Hafford v. State

OPINION

WALKER, Chief Justice.

This appeal originates from a conviction for the felony offense of Possession of Con*217trolled Substance, less than 28 grams. The record before us clearly reflects that a plea bargain agreement existed between the State and appellant in which appellant was to receive ten (10) years’ confinement in the Institutional Division of the Texas Department of Criminal Justice in exchange for his guilty plea. The trial court followed said agreement. This took place on October 7, 1992. On November 5, 1992, appellant filed a Motion For New Trial. On November 30, 1992, the trial court held an evidentiary hearing on said motion. At the conclusion of the hearing, the trial court denied the motion. Appellant raises a single point of error on appeal, viz:

Point of Error Number One: The trial court erred in not granting appellant’s Motion For New Trial because appellant’s plea of guilty was not voluntary.

The record before us reflects that appellant’s written motion contains three paragraphs. The first paragraph is about three times longer than the other two and alleges that “[t]he verdict rendered herein on October 7, 1992 is contrary to law and the evidence of this alleged offense” in that appellant was “illegally restrained and unlawfully forced to submit to two searches.” It is abundantly clear that this first paragraph attempted to raise issues of suppression of the contraband which should have been raised well before appellant pleaded guilty. The second and third paragraphs are reproduced below:

II.

Defendant alleges that he did not have sufficient time between the appointment of counsel and October 7, 1992 (the date the judgment was rendered) in which to adequately consider his options. Defendant alleges that he was confused and failed to realize and comprehend the information and advice given to him by his appointed counsel on October 7, 1992.

III.

In making this motion, Defendant does not allege that he received ineffective assistance of counsel during the plea bargaining process leading up to the- entry of his plea, but that he, by reason of excessive confusion or some similar mental impairment, failed to realize the true extent of his actions.

It has been consistently held that the decision on a motion for new trial rests within the sound discretion of the trial court, and in the absence of an abuse of discretion appellate courts are not justified in reversing the judgment. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App.1993). The credibility of witnesses for purposes of granting a new trial is a matter to be determined by the trial court. Etter v. State, 679 S.W.2d 511, 515 (Tex.Crim.App.1984). Indeed, the Court of Criminal Appeals has held that in a hearing on a motion for new trial containing conflicting evidence as to the issue of jury misconduct, there is no abuse of discretion by the trial court in overruling said motion. Sneed v. State, 670 S.W.2d 262, 266 (Tex.Crim.App.1984). We find no reason not to apply that standard to the circumstances of the instant appeal.

The record before us of the guilty plea proceeding does not indicate any evidence of appellant’s incompetence to stand trial.1 The statement of facts of the plea proceeding indicates that appellant stated that he understood that he was waiving indictment; that appellant stated that he understood that the trial court was not bound by the plea bargain agreement; and that appellant stated that he was pleading guilty freely and voluntarily. The trial court then found that appellant was mentally competent to enter his plea.

At the hearing on the motion for new trial, the trial court refused to consider the issue of the alleged unlawful seizure of the contraband. With regard to appellant’s men*218tal competence, the following three portions of appellant’s testimony was typical of appellant’s evidence in its entirety:

Q. (appellant’s counsel) Are you now telling the judge that you want to have your day in court on this case?
A. (appellant) Yes, that’s what I’m saying because I really wasn’t understanding, you know, what you was telling me and I really didn’t think I had enough time. I— like I said, I was confused. I was pressured because, like I said, it was five to six days and I hadn’t seen you until the day I got ready to take the plea bargain and I really didn’t have enough time to consider my options. (sic et passim,)
* * # * ⅜ *
Q. You appeared to understand what you were doing — is that right — and I—
A. Not really, because, like I said, it was happening too fast. I really didn’t have time to think about — think about anything.
⅜ ⅝ ⅜ ⅛ ⅝ *
Q. (the State) Your attorney didn’t explain to you what a waiver—
A. Like I said, he might have. It was too fast. I was confused. That’s what I’m saying. I wasn’t thinking straight that day of the plea bargain. I was under emotion of stress. (sic et passim)

A very significant portion of appellant’s testimony occurred during cross-examination by the State when appellant admitted that he had gone through an almost identical guilty plea proceeding some four years prior. We find the following exchange quite probative:

Q. (the State) Okay. About four years before you had been through these same questions when you pled the first time to an offense; isn’t that correct, sir?
A. Yes, sir. It was the same way it is now. It was too fast. I really didn’t have time, and I really didn’t understand what was going on then. That’s the reason I filed this motion for the new trial today.

We find no abuse of discretion in the trial court’s denial of appellant’s motion for new trial. It appears that appellant’s main concern was the search and seizure issue and that the competency issue was somewhat of an afterthought. Appellant had been involved with guilty plea proceedings some four years before. Furthermore, the testimony of appellant’s own attorney can be characterized as inconclusive at best. Any credibility determinations were for the trial court to make. A fact issue as to appellant’s competence to go forward with the guilty plea proceeding on October 7, 1992, was raised. We find no error by the trial court in denying appellant’s motion for new trial. Point of error one is overruled, and the judgment and sentence are affirmed.

AFFIRMED.

. Tex.Code Crim.Proc.Ann. art. 46.02 (Vernon 1989) deals with incompetency to stand trial, and provides, in pertinent part:

Sec. 1. (a) A person is incompetent to stand trial if he does not have:
(1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding; or
(2) a rational as well as factual understanding of the proceedings against him.