Order issued April 29, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00649-CR
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SACAJAWEA WARREN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1301748
MEMORANDUM ORDER
Appellant, Sacajawea Warren, pleaded guilty to the offense of burglary of a
building with intent to commit theft, without an agreed recommendation regarding
punishment. Appellant further pleaded “true” to two felony enhancement
paragraphs. A pre-sentencing investigation was conducted. The trial court found
appellant guilty, found the enhancements true, and assessed punishment of
confinement for two years. Appellant filed a motion for new trial, asserting that
her plea was involuntary because her counsel was ineffective and seeking to
withdraw her plea and proceed to trial. The trial court denied appellant’s motion
for new trial without a hearing. Appellant moves to abate the appeal for a hearing
on her motion for new trial. We grant the motion, abate the appeal, and remand the
case to the trial court for a hearing on appellant’s motion for new trial.
We may abate an appeal and remand the case to the trial court for a hearing
on a timely-filed motion for new trial if (1) a hearing was requested, (2) the motion
was timely presented to the trial court, and (3) the appellant was entitled to a
hearing, that is, the matters raised in the motion and accompanying affidavit (A.)
are not determinable from the record and (B.) “reflect that reasonable grounds exist
for holding that such relief could be granted.” Wallace v. State, 106 S.W.3d 103,
108 (Tex. Crim. App. 2003); Green v. State, 264 S.W.3d 63, 66–67 (Tex. App.—
Houston [1st Dist.] 2007, pet. ref’d); Reyes v. State, 82 S.W.3d 351, 353 (Tex.
App.—Houston [1st Dist.] 2001, order). The standard of review is abuse of
discretion. Reyes, 82 S.W.3d at 353.
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First, the clerk’s record reflects that appellant timely filed a motion for new
trial and affidavit. See TEX. R. APP. P. 21.4. In addition, appellant requested a
hearing on her motion for new trial. 1 See Green, 264 S.W.3d at 66–67.
Second, because the record shows that the trial court ruled on appellant’s
motion for new trial the same day it was filed, the record reflects that appellant
timely presented the motion to the trial court. See TEX. R. APP. P. 21.6; Green, 264
S.W.3d at 67.
Finally, we consider whether the motion for new trial and accompanying
affidavit raise matters that (A.) are not determinable from the record and (B.)
reflect that reasonable grounds exist for holding that such relief could be granted.
See Wallace, 106 S.W.3d at 108.
(A.) Matters Not Determinable from the Record
We first consider whether appellant’s motion for new trial and
accompanying affidavit raise matters that are not determinable from the record.
See id.
1
In her motion for new trial, appellant stated that a hearing must be held “before the
75th day after the sentence, which is August 29, 2012, or this motion is overruled
by operation of law.” In addition, the motion states that appellant seeks relief on
the basis of the written reasons, as well as “other reasons that may arise on the
hearing.” Appellant further provided spaces in the motion for the trial court to
complete in setting a hearing. The form is blank. However, when, as here, the
trial court has ruled on the motion for new trial itself, the record need not reflect a
ruling on the request for a hearing. See Torres v. State, 4 S.W.3d 295, 296–98
(Tex. App.—Houston [1st Dist.] 1999, order).
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In her motion for new trial,2 appellant alleged that, at approximately 9:30
p.m. on the date of the alleged offense, she, a licensed real estate agent, and her
husband went to a house to inspect it prior to signing a contract to purchase the
house. Appellant had purchased a key from her broker, as required. Appellant
alleged that, as they were leaving the house, a Houston Police officer intercepted
them. Appellant asserted that they tried to explain their purpose at the house, but
that the officer arrested them. Appellant was charged with burglary with intent to
commit theft for having attempted to steal a stove, to which she pleaded guilty
without an agreed recommendation.
Appellant further asserted in her motion for new trial that, prior to entering
her plea, her trial counsel had encouraged her to go to trial. On April 9, 2012,
according to appellant, after numerous trial re-settings, appellant appeared with
counsel, expecting to pick a jury and proceed to trial. Appellant asserted that
counsel seemed “overly concerned about his personal divorce case which was
pending in the Harris County Family Court and was scheduled for trial.” Counsel
requested a continuance on this basis; however, the trial court denied the
2
By affidavit appended to her motion for new trial, appellant swore to the specific
facts she alleged in her motion. Her affidavit, coupled with the motion, provides
the requisite notice of the basis for the relief claimed. See Hobbs v. State, 298
S.W.3d 193, 200–01 & n.32 (Tex. Crim. App. 2009); see also Reyes v. State, 849
S.W.2d 812, 816 (Tex. Crim. App. 1993) (stating that “the motion for new trial
or affidavit must reflect that reasonable grounds exist for holding that such relief
could be granted”).
