Kenneth Craig Vickers v. State

OPINION Opinion by Justice Burgess Kenneth Craig Vickers was indicted for burglary of a habitation with intent to commit aggravated assault and aggravated kidnapping. After entering an open plea of guilty to the indicted offense, Vickers elected to have the trial court decide punishment. After hearing the evidence, the trial court found Vickers guilty, entered a finding that he used or exhibited a deadly weapon, and sentenced him to fifty years’ imprisonment. On appeal, Vickers contends (1) that his plea was involuntary because the written and oral admonishments failed to put him on notice that he was pleading guilty to an offense involving a deadly weapon and (2) that he did not receive a fair trial because the trial court failed to base its ruling solely upon the evidence adduced at trial. We affirm the trial court’s judgment. I. Factual Background Around 4:30 a.m. on April 20, 2013, Jake Sewell arrived at Kenneth Craig Vickers’ home and claimed that Cody Ramsey had robbed him. Sewell had learned that Ramsey was staying at Angelina Vallen-tine’s apartment in Sulphur Springs, Texas, with Angelina’s son, Jamie Lindsey. Accordingly, Sewell and Vickers travelled to Vallentine’s apartment to find Ramsey. When they arrived, Sewell stayed in the car while Vickers went to the apartment, even though Vickers did not know Ramsey. Vickers knocked on the door, and when Angelina’s four-year-old daughter, Sierra, opened it, Vickers brushed past her into the apartment and chastised her for allowing a complete stranger to enter her home. Once inside, Vickers pulled a “big gun” from inside his coat, yelled at Angelina’s husband, Jesse, and put the gun against Jesse’s head. Vickers then took Jesse, Angelina, and Sierra to the parking lot to speak with Sewell, at which point the two men realized that none of them were Ramsey. All *93 five of them then went back into the apartment and waited for Ramsey to return. A short time later, Ramsey arrived together with Jamie Lindsey. When Ramsey and Jamie entered the apartment and saw Se-well, Ramsey ran away, Sewell chased him, and the two men fought. When Ramsey broke free from Sewell and ran away again, Vickers and Sewell left in their vehicle to find Ramsey, taking Jamie with them. 1 Vickers and Sewell were arrested soon thereafter. At trial, Vickers admitted that he “had been high for days” when Sewell arrived at his house that morning and that the drugs had put him “in a rage of some kind.” He argued that drugs were the root of his problem and that he used methamphet-amines so he could “forget about all the hardships” in his life. He also testified that using methamphetamines made him “feel powerful, like nothing [could] hurt [him].” He did not deny the events of the day in question, and even though he claimed he did not remember everything that happened, he admitted to doing “horrible things” and apologized to the Vallen-tines. He admitted going with Sewell to Angelina’s apartment, but claimed he only intended to scare Ramsey. He also testified that he “never meant to hurt anybody.” Vickers’ mother testified that when he was using drugs, his behavior “terrified” her. She testified that she could not “see him doing that under normal circumstances,” but admitted it was possible if he was “on drugs and knowing the way it changes his attitude.” She also testified that Vickers had suffered a serious fall as a child that caused him to have a lazy eye. As a result, he endured bullying when he was in grade school. Vickers began drinking alcohol when he was six years old and began taking drugs when he was a teenager. Vickers has a long history of using methamphetamine, 2 and his' drug use has cost him much — his parental rights to his two children were terminated, and both children have since been adopted. 3 II. Were Vickers’ Pleas Voluntary? In his first point of error, Vick-ers argues that his guilty pleas were not made knowingly and voluntarily because the oral and written plea admonishments failed to put him on notice that he was pleading guilty to an offense involving a deadly weapon. 4 Vickers relies on Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which holds that to support a conviction based on a guilty plea, the record must affirmatively disclose that the defendant entered his plea knowingly and voluntarily. Id. at 243, 89 S.Ct. 1709; Davison v. State, 405 S.W.3d 682, 687 (Tex.Crim.App.2013). In determining whether a guilty plea was en *94 tered knowingly and voluntarily, we consider the totality of the circumstances viewed in light of the entire record. Griffin v. State, 703 S.W.2d 193, 196-97 (Tex. Crim.App.1986); Fluellen v. State, 443 S.W.3d 365, 368 (Tex.App.