Graham v. State

Full title: SIDNEY KEITH GRAHAM, Appellant, v. THE STATE OF TEXAS, Appellee

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

Date published: Jul 31, 2006

No. 05-05-00547-CR (Tex. App. Jul. 31, 2006)

Opinion

No. 05-05-00547-CR

Opinion Filed July 31, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F05-00225-WP. Affirm.

Before Justices WHITTINGTON, BRIDGES, and LANG-MIERS.

OPINION

Opinion By Justice LANG-MIERS.

Appellant Sidney Keith Graham pleaded guilty to the state jail felony offense of forgery. After finding two enhancement paragraphs true, a Dallas County jury assessed a twenty-year sentence and a fine of $1000. In three issues, appellant argues that (1) the trial court violated Texas Code of Criminal Procedure articles 1.15 and 37.07, section 3(c) by finding appellant guilty without submitting the issue of guilt to the jury; (2) the trial court violated article 26.13 by failing to admonish him of the range of punishment; and (3) the trial court abused its discretion by overruling appellant's motion to strike the enhancements paragraphs. We affirm.

UNITARY PROCEEDING

In his first issue, appellant argues that the trial court violated articles 1.15 and 37.07, section 3(c) by failing to charge the jury on appellant's guilt. He asserts that the "record contains no charge given to the jury to determine the guilt or innocence of appellant. The sole verdict form is in the past tense: 'We, the jury, having found the defendant guilty . . .', with no prior evidence that the jury did find appellant guilty." The State argues that article 1.15 requires only that the jury render a verdict, not that it must return separate verdicts on guilt and punishment and cites sample punishment charges from two Texas form books that combine the verdict of guilt and assessment of punishment into one verdict form following a unitary proceeding. The State further argues that article 37.07, section 3(c) does not apply to a unitary trial but to a bifurcated trial where the jury determines guilt in the first phase and punishment in the second. Facts Following voir dire and before the trial court swore in the jury, appellant changed his plea from not guilty to no contest. The trial court then explained to appellant that a no contest plea was the same as a guilty plea, and when the State read the indictment to appellant before the jury, he pleaded guilty. The State introduced appellant's judicial confesssion as evidence. The trial court then recessed the jury so that it could prepare a charge that would instruct the jury to return a verdict of guilty, after which the punishment phase would then proceed. When the jury returned, the trial court alerted the jury that it had revised the procedure for finding guilt: "when you retire to deliberate on a proper punishment, the first paragraph of the charge will contain your direction to find him guilty and that sort of thing." Appellant did not object. At the close of punishment, the trial court presented a single charge to the jury, to which, again, appellant did not object, and the second and third paragraphs read: To this charge the defendant has entered his plea of guilty. He has persisted in entering his plea of guilty, notwithstanding that the Court, as required by law, has admonished him of the consequences. It plainly appearing to the Court that the defendant is mentally competent, has been advised of the range of punishment attached to the offenses, and that his plea of guilty is made freely and voluntarily, his plea is by the Court received. The remainder of the charge explains the enhancement paragraphs and available punishment ranges. When the jury returned the verdict form, it read:

We, the jury, having found the defendant guilty of the offense of forgery, as charged in paragraph one of the indictment, find paragraph two and paragraph three true beyond a reasonable doubt and assess the punishment of the defendant at confinement in the Texas Department of Criminal Justice, Institutional Division, for 20 years (2-20), and assess a fine in the amount of $1,000.00[.]

Appellant asserts that this procedure allowed the trial court to find appellant guilty without submitting the issue to the jury. Law and analysis Appellant relies on articles 1.15 and 37.07, section 3(c) for the proposition that the trial court must submit the issue of guilt to the jury if the jury is also determining punishment. Article 1.15 reads, in pertinent part, that "[n]o person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with [a]rticles 1.13 and 1.14." And article 37.07, section 3(c) reads:

If the jury finds the defendant guilty and the matter of punishment is referred to the jury, the verdict shall not be complete until a jury verdict has been rendered on both the guilt or innocence of the defendant and the amount of punishment. In the event the jury shall fail to agree on the issue of punishment, a mistrial shall be declared only in the punishment phase of the trial, the jury shall be discharged, and no jeopardy shall attach. The court shall impanel another jury as soon as practicable to determine the issue of punishment.

