Opinion
No. 05-10-01506-CR
03-21-2012
TERRANCE O. CARTER, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued March 21, 2012
On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause No. F05-33108-X
OPINION
Before Justices Morris, Fillmore, and Myers
Opinion By Justice Morris
After pleading guilty to the offense of aggravated assault with a deadly weapon and receiving deferred adjudication community supervision, Terrance O. Carter pleaded true to the allegations in the State's amended motion to proceed with an adjudication of guilt. The trial court adjudicated appellant's guilt and sentenced him to six years' confinement. Appellant now contends his plea of true was not entered knowingly and voluntarily, he received ineffective assistance of counsel, the trial court abused its discretion in denying his amended motion for new trial, and the judgment should be modified to reflect the correct name of the assistant district attorney in his case. We affirm the trial court's judgment as modified.
Factual Background
In 2006, appellant pleaded guilty to the offense of aggravated assault with a deadly weapon. In 2010, at a hearing on the State's amended motion to adjudicate appellant's guilt, appellant stated that he was pleading true to the State's allegations. The trial judge admonished him that the punishment range for his offense was two to twenty years' confinement with an optional fine not to exceed $10,000. Appellant acknowledged that he understood the applicable punishment range.
The State had alleged in its amended motion to adjudicate that appellant had violated several conditions of his community supervision. It specifically alleged appellant had committed the offenses of evading arrest and failure to identify in Grayson County, had failed to report to his community supervision officer, and was behind on his fees and restitution. Appellant said he understood what the State was alleging. The trial judge stated, “You understand that an open plea is where you are basically placing yourself on the mercy of the court. . . . . Sometimes the Court has mercy; sometimes it doesn't. You understand that?” Appellant said that he did. He asserted that he was entering his plea of true freely and voluntarily. He then admitted that when police came to arrest him, he gave them a false name and fled. He explained his concern at the time was that, if he were taken to jail, there would be no one to take care of his son. He also admitted he had not been reporting to his community supervision officer.
Approximately two years earlier, appellant had pleaded true to other violations of the conditions of his community supervision. At that time, the trial court found appellant had violated the conditions but denied the motion to adjudicate and continued appellant's community supervision with several new conditions. Appellant admitted at the 2010 hearing that he recalled this previous proceeding.
At the conclusion of the hearing on the State's amended motion to adjudicate, the trial court accepted appellant's plea and found that it was freely and voluntarily made. The trial court adjudicated appellant guilty and sentenced him to six years' confinement. Afterward, appellant filed an amended motion for new trial alleging he had received ineffective assistance of counsel, which rendered his plea of true to be unknowing and involuntary, and separately complaining that his trial counsel had failed to file a timely notice of appeal on his behalf. The trial court conducted a hearing on the motion.
At the hearing on the motion for new trial, appellant claimed his attorney had told him the purpose of the hearing on the amended motion to adjudicate was for him to plead guilty to the two misdemeanor offenses out of Grayson County. He claimed he never wanted to plead true to the allegations the State had made in the motion to adjudicate. According to appellant, his attorney did not advise him that he was making an open plea and he did not even know what an open plea was until after the hearing. He denied knowing he could receive the maximum sentence for the aggravated assault by making the plea of true and persisted in his assertion that he thought he was at the hearing to talk to the judge about the Grayson County cases. He asserted that his attorney had told him there was a plea offer from the State of two to three years' confinement. Appellant claimed that if he had known he had to choose between a plea offer from the State of two to three years and going before the trial court to receive punishment possibly more severe than reinstatement of community supervision, he would have chosen to take the two-to-three-year sentence.
When the trial judge reminded appellant that he had previously entered a plea of true to earlier allegations of community supervision violations in the same case in 2008, appellant persisted in his claim that he was unaware of how an open plea worked, stating, “I don't know what an open plea is. You know, I had a free world lawyer and he did all the work. I didn't talk to him at all. My family did all of the talking to him.” He recalled, however, appearing before the court in 2008 to try to have his community supervision continued and the trial court continuing it with some amended conditions.
Appellant also admitted that when he was arrested for the Grayson County offenses, he was brought before a judge in a Grayson County courthouse, stayed at the Grayson County jail, and had a separate attorney in those cases. He further admitted that after the Grayson County proceedings he was sent to Dallas County to address his alleged community supervision violations with his Dallas County trial attorney. He stated that he thought he would be able to “talk” to the Dallas County judge about his performance on community supervision, his failure to report to a community supervision officer, and the new Grayson County offenses during the hearing. He acknowledged that he was admitting to all the violations in hope that the trial court would let him continue his community supervision. Appellant nevertheless claimed, “I didn't know that from me talking to her that it was an open plea saying that from that day that I was talking to her that she can give me time for the conversation that we was [sic] having. If I would have known that, I wouldn't have . . . proceeded through the hearing.” He maintained that he thought the hearing was simply a forum for him to voice his opinion.
Concerning his notice of appeal, appellant stated that he did not wish to appeal immediately after his guilt was adjudicated because his attorney had not adequately explained to him the purpose of the appeal. Afterward, he sent the attorney a letter asking him to a file a notice of appeal. When he did not hear back from him, appellant filed his own pro se notice of appeal and a second pro se notice of appeal as well.
