No. 01-06-01006-CR
Opinion issued November 1, 2007. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 179th District Court Harris County, Texas Trial Court, Cause No. 1055802.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
JANE BLAND, Justice.
Appellant Roland Roman Cruz pleaded guilty to the first-degree felony offense of aggravated robbery without an agreed punishment recommendation from the State. See TEX. PEN. CODE ANN. § 29.03 (Vernon 2003). The trial court assessed punishment at ten years' confinement, a $10,000 fine, and $4,000 in restitution. In two issues, Cruz contends that (1) his guilty plea was involuntary, and (2) the trial court violated his right to defense counsel of his choice. We affirm.
Background
The record in this case does not contain a reporter's record. Cruz's indictment charges Cruz with "unlawfully, while in the course of committing theft of property owned by JEFFREY NEWMAN and with intent to obtain and maintain control of the property, intentionally, knowingly and recklessly caus[ing] serious bodily injury to Jeffrey Newman, by STRIKING THE COMPLAINANT WITH THE DEFENDANT'S HAND" and by "KICKING THE COMPLAINANT WITH THE DEFENDANT'S FOOT." Voluntariness of Plea
In his first issue, Cruz contends that the record does not sufficiently demonstrate that he entered his guilty plea voluntarily and intelligently as required by the Fourteenth Amendment of the United States Constitution. See U.S. CONST. amend. XIV, § 1. "The waiver of the right to a plea of not guilty is surrounded by procedural protections both constitutional and statutory." Mendez v. State, 138 S.W.3d 334, 344 (Tex.Crim.App. 2004). The constitutional rights a defendant waives by pleading guilty are the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712-13 (1969); Gardner v. State, 164 S.W.3d 393, 399 (Tex.Crim.App. 2005). Due process of law requires that "[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469 (1970); Mendez, 138 S.W.3d at 344. Trial courts must also ensure that a defendant who pleads guilty "has a full understanding of what the plea connotes and of its consequence." Boykin, 395 U.S. at 243-44, 89 S. Ct. at 1712-13. Furthermore, the record must affirmatively demonstrate that a defendant who pleaded guilty entered his plea knowingly and voluntarily. Brady, 397 U.S. at 747 n. 4, 90 S. Ct. at 1468 n. 4; Boykin, 395 U.S. at 242, 89 S. Ct. at 1712; Aguirre-Mata v. State, 125 S.W.3d 473, 474-75 (Tex.Crim.App. 2003). In assessing the voluntariness of a plea, we review the record as a whole and consider the totality of the circumstances. Griffin v. State, 703 S.W.2d 193, 196 (Tex.Crim.App. 1986); Lee v. State, 39 S.W.3d 373, 375 (Tex.App.-Houston [1st Dist.] 2001, no pet.); Edwards v. State, 921 S.W.2d 477, 479 (Tex.App.-Houston [1st Dist.] 1996, no pet.). A trial court may accept a guilty plea only if the defendant enters it freely and voluntarily. TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (Vernon Supp. 2006). A court's failure to make an adequate record showing that the defendant entered the guilty plea voluntarily and intelligently requires reversal. Aguirre-Mata, 125 S.W.3d at 475. An admonishment on punishment is prima facie evidence that a plea was knowing and voluntary. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998); Lee, 39 S.W.3d at 375. The burden then shifts to the defendant to show that he entered the plea without understanding its consequences. See TEX. CODE CRIM. PROC. ANN. art. 26.13(c) ("In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court."); Martinez, 981 S.W.2d at 197; Lee, 39 S.W.3d at 375. "A defendant's attestation of voluntariness at the original plea hearing imposes a heavy burden on the defendant at a later hearing to show a lack of voluntariness." Dusenberry v. State, 915 S.W.2d 947, 949 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd); accord Edwards, 921 S.W.2d at 479. There is also a presumption of regularity of the judgment and the proceedings absent a showing to the contrary, and the burden is on the defendant to overcome this presumption. Light v. State, 15 S.W.3d 104, 107 (Tex.Crim.App. 2000); Ex parte Wilson, 716 S.W.2d 953, 956 (Tex.Crim.App. 1986); Lee, 39 S.W.3d at 375; Dusenberry, 915 S.W.2d at 949. If the defendant and trial counsel have signed written admonishments, statements, or waivers, and the court has established that the defendant has read and understood them, then the trial court need not orally inquire about voluntariness of a plea. See TEX. CODE CRIM. PROC. ANN. art. 26.13(d) ("If the court makes the admonitions in writing, it must receive a statement signed by the defendant and the defendant's attorney that he understands the admonitions and is aware of the consequences of his plea."); Pena v. State, 132 S.W.3d 663, 668 (Tex.App.-Corpus Christi 2004, no pet.); Lee, 39 S.W.3d at 375 n. 1; Edwards, 921 S.W.2d at 479; Gonzales v. State, 899 S.W.2d 819, 821 (Tex.App.-Fort Worth 1995, pet. ref'd); Rodriguez v. State, 850 S.W.2d 603, 607 (Tex.App.