-Texarkana 2014, no pet.); Ybarra v. State, 93 S.W.3d 922, 925 (Tex.App.-Corpus Christi 2002, no pet.). Here, the indictment alleged that Vick-ers “intentionally and knowingly enter [sic] a habitation without the effective consent of Jesse Ballentine,[ 5 ] the owner thereof, and attempted to commit or committed the felony offense[s] of Aggravated Assault and Aggravated Kidnapping.” At the plea hearing, the trial court advised Vickers that he was charged with “burglary of a habitation with intent to commit an aggravated assault.” The trial court explained that “[w]ith a plea of guilty, the Court can do anything from defer adjudicating you, known as deferred adjudication community supervision — the Court can find you guilty, sentence you to as little as 5 years in the penitentiary all the way up to 99 years or a term of life.” Vickers indicated that he understood, stated that he had discussed the issue with his mother and his attorney, and expressed his intent to waive his right to a jury and enter an open plea of guilty to the charged offense. The “deadly weapon” issue was not discussed during the plea hearing. The written plea admonishments state that Vickers was charged with “burglary habitation intend other felony” and that Vickers faced punishment for a first degree felony, having a range from five years to ninety-nine years or life. In his judicial confession, Vickers admitted that he was “guilty of each and every act as alleged in the charging instrument.” On appeal, Vickers contends that the admonishments failed to provide him with notice of the possibility of a. deadly-weapon finding in his case. When the State seeks.a deadly-weapon finding against a defendant, it must provide notice of that fact to the defendant before trial. Ex parte Beck, 769 S.W.2d 525, 527 (Tex.Crim.App.1989) (citing Ex parte Patterson, 740 S.W.2d 766 (Tex.Crim.App.1987)). 6 However, under certain circumstances, a defendant may receive adequate notice of a deadly-weapon issue based simply on the offense charged. Blount, 257 S.W.3d 712. *95 In Blount, a jury found the defendant guilty of committing or attempting to commit aggravated assault in connection with the burglary of a habitation. Id. at 713. Blount was also found to have used a deadly weapon. Id. On appeal, he argued that he was not given adequate notice of the State’s intent to seek a deadly-weapon finding. Id. The Court of Criminal Appeals held that because a deadly weapon is “ ‘anything that in the manner of its use or intended use is capable of causing death or serious bodily injury,’ ” and because aggravated assault can only be committed by either using a deadly weapon or by causing serious bodily injury, then “an allegation that a defendant committed [or attempted to commit] aggravated assault gives him notice that the deadly nature of the weapon alleged in the indictment would be an issue at trial and that the State may seek an affirmative finding on the use of the weapon.” Id. at 714; 7 Crumpton, 301 S.W.3d at 664. In the present case, the State alleged that Vickers did “intentionally and knowingly enter a habitation without the effective consent of Jesse Ballentine, the owner thereof, and attempted to commit or committed the felony offense[s] of Aggravated Assault and Aggravated Kidnapping.” Unlike the indictment in Blount, the indictment here does not charge Vickers with aggravated assault, but with burglary of a habitation with the intent to commit aggravated assault and aggravated kidnapping. Moreover, burglary of a habitation and aggravated kidnapping can be committed without the use of a deadly weapon or without using “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Id. Thus, Vickers argues that Blount is inapplicable and that the indictment can *96 not provide the required deadly-weapon notice. Nevertheless, Vickers received a copy of the indictment at his arraignment. The indictment charges him with burglary of a habitation with intent to commit aggravated assault and aggravated kidnapping. At his plea hearing, the trial court told him that he was charged with “burglary of a habitation with intent to commit an aggravated assault.” Vickers pled guilty to the charge pending against him in this case, which was burglary of a habitation with intent to commit aggravated assault and aggravated kidnapping. Because the charge to which he pled guilty included both theories and because the first theory cannot be committed without either using a deadly weapon or causing serious bodily injury, then Blount applies and Vickers was on notice that the State would seek a deadly-weapon finding in this case. 8 III. Did the Trial Court Base its Ruling upon Information Other Than the Evidence Adduced at Trial? In his second point of error, Vick-ers contends that he did not receive a fair trial before an impartial judge because the trial court based its punishment ruling on information other than the evidence adduced at trial. “The parties have a right to a fair trial.” Dockstader v. State, 233 S.W.3d 98, 108 (Tex.App.