ACCEPTED
14-15-00046-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
6/26/2015 6:38:12 PM
CHRISTOPHER PRINE
CLERK
NO. 14-15-00046-CR
IN THE COURT OF APPEALS FILED IN
FOR THE FOURTEENTH DISTRICT OF TEXAS14thHOUSTON,
COURT OF APPEALS
TEXAS
6/26/2015 6:38:12 PM
CHRISTOPHER A. PRINE
ALFRED DEAN JOHNSON Clerk
Appellant
v.
THE STATE OF TEXAS
Appellee
On Appeal from Cause Number 1409436
From the 182nd District Court of Harris County, Texas
BRIEF FOR APPELLANT
TONYA ROLLAND MCLAUGHLIN
TBN 24054176
4301 Yoakum Boulevard
Houston, Texas 77006
Phone: (713) 529-8500
Fax: (713) 456-2203
Counsel for Appellant
ORAL ARGUMENT RESPECTFULLY REQUESTED
IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Alfred Dean Johnson
TDC# 01976527
Garza East Unit
4304 Highway 202
Beeville, Texas 78102
TRIAL PROSECUTORS: Akilah Mance
Assistant District Attorney
Harris County, Texas
1201 Franklin Avenue, Suite 600
Houston, Texas 77002
DEFENSE COUNSEL AT HEARING: Joe Salinas, III
12 Greenway Plaza
Suite 1100, PMB 121
Houston, Texas 77046
COUNSEL ON APPEAL FOR APPELLANT: Tonya Rolland McLaughlin
4301 Yoakum Boulevard
Houston, Texas 77006
PRESIDING JUDGE: Hon. Jeannine Barr
182nd District Court
Harris County, Texas
1201 Franklin Avenue, 18th floor
Houston, Texas 77002
2
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .................................................................. 2
TABLE OF CONTENTS .................................................................................................... 3
INDEX OF AUTHORITIES .............................................................................................. 4
STATEMENT OF THE CASE .......................................................................................... 5
STATEMENT REGARDING ORAL ARGUMENT .................................................... 6
ISSUE PRESENTED ........................................................................................................... 7
STATEMENT OF FACTS .................................................................................................. 7
SUMMARY OF THE ARGUMENT ................................................................................. 9
ARGUMENT ......................................................................................................................... 9
BACKGROUND............................................................................................................ 9
ISSUE ONE: THE TRIAL COURT VIOLATED APPELLANT’S FIFTH AMENDMENT
RIGHT TO DUE PROCESS RENDERING HIS PLEA INVOLUNTARY BY FAILING TO
ADMONISH HIM OF THE PUNISHMENT RANGE . .................................................. 11
ISSUE TWO: THE TRIAL COURT VIOLATED APPELLANT’S STATUTORY RIGHT
TO VOLUNTARILY ENTER A KNOWING AND INTELLIGENT PLEA BY FAILING
TO ADMONISH HIM OF THE PUNISHMENT RANGE. ............................................ 12
PRAYER ............................................................................................................................... 14
CERTIFICATE OF SERVICE ......................................................................................... 14
CERTIFICATE OF COMPLIANCE .............................................................................. 15
3
INDEX OF AUTHORITIES
Cases
Anderson v. State, 182 S.W.3d 914 (Tex. Crim. App. 2006) ..................................................... 12
Bessey v. State, 239 S.W.3d 809 (Tex. Crim. App. 2007) .......................................................... 13
Boykin v. Alabama, 395 U.S. 238, (1969)... ............................................................................... 11
Brady v. United States, 397 U.S. 742 (1970) ............................................................................... 11
Burnett v. State, 88 S.W.3d 633 (Tex. Crim. App. 2002) .................................................... 12, 13
Walker v. State, 524 S.W.2d 712 (Tex. Crim. App. 1975).. ...................................................... 13
Constitutional Provisions, Statutes and Rules
U.S. Const. amend V .............................................................................................................. 11
U.S. CONST. AMEND XIV ...................................................................................................... 11
Tex. Penal Code § 29.03(a)(2). .................................................................................................. 5
Tex. Code Crim. Proc. Ann. Art. 26.13(a)(1). ........................................................................ 12
Tex. Code Crim. Proc. Ann. Art. 26.13(b). ............................................................................ 12
Tex. Code Crim. Proc. Ann. Art. 26.13(c). ............................................................................. 12
Tex. R. App. P. Rule 38.1(e). .................................................................................................... 6
Tex. R. App. P. Rule 44.2(a). .................................................................................................. 12
Tex. R. App. P. Rule 44.2(b) ................................................................................................... 13
4
STATEMENT OF THE CASE
Appellant was charged in cause number 1409436 with aggravated robbery with
a deadly weapon alleged to have occurred on or about November 21, 2013. See Tex.
