NUMBERS 13-98-617-CR AND 13-98-618-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
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MARLON HARDEMAN, Appellant,
THE STATE OF TEXAS, Appellee.
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On appeal from the 105th District Court of Nueces County, Texas.
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Before Chief Justice Seerden and Justices Hinojosa and Yañez
Opinion by Justice YañezIn Cause No.13-98-617-CR, Marlon Charles Hardeman appeals from a judgment revoking his community supervision and sentencing him to ten years imprisonment. He also appeals from a plea-bargained conviction for unlawful possession of a controlled substance(1) in Cause No. 13-98-618-CR. The State relied on the second conviction as a basis for the revocation. In accordance with the plea agreement, Hardeman was sentenced to ten years for the second offense, to be served concurrently with the ten-year sentence imposed for the first offense. We affirm the judgments.
In two issues, Hardeman contends: (1) he received ineffective assistance of counsel, which rendered his guilty plea in the second offense and plea of "true" to the violation of a condition of his community supervision involuntary; and (2) the trial court erred in denying his motion to withdraw his pleas and motion for new trial because he received ineffective assistance of counsel.
Hardeman contends he was denied effective assistance of counsel
because his attorney was presented with a conflict of interest. The
illegal drugs supporting the second offense were found in an apartment
shared by Hardeman and his girlfriend. Hardeman hired an attorney to
represent both of them. His girlfriend was never indicted. Hardeman
contends his attorney led him to believe that if he "took the rap" for the
drugs, he likely would receive community supervision. He contends his
attorney coerced him into accepting the blame in order to exonerate his
girlfriend, which presented a conflict of interest, rendering his counsel's
assistance ineffective and his pleas involuntary.
Jurisdiction
We begin by addressing our jurisdiction over Hardeman's appeal in Cause No. 13-98-618-CR, the appeal from the plea of guilty. In this case, Hardeman appeals from a plea bargain to a felony offense, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant. Hardeman filed only a general notice of appeal, and thus failed to comply with the specific notice requirements of Texas Rule of Appellate Procedure 25.2(b)(3). See Tex. R. App. P. 25.2(b)(3). Generally, when an appellant fails to comply with these extra-notice requirements, the court of appeals lacks jurisdiction. See Lowe v. State, 997 S.W.2d 670, 672 (Tex. App.--Dallas 1999, no pet.). However, a plea-bargaining defendant who has failed to comply with the notice requirements of this rule can nevertheless challenge the voluntariness of his plea. See, e.g., Marshall v. State, No. 13-99-153-CR, 2000 Tex. App. LEXIS 5427, at *6 (Tex. App.--Corpus Christi August 10, 2000, no pet. h.) (designated for publication); Davis v. State, 7 S.W.3d 695, 696 (Tex. App. Houston [1st Dist.] 1999, pet. ref'd). Therefore, although we do not have jurisdiction to address Hardeman's claims insofar as they concern ineffective assistance of counsel, we do have jurisdiction over a claim of involuntariness of the guilty plea. See Lowe, 997 S.W.2d at 672 (holding under general notice of appeal, court has jurisdiction to address claims of involuntariness, but no jurisdiction over claims of ineffective assistance).
In Cause No. 13-98-617-CR, Hardeman appeals the revocation of his community supervision. The restrictions of rule 25.2(b)(3) do not apply to an appeal of a revocation of community supervision. See Feagin v. State, 967 S.W.2d 417, 419 (Tex. Crim. App. 1998); Rojas v. State, 943 S.W.2d 507, 509 (Tex. App.--Dallas 1997, no pet.) (applying former rule 40(b)(1), now rule 25.2(b)(3)). The restrictions of the rule apply to a "plea bargained conviction." Tex. R. App. P. 25.2(b)(3); Rojas, 943 S.W.2d at 509. In a revocation of community supervision, the "conviction" triggering rule 25.2(b)(3) occurred at an earlier point, when the defendant was found guilty and granted community supervision. Rojas, 943 S.W.2d at 509. The restrictions of rule 25.2(b)(3) thus do not apply to a community supervision revocation, regardless of the existence of a second plea bargain agreement at that stage. Id. Rule 25.2(b)(3), therefore, does not deprive us of jurisdiction over Hardeman's appeal in Cause No. 13-98-617-CR.
In the present case, Hardeman's appeal of the revocation of his community supervision is limited to issues unrelated to his conviction, i.e., that the trial court erred in denying his motion for new trial because his plea of "true" at his revocation hearing was involuntary due to ineffective assistance of counsel. Article 42.12, §23(b) provides that an appellant may appeal matters relating to the revocation of his community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, §23(b) (Vernon Supp. 2000). Thus, Hardeman properly sought a general appeal from the trial court's order revoking his community supervision. Id.; Feagin, 967 S.W.2d at 419.
Applicable Law"When a defendant challenges the voluntariness of a plea entered upon 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.'" Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999)(quoting Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997)). Hardeman contends that his attorney's representation of two clients with adverse interests resulted in a conflict of interest. "In order for a defendant to demonstrate a violation of his right to the reasonably effective assistance of counsel based on a conflict of interest, he must show (1) that defense counsel was actively representing conflicting interests, and (2) that the conflict had an adverse effect on specific instances of counsel's performance." Ex parte Morrow, 952 S.W.2d at 538 (citing Cuyler v. Sullivan, 446 U.S. 335 (1980)).