-Houston [14th Dist.] 2007, pet. refd). “One of the most fundamental components of a fair trial is a neutral and detached judge.” Id. Absent clear evidence of bias or partiality found within the appellate record, we presume the trial judge acted as a neutral and detached officer. See Bmmit v. State, 206 S.W.3d 639, 645 (Tex.Crim.App.2006) (citing Thompson v. State, 641 S.W.2d 920, 921 (Tex.Crim.App.1982), disagreed with on other grounds by Estep v. State, 901 S.W.2d 491 (Tex.Crim.App.1995)); Field-, ing v. State, 719 S.W.2d 361, 366 (Tex. App.-Dallas 1986, pet. refd). In this case, at the punishment hearing, the court considered the presentence investigation report, a substance abuse evaluation of Vickers, and the testimony of Angelina, Vickers, and Vickers’ mother. After the presentation of evidence and after closing arguments, but before the pronouncement of sentence, the trial court made several remarks, to-wit: You know, I’m in an unusual situation here in that I know Jake Sewell and I’ve known him for a while. And as you know, I sentenced him to twenty-five *97 years and that was difficult for me to do. Because while the thing to the defensive theory here has been meth and Jake Sewell, I am absolutely convinced that Jake Sewell has always been a follower. Jake Sewell couldn’t lead himself to the bathroom. Jake Sewell, bless his heart, just ain’t a real bright guy and you are and he probably did express some frustration. [[Image here]] I, too, believe like your mother that everybody is salvageable. But even your mother said, she can’t guarantee what someone will do. And salvageable — there’s a difference to me when I sentence a guy like Jake Sewell, under the circumstances that were unique to his case and the circumstances that are unique to your case, some of them are the same. Some of them are vastly different. To some degree I feel like I need to protect Jake Sewell from Jake Sewell, because he just will not stop being a knucklehead. And there’s a difference between a knucklehead and I hear — I hear the things that — look—look that dáy on that April 20, 2013, that wasn’t me, that was a monster and I’ll never be that monster again. I have not much confidence that that’s the case.... [[Image here]] I think the issues, since I’ve worked in mental health some time — for quite a long time. Majored in psychology, minored in counseling. Sometimes people use drugs to mask mental illness. It’s call [sic] self-medicating. Sometimes the despondency that you’ve sunk into, in my mind, is a result of the fact that you are an extremely intelligent person, who unlike a guy like Jake Sewell just doesn’t get it. You get it. You understand how bad it is right now. The trial court then sentenced Vickers to fifty years’ imprisonment, as recommended by the State. Vickers contends that the court’s comments regarding Sewell establish that he did not receive a fair trial before an impartial judge. For Vickers to’ prevail on this point of error, the record must clearly demonstrate bias or partiality. 9 In Gentry, a Marion County' constable, Dreesen, had received reports of two men “ ‘walking in and out of traffic or in and out of pastures and things north of Jefferson,’ ” Texas. Gentry, 2006 WL 932057, at *1. When he saw Gentry and his companion walking down the side of a highway, Dreesen stopped them, conducted a pat-down search of Gentry, and found a switchblade knife and some marihuana. Id. Dreesen arrested Gentry, and Gentry *98 was charged with possession of a prohibited weapon. Id. Gentry moved to suppress the knife, and in denying that motion, the trial court stated, “You can stop. Because I’m going to be honest with you, I remember this day. I live on that road. ■ This Motion is going to be denied because I’m one of them that almost hit them. I’m going to deny this Motion to Suppress. I’m not so sure that I wasn’t one of them who called Officer Dreesen to be honest with •you. I remember this day and I remember the situation. I’m going to deny the Defendant’s Motion today; it’s not going to be granted. [[Image here]] Like I say, I’ve got firsthand knowledge of the situation ... and I believe he has the right to do this [search the defendant]. [[Image here]] To be honest with you, my decision is based on what I saw that day.” Id. When the trial judge