In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-01-00188-CR
______________________________
DONALD EDWARD ELLIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th Judicial District Court
Gregg County, Texas
Trial Court No. 28,432-A
Before Grant, Ross, and Cornelius,* JJ.
Opinion by Justice Cornelius
______________
*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment
O P I N I O N
Donald Ellis pleaded guilty, as part of a plea bargaining agreement, to four counts of aggravated sexual assault of a child as part of the same criminal episode. (1) The trial court rejected Ellis' application for community supervision and sentenced him to fifty years' imprisonment. Ellis contends that his sentence is disproportionate to the offenses and that the trial court should have placed him on deferred adjudication community supervision.
Aggravated sexual assault of a child is a first-degree felony punishable by imprisonment for life or for not more than ninety-nine years or less than five years. Tex. Pen. Code Ann. § 12.32(a) (Vernon 1994), § 22.021(e) (Vernon Supp. 2002). Therefore, Ellis' fifty-year sentence is near the midpoint of the sentencing range.
Texas courts have traditionally held that as long as the punishment is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). However, in Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.-Texarkana 1999, no pet.), this Court recognized that a prohibition against grossly disproportionate punishment survives under the Eighth Amendment apart from any consideration of whether the punishment assessed is within the range established by the Legislature. See also Latham v. State, 20 S.W.3d 63, 68-69 (Tex. App.-Texarkana 2000, pet. ref'd).
Our proportionality analysis under the Eighth Amendment is guided by (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 77 L. Ed. 2d 637, 650 (1983). Only if we infer that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); see also Davis v. State, 905 S.W.2d 655, 664-65 (Tex. App.-Texarkana 1995, pet. ref'd).
Ellis did not present this issue to the trial court; therefore, he did not preserve it for our review. See Tex. R. App. P. 33.1(a); Jackson v. State, 989 S.W.2d at 844. Even if Ellis' contention had been preserved, there is no evidence in the record comparing the sentences imposed on persons in Texas with sentences imposed against defendants in other jurisdictions who committed a similar offense. See Latham v. State, 20 S.W.3d at 69; Davis v. State, 905 S.W.2d at 664-65.
Ellis contends the trial court should have deferred adjudication and placed him on community supervision. We have already held that the sentence imposed by the trial court is not excessive, so we find the court did not err in refusing to place Ellis on community supervision. Moreover, the trial court heard evidence for and against Ellis' plea for community supervision. We find the evidence is sufficient to support the trial court's decision to deny community supervision and impose a prison sentence.
The judgment is affirmed.
William J. Cornelius
Justice
Date Submitted: April 25, 2002
Date Decided: July 17, 2002
Do Not Publish
1. As part of the plea bargaining agreement, the State agreed to forego prosecution of another
aggravated sexual assault of a child offense and to recommend the punishment for each count of the
indictment run concurrently. See Tex. Pen. Code Ann. § 3.03(b)(2) (Vernon Supp. 2002). There
was, however, no agreement regarding the length of imprisonment should the trial court reject Ellis'
application for community supervision.
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00056-CR
______________________________
KREASHA SIMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 217th Judicial District Court
Angelina County, Texas
Trial Court No. CR-28025
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Chief Justice Morriss
O P I N I O N
After a putative waiver of the right to appeal, Kreasha Sims pled guilty, in an open plea before the 217th Judicial District Court in Angelina County,[1] to the offense of arson.[2] After signing her waiver and before she pled guilty, Sims had been admonished by the trial court that she had waived the right to appeal anything except matters arising from the sentencing hearing. After her plea and some delay in getting a presentence investigation (PSI) report, the trial court found her guilty and sentenced her to ten years confinement in this case and five years confinement in the companion case.
Sims seeks to appeal from her conviction, arguing that her guilty plea was involuntary and that her trial counsel was ineffective. The State cites the waiver of the right to appeal and contests Sims substantive arguments on appeal. We affirm the trial courts judgment becausealthough (1) Sims right to appeal was not waived(2) improper admonishments by the trial court did not make Sims plea involuntary, (3) the claim that Sims plea was involuntary due to her alleged incompetence was not preserved, and (4) the record does not demonstrate ineffectiveness by Sims trial counsel.
