Tommy Oneal v. State

O'Neal v. SOT NUMBER 13-03-00328-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG TOMMY O’NEAL, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 94th District Court of Nueces County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Hinojosa and Castillo Memorandum Opinion by Justice Hinojosa Appellant, Tommy O’Neal, was charged in a single indictment with two counts of aggravated sexual assault of a child, one count of burglary with the intent to commit sexual assault, and four counts of aggravated assault. Without a plea agreement, appellant pleaded guilty to all seven counts. On May 15, 2003, the trial court found him guilty of all seven counts and assessed his punishment as follows: Count 1 – 99 years imprisonment (aggravated sexual assault of a child); Count 2 – 99 years imprisonment (aggravated sexual assault of a child); Count 3 – 99 years imprisonment (burglary of a habitation); Count 4 – 15 years imprisonment (aggravated assault); Count 5 – 15 years imprisonment (aggravated assault); Count 6 – 15 years imprisonment (aggravated assault); and Count 7 – 15 years imprisonment (aggravated assault). The court ordered the sentence in count two to run consecutively with the sentence in count one; and the sentences in counts three, four, five, six, and seven to run concurrently with the sentence in count one. The court affirmatively found that appellant had used a deadly weapon in committing counts four, five, six, and seven. The trial court has certified that this case “is not a plea-bargain case, and the defendant has the right of appeal.” See Tex. R. App. P. 25.2(a)(2). In a single issue, appellant contends the trial court erred in denying his motion for new trial because his plea was involuntary due to ineffective assistance of counsel. We affirm. As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. Tex. R. App. P. 47.4. A. Motion For New Trial The State challenges, for the first time on appeal, the timeliness of appellant’s amended motion for new trial. The State contends we should: (1) consider the hearing on the motion for new trial as improper and null, and (2) refuse to rely on evidence in support of the motion. Appellant timely filed a motion for new trial on June 4, 2003, generally raising claims of involuntariness of his plea and ineffective assistance of counsel. On June 25, 2003, appellant filed an amended motion for new trial, with attached affidavits asserting specific allegations regarding his ineffective assistance claim, which was not within the thirty-day period prescribed by the rules of appellate procedure. See Tex. R. App. P. 21.4(b). An untimely amended motion for new trial is a nullity and cannot form the basis for issues on appeal, even if the original motion for new trial is timely. Dugard v. State, 688 S.W.2d 524, 529-30 (Tex. Crim. App. 1985), overruled on other grounds by Williams v. State, 780 S.W.2d 802, 803 (Tex. Crim. App. 1989). An amended motion for new trial may not be filed after the thirty-day period, even with leave of court. Drew v. State, 743 S.W.2d 207, 222-23 (Tex. Crim. App. 1987); Dugard, 688 S.W.2d at 530; see Mercier v. State, 96 S.W.3d 560, 562 (Tex. App.–Corpus Christi 2002, no pet.). Thus, because appellant’s amended motion for new trial was untimely filed, we may not consider either the motion or the affidavits in support of the motion. Accordingly, we consider only the timely filed motion for new trial. B. Waiver By Guilty Plea A valid plea of guilty or nolo contendere “waives” or forfeits the right to appeal a claim of error only when the judgment of guilt was rendered independent of, and is not supported by, the error. Young v. State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000); Ramirez v. State, 89 S.W.3d 222,228 (Tex. App.–Corpus Christi 2002, no pet.). Before a plea of guilty or plea of nolo contendere may be accepted by the court, it must be freely and voluntarily given by a mentally competent defendant. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2004). However, a defendant’s election to plead guilty or nolo contendere when based upon erroneous advice of counsel is not done voluntarily and knowingly. Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991). When the plea is not voluntarily given, the waiver rule does not apply. See Broddus v. State, 693 S.W.2d 459, 460 (Tex. Crim. App. 1985). Here, appellant claims he did not enter his plea of guilty voluntarily because it was based on the erroneous advice of counsel. Thus, he did not waive his right to appeal. C. Ineffective Assistance Of Counsel 1. Standard of Review A trial court’s denial of a defendant’s motion for new trial is reviewed under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). During a hearing on a motion for new trial, the trial court is the sole judge of the credibility of the testifying witnesses. Id. We do not substitute our judgment for that of the trial court, but rather decide whether the trial court's decision was arbitrary or unreasonable. State v. Gonzalez, 855 S.W.2d 692, 695 (Tex. Crim. App. 1993). In determining whether the trial court abused its discretion, we consider whether the court acted without reference to any guiding rules and principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993). 2. Applicable Law a. Voluntariness of Plea No plea of guilty or plea of nolo contendere shall be accepted by a trial court unless it appears that the defendant is mentally competent and the plea is free and voluntary. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2004). When we review the voluntariness of a plea, we examine the record as a whole and determine whether the plea was entered voluntarily based on the totality of the circumstances. Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App. 1986); see Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975). When the record shows that the trial court gave an admonishment, there is a prima facie showing of a knowing and voluntary plea of guilty. Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985); Dorsey v. State, 55 S.W.3d 227, 235 (Tex. App.–Corpus Christi 2001, no pet.). The burden then shifts to the defendant to show that he pleaded guilty without understanding the consequences of his plea and, consequently, suffered harm. See Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon Supp. 2004); Dorsey, 55 S.W.3d at 235. A defendant's election to plead guilty or nolo contendere when based on erroneous advice of counsel is not done voluntarily and knowingly. Ex parte Battle, 817 S.W.2d at 83. Once a defendant has pleaded guilty and attested to the voluntary nature of his plea, he bears a heavy burden at a subsequent hearing to demonstrate a lack of voluntariness. Ybarra v. State, 93 S.W.3d 922, 925 (Tex. App.–Corpus Christi 2002, no pet.) b. Ineffective Assistance of Counsel The standard for reviewing claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). If a guilty plea is entered on the advice of counsel, that counsel must be competent and render effective assistance. Hill v. Lockhart, 474 U.S. 52, 57 (1985); Ex parte Evans, 690 S.W.2d 274, 276 (Tex. Crim. App. 1985); Gomez v. State, 921 S.W.2d 329, 332 (Tex. App.–Corpus Christi 1996, no pet.). When a defendant challenges the voluntariness of a plea entered on the advice of counsel, contending that his counsel was ineffective, "the voluntariness of the 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." Strickland, 466 U.S. at 687; Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999). D. Analysis Appellant was admonished in writing. See Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon Supp. 2004). The written admonitions are signed by appellant and appellant’s attorney and state that appellant understood the admonitions and was aware of the consequences of his plea. See id. The record reflects appellant was admonished that the range of punishment for the first-degree felony offenses charged in the first, second, and third counts of the indictment was: “imprisonment for Life or for any term of not more than 99 years or less than five years, and, in addition to imprisonment, . . .a fine not to exceed $10,000." Appellant specifically initialed the following statement: “I understand the admonishments given to me in writing by the Court, I know the range of punishment applicable in this cause, and I am aware of the consequences of my entering a plea of guilty/nolo contendere.” The written admonishments provide prima facie proof that appellant pleaded guilty knowingly and voluntarily. See Ex parte Gibauitch, 688 S.W.2d at 871. Further, appellant stated in open court that he understood what he had signed. Thus, appellant bears a heavy burden to show that his plea of guilty was involuntary because he did not understand the consequences of his plea. See Dorsey, 55 S.W.3d at 235; Ybarra, 93 S.W.3d at 925. At the hearing on the motion for new trial, appellant testified that he did not understand the range of punishment the trial court could assess if he pleaded guilty, and he did not remember his counsel explaining the range of punishment to him. He further testified that his mother had relayed information from his trial counsel that if he pleaded guilty, he would likely receive at the most five years or sex offender treatment, and that but for this advice, he would have pleaded not guilty and gone to trial. Appellant’s trial counsel disagreed with appellant’s testimony. Counsel testified he advised appellant, on several occasions, regarding the range of applicable punishment and that the punishment would be imprisonment from five to ninety-nine years. He said he did everything he could to help appellant understand the consequences of pleading guilty, including meeting with appellant’s family to discuss the case and using them to explain the legal concepts to appellant, as well as explaining the terms in the admonishments, rather than reading them verbatim. Counsel also testified he made no promises to appellant regarding the specific punishment appellant could expect and that a range of punishment of imprisonment from five to nine years does not exist under Texas law. There is some evidence in the record that but for the advice of appellant’s mother, appellant would not have pleaded guilty. However, appellant’s mother was not his trial counsel. Based on the record as a whole, we conclude appellant has not met his burden of showing that his plea of guilty was involuntary. Not only was trial counsel’s advice within the range of expected competence, but there is not a reasonable probability that, but for the advice of counsel, appellant would have pleaded not guilty and demanded a trial. Accordingly, we hold the trial court did not abuse its discretion in denying appellant’s motion for new trial. Appellant’s sole issue is overruled. The judgment of the trial court is affirmed. FEDERICO G. HINOJOSA Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this the 12th day of August, 2004.