refused to re-cuse himself, Gentry entered into a plea agreement wherein he was placed on misdemeanor deferred adjudication community supervision for ninety days and fined $150.00. Id. On appeal, this Court noted that “the trial judge stated clearly that he was making his determination and ruling based, not on the evidence adduced at the hearing, but on his personal knowledge of the event.” Id. at *3. We held that the judge’s actions were void and that he was disqualified “because of his stated inability to rule based solely on the evidence adduced at the trial.” Id. Comparing the facts of this case to those of Gentry, Vickers argues that the trial court here “made [its] determination of the respective culpability of the two co-defendants based on [its] personal knowledge of [Vickers’] co-defendant rather than on the evidence adduced at trial.” 10 Yet, Gentry is distinguishable because the record here does not establish that the trial judge was a witness to the events in question. See id. at *3. More relevant to the present case is Roman v. State, 145 S.W.3d 316 (Tex.App.-Houston [14th Dist.] 2004, pet. refd), where the defendant sought the trial judge’s recusal based on his comments prior to trial. 11 In Roman, when the defendant informed the trial court that he wanted the court to decide punishment, the court told him that (1) “under a similar first-degree felony drug case, he gave the defendant life in prison,” (2) “he would have given a longer sentence to [Roman’s] co-defendant than the jury assessed,” and (3) “a jury— and not he — should assess punishment, because he was likely to impose a higher punishment than a jury.” Id. at 318. Ro *99 man moved to recuse the judge, arguing that the judge’s statements reflected bias which eliminated Roman’s option to waive a jury and go to the trial court on punishment. Id. Roman’s motion to recuse was denied, the case went to trial, and a jury assessed Roman’s punishment at forty years’ imprisonment and a $50,000 fíne. Id. at 318-19. Roman argued that the administrative judge erred in failing to recuse the trial judge. Id. at 319. Roman argued that the trial judge’s comments showed extrajudicial bias. Id. at 321. The court of appeals first noted that Black’s Law Dictionary defines “extrajudicial” as “something taking place ‘[ojutside court’ or ‘outside the functioning of the court system’” and that it defines “out-of-court” as “ ‘[njot done or made as a part of a judicial proceeding,’ as a synonym to the word extrajudicial.’ ” Id. The court of appeals went on to find that the judge’s comments did not stem from an extrajudicial source because they represented “ ‘opinions formed ... on the basis of facts ... or events occurring in the course of the current proceedings, or of prior proceedings.’ ” Id. at 321-22 (quoting Andrade v. Chojnacki, 338 F.3d 448, 462 (5th Cir.2003)). Accordingly, the court affirmed the trial court’s judgment. 12 Id. at 322. Here, the trial court heard all the evidence and the arguments of both sides before making its comments regarding the co-defendant, Sewell. The trial court noted that it had previously presided over the State’s case against Sewell for the events in question. Pursuant to Roman, to the extent that the judge’s knowledge of Se-well was gained in a previous proceeding, it is not extrajudicial. See id. at 321-22. Yet, even if the information had come from an extrajudicial source, it would not change the outcome of this case because the judge’s comments about Sewell identified mitigating factors that justified a lesser sentence for Sewell, not aggravating factors justifying a higher sentence for Vickers. In fact, the aggravating factors relied upon by the court in imposing Se-well’s higher sentence — that (a) Vickers was “an extremely intelligent person,” (b) as opposed to the simple thefts or burglaries usually related to drug addiction, this was a “horrific home invasion” perpetrated by Vickers, and (c) Vickers held the Val-lentine family, including a four-year-old child, at gunpoint as part of a “well calculated and planned effort” — were all derived from the evidence presented in Vick-ers’ case. 13 Thus, the trial court based its ruling on the evidence before it, and the aggravating factors identified by the trial judge justified Vickers’ fifty-year sentence. Consequently, Vickers has failed to establish that he did not receive a fair trial before an impartial judge. Accordingly, we overrule this point of error. We affirm the trial court’s judgment. Footnotes [1] Jamie made a statement to police that he was not forced to go, but witnesses said he was. [2] To her knowledge, the longest Vickers ever spent drug-free was