-El Paso 1993, no pet.). Here, Cruz signed admonishments recognizing that (1) he was charged with the felony offense of aggravated robbery, (2) he faced the first-degree felony maximum punishment range of life imprisonment and no less than five years in prison, (3) he was mentally competent, (4) he understood the nature of the charge against him, (5) he understood the admonishments, (6) he fully understood the consequences of his plea, (7) he understood English, and (8) his plea was freely, knowingly, and voluntarily made. Cruz further waived his right to have the trial court admonish him orally, and his right to have a court reporter record his plea. The record thus contains prima facie evidence that Cruz entered his plea knowingly and voluntarily. See Martinez, 981 S.W.2d at 197; Lee, 39 S.W.3d at 375. Hence, the burden shifts to Cruz to show that he did not understand the consequences of his guilty plea. See Martinez, 981 S.W.2d at 197; Lee, 39 S.W.3d at 375. Cruz contends that his guilty plea was involuntary because his motion for community supervision — filed the same day as his guilty plea — indicates that he believed the State had charged him with aggravated assault instead of aggravated robbery. In the motion for community supervision, Cruz wrote "Aggravated Assault" in the space provided for a defendant to specify the offense with which he is charged. A grand jury indicted Cruz for aggravated robbery on February 28, 2006, almost five months before his guilty plea. The record contains six agreed settings, signed by Cruz and his counsel, that all indicate that Cruz was charged with aggravated robbery. The admonishments form and judicial confession that Cruz signed both indicate that the State had charged Cruz with aggravated robbery. The admonishments form includes a paragraph that states that aggravated robbery is a first-degree felony punishable by "a term of life or any term of not more than 99 years or less than 5 years in the Institutional Division of the Texas Department of Criminal Justice, and, in addition, a fine not to exceed $10,000.00 may be assessed. . . ." The admonishments form instructed Cruz to initial each item if he fully understood it; Cruz initialed the paragraph explaining the punishment range for a first-degree felony. Cruz also initialed the paragraphs stating that he fully understood both the nature of the charge against him and the consequences of his plea, and that he was pleading guilty freely and voluntarily. The record therefore demonstrates that the trial court fully admonished Cruz as to the consequences of his guilty plea to aggravated robbery. The fact that Cruz asked the court to consider community supervision noting that he was charged with aggravated assault does not indicate that Cruz did not understand the consequences of his guilty plea when he executed his plea documents, which set forth the charge of aggravated robbery. As such, Cruz has failed to demonstrate that his plea was involuntary. See State v. Jimenez, 987 S.W.2d 886, 888 (Tex.Crim.App. 1999) ("Generally, a guilty plea is considered voluntary if the defendant was made fully aware of the direct consequences."); Garcia v. State, 877 S.W.2d 809, 812 (Tex.App.-Corpus Christi 1994, pet. ref'd). Cruz also contends that his plea was involuntary because the admonishments form and guilty plea contain errors that make them misleading. Specifically, Cruz asserts that (1) the admonishments form cites a nonexistent provision of the Texas Code of Criminal Procedure, (2) the admonishments form mentions community supervision even though Cruz was not eligible for community supervision, and (3) the admonishments form and guilty plea refer to a plea bargain that did not exist because Cruz pleaded guilty without an agreed recommendation. First, while the admonishments form incorrectly cites to article 42.12, section "3d(a)" of the Texas Code of Criminal Procedure as the statute that allows a court to grant deferred adjudication, Cruz fails to demonstrate how he was misled by this citation error, since the admonishments state the law of deferred adjudication correctly. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5 (Vernon 2006). Second, the admonishment initialed by Cruz acknowledges that he understands that the Court may place him on deferred adjudication, which is a form of community supervision Cruz could receive for aggravated robbery. Third, Cruz has failed to demonstrate that the reference to a plea bargain in the plea documents, stated conditionally, caused him to misunderstand the consequences of his plea. See Brown v. State, 943 S.W.2d 35, 42 (Tex.Crim.App. 1997) ("We have held that misinformation concerning a matter, such as probation, about which a defendant is not constitutionally or statutory [sic] entitled to be informed, may render a guilty plea involuntary if the defendant shows that his guilty plea was actually induced by the misinformation."). Article 26.13(c) of the Texas Code of Criminal Procedure expressly provides that "[i]n admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court." TEX. CODE CRIM. PROC. ANN. art. 26.13(c). Cruz has produced no evidence affirmatively demonstrating how the alleged discrepancies in his plea documents caused him to misunderstand the consequences of his plea. See TEX. CODE CRIM. PROC. ANN. art. 26.13(c); Jimenez, 987 S.W.2d at 888; Martinez, 981 S.W.2d at 197; Brown, 943 S.W.2d at 42; Ramirez v. State, 89 S.W.3d 222, 229 (Tex.App.