Gray v. State

Full title: LANORRIS DEVIYON GRAY, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Jun 8, 2011

Nos. 05-09-00928-CR, 05-09-00929-CR, 05-09-00930-CR, 05-09-00931-CR (Tex. App. Jun. 8, 2011)

Opinion

Nos. 05-09-00928-CR, 05-09-00929-CR, 05-09-00930-CR, 05-09-00931-CR

Opinion Filed June 8, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F08-55511-NS, F08-13076-NS, F06-86426-US, F06-15151-NS.

Before Justices MURPHY, FILLMORE, and MYERS.

OPINION

Opinion By Justice FILLMORE.

In 2006, LaNorris Deviyon Gray pleaded guilty to criminal mischief (F06-15151-NS) and to burglary of a habitation (F06-86426-US). The trial court sentenced Gray to two years' confinement on the criminal mischief offense, but probated the sentence for four years. The trial court deferred adjudicating Gray's guilt on the burglary of a habitation charge and placed Gray on community supervision for a period of ten years. In 2008, Gray was charged with two aggravated robbery offenses (F08-55511-NS and F08-13076-NS). The State also moved to revoke Gray's community supervision on the criminal mischief conviction and to adjudicate Gray guilty of the burglary of a habitation charge. Gray waived a jury, entered an open plea of guilty to both aggravated robbery offenses, and pleaded true to the allegations he violated the terms of his community supervision in the criminal mischief and burglary of a habitation cases. The trial court (1) found Gray guilty of both aggravated robbery offenses and sentenced him to twenty-five years' imprisonment in each case, (2) adjudicated Gray guilty of burglary of a habitation and sentenced him to ten years' imprisonment, and (3) revoked Gray's community supervision on the criminal mischief conviction and sentenced him to ninety days' confinement in the county jail. Gray appeals, arguing in four points of error that the trial court erred by accepting Gray's plea of guilty to one of the aggravated robbery charges (F08-13076-NS); by finding Gray guilty of aggravated robbery, rather than robbery, in cause number F08-13076-NS; by improperly admitting into evidence a competency evaluation performed on Gray; and by sentencing Gray to terms of confinement in each case. We affirm the trial court's judgments in cause numbers F08-13076-NS, F06-86426-US, and F06-15151-NS. As modified, we affirm the trial court's judgment in cause number F08-55511-NS.

Acceptance of Plea

In his first two points of error, Gray asserts the trial court erred by accepting Gray's guilty plea to one of the aggravated robbery charges (F08-13076-NS) and by finding Gray guilty of aggravated robbery in that case. A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he (1) intentionally, knowingly, or recklessly causes bodily injury to another or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.02(a)(1) (West 2011). As relevant in this case, a person commits aggravated robbery if he commits robbery and (1) causes serious bodily injury to another or (2) uses or exhibits a deadly weapon. Id. § 29.03. The indictment in this case charged that Gray, in the course of committing the theft of money from Se O, intentionally and knowingly caused bodily injury to the complainant by kicking the complainant's leg and by hitting the complainant's head and neck with a gun and that Gray exhibited a deadly weapon, the gun, during the offense. Gray pleaded guilty to the charge and signed a judicial confession stating he committed the offense exactly as alleged in the indictment. During the plea hearing, Gray admitted he committed the robbery alone. He contradicted the judicial confession by denying he used a gun during the robbery. He testified that he simulated a gun with his hand and then wrapped his hand in a tee shirt. However, he also admitted he gave a written statement to the police in which he admitted having a gun during the robbery, but claimed the gun was not loaded. Gray testified the police detective was threatening to file charges against his girlfriend, so he wrote what the detective told him to write. The trial court recessed the hearing to allow Gray to consult with his attorney. After the break, Gray's trial counsel stated Gray did not want to withdraw his plea. The trial court then indicated it would treat Gray's plea as an Alford¹ plea and explained that meant Gray wanted to "essentially maintain that I didn't use a gun, but I still want to plead guilty to it." Gray responded, "I didn't understand you. Like you said, you mean, like if I was still pleading guilty even though I say I didn't have a gun, I'm still pleading guilty to a aggravated robbery with a deadly weapon?" The trial court responded, "Yes." Gray then said, "Yes, sir." The trial court asked whether Gray was waiving his right to appeal on that issue, and Gray responded, "Yes, sir." Gray then testified again that he did not have a gun during the robbery and that he did not recall hitting or kicking the complainant during the robbery. Gray's attorney stipulated that photographs offered by the State were of the complainant but stated that Gray "doesn't have any clear recall that of — of — of those injuries. So we're stipulating that that is the victim, but as far as stipulating that those injuries were caused in this particular incident when he — when he — we would not stipulate to that." Relying on North Carolina v. Alford, 400 U.S. 25 (1970), Gray argues in his first point of error that the trial court erred by accepting Gray's plea of guilty to the aggravated robbery charge. Specifically, Gray asserts the trial court abused its discretion by continuing with the plea after Gray testified that he did not use a gun during the robbery. The due process standard for determining the validity of a guilty plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Id. at 31. "Due process of law is not denied by a conviction based on a plea of guilty that is accompanied by `a strong factual basis for the plea demonstrated by the State and [a defendant]'s clearly expressed desire to enter it despite his professed belief in his innocence.'" Mendez v. State, 138 S.W.3d 334, 344 (Tex. Crim. App. 2004) (quoting Alford, 400 U.S. at 38). Except for two relatively small categories of error, a timely and specific objection, motion, or complaint and a ruling by the trial court are required to preserve a complaint for appellate review. Tex. R. App. P. 33.1(a); Mendez, 138 S.W.3d at 342; Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003) (only violations of "rights which are waivable only" and denials of "absolute systemic requirements" may be raised for first time on appeal). The court of criminal appeals has concluded that, when evidence inconsistent with guilt is admitted following a guilty plea, the defendant is required to timely seek, in one way or another, to withdraw his plea of guilty in the trial court in order to preserve error. Mendez, 138 S.W.3d at 350;²see also Aldrich, 104 S.W.3d at 892, 896 (after testifying in manner inconsistent with guilt, defendant was required to withdraw plea or seek acquittal or conviction on lesser-included offense in order to preserve any error by trial court in "not rejecting" defendant's plea of guilty). The court of criminal appeals has specifically noted that the defendant waives "some important, constitutional rights" by choosing to plead guilty and:

