Deckard v. State

Full title: KENNETH T. DECKARD, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: Jun 2, 2004

No. 04-03-00852-CR (Tex. App. Jun. 2, 2004)

Opinion

No. 04-03-00852-CR

Delivered and Filed: June 2, 2004. DO NOT PUBLISH.

Appeal from the County Court at Law No. 7, Bexar County, Texas, Trial Court No. 857759, Honorable Monica E. Guerrero, Judge Presiding. Affirmed.

Sitting: Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.

MEMORANDUM OPINION

Opinion by: PHYLIS J. SPEEDLIN, Justice.

Kenneth T. Deckard ("Deckard") appeals his conviction for the offense of assault. Deckard argues four issues on appeal: (1) Deckard's plea of no contest was not freely and voluntarily entered; (2) the trial court abused its discretion in denying Deckard's motion for new trial; (3) Deckard was denied effective assistance of counsel; and (4) the evidence was legally and factually insufficient to support the conviction. We overrule Deckard's issues and affirm the trial court's judgment.

Background

Deckard pled "no contest" to a Class A misdemeanor charge of assault causing bodily injury. The trial court found Deckard guilty of the charged offense, sentenced him to 260 days in the Bexar County Detention Center, fined him $1000, and made an affirmative finding of family violence. Following the entry of the trial court's judgment, Deckard sent the trial judge a letter requesting the withdrawal of his plea. In the letter, Deckard made factual allegations suggesting that he did not enter his plea freely and voluntarily, and that he did not receive effective assistance of counsel. The trial court interpreted Deckard's letter to be a motion for new trial and denied the motion. Deckard filed a notice of appeal, and the trial court granted permission to appeal.

Voluntariness of Plea

In his first issue, Deckard argues that his "no contest" plea was not freely and voluntarily made. A plea of guilty or nolo contendere may be accepted by a court only if it is freely and voluntarily entered. See Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon 1999); Lee v. State, 39 S.W.3d 373, 375 (Tex. App.-Houston [1st Dist.] 2001, no pet.). When reviewing the voluntariness of a nolo contendere plea, we examine the record as a whole and determine whether the plea was entered voluntarily based on the totality of the circumstances. Griffin v. State, 703 S.W.2d 193, 196 (Tex.Crim.App. 1986); see Williams v. State, 522 S.W.2d 483, 485 (Tex.Crim.App. 1975) (guilty plea). Where the record shows that a defendant has received the admonishment on range of punishment, it constitutes prima facie evidence that the plea was knowing and voluntary. See Fuentes v. State, 688 S.W.2d 542, 544 (Tex.Crim.App. 1985) (guilty plea). The burden then shifts to the defendant to show that he entered his plea without understanding the consequences of the plea. Id. In order to prevail on a claim that a plea was "involuntary" because it was improperly induced, a defendant must make a "showing of an inducement beyond that implicit in the plea bargaining process." Ex parte Morrow, 952 S.W.2d 530, 534-35 (Tex.Crim.App. 1997) (mere inclusion of provision for return of seized cash in plea agreement did not render the plea involuntary). In this case, Deckard and his counsel signed a waiver of constitutional rights and acknowledgment of the trial court's admonitions. By signing this document, Deckard acknowledged he understood the consequences of his plea and recognized that: (1) the range of punishment for his offense was a fine of $0 to $4000 and zero days to one year in jail; (2) he was mentally competent; (3) his plea was entered without any consideration of fear; (4) he had not been threatened or coerced into making his plea; and (5) the plea was freely and voluntarily made. These recitations are entitled to a presumption of regularity. See Light v. State, 15 S.W.3d 104, 107 (Tex.Crim.App. 2000) ("[A] reviewing court, absent evidence of impropriety, [must] indulge every presumption in favor of the regularity of the proceedings and documents in the lower court"). This document provides a prima facie showing that Deckard's nolo contendere plea was knowing and voluntary. See Fuentes, 688 S.W.2d at 544. Therefore, Deckard has the burden of showing that his plea was not entered freely and voluntarily. Id. Deckard directs this court to an unsworn letter that he sent to the trial court after entry of the trial court's judgment, which the trial court interpreted to be a motion for new trial. In the letter, Deckard asserts that he was not only coerced, but was blatantly threatened and railroaded into making the no contest plea. The record does not support this contention. At the time Deckard entered his plea, the following exchange occurred:

THE COURT: . . . Are you wanting to enter your no contest plea freely and voluntarily?

THE DEFENDANT: With an explanation, yes, I do, Your Honor.

THE COURT: Okay. That's not my question.

THE DEFENDANT: Yes, Your Honor. I do.

THE COURT: I'm asking you if anyone's forcing you or promising you anything in order to do this plea.

THE DEFENDANT: No, Your Honor.

After Deckard began to explain the circumstances surrounding the offense, the trial court admonished Deckard, and Deckard revealed his motivation for entering his plea in the following exchange:

THE COURT: Well, Mr. Deckard, let me just let you know [that] you don't have to plead right now. I can set you for trial[;] you can have your day in court[,] and you can explain that to a jury.

THE DEFENDANT: I understand that.

THE COURT: I'd be more than happy to give you that opportunity.

THE DEFENDANT: I understand that, Your Honor, but I've got to weigh the pros and cons[,] and the court date that I would get would not be until January. I have no family near. I have no way of getting out of court — or out of jail. I've already lost my house. I've already lost my job. I've most likely lost all my possessions. I'm kissing ass as is. I'm on the bottom step. I can do no worse. I might as well take the plea bargain and start over.

THE COURT: Again, you know, I can afford you an opportunity to have a trial. I mean, I don't want you to feel like you are being forced to do this. [T]o me, it sounds like you're doing this plea[,] and you don't want to. So I want to give you —

THE DEFENDANT: I don't want to, Your Honor, but I don't want to stay in jail until January, so I am pleading.

