No. 05-02-01212-CR
Opinion Filed September 9, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the County Criminal Court No. 5, Dallas County, Texas, Trial Court Cause No. MA01-32995-F AFFIRMED
Before Justices MOSELEY, RICHTER, and FRANCIS.
Opinion By Justice MOSELEY.
Johnny Glendale Myers appeals his conviction for misdemeanor assault. See Tex. Pen. Code Ann. § 22.01 (Vernon 2003). Appellant waived a jury trial and entered a negotiated nolo contendere plea. Pursuant to the plea bargain agreement, the trial court sentenced appellant to seventy-five days in the county jail. In two points of error, appellant contends the trial court erred in denying the motion for new trial because appellant's original plea was involuntary and appellant received ineffective assistance of counsel. We affirm the trial court's judgment.
Background
On December 12, 2001, appellant entered his nolo contendere plea, and the trial court sentenced him in accordance with the plea bargain agreement. The reporter's record of the plea hearing was not filed. The clerk's record contains the trial court's "admonition of statutory and constitutional rights and defendant's acknowledgment." The admonition form presents the punishment range for the offense, as well as other article 26.13 admonishments. It is signed by appellant, indicating his understanding of his rights, the admonitions, and the consequences of his plea. The document is also signed by appellant's attorney, the prosecutor, and the judge. Appellant filed a motion for new trial on December 21, 2001, complaining that he received ineffective assistance of counsel. A hearing on the motion was held on January 25, 2002. At the January 25, 2002 hearing, appellant testified that Anne Gillespie, his attorney at the plea hearing, entered a nolo contendere plea for him. Appellant testified that although he spoke with Gillespie several times before the plea hearing, he only spoke briefly with her via telephone about the plea bargain offer from the State, and nothing was resolved during that conversation. Two days later, appellant went to court for what he thought was a jury trial. When he arrived, Gillespie instructed him to sign some documents. Appellant testified he vaguely remembered signing papers, and that Gillespie never explained what the papers were for or why he needed to sign them. After he signed the papers, Gillespie took them and told appellant to stand before the judge with her. Gillespie then verbally entered a nolo contendere plea on appellant's behalf. Appellant testified that had he understood the hearing was for entering a plea, he would not have signed anything and would have requested a jury trial. Appellant testified he did not speak when Gillespie took him out into the hall because he was so confused, and he did not question Gillespie when she told him to take papers to the probation department. Appellant further testified he went back to the court the next day to tell the judge he did not consciously agree to enter a nolo contendere plea and he wanted a new trial. After hearing appellant's testimony, the trial judge asked whether appellant recalled wanting the court to put off the date for beginning his sentence until after the holidays and whether appellant recalled asking that his sentence start in February 2002. The judge stated he remembered discussing "that proposal at length" with appellant and Gillespie. Appellant responded he never understood what was going on or what arrangements were being made because Gillespie was the person who asked the judge about delaying the sentence. The judge stated he recalled that appellant agreed to begin serving the sentence on January 3, 2002. The judge stated, "So I feel pretty confident he was aware of everything that was going on." Gillespie testified she went over the plea bargain and admonitions with appellant before appellant signed the forms. Gillespie believed appellant understood everything she discussed because appellant had indicated on an information sheet that he had some paralegal work experience. Gillespie testified she talked with prosecutors about dismissing a pending driving while license suspended case in exchange for a plea in the assault case. Gillespie recommended to appellant that he take the plea bargain, but made it clear the decision was up to appellant. Gillespie testified she discussed the punishment range with appellant, told appellant his case was set for a jury trial on December 10, 2001, and told appellant to come to court on December 12, 2001 if he was going to plead the case instead of going to trial. Gillespie testified that when appellant came to court on December 12, 2001, she explained everything to him and asked appellant if he understood. Gillespie testified appellant appeared to understand everything because appellant asked Gillespie if he could put off going to jail until summer. Gillespie told appellant no. Then appellant asked Gillespie if he could put it off until March 2002. Gillespie told appellant that was not an option. Gillespie testified she also discussed probation with appellant, but appellant told Gillespie he would rather take the jail time. Gillespie testified she always tells her clients they have a right to a jury trial, she talks to them about their chances of winning with a jury, and she makes certain they understand the decision of whether to go to trial is theirs. Gillespie further testified she reads the admonitions in the plea agreement to her clients and asks if they understand before they sign anything, and she again questions their understanding after they sign the documents. After hearing testimony, the trial judge recessed the case to January 31, 2002 for appellant to talk with a psychologist. The docket sheet contains a January 31, 2002 entry stating "defendant failed to appear." Another entry on the docket sheet states "February 28, 2002, motion for new trial overruled by operation of law." Discussion
Appellant argues the trial court abused its discretion in denying his motion for new trial because his nolo contendere plea was involuntary due to ineffective assistance of counsel. Appellant argues his attorney neither adequately explained the plea documents to him before he signed them nor explained the consequences of his plea, and appellant believed he was going to have a jury trial. The State responds the trial court did not abuse its discretion in allowing the motion for new trial to be overruled by operation of law, and appellant has not shown counsel was ineffective. We review a trial court's ruling denying a defendant's motion for new trial under an abuse of discretion standard. See State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App. 1993). At a motion for new trial hearing, the trial court is the sole judge of the credibility of the witnesses, and we may not substitute our judgment for that of the trial court. See Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001). We will not overturn a trial court's decision on a motion for new trial absent an abuse of discretion. See id. To be constitutionally valid, a nolo contendere plea must be voluntary and intelligently made and, if it is made upon the advice of counsel, that counsel be reasonably competent and render effective assistance. See Meyers v. State, 623 S.W.2d 397, 401 (Tex.Crim.App. [Panel Op.] 1981). When a defendant enters his plea upon the advice of counsel and subsequently challenges the voluntariness of that plea based on ineffective assistance of counsel, the voluntariness of such plea depends on (1) whether counsels's advice was within the range of competence demanded of attorneys in criminal cases and, if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App. 1997). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Appellant claims he did not understand what was happening at the plea hearing, and did not understand the papers that he signed. Gillespie testified she explained all of the admonitions to appellant before appellant signed the papers, and she discussed the plea bargain terms and punishment range with appellant. Gillespie further testified she believed appellant understood everything because he indicated previously that he had some legal background, and appellant discussed whether he could postpone serving his jail sentence. The trial judge also recalled appellant discussing postponing his sentence. There is nothing that compels the trial court to accept as true appellant's version of events. Where there is conflicting evidence, as there is here, we cannot say that the trial court abused its discretion in denying appellant's motion for new trial on a claim of ineffective assistance of counsel. See Salazar, 38 S.W.3d at 148. In light of the record before us, we conclude appellant has not met his burden to demonstrate his plea was involuntary. Therefore, the trial court did not abuse its discretion in denying appellant's motion for new trial. Accordingly, we overrule appellant's two points of error. We affirm the trial court's judgment.