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Burton v. State

Court of Appeals of Texas, Fifth District, Dallas
Jun 12, 2008
Nos. 05-06-01292-CR, 05-06-01293-CR (Tex. App. Jun. 12, 2008)

Opinion

Nos. 05-06-01292-CR, 05-06-01293-CR

Opinion issued June 12, 2008. DO NOT PUBLISH, Tex. R. App. P. 47

On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause Nos. F04-41102-TUI and F04-73003-NUI.

Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.


OPINION


Gabriel Lynn Burton pleaded guilty to two counts of aggravated robbery; the jury assessed his punishment at thirty-eight years' confinement for each offense. In four appellate issues, Burton argues the trial court erred by not withdrawing Burton's guilty pleas or not conducting an inquiry into the voluntariness of Burton's pleas. He further argues he received ineffective assistance of counsel and that the trial court erroneously admitted certain victim impact testimony. We affirm the trial court's judgments.

Background

Burton acknowledges he participated, along with three friends, in the armed robberies of William and Juanita Lowery on July 5, 2004, and Bartie and Mary Coyle on July 7, 2004. Burton's own brief concedes that "the victims of these crimes were terrorized, placed in fear for their lives, and suffered trauma thereafter." Burton entered guilty pleas in both cases. The trial court questioned Burton and his attorney and ultimately found Burton competent and accepted his guilty pleas. Burton signed judicial confessions in both cases. The confessions tracked the language of his indictments, which charged that Burton used and exhibited a deadly weapon during the course of both robberies. The confessions were admitted into evidence at Burton's trial. Burton testified, however, that he had not used a gun during those robberies. Mr. Lowery had been eighty-six years old at the time of the robbery. His shoulder was injured in the robbery, and he died of complications following corrective surgery. Mrs. Lowery planned to take the stand to describe the effect the robbery had upon her husband. (Mr. Lowery-despite his death-remained the complainant in the case two years later.) Before she did so, at a hearing outside the presence of the jury, Burton objected to the proposed testimony, arguing there was no causal connection between the robbery and Mr. Lowery's death. The probative value of such evidence, he complained, would certainly outweigh its prejudicial effect. The trial court overruled the objection, and Mrs. Lowery testified. The jury found Burton guilty. The trial court, in accord with the jury's assessment, sentenced him to thirty-eight years' confinement in each case. Burton appeals.

Withdrawal of Appellant's Guilty Pleas

In his first issue, Burton argues that-once he had testified contrary to his pleas-the trial court abused its discretion by failing to withdraw Burton's guilty plea sua sponte. Burton never attempted to withdraw his pleas, although he had the right to do so at any time before the jury retired to deliberate its verdict. See Mendez v. State, 138 S.W.3d 334, 345 (Tex.Crim.App. 2004). When a defendant waives the right to plead not guilty, he bears the burden of timely seeking to withdraw his guilty plea. Id. at 350. If he fails to do so, "he may not complain for the first time on appeal that the trial court did not do it for him." Id. In his second issue, Burton argues similarly that-once he had testified contrary to his pleas-the trial court abused its discretion by failing to conduct an inquiry into the voluntariness of Burton's guilty pleas. Our review of the record establishes that the trial court had already conducted a thorough inquiry into the voluntariness of Burton's pleas. Indeed, Burton does not challenge the court's initial acceptance of his pleas. Instead, he would impose a new obligation on the trial court to conduct a second inquiry; this obligation would presumably arise any time a defendant testified contrary to his guilty plea. Burton cites no authority for this obligation, and we find none. Moreover, we conclude such an obligation would contradict Mendez, which places the obligation of changing a guilty plea squarely on the defendant. See id. Finally, under these issues Burton seeks an exception to Mendez based on his allegedly diminished mental capacity. Before trial began, the trial court conducted a thorough inquiry into Burton's competency to stand trial. The court questioned Burton and his attorney. The court also reviewed the report of the psychiatrist who had examined Burton and had concluded Burton was competent. The trial court specifically found Burton competent to stand trial, and Burton has not appealed that finding. Our review of the record does not support a departure from the rule of Mendez based on any inability of Burton to enter into a voluntary plea of guilty. We find no abuse of discretion in the trial court's handling of Burton's guilty pleas. We decide Burton's first and second issues against him.