(1) Sims Right to Appeal Was Not Waived
The first question we must address involves the jurisdiction of this Court. The trial courts certification of Sims right to appeal contains a handwritten notation reciting that Sims waived her right to appeal the guilty plea in this case, but that she reserved the right to appeal the punishment proceedings.[3]
When a defendants waiver of the right to appeal was entered before he or she knew what the punishment would be, the waiver is ineffective. See Ex parte Delaney, 207 S.W.3d 794, 797 (Tex. Crim. App. 2006); Blanco v. State, 18 S.W.3d 218, 21920 (Tex. Crim. App. 2000) (waiver of appeal enforceable when executed after conviction, but before sentencing, in exchange for recommended sentence). Thus, post-sentencing waivers of the right to appeal are valid, as are waivers when plea agreements have been entered. Another way a presentencing waiver can be enforceable without a plea agreement is when the State has given some consideration for the waiver, such as a consent in some other aspect of the case. Ex parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009). None of those factors support the waiver in this case. On its face, therefore, it appears that this waiver fails.
The State cites an earlier case for the proposition that a valid, nonnegotiated waiver of appeal will prevent a defendant from appealing any issue without the consent of the trial court. Monreal v. State, 99 S.W.3d 615, 616 (Tex. Crim. App. 2003). In its argument, the State relies on particular language from Monreal:
When asked to choose between a rule stating that a waiver of appeal is binding unless and until the defendant files a notice of appeal and a rule stating that a valid waiver of appeal is binding on the defendant and will prevent the defendant from appealing without the consent of the trial court, we have consistently opted for the latter. See Ex parte Dickey, 543 S.W.2d 99; Johnson, 556 S.W.2d 816; Ex parte Tabor, 565 S.W.2d 945. This decision has never been based on whether the defendant received some benefit in exchange for the waiver, but rather on whether, as the rule states, the waiver was voluntary, intelligent, and knowing, and thus valid. See Id.; and also Blanco, 18 S.W.3d 218.
Id. at 622. Notwithstanding that general language, the question before us is whether Sims waiver is valid.
To be valid under the more recent and controlling authorities referenced above, Sims must know the consequences of her waiver or there must be some consideration provided by the State so that a true bargain exists.
In this case, the defendant pled guilty with no plea agreement. After taking Sims plea October 26, 2009, the trial court did not find her guilty, but continued the trial pending receipt of a PSI. At some point before the plea proceeding, Sims had signed a waiver of right of appeal, as acknowledged by the trial court. During the plea, the court informed Sims that she had given up the right to appeal any matter but the sentencing hearing. The record contains a written waiver of right of appeal, signed by Sims October 26, which contains this language:
Having been informed of whatever right to appeal may exist, and having agreed to waive my right to appeal both guilt/innocence and punishment, and after having consulted with my attorney, I hereby voluntarily, knowingly and intelligently waive my right to appeal.
As previously noted, the final version of the certification of right of appeal signed by the trial court in this case states that Sims has waived her right of appeal except for punishment issues. The punishment phase was conducted in late February 2010, and Sims was sentenced in early March.
In this case, Sims signed a waiver before being sentencedeven before the trial court concluded the guilt portion of the proceedingand after the court had explained the range of punishment for the offenses. The State made no punishment recommendation. Cf. Delaney, 207 S.W.3d at 799. But, simply knowing the range of punishment for the offense is not enough to make the consequences of a waiver known with certainty. Broadway, 301 S.W.3d at 698. No plea agreement existed, and this record does not reflect that any other sort of agreement existed either. See id. at 697.
There is nothing in this record to indicate that Sims written waiver was bargained for, that any consideration was given by the State for the waiver, or that the punishment was known. Under these facts and the analysis endorsed by the Texas Court of Criminal Appeals, this waiver could not qualify as being voluntarily, knowingly, and intelligently made. The appeal is therefore fully before this Court, and we will not limit its scope as suggested by the trial courts addendum to the certification.