it is appropriate that the defendant be required to take some affirmative action to don the armor again. The number of cases in which defendants want to "un-waive" their right to plead not guilty is small, the appearance of evidence that is inconsistent with guilt is unpredictable, the significance of such-evidence should be more apparent to the defense than to the trial court, and cases are common in which there is some evidence in the defendant's favor but the defendant (like Alford) has validly chosen to plead guilty after weighing the advantage of such a plea against the chance of acquittal.

Mendez, 138 S.W.3d at 350. Gray entered the guilty plea after being properly admonished by the trial court and judicially admitted he committed the offense exactly as alleged in the indictment. The trial court specifically called to Gray's attention the inconsistency between his plea of guilty and his testimony about not using a gun during the robbery and allowed Gray to consult with counsel. See id. Gray did not ask to withdraw his plea; rather, he affirmatively represented to the trial court that he wanted to continue to plead guilty. He requested to continue on community supervision and receive treatment for his drug abuse and mental health issues. Gray presumably thought it was in his best interest to proceed on his plea of guilty, rather than seek to withdraw it. See id. Because Gray did not seek to withdraw his plea in the trial court, he cannot complain for the first time on appeal about the trial court proceeding on the plea. See Mendez, 138 S.W.3d at 350; Aldrich, 104 S.W.3d at 896; Starks v. State, 266 S.W.3d 605, 613 (Tex. App.-El Paso 2008, no pet.).³ We overrule Gray's first point of error. In his second point of error, Gray contends the trial court erred by finding him guilty of aggravated robbery in cause number F08-13076-NS rather than guilty of the lesser-included offense of robbery. If a defendant waives a jury and pleads guilty before the trial court, the State must "introduce evidence into the record showing the guilt of the defendant." Tex. Code Crim. Proc. Ann. art. 1.15 (West 2005). However, this supporting evidence does not have to prove the defendant's guilt beyond a reasonable doubt. McGill v. State, 200 S.W.3d 325, 330 (Tex. App.-Dallas 2006, no pet.). Rather, evidence is sufficient to support a judgment if it embraces "every essential element of the offense charged." Id. Accordingly, our review is limited to a determination of whether the State introduced evidence of guilt embracing every element of the offense charged. Tijerina v. State, 264 S.W.3d 320, 323 (Tex. App.-San Antonio 2008, pet. ref'd); see also McGill, 200 S.W.3d at 331 (defendant's choice to plead guilty alters standard of review for appellate court). If, in a trial before the court, evidence is introduced that makes evident the innocence of the defendant or that reasonably and fairly raises an issue as to the defendant's guilt, the trial court has the authority to consider the evidence submitted and find the defendant guilty, not guilty, or guilty of a lesser-included offense. Aldrich, 104 S.W.3d at 893-94; McGill, 200 S.W.3d at 330. Here, Gray judicially confessed that he committed the offense of aggravated robbery exactly as alleged in the indictment. A judicial confession alone is usually sufficient to satisfy the requirements of article 1.15 "so long as such a judicial confession covers all of the elements of the charged offense." Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009); see also Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1980) (op. on reh'g) (judicial confession sufficient to sustain conviction upon plea of guilty). However, in addition to the judicial confession, the State introduced Gray's written statement given after his arrest in which he admitted he committed the robbery and used a gun during the offense, but claimed the gun was not loaded. Finally, the trial court heard Gray's testimony in which he denied he used a gun during the robbery, explained he gave the written statement to prevent charges from being filed against his girlfriend, and stated he could not recall kicking or hitting the complainant. The trial court, acting as the fact finder, could have reasonably resolved the conflicting evidence against Gray. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Aldrich, 104 S.W.3d at 893-94. We conclude the evidence before the trial court embraced every constituent element of the charged offense. Accordingly, the trial court did not abuse its discretion by finding Gray guilty of aggravated robbery. We overrule Gray's second point of error.