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continuance and ordered counsel to return on April 10, 2012, ready to proceed.
Appellant alleged that, thereafter, counsel’s demeanor changed, and that,
“[w]hereas prior in time he had counseled [appellant] to refuse to plea to a lesser
charge of trespass, he was now stampeding [her] into pleading guilty to the
burglary charge without a recommendation.” Appellant alleged that counsel stated
“that he would not be able to cross examine the police and that she would be found
guilty and go directly to jail.” Appellant asserts that counsel “further stated that if
[I] pleaded guilty without an agreed recommendation and with a presentence
investigation, . . . I would get probation.” Appellant asserted that she felt she had
no choice but to plead guilty. After which, the trial court sentenced her to
confinement for two years.
Thus, appellant complains that her plea was involuntary because she was
denied effective assistance of counsel. Specifically, appellant alleges that counsel
coerced her into pleading guilty without an agreed recommendation by erroneously
telling her that, if she pleaded guilty, she would get community supervision and by
telling her that he would refuse to cross-examine the police officer.
A defendant’s election to plead guilty is not voluntary if it is based on
erroneous advice of counsel. See Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim.
App. 1991). Appellant’s motion for new trial raises matters not determinable from
the record because, without a hearing on appellant’s motion for new trial, we
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cannot determine the content of the conversations between appellant and counsel
leading up to appellant’s plea. See Wallace, 106 S.W.3d at 108; Reyes, 82 S.W.3d
at 353–54 (holding that, without hearing on motion for new trial, court could not
“determine the content of the conversations” between defendant and his lawyer and
could not evaluate claim that defendant received ineffective assistance of counsel
resulting in involuntary plea).
(B.) Reasonable Grounds for Relief
Next, we determine whether appellant’s motion for new trial and affidavit
reflect that reasonable grounds exist for holding that relief on appellant’s claim of
ineffective assistance of counsel could be granted. See Wallace, 106 S.W.3d at
108. “To do so, the appellant must allege facts that would reasonably show that
[her] counsel’s representation fell below the standard of professional norms and
that there is a reasonable probability that, but for [her] counsel’s conduct,”
appellant would not have pled guilty and would have insisted on going to trial.
Smith v. State, 286 S.W.3d 333, 340–41 (Tex. Crim. App. 2009) (applying
Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 2064, 2068
(1984)).
Appellant complains that her counsel was ineffective because he coerced her
into pleading guilty without an agreed recommendation by erroneously telling her
that, if she pleaded guilty, she would get community supervision. A guilty plea is
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not rendered involuntary simply because an attorney may have raised an erroneous
expectation of community supervision or the sentence exceeds what was expected,
even if the expectation was raised by the defendant’s attorney. See West v. State,
702 S.W.2d 629, 633 (Tex. Crim. App. 1986). Hence, appellant’s motion for new
trial does not establish reasonable grounds for relief on this point. See Hernandez
v. State, 84 S.W.3d 26, 33 (Tex. App.—Texarkana 2002, pet. ref’d) (concluding
that trial court did not abuse its discretion by failing to conduct hearing on motion
for new trial in which appellant alleged that his open plea was based on counsel’s
erroneous assurances of community supervision, because appellant stated in record
that he understood his plea, that it was not induced by promises, and that trial court
would consider full range of punishment); Messer v. State, 757 S.W.2d 820, 826
(Tex. App.—Houston [1st Dist.] 1988, pet. ref’d) (holding that unjustified
assurances made by trial counsel regarding likelihood defendant would be given
community supervision did not render appellant’s guilty plea involuntary, given
that defendant was informed court would consider entire punishment range and
defendant stated in open court that his guilty plea was not induced by any
promises).