-Corpus Christi 2002, no pet.); Lee, 39 S.W.3d at 375. Cruz has therefore failed to demonstrate that any errors in the plea documents rendered his plea involuntary. See Aguirre-Mata, 125 S.W.3d at 476-77 (holding that error in admonishments regarding correct punishment range did not render guilty plea involuntary); Brown, 943 S.W.2d at 42 (holding that defendant failed to demonstrate that trial court's failure to admonish him on law of deferred adjudication affected his guilty plea). Accordingly, we hold that Cruz has not met his burden of overcoming the presumption of regularity of the judgment and proceedings and has failed to demonstrate that his plea was involuntary. See Jimenez, 987 S.W.2d at 888; Brown, 943 S.W.2d at 42; Lee, 39 S.W.3d at 375-76; Dusenberry, 915 S.W.2d at 949. Choice of Counsel
In his second issue, Cruz contends that the trial court violated his right to his choice of defense counsel. The trial court initially appointed Jim Barr to represent Cruz in this case. Barr appeared on behalf of Cruz on one occasion and signed an agreed setting. After the grand jury indicted Cruz for aggravated robbery, an attorney named J.W. Dedrick appeared on Cruz's behalf. Three months later, Cruz posted bond and the trial court ordered Cruz to hire an attorney by the next court setting. Dedrick continued to represent Cruz and acted as Cruz's attorney when he pleaded guilty. The record does not contain a motion to substitute counsel, a motion to withdraw as counsel, an order allowing Barr to withdraw, or an order appointing Dedrick as Cruz's counsel. The record contains no explanation of how or why Dedrick came to represent Cruz. The United States Supreme Court has held that "the right of a defendant who does not require appointed counsel to choose who represents him" is an element of the Sixth Amendment right to counsel in criminal prosecutions. United States v. Gonzalez-Lopez, ___ U.S. ___, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). "Where the right to be assisted by counsel of one's choice is wrongly denied . . . it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation." Id. at 2563. The erroneous deprivation of the right to counsel of choice is a structural error, meaning it defies analysis by harmless-error standards. Id. at 2564. Furthermore, once a court appoints an attorney to represent a defendant and an attorney-client relationship is formed, this relationship is no less inviolate than if counsel had been retained. Buntion v. Harmon, 827 S.W.2d 945, 949 (Tex.Crim.App. 1992) (orig. proceeding); Stearnes v. Clinton, 780 S.W.2d 216, 221-22 (Tex.Crim.App. 1989) (orig. proceeding). The trial court must have some principled reason to justify the replacement of appointed counsel. Buntion, 827 S.W.2d at 949. Appellate courts, however, "must indulge every presumption in favor of the regularity of the proceedings and documents" in the trial court. McCloud v. State, 527 S.W.2d 885, 887 (Tex.Crim.App. 1975); see also Wilson, 716 S.W.2d at 956; Disheroon v. State, 687 S.W.2d 332, 334 (Tex.Crim.App. 1985); Murphy v. State, 95 S.W.3d 317, 320 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd); Christian v. State, 865 S.W.2d 198, 202 (Tex.App.-Dallas 1993, pet. ref'd); but see Goffney v. State, 843 S.W.2d 583, 585 (Tex.Crim.App. 1992) (refusing to apply presumption of regularity to waiver of right to counsel recited in judgment). The presumption of regularity is a judicial construct that requires a reviewing court, "absent evidence of impropriety," to indulge every presumption in favor of the regularity of the trial court's judgment. Light, 15 S.W.3d at 107. "The burden is on the appellant to overcome the presumption of regularity of the judgment and the proceedings." Lee, 39 S.W.3d at 375; accord Dusenberry, 915 S.W.2d at 949. The record in this case contains no indication that the trial court interfered with Barr's representation of Cruz, or that the trial court replaced Barr with Dedrick as Cruz's appointed counsel over Cruz's objection or for an improper reason. Cruz has therefore failed to overcome the presumption of regularity in the trial court's proceedings. See Lee, 39 S.W.3d at 375; Dusenberry, 915 S.W.2d at 949. We cannot conclude that the trial court deprived Cruz of his Sixth Amendment right to defense counsel of his choice because the record contains no evidence that the trial court replaced Barr with Dedrick without a principled reason to justify the replacement. See Light, 15 S.W.3d at 107; Wilson, 716 S.W.2d at 956; Murphy, 95 S.W.3d at 320; Lee, 39 S.W.3d at 375; see also Gonzalez-Lopez, 126 S. Ct. at 2561; Buntion, 827 S.W.2d at 949; Stearnes, 780 S.W.2d at 221-22. Conclusion
We hold that (1) Cruz has failed to demonstrate that his guilty plea was involuntary, and (2) that the record contains no evidence that the trial court violated Cruz's right to defense counsel of his choice. We therefore affirm the judgment of the trial court.