(2) Improper Admonishments by the Trial Court Did Not Make Sims Plea Involuntary
Sims contends that her plea of guilty was involuntary because the trial court did not adequately admonish her. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2010). Article 26.13 contains a series of admonishments that are to be given to defendants who plead guilty. Substantial compliance with the statute is sufficient unless a defendant shows that he or she was not aware of the consequences of the plea and was also misled or harmed by the admonishment. Tex. Code Crim. Proc. Ann. art. 26.13(c). An admonishment error asserted under Article 26.13(a) is subject to a harm analysis, because it is statutory and not constitutional in nature. Aguirre-Mata v. State, 992 S.W.2d 495 (Tex. Crim. App. 1999); see Tex. R. App. P. 44.2(b).
Sims contends that she was improperly admonished and that the improper admonishment, along with the totality of the surrounding circumstances, resulted in harm through the entry of an involuntary plea.[4] She acknowledges that the written admonishments did, as required by Article 26.13 of the Texas Code of Criminal Procedure, specify the offense alleged, the range of punishment for the crime, and also contained a blanket statement that Sims was competent and understood what went on before the plea. The document also contains language stating that Sims pleads guilty and waives a jury trial, a statement that, if the court assesses punishment, a PSI will be conducted, and the previously discussed language concerning her loss of her right to appeal.
Sims was given an admonishment that incorporated the language set out by Article 26.13(a)(3) of the Texas Code of Criminal Procedure, but added the incorrect information set out above. We consider inaccurate additions to an admonishment to be a part of that admonishment. Thus, in the absence of an express waiver, a complaint concerning the admonishment may be raised for the first time on appeal.
The question is whether the failure to properly admonish Sims was such as to affect her substantial rights. See Tex. R. App. P. 44.2(b); Bessey, 239 S.W.3d at 81213. In applying Rule 44.2(b) to the failure to give an admonition, we should consider the record as a whole to determine whether, in this particular case, the error substantially affected the defendants rights. Anderson v. State, 182 S.W.3d 914, 918 (Tex. Crim. App. 2006). In Anderson, the court considered the strength of the evidence of guilt, whether the record indicates that the appellant was aware of the requirement, and whether the omitted admonition actually applied to the appellants situation.
In this case, as a plea of guilty, evidence of guilt is stipulated and is not at issue. The record also does not suggest, however, that Sims or her counsel were aware that the information provided by the trial court was erroneous. Certainly, the error was directly applicable to Sims situation.
But that does not justify reversal in this instance. Sims was informed incorrectly that she had no right, or a limited right, of appeal. We see nothing suggesting that this inaccurate warning, even though given both in writing and orally, would be such as to encourage her to plead guilty. Indeed, the expected result would be precisely the opposite.
Sims also argues that the conflicts among the invalid waivers, the incorrect written admonishments, and the erroneous oral comments by the trial court were such as to cause harm. Because any effect of such conflicts would be to discourage a guilty plea, not to encourage one, there was no harm here.
We overrule this point of error.
(3) The Claim that Sims Plea Was Involuntary Due to Her Alleged Incompetence Was Not Preserved
Sims has suffered from mental problems to such a degree that she has been institutionalized and was bench warranted from Rusk State Hospital to Angelina County for trial October 14, 2009, following receipt of a report October 9, 2009, from the hospital stating that she was now competent to stand trial. She asserts that there was no inquiry as to her condition or competency at any of the various hearings and that the failure in the admonishments would be such as to confuse a fully competent person, much less a person whose capabilities were questionable.
The State contends that this argument has not been preserved for review. We agree.
Before the trial court, Sims did not object to the plea proceeding or challenge the voluntariness of her plea. Without a timely objection, motion, or request that the trial court inquire into the voluntariness of her plea, Sims has forfeited her right to complain about the issue on appeal.[5] See Mendez, 138 S.W.3d at 339, 350; Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). We overrule this point of error.
(4) The Record Does Not Demonstrate Ineffectiveness by Sims Trial Counsel
Sims also contends that she received ineffective assistance of counsel at trial, pursuant to Strickland v. Washington, 466 U.S. 668 (1984). This is based on trial counsels failure to argue that Sims was incompetent to stand trial. With the exceptions discussed above, the record is effectively silent on this matter. Where an appellate record is silent as to why trial counsel failed to take certain actions, the appellant has failed to rebut the presumption that trial counsels decision was in some way reasonable. See Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007). In this case, there is no record at any level to indicate why counsel chose to take or declined to take any of these actions.