We agree that article 1.15 does not require that the jury enter separate verdicts for guilt and punishment, although it requires the jury to enter a verdict on guilt. We also agree that article 37.07, section 3(c) contemplates a bifurcated trial. In this case, appellant had a unitary proceeding. When a person enters a plea of guilty, the proceeding becomes a unitary proceeding. See State v. Aguilera, 165 S.W.3d 695, 698 n. 6 (Tex.Crim.App. 2005); Carroll v. State, 975 S.W.2d 630, 631 (Tex.Crim.App. 1998). This applies regardless of whether the defendant enters his plea before a judge or a jury. See Ricondo v. State, 634 S.W.2d 837, 841 (Tex.Crim.App. 1982) (op. on reh'g); Frame v. State, 615 S.W.2d 766, 767 n. 1 (Tex.Crim.App. 1981); Basaldua v. State, 481 S.W.2d 851, 853 (Tex.Crim.App. 1972); Washington v. State, 893 S.W.2d 107, 108-09 (Tex.App.-Dallas 1995, no pet.). Article 37.07, section 2(a) of the code of criminal procedure authorizing bifurcation of trials is applicable only to pleas of not guilty before a jury. See Tex. Code Crim. Proc. Ann. art. 37.07, § 2(a); Barfield v. State, 63 S.W.3d 446, 449 (Tex.Crim.App. 2001); Duhart v. State, 668 S.W.2d 384, 386 n. 3 (Tex.Crim.App. 1984) (noting that insofar as it provides for bifurcated trials, article 37.07 does not apply to pleas of guilty before judge or jury). Because appellant pleaded no contest to the court before it swore in the jury and then guilty before the jury, the trial was a unitary proceeding from its inception. See Helton v. State, 886 S.W.2d 465, 466 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) (noting that although appellant initially pleaded guilty to the court, he superseded the initial plea by subsequently pleading guilty to the jury, and a unitary proceeding ensued). Because the trial became a unitary proceeding, the trial court properly instructed the jury to find the defendant guilty as part of the punishment charge. See Gonzales v. State, 868 S.W.2d 854, 857 (Tex.App.-Dallas 1993, no pet.). Courts have long held that when a defendant has entered a guilty plea to a felony before the jury, there remains no issue of guilt for the factfinder to determine; the trial court in its charge properly instructs the jury to return a verdict of guilty, charges the jury on the law as to the punishment issues, and then instructs them to decide only those issues. Holland v. State, 761 S.W.2d 307, 313 (Tex.Crim.App. 1988); see also Fairfield v. State, 610 S.W.2d 771, 780 (Tex.Crim.App. 1981). In this case, the trial court instructed the jury that it had received appellant's plea of guilt, and the verdict forms from which the jury could choose all required in the first sentence that the jury have found the defendant guilty. The Court therefore effectively instructed the jury on appellant's guilt, and the available verdict forms required them to make a finding of guilt. We conclude that the trial court did not err in its jury charge. We overrule appellant's first issue.

ADMONISHMENT ON PUNISHMENT

In his second issue, appellant argues that the trial court failed to admonish him of the punishment range in violation of article 26.13 before accepting his plea of no contest. The State argues that the trial court substantially complied with article 26.13 by admonishing him of the punishment range the day before the plea hearing. We agree. Facts relevant to issues two and three On the day before the plea hearing, the trial court addressed pre-trial matters. Defense counsel read into the record a letter from appellant in which appellant questioned the propriety of the alleged addition of enhancement paragraphs and moved to strike them:

I, Sidney Graham, was charged with the state jail felony offense of forgery, Case Number F04-71320, fourth degree. This was told to me by the magistrate at Defendant arraignment, also again during Defendant appearing before Judge Lana McDaniel in April of 2004. She told me the punishment can carry 180 days to 24 months. 12 months in confinement has passed without any contact or appearance before the Court or prosecutor. I learned through the public defender representing me at the time, Douglas Mulder, who this offense surrounds, is an attorney and former prosecutor in the Dallas District Attorney's Office and who has personal contact in that office where his relative is employed as an assistant attorney. I was also told that he, Mulder, have many friends and is well known in the Dallas district courts and the DA office. Mulder has taken interest in my legal proceedings because of this with friends in the right places, also a former prosecutor. His influence is potential conflict of interest and surrounding conspiracy. The prosecutor on the — on the March — on the 8th, March, 2005, 12 months later, has the defendant enhanced F05-00225, forgery check, third, using paragraphs ten and fourteen years old for the purpose of a higher punishment range. The prosecutor denied defendant his civil rights, due process under the U.S. Constitution, 14th Amendment. The second indictment, March, 2005, states forgery check, third, the penalty range is two to ten years. The prosecutor is trying to force the Defendant punishment range before prospective jury to a second degree offense which the maximum punishment is two to 20 years. . . . I seek to have the paragraphs and 20 year penalty removed as additional and potential punishment, in this case, a forged check, third, one thousand dollars. . . . I am dealing with and being treated with some concerted effort because of Mulder, a personal friend of the courts and former prosecutor, to make sure that they bring this particular Defendant down from a state jail offense to 20 years, money value one thousand dollars. In the Dallas district courts the assumption that the maximum punishment is deserved for the most brazen, brutal and barbaric crimes is incorrect. The maximum punishment is often used disproportionately against the poor and minority rather than the fact of the crime. The risk of maximum punishment will never be eliminated because of whom the offense is committed against and the influence and connections Mulder has in the prosecutor's office and courts. The Texas Code of Judicial Conduct recommends that all judges avoid impropriety and the appearance of impropriety in all the Judge's activities as to convey providence in the integrity of the judicial system. [ Sic et passim].