THE COURT: I can give you a trial setting before that. Do you want to go to trial? Because I have no problem letting you set this for trial.

THE DEFENDANT: The time's the problem, Your Honor. I'll just take the deal.

Deckard contends that "time was pressuring him" to plead nolo contendere. He contends that his knowledge that "he had lost his job, place to live, and possibly all of his possessions" as a result of his incarceration is evidence that his plea was not freely and voluntarily made. However, Deckard made a knowing and voluntary choice to plead no contest and receive credit for time served rather than spending more time in jail pending a trial setting. The trial court offered three times to allow Deckard to plead not guilty and set the case for trial; Deckard refused and reiterated his desire to enter a plea. Although Deckard's desire to get out of jail may have induced him to plead no contest, this factor is implicit in the plea bargaining process. Moreover, Deckard's other claimed losses are typical social consequences of being incarcerated. Deckard has made no showing of an inducement beyond that implicit in the plea bargaining process. Morrow, 952 S.W.2d at 535. Deckard presented no evidence that would rebut the recitation in the trial court's judgment that his plea was free and voluntary. See Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim.App. 1984) (record must affirmatively rebut presumption of regularity and truthfulness created by recitals in judgment); Cochrane v. State, 66 S.W.3d 415, 417 (Tex. App.-Tyler 2001, no pet.). There is nothing in the record to show that Deckard's plea was not freely and voluntarily entered. Deckard's first issue is overruled.

Motion for New Trial

In his second issue, Deckard contends that the trial court abused its discretion in denying his motion for new trial because the trial court failed to hold an evidentiary hearing on the motion. Since Deckard's motion to the court contained numerous allegations that his plea was not freely and voluntarily made and that he received ineffective assistance of counsel, Deckard contends the trial court should have conducted a hearing on his motion. We review the trial court's denial of Deckard's motion for new trial under an abuse of discretion standard. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App. 1993); Bouldin v. State, 100 S.W.3d 355, 356 (Tex. App.-San Antonio 2002, no pet.). The right to a hearing on a motion for new trial is not an "absolute right." Reyes v. State, 849 S.W.2d 812, 815 (Tex.Crim.App. 1993). A hearing is not required when the matters raised in the motion for new trial are determinable from the record. Id. at 816. A trial court abuses its discretion in failing to hold a hearing on a motion for new trial that raises a matter outside the record upon which relief could be granted, such as the involuntariness of a plea. Id.; Flores v. State, 18 S.W.3d 796, 798 (Tex. App.-Austin 2000, no pet.). "While not statutorily required, if the motion for new trial alleges facts outside the record, it must be supported by the affidavit of someone with knowledge of the facts." Flores, 18 S.W.3d at 798. A motion for new trial alleging facts outside the record filed without supporting affidavits is fatally defective, and a trial court does not err in denying the motion without a hearing. Id.; Rodriguez v. State, 82 S.W.3d 1, 2 (Tex. App.-San Antonio 2001, pet. dism'd). In his motion for new trial, Deckard alleges that he "was blatantly threatened and railroaded into making the no contest plea" by his court appointed attorney. Deckard admits that at the time he made his plea, he did not believe he was being coerced; however, he alleges that he later realized he had been coerced when he had a "chance to reflect on what had happened." In support, Deckard makes several factual assertions regarding the inadequacy of his counsel's performance, claiming that counsel failed to investigate and interview witnesses and missed appointments with him. Deckard's motion alleges facts outside the record, but fails to provide any supporting affidavits. Accordingly, the trial court did not abuse its discretion in denying the motion for new trial without a hearing. See Reyes, 849 S.W.2d at 816; Flores, 18 S.W.3d at 798. Deckard's second issue is overruled.

Ineffective Assistance of Counsel

In his third issue, Deckard contends that he was denied effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, Deckard has the burden of showing that: (1) counsel's performance was deficient, such that it fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced Deckard, such that counsel's errors were so serious as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Any allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate counsel's deficient performance. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996); see also Thompson, 9 S.W.3d at 814. In this case, the record contains no evidence of deficient performance by Deckard's counsel. In support of his allegation of ineffective assistance of counsel, Deckard merely directs this court to his unsworn motion for new trial. Unsworn allegations in a motion for new trial do not prove themselves, and therefore present nothing for our review. Hicks v. State, 901 S.W.2d 614, 618 (Tex. App.-San Antonio 1995, pet. ref'd) (citing Vaughn v. State, 456 S.W.2d 141, 142 (Tex.Crim.App. 1970)); see also Jones v. State, 501 S.W.2d 677, 680 (Tex.Crim.App. 1973). On the record before us, we must conclude that Deckard has failed to meet his burden under the first prong of Strickland Deckard's third issue is overruled.

Sufficiency of the Evidence

In his fourth issue on appeal, Deckard contends the evidence was legally and factually insufficient to support his conviction. "It is well settled that when a defendant, who is charged with committing a misdemeanor offense, pleads guilty or nolo contendere to the charge, such plea constitutes an admission to every element of the charged offense. Thus, in a misdemeanor case, such a plea is conclusive of the defendant's guilt." Brown v. State, 507 S.W.2d 235, 238 (Tex.Crim.App. 1974); Avila v. State, 884 S.W.2d 896, 897 (Tex. App.-San Antonio 1994, no pet.). Here, Deckard was charged with assault causing bodily injury, which is a Class A misdemeanor. Tex. Pen. Code. Ann. § 22.01 (Vernon 2003). Because Deckard pleaded nolo contendere, the plea itself is sufficient to support his conviction. Deckard's fourth issue is overruled.

Conclusion

For the foregoing reasons, the trial court's judgment is affirmed.