Ineffective Assistance of Counsel

In his third issue, Burton argues that his trial counsel rendered him ineffective assistance by failing affirmatively to move to withdraw Burton's guilty pleas. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 695 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). Any allegation of ineffectiveness must be firmly founded in the record. Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005). We indulge a strong presumption the defense counsel's conduct falls within the wide range of reasonable, professional assistance and that the challenged actions might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 770-71 (Tex.Crim.App. 1994). The defendant must prove by a preponderance of the evidence that there is, in fact, no plausible professional reason for a specific act or omission. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). In most cases, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). In this case, Burton filed a motion for new trial, but he did not raise ineffective assistance of counsel in that motion. Thus, as in Thompson, the record provides no discernible explanation of the motivation behind counsel's decision not to move to withdraw Burton's guilty pleas. His decision could have been be the result of strategic design. For example, given the witnesses against Burton, and the relatively vicious nature of the crimes, counsel may well have believed a guilty plea could lead to lenience in the jury's punishment decision. We conclude the record is insufficient to support Burton's complaint on direct appeal. We resolve his third issue against him as well.

Testimony Regarding Deceased Complainant

In his fourth issue, Burton argues the trial court improperly admitted victim impact testimony, the probative value of which was outweighed by its prejudicial impact. Burton complains that Mrs. Lowery testified-at least implicitly-that her husband died as a result of the trauma he suffered as a victim of one of the robberies for which Burton was convicted. Burton casts Mrs. Lowery's testimony as victim impact evidence, and he argues her testimony exceeded the proper bounds of such evidence. The Court of Criminal Appeals has recently reaffirmed that "'[v]ictim impact' evidence is evidence of the effect of an offense on people other than the victim." Roberts v. State, 220 S.W.3d 521, 531 (Tex.Crim.App. 2007) (emphasis in original). In this case, Mr. Lowery was a victim of an offense with which Burton was charged. Accordingly, the proffered evidence was not victim impact evidence; it was evidence regarding the circumstances of one of the offenses for which Burton was being tried. Such evidence is admissible in the punishment phase of a trial. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon 2006). As to Burton's charge that the unfairly prejudicial nature of the evidence outweighed its probative value, we must look to the precise evidence underlying Burton's objection, i.e., evidence that the robbery caused Mr. Lowery's death. Our review of the record does not support Burton's complaint that such evidence was offered before the jury. Mrs. Lowery's testimony was limited to a description of her husband's health problems after the robbery. She did testify to the deterioration of his health, but she did not testify that he died as a result of injuries inflicted during the robbery. Burton complains that Mrs. Lowery testified she was lonely, she recalled memories of her husband, and she stated they had been a couple. Even if such statements acknowledged her husband had died in the two years since the robbery, they did not attribute his death to the robbery. A reasonable juror would not necessarily attribute an eighty-six year old man's death to any particular cause. And a reasonable juror could certainly attribute a widow's sadness to the fact that a brutal robbery had inflicted pain on her husband in his final years, without assuming the robbery had actually caused the death. We conclude Mrs. Lowery's testimony was not unfairly prejudicial. See Tex. R. Evid. 403. Thus, the trial court did not abuse its discretion in admitting the testimony. We decide Burton's final issue against him.

Conclusion

We affirm the judgments of the trial court.


Summaries of

Burton v. State

Court of Appeals of Texas, Fifth District, Dallas
Jun 12, 2008
Nos. 05-06-01292-CR, 05-06-01293-CR (Tex. App. Jun. 12, 2008)
Case details for

Burton v. State

Case Details

Full title:GABRIEL LYNN BURTON, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Jun 12, 2008

Citations

Nos. 05-06-01292-CR, 05-06-01293-CR (Tex. App. Jun. 12, 2008)