Appellant further complains, however, that her counsel was ineffective
because he coerced her into pleading guilty without an agreed recommendation by
telling her that he would refuse to cross-examine the police. A decision not to
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cross-examine a witness can constitute sound trial strategy. Dannhaus v. State, 928
S.W.2d 81, 88 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d). An ineffective
assistance of counsel claim cannot be based on a difference of opinion concerning
strategy. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
Here, however, in her motion for new trial, appellant alleged fact issues
regarding the circumstances at the house on the night of the incident and alleged
that counsel refused to cross-examine the police officer who intercepted and
arrested appellant at the house. A failure or refusal to cross-examine any of the
State’s witnesses can constitute deficient performance by counsel. See Wenzy v.
State, 855 S.W.2d 47, 50–51 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d)
(concluding that counsel’s representation of defendant, including that counsel did
not cross-examine any of the State’s witnesses, was constitutionally deficient in
that counsel did not play adversarial role contemplated by Sixth Amendment).
“An attorney who represents a criminal defendant is bound by professional duty to
present all available evidence and arguments in support of his client’s position, and
to contest with vigor all adverse evidence and views.” Id. (quoting Thomas v. State,
550 S.W.2d 64, 68 (Tex. Crim. App. 1977), quoting Gagnon v. Scarpelli, 411 U.S.
778, 787, 93 S.Ct. 1756, 1762 (1973)). Hence, appellant alleged facts in her
motion for new trial and affidavit that reflect that reasonable grounds exist for
holding that relief could be granted. See Wallace, 106 S.W.3d at 108.
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As to the prejudice prong, appellant must show a reasonable probability that,
absent counsel’s conduct, she would have insisted on going to trial, that is, that “a
particular proceeding would have occurred.” See Johnson v. State, 169 S.W.3d
223, 231 (Tex. Crim. App. 2005) (discussing defendant who contends that his
guilty plea was involuntary because of ineffective assistance of counsel). Appellant
was not required to show that the case would have received a more favorable
disposition had she gone to trial. Id. We consider the circumstances surrounding
the plea. Ex parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999). “The test
is objective; it turns on what a reasonable person in the defendant’s shoes would
do.” Ex parte Ali, 368 S.W.3d 827, 833 (Tex. App.—Austin 2012, pet. ref’d).
Appellant asserts that trial had been set and reset numerous times before she
appeared with counsel for trial on April 9, 2012. Appellant asserts that, on that
day, she expected to pick a jury and proceed to trial. However, counsel asked for a
continuance based on his personal divorce case, which the trial court denied, and
the trial court instructed appellant and counsel to appear the next day, ready for
trial. Appellant alleged that, after the trial court refused the continuance, counsel’s
demeanor changed toward her, and he told her that he would not cross-examine the
police. The next day, appellant pleaded guilty without an agreed recommendation.
Appellant alleged facts in her motion for new trial that demonstrate a reasonable
probability that she would have insisted on going to trial, but for the alleged
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conduct of counsel. See Johnson, 169 S.W.3d at 231.
In sum, appellant’s motion for new trial raises matters not determinable from
the record and reflects that reasonable grounds exist for holding that such relief
could be granted. See Wallace, 106 S.W.3d at 108 (stating that motion need not
establish a prima facie case for a new trial; rather, it “must merely reflect that
reasonable grounds exist for holding that such relief could be granted”); Reyes, 82
S.W.3d at 353–54. We conclude that appellant was entitled to a hearing on her
motion for new trial.
Accordingly, we abate this appeal and remand the case to the trial court to
conduct an evidentiary hearing within 60 days from the date of this order.3 See
Thomas v. State, 286 S.W.3d 109, 117 (Tex. App.—Houston [14th Dist.] 2009,
order). If the trial court grants the motion for new trial, appellant’s appeal will be
dismissed. If the motion is overruled, the reporter’s record is to be supplemented.
Any ruling is to be included in a supplemental clerk’s record. The reporter’s
record and supplemental clerk’s record must be filed in this Court within 30 days
after the date of the hearing. The appeal is abated, treated as a closed case, and
removed from this Court’s active docket. The appeal will be reinstated on the
3
See TEX. R. APP. P. 44.4 (providing that if trial court’s error or failure to act
prevents proper presentation of case on appeal and trial court can correct its error
or failure to act, court of appeals “must not affirm or reverse,” but “must direct the
trial court to correct the error”).
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Court’s active docket when the reporter’s record and supplemental clerk’s record
have been filed in this Court.
/s/ Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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