Gordon v. State

Full title: JERRY BRUCE GORDON, Appellant, v. STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Eleventh District, Eastland

Date published: Nov 26, 2003

Nos. 11-02-00182-CR, 11-02-00183-CR, 11-02-00184-CR, 11-02-00185-CR (Tex. App. Nov. 26, 2003)

Opinion

Nos. 11-02-00182-CR, 11-02-00183-CR, 11-02-00184-CR, 11-02-00185-CR

November 26, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

Appeals from Erath County.

Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCall, J.

OPINION

PER CURIAM

In Cause Nos. 11-02-00182-CR and 11-02-00184-CR, Jerry Bruce Gordon appeals the trial court's orders revoking his community supervision. In Cause Nos. 11-02-00183-CR and 11-02-00185-CR, appellant appeals the trial court's orders denying his application for writ of habeas corpus. We affirm. In Cause No. 11-02-00182-CR, appellant pleaded guilty to the offense of theft of the value of $750 or more, but less than $20,000. On May 3, 1993, the trial court deferred the adjudication of guilt, placed appellant on community supervision for 5 years, and assessed a $1,000 fine. On December 15, 1994, the State filed a motion to adjudicate guilt. On March 9, 1995, the trial court entered an order amending the terms of appellant's deferred adjudication. The order extended appellant's community supervision an additional 2 years for a total of 7 years. On October 31, 1995, the State filed its second amended motion to adjudicate guilt. On November 6, 1995, the trial court revoked appellant's community supervision, adjudicated his guilt, and assessed his punishment at confinement for 10 years and a $1,000 fine. The trial court suspended the imposition of the confinement portion of the sentence and placed appellant on "regular" community supervision for 10 years. In Cause No. 11-02-00184-CR, appellant pleaded guilty to the offense of falsely holding oneself out as a lawyer. On January 6, 1997, the trial court convicted appellant of falsely holding oneself out as a lawyer and sentenced appellant to 10 years confinement and a $1,000 fine. The trial court suspended the imposition of the confinement portion of the sentence and placed appellant on community supervision for 10 years. On that same day, the trial court amended the terms and conditions of appellant's community supervision in Cause No. 11-02-00182-CR to include 2 new conditions. On August 13, 1997, the State filed motions to revoke appellant's community supervision in both cause numbers. The record shows that appellant left the country in 1997. The State tried to have appellant returned to the United States in late 2001 and early 2002. On March 7, 2002, the State filed amended motions to revoke in both cause numbers. On March 25, 2002, appellant filed an application for writ of habeas corpus in both the theft conviction, Cause No. 11-02-00183-CR, and the falsely holding oneself out as a lawyer conviction, Cause No. 11-02-00185-CR. On May 20, 2002, the trial court held a hearing on both of appellant's applications for writ of habeas corpus and, that same day, a hearing on the State's motions to revoke appellant's community supervision in both cause numbers. The trial court denied appellant's applications for writ of habeas corpus in both cause numbers. In both cause numbers, the trial court found that appellant had violated the terms and conditions of his community supervision, revoked his community supervision, and sentenced him to 10 years confinement. Appellant appeals from the trial court's orders denying his application for writ of habeas corpus and from the judgments revoking his community supervision. Appellant brings the same two points of error in each of the four cause numbers. Appellant first argues that he received ineffective assistance of counsel "at the time of his pleas of guilty and the adjudication of his guilt on his theft probation." In reviewing claims of ineffective assistance of counsel, we employ the standard of review set out in Strickland v. Washington, 466 U.S. 668 (1984). When a defendant challenges the voluntariness of a plea entered upon the advice of counsel, contending that his counsel was ineffective, the voluntariness of the plea depends on (1) whether counsel'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. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Cr.App. 1999). As with other types of ineffective assistance of counsel claims, appellant has the burden to show, by a preponderance of the evidence, that counsel's performance fell below a reasonable standard of competence and that appellant would, with reasonable probability, have pleaded not guilty and insisted on going to trial had he been properly advised. Ex parte Moody, supra. In addition, appellant also has the burden to prove that his trial counsel's actions were not the result of sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508-09 (Tex.Cr.App. 1991).