approximately two years. [3] Vickers testified, "[M]y relationship with my children was good. I didn’t have a case against me for [Child Protective Services] to take them. My — my children’s mother did. I was around the wrong people while I was going through the case.... I failed a [drug] test....” [4] The deadly-weapon finding is material because under Section 3g(a)(2) of Article 42.12 of the Texas Code of Criminal Procedure, if the judgment contains a deadly-weapon finding, the defendant is not eligible for parole until the "actual calendar time served, without consideration of good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less.” Tex. Gov’t Code Ann. § 508.145(d)(1) (West Supp.2014). [5] The apartment owner's name is spelled “Ballentine” in the indictment, while it is spelled "Vallentine” in the reporter's record. [6] In Patterson, the court held that the "applicant was entitled to notice that the State would pursue an affirmative [deadly weapon] finding as authorized by Article 42.12, § 3g(a)(2).” Patterson, 740 S.W.2d at 775. Although the court went oh to discuss how notice should be provided, with one judge contending that the State was not required to plead it in the indictment and three other judges contending that it was, Patterson failed to resolve that issue. See Blount v. State, 257 S.W.3d 712, 713 n. 2 (Tex.Crim.App.2008). Then, in Beck, the court held that where the indictment charges death or serious bodily injury as the result of a weapon, the notice required by Patterson has been satisfied; yet, the jury must still make an affirmative finding that a deadly weapon was used. Beck, 769 S.W.2d at 528. The court also cleared up the confusion created by Patterson over whether the deadly-weapon issue had to be pled in the indictment, holding that it did not. Id. (Clinton, J., concurring). Later, in Crumpton v. State, 301 S.W.3d 663, 664-65 (Tex.Crim.App. 2009), the court overruled Beck's conclusion that a verdict finding a defendant guilty as charged does not constitute an affirmative deadly-weapon finding. Thus, even though the court has continued to develop the type and amount of notice required by Article 42.12, Section 3g(a)(2) in the years since Patterson, it has never retreated from Patterson's initial requirement that the State must provide a defendant with some notice of its intent to seek a deadly-weapon finding and that notice must be provided before trial. [7] To fully understand why an allegation of aggravated assault places a defendant on notice that the State seeks a deadly-weapon finding, one must review the statutory definitions of assault, aggravated assault, and deadly weapon. Under Section 22.01 of the Texas Penal Code, assault can be committed in one of three ways: (1) causing bodily injury to another person; (2) threatening another person with imminent bodily injury; or (3) causing offensive or provocative contact with another person. Tex. Penal Code Ann. § 22.01(a)(1) — (3) (West Supp.2014). Under Section 22.02, an assault is aggravated in one of two ways: (1) the assault causes serious bodily injury, or (2) the defendant exhibits or uses a deadly weapon in committing the assault. Tex. Penal Code Ann. § 22.02(a)(1) — (2) (West 2011). Under Section 1.07, an object is a “deadly weapon” if (A) it is "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury” or (B) it "is capable of causing death or serious bodily injury” in the manner in which it was used or intended to be used. Tex. Penal Code Ann. § 1.07(a)(17)(A)-(B) (West Supp.2014). Therefore, an object defined by Section 1.07(a)(17)(A) is a deadly weapon per se, whereas an object defined by Section 1.07(a)(17)(B) becomes a deadly weapon by the manner of its use or intended use. When these statutory definitions are combined, a person can commit an aggravated assault in only one of three ways: (1) using any object to cause serious bodily injury; (2) using a per se deadly weapon to threaten someone with imminent bodily injury; or (3) using a per se deadly weapon to offensively or provocatively contact someone. Tex. Penal Code Ann. §§ 22.01(a)(l)-(3), 22.02(a)(l)-(2). If an indictment alleges the first method of aggravated assault, a deadly weapon is alleged because whatever object the defendant used became a deadly weapon when it caused serious bodily injury. If an indictment alleges the second or third method of aggravated assault, a deadly weapon is alleged because the defendant used a per se deadly weapon. Thus, no matter which method of committing aggravated assault the State alleges, it will necessarily involve the use of a deadly weapon. Consequently, when an indictment charges aggravated assault, the defendant