Appellant's trial attorney testified that appellant was aware he was pleading true to the allegations in the State's motion to adjudicate. He categorically denied telling appellant that the hearing on the motion to adjudicate was actually a proceeding in which appellant would plead guilty to the two offenses in Grayson County. According to the trial attorney, it was appellant's hope that if he pleaded true the trial court might continue his community supervision and there was “no question” appellant knew what he was doing when he chose to plead true to the allegations. The attorney testified that appellant had rejected a plea bargain offer from the State of six years' confinement. The attorney further testified that he thought appellant was “making up a story” for the purposes of his motion for rehearing.
According to appellant's trial attorney, appellant did not want to sign appeal papers just after trial, so the attorney notified him that he would have thirty days to notify either the attorney or the trial court if he desired to appeal. When the attorney received a letter from appellant stating that he wished to appeal, the trial attorney contacted the court's coordinator, who informed him that a new attorney had already been appointed for appellant's appeal.
At the conclusion of the hearing, the trial court denied appellant's motion for new trial. The trial judge commented, “This court does think that he entered a knowing and voluntary plea and did understand the proceedings against him at that time.”
Discussion
In his first issue, appellant complains his plea of true was not made knowingly or voluntarily because he entered the plea believing that the trial court would continue his community supervision. A defendant's plea of true to violations of the conditions of his community supervision must be voluntary. See LeBlanc v. State, 768 S.W.2d 881, 882 (Tex. App.-Beaumont 1989, no pet.). The records from both the hearing on the motion to adjudicate and the motion for rehearing do not reflect that appellant's plea was made involuntarily. Rather, appellant's own testimony demonstrates that he entered the plea of true uncertain that he would be continued on community supervision but hopeful that the trial court would choose to do so. During the revocation hearing, appellant testified that he understood the allegations in the motion to revoke and he was freely and voluntarily entering a plea of true to those allegations. He admitted he had previously entered a plea of true and had received a continuation of his community supervision. The fact that appellant received a greater punishment than he hoped for on this occasion does not render his plea involuntary. See Tovar- Torres v. State, 860 S.W.2d 176, 178 (Tex. App.-Dallas 1993, no pet.). We therefore resolve his first issue against him.
In his second, third, and fourth issues, appellant complains of ineffective assistance of counsel. In his third issue, he complains his trial attorney failed to file a notice of appeal when he informed the attorney of his desire to appeal. Appellant was nevertheless appointed an appellate attorney in a timely fashion. Therefore, appellant has no remedy to pursue for any alleged error caused by the trial attorney's failure to file a notice of appeal. Moreover, any action or omission by trial counsel relating to the filing of appellant's notice of appeal had no bearing on the voluntariness of appellant's plea of true at the hearing on the motion to adjudicate. We therefore dismiss the third issue and confine our ineffective assistance of counsel analysis to appellant's second and fourth issues.
Appellant contends in his second issue that because his trial counsel wrongly advised him about the nature of the motion to adjudicate hearing, his plea of true was not entered knowingly or voluntarily. He contends in his fourth issue that the trial court abused its discretion in denying his amended motion for new trial based on appellant's allegations of ineffective assistance of counsel. In the case of a guilty plea, the plea is not voluntary if it is made as a result of ineffective assistance of counsel. See Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App.1980). To prevail on a claim of ineffective assistance of counsel, however, the defendant must show that (1) his counsel's performance was deficient and (2) a reasonable probability exists that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). The first prong of Strickland requires the defendant to show that counsel's performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.1999). The second prong requires the defendant to show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See id. at 812. A claim of ineffective assistance must be firmly supported in the record. Id. at 813. Our review of defense counsel's representation is highly deferential and presumes counsel's actions fell within the wide range of reasonable and professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
We review the trial court's ruling on appellant's motion for new trial under an abuse of discretion standard. See Burke v. State, 80 S.W.3d 82, 86 (Tex. App.-Fort Worth 2002, no pet.). The trial court possesses broad discretion in determining the credibility of the witnesses and weighing the evidence to determine whether a different result would occur upon retrial. We do not substitute our judgment for that of the trial court but rather decide only whether the trial court's ruling was arbitrary or unreasonable. See id. at 87.
Here, appellant's version of events conflicted with his trial attorney's version. Deferring to the trial court's discretion to determine witness credibility, the evidence shows appellant was aware he was entering a plea of true to the State's allegations in its amended motion to adjudicate and he did so freely and voluntarily. Accordingly, the trial court did not abuse its discretion in denying appellant's amended motion for new trial. We therefore resolve appellant's second and fourth issues against him.
In his fifth issue, we are asked to modify the judgment by correcting the prosecutor's name from Michelle Madson to Messina Madson, as reflected in the record. The State does not oppose appellant's request. Having reviewed the record and confirmed that Messina Madson was the prosecutor in the case, we resolve appellant's fifth issue in his favor and modify the judgment to reflect the correct name. See Tex. R. App. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
We modify the trial court's judgment to reflect the attorney for the State was Messina Madson, rather than Michelle Madson. As modified, we affirm the judgment.
JOSEPH B. MORRIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101506F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
TERRANCE O. CARTER, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01506-CR
Appeal from the Criminal District Court No. 6 of Dallas County, Texas. (Tr.Ct.No. F05- 33108-X).
Opinion delivered by Justice Morris, Justices Fillmore and Myers participating.
Based on the Court's opinion of this date, we MODIFY the judgment to show that Messina Madson was the attorney for the State. As modified, the judgment of the trial court is AFFIRMED.
Judgment entered March 21, 2012.
JOSEPH B. MORRIS
JUSTICE