Penal Code § 29.03(a)(2). (CR at 6).1 Appellant entered a plea of guilty without agreed
recommendation on August 15, 2014 and was set for a presentence investigation
hearing. (CR at 88). On January 5, 2015, the trial court presided over the hearing and
sentenced Appellant to thirty (30) years in the Texas Department of Corrections –
Institutional Division with a Deadly Weapon finding. (CR at 105). Appellant filed
timely notice of appeal on January 5, 2015. (CR at 108).
1”CR” refers to the Clerk’s Record. “Supp. CR” refers to the Supplemental Clerk’s Record. “RR” refers to the
Reporter’s Record.
5
STATEMENT REGARDING ORAL ARGUMENT
Oral argument should be permitted because this appeal is not frivolous and the
facts and legal arguments are adequately presented. TEX. R. APP. PROC. 38.1(e).
Appellant requests oral argument because the Court of Appeal’s decision, whether the
trial court failed to admonish Appellant of the punishment range and if it is an error
of constitutional or statutory magnitude, would be significantly aided by oral
argument.
6
ISSUES PRESENTED
ISSUE ONE: THE TRIAL COURT
VIOLATED APPELLANT’S FIFTH
AMENDMENT RIGHT TO DUE PROCESS RENDERING HIS PLEA
INVOLUNTARY BY FAILING TO ADMONISH HIM OF THE PUNISHMENT
RANGE.
ISSUE TWO: THE TRIAL COURT VIOLATED APPELLANT’S STATUTORY
RIGHT TO VOLUNTARILY ENTER A KNOWING AND INTELLIGENT PLEA BY
FAILING TO ADMONISH HIM OF THE PUNISHMENT RANGE.
STATEMENT OF FACTS
The weeks leading up to Appellant’s arrest for aggravated robbery were filled
with personal tragedy. Appellant’s mother passed away and was buried November 9,
2013. (Supp. CR at 22; CR at 98). On November 11, 2013, Appellant’s employer
relieved him of duties on November 11, 2013, which exacerbated the fact that
Appellant would be incarcerated the following month if he did not pay $27,000.00 in
back child support. (Supp. CR at 22; CR at 98). Child Protective Services informed
Appellant on November 14, 2014 his stepson was being taken into custody due to
mother, Tamekia Victor’s, drug addiction. (Supp. CR at 22). Furthermore, Ms. Victor
notified Appellant she has AIDS and on November 21, 2013 a test revealed Appellant
is HIV positive. (Supp. CR at 22; CR at 99). This course of events led Appellant to
want to die because he felt there was nothing left to live for. (CR at 99).
On November 21, 2013, a suicidal Appellant, took Vicodin and Seroquil and
smoked Marijuana laced with PCP. (Supp. CR at 23). Appellant then armed with an
unloaded handgun robbed the Cash America Pawn. (Supp. CR at 23). Afterward,
7
Appellant stole a pawn shop employee’s truck to flee from police and crashed into a
tree before ultimately being arrested. (Supp. CR at 23).
On August 15, 2014, Appellant accepted responsibility and entered a guilty plea
to aggravated robbery without an agreed recommendation and set his case for a
presentence investigation hearing. (CR at 88). Appellant submitted a packet to the trial
court containing letters in lieu of testimony, accomplishments, mitigating evidence,
medical records and photographs. (Supp. CR at 19-76). The packet contains a one
page letter to the trial court from the Appellant that appears to be missing pages.