The State responded in appellant's presence that "we're not treating [appellant] any differently than any other Defendant who has prior convictions. He has a state jail felony with two consecutive trips to the prison, which entitles him — or enables us to seek a punishment range of two to 20 years in prison." The Court then elaborated in appellant's presence:

With regard to the legal questions raised by [appellant], as the Judge, I have to follow the law, and the State in this case has indicted [appellant] on a state jail felony, correct, 180 days minimum and the max of two years and the fine. However, the State, in their indictment, should the jury return a finding of guilty, then the State is alleging two enhancements, two prior convictions. They have the burden of proving to the jury beyond a reasonable doubt at a punishment phase that those were prior convictions, but if they — if they return a verdict of guilty and the State reads these enhancement paragraphs at the punishment phase, I will be required to instruct them on what the law is about the burden of proof, and I will instruct the jury, if there is a punishment phase, you know, like, if they find beyond a reasonable doubt two prior convictions, then the maximum range is 20 years and a ten thousand dollar fine.

The parties conducted voir dire, in which the prosecutor repeated in appellant's presence that the maximum punishment was twenty years, and appellant changed his plea the following day. Law Article 26.13 of the code of criminal procedure requires the trial court to give a defendant certain admonishments before accepting his guilty plea. See Tex. Code Crim. Proc. Ann. art. 26.13(a). Among the admonishments that the trial court must give is the range of punishment for the charged offenses. See id. art. 26.13(a)(1). The trial court may give the admonishments either orally or in writing. Id. art. 26.13(d). Substantial compliance is sufficient unless the defendant affirmatively shows he was not aware of the consequences of his plea and that he suffered harm or the admonishments otherwise misled him. Id. art. 26.13(c). If the trial court does not admonish the defendant, it does not substantially comply with article 26.13, and error occurs. See Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App. 2002). Failure to admonish is statutory error; therefore, we evaluate harm using the non-constitutional harm analysis set out in rule 44.2(b). See Tex.R.App.P. 44.2(b); Anderson v. State, 182 S.W.3d 914, 918 (Tex.Crim.App. 2006). Neither party has the burden to show harm. See Anderson, 182 S.W.3d at 918. Rather, we must look to the record as a whole, including the severity of the error, measures taken to cure the error, and the certainty of conviction without the error. Id. at 918-19. To warrant a reversal on direct appeal, the record must support an inference that appellant did not know the consequences of his plea. Burnett, 88 S.W.3d at 638. The question we must decide in applying rule 44.2(b) is whether, considering the record as a whole, we have a fair assurance that appellant's decision to plead guilty would not have changed had the trial court admonished him. Anderson, 182 S.W.3d at 919. Analysis Appellant's letter, the ensuing responses from the State and trial court, and the prosecutor's representation of the maximum punishment range on voir dire indicate that appellant had been told and understood that he was eligible for punishment in the second degree felony punishment range should the jury find both enhancement paragraphs true. We conclude that appellant pleaded guilty with the full knowledge that the jury could sentence him within the range for second degree felonies. The trial court did not commit error in failing to again admonish him on the range of punishment. Even if it had, we have a fair assurance that appellant's decision to plead guilty would not have changed had the trial court again admonished him on punishment. Anderson, 182 S.W.3d at 919. We overrule appellant's second issue.