The ineffectiveness of counsel is a matter that must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Smith v. State, 51 S.W.3d 806, 812 (Tex. App.Texarkana 2001, no pet.). In the absence of such a record, and lacking anything that would indicate such completely ineffective assistance as could be shown without such a record, we overrule the point of error.
We affirm the judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: August 30, 2010
Date Decided: October 15, 2010
Publish
[1]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Govt Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.
[2]The trial court proceeding appealed in this matter bears the trial courts cause number 28,025. In a companion case, trial court cause number 29,162, Sims pled guilty to aggravated assault on a public servant. That companion appeal bears our cause number 06-10-00057-CR and is being decided at the same time as this case.
[3]The written plea admonishments used here are a fairly typical check the box boilerplate form that tries to cover every possible variation of sentencing, and provides admonishments to the defendant. Sims form contains the following admonishment:
PERMISSION TO APPEAL: . . . where you plead guilty or nolo contendere without a plea bargain agreement, all nonjurisdictional defects, including claimed deprivations of federal due process, are waived and no appeal may be made.
This is not one of the required admonishments set out by Article 26.13 of the Texas Code of Criminal Procedure. With some additions, it derives from the old Helms rule. See Helms v. State, 484 S.W.2d 925, 926 (Tex. Crim. App. 1972). In 2000, however, the Texas Court of Criminal Appeals superseded Helms in adopting a new rule:
Whether entered with or without an agreed recommendation of punishment by the State, 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, 66667 (Tex. Crim. App. 2000). After Young, a guilty plea does not necessarily waive a right to any appeal. Thus, the admonishment given Sims is not accurate and is misleading as to the rights of a defendant who pleads guilty without a plea agreement.
The erroneous admonishment was repeated orally during the plea proceeding. The State suggests that perhaps the oral exchange would suffice to show Sims intention to waive her right of appeal. It does not. It is nothing more than her acknowledgement of a pronouncement by the trial court. As the pronouncement was incorrect, we find Sims acknowledgement thereof irrelevant.
[4]The State contends that this argument has been waived. We disagree. Errors may be raised for the first time on appeal if the complaint is that the trial court disregarded an absolute or systemic requirement or that the appellant was denied a waivable-only right that was not waived. Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004); Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993). A defendants right to be properly admonished is a waivable-only right, because a trial court has a statutory duty to properly admonish defendants as described by Article 26.13 of the Texas Code of Criminal Procedure. Bessey v. State, 239 S.W.3d 809, 81213 (Tex. Crim. App. 2007). A law that puts a duty on the trial court to act sua sponte, creates a right that is waivable only. It cannot be a law that is forfeited by a partys inaction. Mendez, 138 S.W.3d at 342. Thus, a courts failure to properly admonish a defendant cannot be forfeited by inaction and may be raised for the first time on appeal unless it is expressly waived.
[5]Even if this claim had been preserved, the record would not sustain it. A person is presumed to be competent to stand trial unless proven incompetent. Tex. Code Crim. Proc. Ann. art. 46B.003(b) (Vernon 2006). A person is incompetent to stand trial if that person lacks sufficient present ability to consult with [that] persons lawyer with a reasonable degree of rational understanding; or . . . [if that person lacks] a rational as well as factual understanding of the proceedings against [that] person. Tex. Code Crim. Proc. Ann. art. 46B.003(a)(2) (Vernon 2006). If evidence of the defendants incompetence is brought to the courts attention from any source, the court must conduct a hearing out of the presence of the jury to determine whether there is evidence to support a finding of incompetency to stand trial. Tex. Code Crim. Proc. Ann. art. 46B.004(b) (Vernon 2006). In this case, the trial court had recent information that Sims was competent, the attorney was willing to agree that she was, and our review of the record does not affirmatively show Sims lack of understanding of the proceedings. Admittedly, she exhibited some confusion at the end of the proceedings concerning the existence of a further bond, but that confusion is hardly unusual in such a situation for a defendant and does not tend to show incompetence. Her head nods and somewhat unclear answers in response to questions about her understanding of the various documents she had signed may show some confusion, but likewise fail to show incompetence. This record does not show that Sims substantial rights were compromised by errors committed by the trial court.