Opinion
Nos. 05-08-01032-CR, 05-08-01033-CR, 05-08-01034-CR, 05-08-01035-CR, 05-08-01036-CR
Opinion issued November 30, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 199-81623-07, 199-81624-07, 199-81625-07, 199-81626-07 199-81627-07.
Before Chief Justice WRIGHT and Justices RICHTER and LANG.
MEMORANDUM OPINION
James H. Gentry appeals his convictions for three counts of theft over $200,000 and two counts of theft over $100,000 but less than $200,000. After appellant pleaded guilty, the trial court assessed punishment at confinement for life in each of the theft over $200,000 cases, and 20 years' confinement in each of the theft over $100,000 but less than $200,000 cases. In three issues, appellant contends (1) counsel's ineffectiveness rendered his guilty pleas involuntary and unknowing, (2) the evidence shows he is actually innocent, and (3) counsel was ineffective by failing to introduce certain mitigating evidence. We overrule appellant's issues and affirm the trial court's judgments. After appellant pleaded guilty and was sentenced he filed a pro se notice of appeal. The trial court appointed appellate counsel the next day. Thereafter, appellant filed a pro se motion for extension of time for new trial and a motion for new trial supported with several exhibits. Appellant sent a letter to the trial court seeking to present his motion pro se. The trial court did not respond to appellant's pro se motions or letters. In his first and third issues, appellant contends his trial counsel was ineffective by failing to adequately explain theft, thereby rendering his pleas involuntary and unknowing, and by failing to introduce certain evidence during punishment. In support of these claims, appellant relies on his pro se motion for new trial and the affidavits and exhibits he attached in support of that motion. As noted above, appellant was represented by counsel at the time he filed his motion for new trial and supporting documents and the trial court did not respond or rule on appellant's motion. A defendant who is represented by counsel has no right to hybrid representation. Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007). If a defendant is represented by counsel and the trial court actually rules on a pro se motion then that decision may be reviewed on appeal. Id. However, a trial court's decision not to rule on a pro se motion in this situation is not subject to review. Id. Here, appellant was represented by counsel at the time he filed his motion for new trial claiming ineffective assistance of counsel. Because appellant was represented by counsel at the time and the trial court did not rule on appellant's motion or accept into evidence the documents in support of that motion we may not consider them on appeal. Vanderbilt v. State, 629 S.W.2d 709, 717 (Tex. Crim. App. 1981) (assertions in brief unsupported by record will not be accepted as fact); Raspberry v. State, 535 S.W.2d 871, 873 (Tex. Crim. App. 1976) (documents attached to pro se supplemental brief not part of record and cannot be considered by appellate court); Webber v. State, 21 S.W.3d 726, 731 (Tex. App.-Austin 2000, pet. ref'd) (documents not offered and admitted into evidence will not be considered on appeal). Without those documents, appellant's allegations of ineffectiveness have no basis in the record. Thus, we conclude appellant has not shown he lacked effective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (for appellant to prevail on ineffective assistance of counsel claim, record must be sufficiently developed to overcome strong presumption counsel provided reasonable assistance). Moreover, with respect to appellant's contention that his guilty pleas were involuntary because counsel did not adequately explain the offense of theft, appellant has not overcome the presumption that his pleas were voluntary. We determine the voluntariness of a guilty plea from the totality of the circumstances viewed in light of the entire record. See Drucker v. State, 45 S.W.3d 791, 796 (Tex. App.-Dallas 2001, no pet.). Under article 26.13 of the Texas Code of Criminal Procedure, the trial court must admonish a defendant of the applicable range of punishment and certain consequences of pleading guilty before accepting a guilty plea. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2009); Kirk v. State, 949 S.W.2d 769, 771 (Tex. App.-Dallas 1999, pet. ref'd). The trial court's substantial compliance with article 26.13 establishes a prima facie showing that a defendant entered a knowing and voluntary plea. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). If the record shows the trial court's substantial compliance, the burden shifts to the defendant to show he entered the plea without knowing its consequences and was thereby harmed. See id. Here, the record shows the trial court substantially complied with article 26.13 by orally admonishing appellant of the consequences of his pleas and ascertaining that appellant was pleading guilty freely and voluntarily. Appellant also received written admonishments in each case. With this prima facie showing, the question becomes whether appellant met his burden to show the plea was not voluntary. During the plea hearing, appellant testified he understood the charges in the indictment and the punishment range for the offense. Appellant also said he discussed with counsel the facts of the case and all of the documents he had signed, and he was voluntarily pleading guilty to the offense. Appellant's signed and voluntary judicial confessions were admitted into evidence without objection. There is nothing in the record that shows appellant was incorrectly admonished, did not understand the nature of the charges against him, or did not understand the consequences of his guilty pleas. The fact that appellant received greater punishment than he hoped for does not render his plea involuntary. See Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.-Dallas 1993, no pet.). Based on the record, we conclude appellant has failed to rebut the prima facie showing of voluntariness of his guilty plea. See Martinez, 981 S.W.2d at 197. We overrule appellant's first and third issues. In his second issue, appellant contends we must reverse his convictions because the record and the evidence in support of his motion for new trial show he is innocent of theft. As previously discussed, the documents in support of appellant's motion for new trial were not considered by the trial court or accepted into evidence. Thus, we do not consider them on appeal. After considering the record, we conclude the evidence is sufficient to support appellant's guilty pleas and does not support his innocence claim. When, as here, an appellant claims innocence on direct appeal by disputing stipulated facts accompanying a guilty plea, it is properly considered a challenge to the sufficiency of the evidence. See Ex parte Santana, 227 S.W.3d 700, 705 (Tex. Crim. App. 2007) (although defendant identified allegation as actual innocence, because he disputed only facts which he stipulated to when entering guilty plea, claim was properly characterized as sufficiency challenge). When a defendant waives his right to a jury and pleads guilty to a felony, the State must "introduce evidence into the record showing the guilt of the defendant" to serve as the basis for the trial court's judgment. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005). The traditional legal and factual sufficiency standards of review do not apply to a review of the sufficiency of the evidence to support guilty pleas. See O'Brien v. State, 154 S.W.3d 908, 909 (Tex. App.-Dallas 2005, no pet.). When reviewing the sufficiency of the State's evidence to support a guilty plea, we will affirm the trial court's judgment if the evidence embraces every essential element of the offense charged and establishes the defendant's guilt. Wright v. State, 930 S.W.2d 131, 132 (Tex. App.-Dallas 1996, no pet.) (citing Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996)). A judicial confession, standing alone, constitutes sufficient evidence to support a guilty plea. Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1980) (op. on reh'g); Ross v. State, 931 S.W.2d 633, 635 (Tex. App.-Dallas 1996, no pet.). Appellant signed written judicial confessions that were admitted into evidence without objection. Additionally, appellant orally affirmed to the trial court that he was pleading guilty because he was guilty and for no other reason. After reviewing the record, we conclude the evidence is sufficient to support appellant's guilty pleas and the record does not support his actual innocence claim. We overrule appellant's second issue. Accordingly, we affirm the trial court's judgments.