PROSECUTORIAL VINDICTIVENESS

In his third issue, appellant contends that the trial court erred in overruling his motion to strike the enhancement paragraphs from the indictment. He argues that the original indictment did not contain enhancement paragraphs and that the superceding indictment with two enhancements, under which he received a twenty-year sentence, raises a presumption of prosecutorial vindictiveness in violation of North Carolina v. Pearce, 395 U.S. 711 (1969) (considering the constitutional problems that arise when, following a successful appeal and reconviction, a criminal defendant was subjected to a greater punishment than that imposed at the first trial) and Blackledge v. Perry, 417 U.S. 21 (1974) (considering whether the State violated appellant's constitutional rights when it charged him with a felony after appellant appealed a misdemeanor conviction for the same conduct). The State responds that appellant has failed to meet either prong of the test for prosecutorial vindictiveness articulated in Neal v. State, 150 S.W.3d 169 (Tex.Crim.App. 2004). We agree. Law A defendant may establish a constitutional claim of prosecutorial vindictiveness in either of two distinct ways: 1) proof of circumstances that pose a realistic likelihood of such misconduct sufficient to raise a presumption of prosecutorial vindictiveness, which the State must rebut or face dismissal of the charges, see United States v. Johnson, 171 F.3d 139, 140-41 (2nd Cir. 1999), or 2) proof of actual vindictiveness through direct evidence that the prosecutor's charging decision is an unjustifiable penalty resulting solely from the defendant's exercise of a protected legal right, see United States v. Goodwin, 457 U.S. 368, 380-81 (1982). Neal, 150 S.W.3d at 173. Under the first prong, if the State pursues increased charges or an enhanced sentence after a defendant is convicted, exercises his legal right to appeal, and obtains a new trial, the Supreme Court has found a presumption of prosecutorial vindictiveness. See Goodwin, 457 U.S. at 381 (noting that "once a trial begins — and certainly by the time a conviction has been obtained it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. . . . [A] change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pre-trial decision"). In the very few situations in which this presumption does apply, it can be overcome by objective evidence in the record justifying the prosecutor's action. Neal, 150 S.W.3d at 173-74. The defendant must prove that he was convicted, he appealed and obtained a new trial, and that the State thereafter filed a greater charge or additional enhancements. Id. at 174. The burden then shifts to the prosecution to come forward with an explanation for the charging increase that is unrelated to the defendant's exercise of his legal right to appeal. Id. The trial court decides the issue based upon all of the evidence, pro and con, and the credibility of the prosecutor's explanation. Id. Under the second prong, when the presumption does not apply, the defendant may still obtain relief if he can show actual vindictiveness. See Texas v. McCullough, 475 U.S. 134, 138 (1986). To establish actual vindictiveness, a defendant must prove, with objective evidence, that the prosecutor's charging decision was a direct and unjustifiable penalty that resulted solely from the defendant's exercise of a protected legal right. Neal, 150 S.W.3d at 174. Under this prong, the defendant shoulders the burden of both production and persuasion, unaided by any legal presumption. Id. (citing United States v. Sarracino, 340 F.3d 1148, 1177-79 (10th Cir. 2003); United States v. Moulder, 141 F.3d 568, 572 (5th Cir. 1998)). Once again, the trial judge decides the ultimate factual issue based upon the evidence and credibility determinations. Neal, 150 S.W.3d at 174-75. Under either prong, "[i]f the defendant is unable to prove actual vindictiveness or a realistic likelihood of vindictiveness, a trial court need not reach the issue of government justification." Neal, 150 S.W.3d at 175. That is, the State may stand mute unless and until the defendant carries his burden of proof under either prong. Id. Analysis Appellant argues that the State's delay in seeking the enhancements alone raises a presumption of vindictiveness. The record does not reveal whether or not the State delayed in seeking the enhancements, and in any event, the State pleaded the enhancements before trial. Accordingly, the first prong does not apply. Under the second prong of the Neal test, appellant raises nothing more than the bare claim that because the victim in the instant case is a former prosecutor, the Dallas County District Attorney's Office determined to prosecute his case more rigorously and add the enhancements twelve months after the initial indictment and fifteen days before trial. First, appellant fails to articulate a legal right he exercised that incited a charging increase. See Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (emphasizing that due process violation in prosecutorial vindictiveness cases "lay not in the possibility that a defendant might be deterred from the exercise of a legal right" but "rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction"). And second, bare assertions, without objective evidence, do not satisfy the second prong of the Neal test, and the State bears no burden to rebut any claim of prosecutorial vindictiveness when an appellant has failed to meet the burdens of production and persuasion. We overrule appellant's third issue.

CONCLUSION

We conclude that the trial court did not err. We affirm the trial court's judgment. Tex.R.App.P. 43.2(a).