is, legally speaking, on notice that the State seeks a deadly-weapon finding. [8] It is true that where an indictment alleges the different methods of committing the offense in the conjunctive, the jury may be charged in the disjunctive. Vasquez v. State, 665 S.W.2d 484, 486-87 (Tex.Crim.App. 1984); Zanghetti v. State, 618 S.W.2d 383, 387-88 (Tex.Crim.App. [Panel Op.] 1981). It is also true that where alternate theories of committing the same offense are submitted to the jury in the disjunctive, it is appropriate for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted. Aguirre v. State, 732 S.W.2d 320, 326 (Tex.Crim.App.1982) (op. on reh’g); Bailey v: State, 532 S.W.2d316, 322-23 (Tex.Crim.App.1976); see also Tex.Code Crim. Proc. Ann art. 37.07, § 1(a) (West Supp.2014); Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991). Thus, it is conceivable that an indictment may allege different methods of committing the offense, one of which is sufficient to provide notice of the State's intent to seek a deadly-weapon finding and one which is not. If a defendant were to be convicted on a general verdict in such a case and challenged the sufficiency of the deadly-weapon notice, the appellate court might then have to determine whether sufficient evidence supported the theory which provided the deadly-weapon notice. Nevertheless, we are not required to decide the question in this case because Vickers pled guilty to both theories. [9] Vickers concedes that he failed to raise this due process issue in the trial court, but, citing our unpublished opinion in Gentry v. State, No. 06-05-00237-CR, 2006 WL 932057 (Tex. App.-Texarkana Apr. 12, 2006, no pet.) (mem. op., not designated for publication), he claims that there is no requirement to object to the neutrality of the trial court at the time of the hearing. In Gentry, we held that the defendant did not need to preserve his due process claim that he failed to receive a fair trial and impartial judge. Id. at *2. A few months after our unpublished opinion in Gentry, the Court of Criminal Appeals declined to address whether this issue must be preserved, and instead, the court examined the record for clear evidence of judicial bias. Brum.it, 206 S.W.3d at 644-45. In Brumit, just prior to sentencing, the trial judge reflected on a case he had prosecuted before he became a judge, concluding, " 'That case made me think that anybody that ever harmed a child should be put to death.' " Id. at 640. Finding that the trial judge's comments failed to reflect bias, partiality, or that the judge failed to consider the full range of punishment as would be necessary to find a due process violation, the Court of Criminal Appeals affirmed Brumit’s sentence. Id. at 645. Accordingly, we do not decide whether this issue must be preserved, but will review the record for clear evidence of judicial bias. [10] Vickers does not argue that his sentence is outside the range of punishment. [11] It is true that a trial court cannot take judicial notice of the testimony from a previous trial unless a transcript of that testimony is admitted in the later trial. Davis v. State, 293 S.W.3d 794, 797 (Tex.App.-Waco 2009, no pet.). Nevertheless, "a court may take judicial notice of the existence of the testimony in a co-defendant’s trial ... [so long as the] court [does] not take judicial notice of the truth of the factual content of that testimony because its accuracy can reasonably be questioned.” Id. (citing Resendez v. State, 256 S.W.3d 315, 324 (Tex.App.-Houston [14th Dist.] 2007, pet. granted)). In Roman, as in this case, the trial court was not taking judicial notice of prior testimony from a separate case to resolve disputed facts in the case before it, but simply comparing the culpability of the two co-defendants based upon his observations of the evidence presented in both trials. By contrast, in Gentry, the trial judge was resolving disputed factual issues in the defendant’s suppression hearing based upon his personal observations of the events in question. Thus, Gentry is distinguishable from Roman and from the present case. [12] Although Roman involved the denial of a motion to recuse the trial judge, whereas the present case involves alleged extrajudicial bias by the judge in sentencing, the issue is the same: whether the trial judge is biased by his possession of information obtained outside of the case before him. Thus, Roman is applicable to this case. [13] Even when, the trial judge referred to his prior training and experience in psychology and counseling, his ultimate conclusion was that Vickers was "an extremely intelligent person,” which was supported by the evidence presented at trial.