Cause Nos. 11-02-00182-CR 11-02-00183-CR

Appellant contends that he received ineffective assistance of counsel because he "agreed to have his guilt adjudicated" based upon the new offense of falsely holding oneself out to be a lawyer. Appellant argues that, in its motion to adjudicate, the State alleged that appellant violated the terms and conditions of his community supervision by committing the offense of falsely holding oneself out to be a lawyer. However, the record indicates that appellant's guilt had already been adjudicated prior to the allegations of the offense of falsely holding oneself out to be a lawyer. Appellant's adjudication of guilt was not based upon that offense. The record shows that, at the time appellant pleaded guilty to the offense of falsely holding oneself out to be a lawyer, the terms and conditions of his "regular" community supervision were amended. Appellant has not shown that he received ineffective assistance of counsel at the time his guilt was adjudicated. The trial court did not abuse its discretion in overruling appellant's application for writ of habeas corpus on the ground that he received ineffective assistance of counsel. See Ex parte Okere, 56 S.W.3d 846 (Tex.App.-Fort Worth 2001, pet'n ref'd).

Cause Nos. 11-02-00184-CR 11-02-00185-CR

Appellant contends that he received ineffective assistance of counsel because his trial counsel allowed him to plead guilty when his conduct did not meet the elements of falsely holding oneself out to be a lawyer. A defendant placed on "regular" community supervision may raise issues relating to the conviction only in appeals taken when community supervision is originally imposed. Manuel v. State, 994 S.W.2d 658, 661 (Tex.Cr.App. 1999); Whetstone v. State, 786 S.W.2d 361, 363 (Tex.Cr.App. 1990). Because appellant is challenging his original plea of guilty upon revocation of his community supervision, we do not consider his argument on appeal in Cause No. 11-02-00184-CR that he received ineffective assistance of counsel. See Jordan v. State, 54 S.W.3d 783 (Tex.Cr.App. 2001). In Cause No. 11-02-00185-CR, appellant appeals from the trial court's order denying his application for writ of habeas corpus. In his application for writ of habeas corpus filed pursuant to TEX. CODE CRIM. PRO. ANN. art. 11.08 (Vernon 1977), appellant challenged the voluntariness of his guilty plea stating that he received ineffective assistance of counsel. Nothing prevents the probationer from filing an Article 11.08 writ application after the State has filed a motion to revoke, and nothing prevents the trial court from considering the application along with the State's motion to revoke probation. Jordan v. State, supra. We therefore, consider appellant's complaint in Cause No. 11-02-00185-CR that he received ineffective assistance of counsel at the time he pleaded guilty to the offense of falsely holding oneself out as a lawyer. A person commits the offense of falsely holding oneself out as a lawyer if, "with intent to obtain an economic benefit for himself or herself, the person holds himself or herself out as a lawyer." TEX. PENAL CODE ANN. § 38.122(a) (Vernon 2003). The record shows that appellant wrote a letter to one of his creditors and signed the name of the attorney representing him at that time. The letter indicated that appellant had a "strong case" in his suit against an electric cooperative. The trial court heard testimony that appellant wrote the letter in an effort to persuade the creditor to delay its collection attempts. Appellant argues that his conduct did not meet the elements of falsely holding oneself out to be a lawyer but, rather, that he forged his attorney's signature. In its response to appellant's application for writ of habeas corpus, the State included an affidavit of the counsel who represented appellant at the time of his plea. In the affidavit, appellant's counsel stated that he "carefully" discussed defense strategies with appellant. The affidavit stated that appellant was "emphatic in his instructions to negotiate a plea agreement which would ensure that he remained on probation in [Cause No. 11-02-00182-CR] and receive probation in [Cause No. 11-02-00184-CR]." In the affidavit, appellant's counsel stated that appellant did not want any defense strategy that involved a risk of going to prison. Appellant's counsel felt he could only guarantee that appellant would avoid prison by entering into a "package deal." Appellant's counsel stated that appellant confessed to facts which counsel believed satisfied the elements of falsely holding oneself out as a lawyer. The record shows that appellant wrote a letter in which he claimed to be an attorney in an effort to delay his creditor's collection attempts. Appellant instructed his attorney to negotiate a plea agreement so that he would not have to go to prison. Appellant's attorney believed that appellant's actions met the elements of the offense, and he negotiated a plea pursuant to appellant's instructions. Appellant has not shown that he received ineffective assistance of counsel. The trial court did not abuse its discretion in overruling appellant's writ of habeas corpus. Ex parte Okere, supra. Appellant next argues that he was not "competent to enter his plea of guilty (and true), nor to effectively assist his trial counsel." TEX. CODE CRIM. PRO. ANN. art. 46.02, § 1A(a) (Vernon Pamph. Supp. 2003) provides that a person is incompetent to stand trial if he does not have:

