesses who had not been subpoenaed. The trial court further warned appellant extensively prior to trial of the dangers of representing himself. We find that the trial court did not abuse its discretion in denying appellant=s motion for continuance. Issue No. 13 is overruled. Appellant contends that he was tricked out of a jury trial in Issue No. 14. Appellant contends that he was tricked because he thought that all charges were ultimately going to be dismissed.[3] Appellant asserts that he would not have waived a trial by jury had he known that his case was actually going to be tried. Appellant and his attorney executed written waivers of his right to a jury trial which were approved by the trial court in compliance with TEX. CODE CRIM. PRO. ANN. art. 1.13 (Vernon Supp. 2002). The reason cited by appellant is not relevant to his decision of selecting between a jury trial and a bench trial. Issue No. 14 is overruled. Issue No. 17 constitutes a rehashing of appellant=s attack of the validity of the prior felony which was used for enhancement purposes. We have previously rejected this complaint in overruling Issues Nos. 3 and 4. Issue No. 17 is overruled as well. Issue No. 18 appears to set out a claim of ineffective assistance of counsel based on trial counsel=s failure to object to evidence offered during the punishment phase. In reviewing a claim of ineffective assistance of counsel, we must apply an objective standard of reasonableness. A defendant making a claim of ineffective assistance of counsel must show that: (1) counsel was deficient and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999); Hernandez v. State, 726 S.W.2d 53 (Tex.Cr.App.1986). A claim of ineffective assistance of counsel must be determined on the particular facts and circumstances of each individual case. See Jimenez v. State, 804 S.W.2d 334, 338 (Tex.App. - San Antonio 1991, pet=n ref=d). Isolated instances in the record reflecting errors of omission or commission do not render counsel=s performance deficient. McFarland v. State, 845 S.W.2d 824, 843 (Tex.Cr.App.1992), cert. den=d, 508 U.S. 963 (1993). Whether the Strickland test has been met is to be judged by the totality of the representation. McFarland v. State, supra. There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington, supra at 689; Stafford v. State, 813 S.W.2d 503, 506 (Tex.Cr.App.1991). Stated another way, Acompetence is presumed and appellant must rebut this presumption by proving that his attorney=s representation was unreasonable under prevailing professional norms and that the challenged action was not sound trial strategy.@ Stafford v. State, supra at 506. Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Moore v. State, 694 S.W.2d 528, 531 (Tex.Cr.App.1985). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded. See Jimenez v. State, supra at 338. However, while a defendant must overcome the presumption that the complained of errors are supported by trial strategy, counsel=s conduct will not be supported by the presumption of competence where counsel=s actions cannot be attributed to any reasonable trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Cr.App.1994). The appellate record before us does not demonstrate that appellant=s trial counsel rendered ineffective assistance of counsel. Many of appellant=s complaints regarding trial counsel involve the admission of evidence of extraneous offenses and other acts. Appellant contends that trial counsel should have objected to this evidence on the basis that the State failed to comply with TEX. CODE CRIM. PRO. ANN. art. 37.07 (Vernon 1981 & Supp. 2002) by not disclosing its intent to use the evidence. The State filed notice of its intent to use 17 adjudicated offenses and 7 unadjudicated crimes purportedly committed by appellant. Moreover, the trial court has broad discretion in determining the admissibility of evidence at the punishment phase. Cooks v. State, 844 S.W.2d 697, 735 (Tex.Cr.App.1992), cert. den=d, 509 U.S. 927 (1993). Evidence as to any matter may be offered during the punishment phase if the court deems it relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. Article 37.07, section 3(a). Counsel cannot be held ineffective for failing to object to admissible evidence. See Yzaguirre v. State, 957 S.W.2d 38, 39 (Tex.Cr.App.1997). Issue No. 18 is overruled. Appellant asserts in Issue No. 20 that he was denied due process.[4] This issue is a re-urging of appellant=s previous issues. Accordingly, Issue No. 20 is overruled. Appellant proclaims Aactual innocence@ in Issue No. 21. This appellate issue consists of a repetition of appellant=s complaints concerning the sufficiency of the evidence. Issue No. 21 is overruled. Appellant=s third brief contains an unnumbered appellate issue which we will designate as Issue No. 22. This issue is identical to Issue No. 6 in that it attacks the factual sufficiency of the evidence supporting appellant=s convictions. Issue No. 22 is overruled. The judgments of the trial court are affirmed. PER CURIAM July 18, 2002 Do not publish. See TEX.R.APP.P. 47.3(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J. [1]Despite proceeding pro se at trial, appellant=s previous attorney attended the trial and informally consulted with appellant during the proceedings. The attorney was reinstated as appellant=s attorney of record at the time appellant entered his guilty plea. [2]Appellant wrote several letters to the victim (his girlfriend) prior to trial. These letters detailed an elaborate scheme whereby the victim would commit perjury by denying that appellant was her assailant at trial so that appellant could prosecute a civil action against the State and the City of Dallas for false arrest and racial discrimination. The letters also encouraged the victim to make false claims of sexual assault against jail guards in order to seek compensation. The change in testimony to which appellant refers is essentially the victim=s refusal to carry out appellant=s perjury scheme. [3]See Footnote No. 2. [4]Appellant=s first brief ends with Issue No. 18. His second brief begins with Issue No. 20.