(Supp. CR at 24). A very similar letter from the Appellant to the trial court containing
three pages was filed on November 21, 2014. (CR at 98-100). In the letter filed in
November, Appellant states he “plead guilty freely and voluntarily to the offense and
understands the full range of punishment.” (CR at 98). Appellant describes his
understanding of the punishment range to be the trial court “can sentence me to any
amount of prison time, from dropping it to a lesser charge for time served or any
amount of prison time.” (CR at 99). However, Appellant is a true habitual offender
and the punishment range is a minimum of 25 years to life in prison. (CR at 89 and
105).
8
SUMMARY OF THE ARGUMENT
Appellant complains that the trial court did not admonish him of the
punishment range in his case rendering his plea involuntary and unknowing because
his decision was based on a false understanding of his minimum punishment available.
In the first issue, Appellant complains the trial court’s failure to admonish of the
punishment range is constitutional error. In the second issue, Appellant contends the
trial court’s failure to admonish of the punishment range is statutory error.
ARGUMENT
BACKGROUND
Appellant entered a guilty plea without an agreed recommendation to
aggravated robbery and set his case for a pre-investigation sentencing hearing before
the trial court. (CR at 88). Appellant signed the trial court’s preprinted admonishment
and waiver forms. (CR at 87-92). The record then falls silent as to whether the trial
court advised Appellant of the punishment range applicable at the sentencing hearing
or whether Appellant understood the forms he signed. Appellant is a habitual
offender making his punishment range a minimum of 25 years to life in prison due to
the fact, prior to the present aggravated robbery charge, he had been convicted of two
prior felonies one in 1986 and the other in 1993. See Tex. Pen. Code § 12.42(d). (CR at
87).
There is no reporter’s record of the plea and there are no docket sheet entries
in the clerk’s record verifying the trial court admonished Appellant of the punishment
9
range. However, there is a letter filed on November 21, 2014, from Appellant to the
trial court outlining his understanding of the punishment range. (CR at 98-100). The
letter is filed with the trial court the same day as his original sentencing hearing
setting. (CR at 96). Appellant states “Your Honor I know you can sentence me to
any amount of prison, from dropping it to a lesser charge for time served or any
amount of prison time.” (CR at 99). Due to the mitigating circumstances leading up
to his offense and his false understanding of the punishment range, Appellant
believed by pleading guilty the trial court could consider releasing him from jail on
time served. (CR at 98-100).
It is clear from Appellant’s letter to the trial court that he entered into his plea
without full knowledge that the minimum prison time the trial court could sentence
him to was 25 years. (CR at 98-100). The letter reveals he lacked a basic understanding
of the consequences of his plea and believed he was at a minimum eligible for a lesser
charge that could result in time served. (CR at 98-100). The trial court had an
opportunity to clarify the punishment range at Appellant’s January 5, 2015, sentencing
hearing and did not. (RR at 4).
10
ISSUE ONE: THE TRIAL COURT VIOLATED APPELLANT’S FIFTH
AMENDMENT RIGHT TO DUE PROCESS RENDERING HIS PLEA
INVOLUNTARY BY FAILING TO ADMONISH HIM OF THE PUNISHMENT
RANGE.
The trial court’s failure to admonish Appellant of the range of punishment caused
his plea to be obtained in violation of the Due Process Clause of the Fifth
Amendment made applicable to the States through the Fourteenth Amendment. U.S.
Const. amend. V, XIV. To be consistent with due process, a guilty plea must be
entered knowingly, intelligently, and voluntarily. Brady v. United States, 397 U.S. 742,
748 (1970). All relevant circumstances surrounding Appellant’s plea must be
considered to determine voluntariness. Id. at 749.
In Boykin v. Alabama, the United States Supreme Court held that a violation of
constitutional due process occurs when a trial court accepts a guilty plea without an
affirmative showing “spread on the record” that the guilty plea was intelligent and
voluntary. Boykin v. Alabama, 395 U.S. 238, 243–44 (1969). Appellant’s record does not
affirmatively demonstrate that Appellant understood all of the constitutional that he
understood the consequences of his guilty plea. The only mention of the punishment
range is once on the signed admonishment. (CR at 89). There is no recording of the
plea, no docket sheet notations and the trial court does not advise of the punishment
range at the sentencing hearing. Unique to Appellant’s case, what this Court does
have to consider is the letter he filed to the trial court detailing his understanding of
the punishment range. (CR at 99). The letter expresses Appellant’s false
11
understanding that the trial court could sentence him to less than 25 years in prison
resulting in time served if she so chose. (CR at 99).