Not all codefendants have conflicting interests, and there is sometimes a tactical advantage to presenting a common defense. See Raspberry v. State, 741 S.W.2d 191, 197 (Tex. App.--Fort Worth 1987, pet. ref'd). However, ineffective assistance of counsel may result when an attorney works under a conflict of interest. Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984)). Where there is evidence that counsel cannot serve both clients that cannot be seriously doubted, it follows that an accused's defense is impaired. Simons v. State, 805 S.W.2d 519, 521 (Tex. App.--Waco 1991, no pet.) (citing Cuyler, 446 U.S. at 349).
To prove an adverse effect, an appellant need not show that the conflict changed the outcome of the trial. Ramirez v. State, 13 S.W.3d 482, 487 (Tex. App.--Corpus Christi 2000, pet. filed) (citing Perillo v. Johnson, 79 F.3d 441, 448 (5th Cir. 1996)). Once it has been established that an actual conflict exists, prejudice to the defendant must be presumed. Maya v. State, 932 S.W.2d 633, 635 (Tex. App--Houston [14th Dist.] 1996, no pet.). To show adverse effect, an appellant must demonstrate that some plausible defense strategy or tactic might have been pursued but was not, because of the conflict of interest. Ramirez, 13 S.W.3d at 487.
The right to conflict-free counsel may be waived, but in order for the waiver to be effective, the record must show that it was done knowingly, intelligently, and voluntarily. Id. A trial court has a duty to conduct a hearing once it has been alerted of a possible conflict of interest to determine if there is an actual conflict of interest. Id. In the present case, appellant first raised his claim of involuntariness based on his counsel's conflict of interest in his motion for new trial.
At the hearing on his motion for new trial (at which Hardeman was represented by a different attorney), Hardeman testified that his former attorney also represented his girlfriend when she was arrested following the search of their residence that turned up the drugs. He testified that after his attorney told him that the State had a strong case against her, his primary concern was that she not be convicted. He also testified that his former attorney had pressured him to take responsibility for the offense in order to exonerate his girlfriend. He testified that he would have been better served by retaining separate counsel, and that his former attorney led him to believe he probably would receive community supervision instead of a prison sentence. He testified that he and his girlfriend both claimed the defense that the drugs did not belong to either of them.
Hardeman acknowledged at the new trial hearing that he had testified earlier (at his revocation hearing), that he was pleading freely and voluntarily. He further acknowledged that he had signed documents making the same affirmation. In response to questions by the prosecutor, Hardeman acknowledged that he had made the choice to plead guilty. In response to additional questioning by his own attorney, Hardeman again asserted that his former attorney had coerced him into pleading guilty and "true." The judge then asked Hardeman how his former attorney had forced him to plead guilty. Hardeman responded as follows:
Hardeman: Well, he kept on--he was saying, when he was
back in the room, sir, he kept on saying a lot about, "We're
going to get you reinstated. Don't worry about anything,"
and all kinds of stuff. Then he come back and tell me, well,
all of a sudden, "No reinstatement here. You've got to cop
out for this ten," and stuff like that. I mean, I was confused.
I wasn't even--I didn't understand him. I didn't understand
him. He said, "Just do it. Just do it. Go ahead and do it.
Just cop out. Cop out for the ten. It will be better." That's
all I remember, sir.
[Court:] And that's it?
Hardeman: That was it.
The trial court heard Hardeman's testimony that his pleas were involuntary because of his attorney's alleged conflict of interest and at the conclusion of the hearing, rejected the claims. Although Hardeman was represented by new counsel, he offered no testimony by his former attorney or other evidence in support of his claims.
A heavy presumption of voluntariness is established once a defendant agrees to the terms of a plea bargain agreement and signs the agreement. See Ex parte Williams, 637 S.W.2d 943, 947 (Tex. Crim. App. 1982); Harling v. State, 899 S.W.2d 9, 13 (Tex. App.-San Antonio 1995, pet. ref'd). In determining the voluntariness of a plea, the entire record must be considered. See Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975); Ford v. State, 845 S.W.2d 315, 316 (Tex. App.-Houston [1st Dist.] 1992, no pet.).
Complaints of ineffective assistance of counsel must be supported by the record. See Jackson v. State, 877 S.W.2d 768, 771-73 (Tex. Crim. App. 1994) (Baird, concurring); Johnson v. State, 691 S.W.2d 619, 626-27 (Tex. Crim. App. 1984). At his revocation/plea hearing, Hardeman told the trial judge no one had forced, coerced, or promised him anything to get him to plead guilty against his will. When an appellant has attested to the voluntary nature of his plea, a heavy burden is placed on him to demonstrate later that his plea was involuntary. Garcia v. State, 877 S.W.2d 809, 812 (Tex. App.--Corpus Christi 1994, pet. ref'd) (citations omitted).
Nothing in the record contradicts the presumption or otherwise demonstrates that Hardeman's pleas were anything but voluntary. We overrule Hardeman's issues and affirm the trial court's judgments in Cause Nos.13-98-617-CR and 13-98-618-CR.
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LINDA REYNA YAÑEZ
Justice
Do not publish. Tex. R. App. P. 47.3.
Opinion delivered and filed this the
24th day of August, 2000.
1. See Tex. Health & Safety Code Ann. § 481.115(a)(d) (Vernon Supp. 2000).