(1) sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or

(2) a rational as well as factual understanding of the proceedings against the person.

The record shows that appellant was examined by a psychologist, Dr. Swen Helge, on June 21, 1996, and July 12, 1996. At that time, appellant was charged with the offense of falsely holding oneself out as a lawyer. Appellant's counsel at that time referred appellant to Dr. Helge in an attempt to obtain evidence that would allow appellant to receive community supervision rather than incarceration. Prior to the hearings on the State's motions to revoke appellant's community supervision and appellant's application for writ of habeas corpus on May 20, 2002, appellant had two different psychologists, Dr. William Eull and Dr. Robert Lovitt, review Dr. Helge's findings. Appellant argues on appeal that he was not competent to enter his plea of guilty in Cause No. 11-02-00184-CR and his plea of true in Cause No. 11-02-00182-CR based upon the findings of Dr. Eull and Dr. Lovitt.

Cause Nos. 11-02-00182-CR 11-02-00183-CR

Dr. Helge conducted his psychological examination of appellant prior to appellant pleading guilty to the offense of falsely holding oneself out as a lawyer on January 6, 1997. At the time appellant pleaded guilty to falsely holding oneself out as a lawyer, the terms and conditions of his community supervision in Cause. No. 11-02-00182-CR were amended. Appellant did not enter a plea of "true" in relation to Cause No. 11-02-00182-CR at the time he pleaded guilty to the offense of falsely holding oneself out to be a lawyer. Therefore, the record does not support appellant's argument that he was incompetent to enter a plea of "true" at that time. Moreover, there is nothing in the record to show that appellant was incompetent to stand trial at the time he entered his original plea of guilty to the offense of theft in Cause No. 11-02-00182-CR. Appellant has not shown that the trial court erred in revoking his community supervision or in denying his application for writ of habeas corpus.

Cause Nos. 11-02-00184-CR 11-02-00185-CR

Dr. Helge stated in his 1996 report that appellant was competent to stand trial. Dr. Lovitt testified at the hearing on appellant's application for writ of habeas corpus that he reviewed Dr. Helge's report and also the tests Dr. Helge conducted. Dr. Lovitt did not personally examine appellant. Dr. Lovitt stated that, at the time appellant pleaded guilty, appellant was "under a series of stressors." Dr. Lovitt said that appellant's judgment was "clearly compromised at the time." Dr. Lovitt testified that appellant needed "intensive, personal therapy." Dr. Lovitt stated that he did not know if appellant was competent at the time he entered his plea. Dr. Eull's report does not provide any evidence that appellant was incompetent at the time he entered his plea. The trial court noted that it did not order Dr. Helge to evaluate appellant to determine his competency to stand trial. The trial court found that appellant's attorney at that time had appellant examined for "mitigation purposes." In its findings, the trial court noted that appellant had appeared before the court on several occasions and that each time appellant was oriented as to time and place, was able to answer questions, and was able to assist his counsel. Appellant has not shown that he was incompetent to stand trial at the time he entered his plea of guilty. The trial court did not err in revoking appellant's community supervision or in denying his application for writ of habeas corpus. We have considered all of appellant's contentions on appeal and all are overruled. The judgments of the trial court are affirmed.