The trial court’s failure to admonish Appellant of the punishment range resulted in
constitutional error requiring reversal because it contributed to Appellant’s
punishment of thirty (30) years and was not harmless beyond a reasonable doubt.
Tex. R. App. P. Rule 44.2(a). (CR at 105). Appellant’s plea was involuntary,
unknowing and unintelligent.
ISSUE TWO: THE TRIAL COURT VIOLATED APPELLANT’S STATUTORY
RIGHT TO VOLUNTARILY ENTER A KNOWING AND INTELLIGENT PLEA
BY FAILING TO ADMONISH HIM OF THE PUNISHMENT RANGE.
Texas statutes require courts to do more than is required to meet the minimum
standards of due process when a defendant pleads guilty in a felony case. Anderson v.
State, 182 S.W.3d 914, 918 (Tex. Crim. App. 2006). Not only must Appellant’s guilty
plea be entered into voluntarily and freely, but the trial court is required to admonish
the defendant of the direct consequences of his plea including the range of
punishment. Tex. Code Crim. Proc. Ann. Art. 26.13(a)(1) and (b). Substantial
compliance by the trial court in admonishing Appellant is sufficient unless he
affirmatively shows he was not aware of the consequences of his plea and was misled
or harmed. Tex. Code Crim. Proc. Ann. Art. 26.13(c). If the trial court does not
admonish the Appellant, it does not substantially comply with Article 26.13 and error
occurs. Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002).
12
Complaints about non-compliance with Article 26.13 may be raised for the first time
on appeal. Bessey v. State, 239 S.W.3d 809, 812 (Tex. Crim. App. 2007).
Appellant was not aware of the consequences of his plea, specifically the
punishment minimum of twenty five (25) years. The only mention of the punishment
range in the entire record is on the preprinted admonishments signed by Appellant
and the record does not reflect an affirmative understanding of the forms or that they
were entered into voluntarily. (CR at 89-90). In fact, the Appellant’s letter to the trial
court suggests just the opposite. (CR at 98-100). A reversal is warranted on direct
appeal when the record supports an inference that Appellant did not know the
consequences of his plea. Burnett, 88 S.W.3d at 638.
The trial court’s failure to admonish Appellant of his punishment range violated
Texas statute and there is no assurance that Appellant would not have changed his
decision to plead guilty had the trial court properly admonished him of the
punishment range. When the trial court fails to admonish the Appellant of the
punishment range, it is complete disregard for Tex. Code Crim. Proc. Ann. Art. 26.13
and the conviction must be reversed. Walker v. State, 524 S.W.2d 712 (Tex. Crim.
App. 1975). The result in this case is statutory error that substantially harmed
Appellant. Tex. R. App. Proc. 44.2(b).
13
PRAYER
Appellant asks this Court to reverse and remand this case to the trial court.
TEX. R. APP. PROC. 44.2.
Respectfully submitted,
_s/Tonya Rolland McLaughlin
Tonya Rolland McLaughlin
4301 Yoakum Boulevard
Houston Texas 77006
Phone: (713) 529-8500
Fax: (713) 453-2203
TBN 24054176
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been delivered via
email to the following:
Alan Curry
Chief Prosecutor, Appellate Division
Harris County District Attorney’s Office
1201 Franklin Suite 600
Houston, Texas 77002-1923
_s/Tonya Rolland McLaughlin
Tonya Rolland McLaughlin
14
CERTIFICATE OF COMPLIANCE
I certify that this computer-generated document has a word count of 2, 380
words, based upon the representation provided by the word processing program used
to create the document.
_s/Tonya Rolland McLaughlin
Tonya Rolland McLaughlin
15
Alfred Dean Johnson v. State
Combined Opinion