Admission of Competency Evaluation

In his third point of error, Gray asserts he is entitled to a new trial in all four cases because the trial court erred by admitting into evidence a competency evaluation of Gray prepared by Dr. Michael Pittman. Gray specifically argues the evaluation contained hearsay and he was denied his right to confront and cross-examine Dr. Pittman on the statements in the evaluation. We review the trial court's decision to admit evidence for an abuse of discretion. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009). "We consider the ruling in light of what was before the trial court at the time the ruling was made and uphold the trial court's judgment if it lies within the zone of reasonable disagreement." Id. Prior to Gray entering the pleas, Gray's attorney requested a competency evaluation be performed on Gray. The trial court appointed Dr. Pittman to evaluate Gray, and Dr. Pittman concluded Gray was competent to stand trial. During the plea hearing, Gray offered testimony from himself and other witnesses that he suffered from auditory hallucinations and other mental illness. The State sought to introduce Dr. Pittman's evaluation into evidence in order to attack Gray's credibility. The State specifically sought to cross-examine Gray about Dr. Pittman's conclusion that Gray's description of the auditory hallucinations "was not consistent with that seen in serious mental illness" and about Dr. Pittman's observation that Gray "denied hallucinations on a screening evaluation." Gray objected that the evaluation was hearsay and violated his right to confront the witnesses against him. The trial court admitted the evaluation for the limited purpose of Gray's credibility. Even if the trial court erred by admitting the evaluation, we cannot conclude Gray was harmed. Rule of appellate procedure 44.2(b) provides that any error, other than constitutional error, that does not affect the defendant's substantial rights must be disregarded. Tex. R. App. P. 44.2(b); Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007) (applying standard of review under rule 44.2(b) to erroneous admission of evidence); see also Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007) (erroneous evidentiary ruling "generally constitutes non-constitutional error and is reviewed under Rule 44.2(b)"). A substantial right is affected when, after reviewing the record as a whole, a court concludes the error had a substantial and injurious effect or influence on the outcome of the proceeding. Burnett v. State, 88 S.W.3d 633, 637 n. 8 (Tex. Crim. App. 2002); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). In assessing harm, we examine the entire record and "calculate, as much as possible, the probable impact of the error upon the rest of the evidence." Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010), pet. for cert. filed, (No. 10-1271, Apr. 12, 2011). We consider, among other relevant factors, the testimony or physical evidence admitted for the fact finder's consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with the other evidence in the case. Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005); Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002). The weight of the evidence of the defendant's guilt is also relevant in conducting the harm analysis under rule 44.2(b). Neal v. State, 256 S.W.3d 264, 285 (Tex. Crim. App. 2008); Motilla, 78 S.W.3d at 357. Here, the complained-of evaluation is neither substantial nor injurious when the record is considered as a whole. Gray had previously been placed on community supervision in both the criminal mischief and burglary of a habitation cases. Gray pleaded true to the allegations he violated the terms of his community supervision in each case, demonstrating he was not a good candidate for continued community supervision. Gray also judicially confessed to the two aggravated robbery offenses and there was evidence the complainant in each robbery was injured during the offense. There was also evidence that Gray had been charged with an additional aggravated robbery in Denton County. As to the issue of Gray's credibility, the trial court had the opportunity to observe Gray during his testimony. The trial court heard Gray's testimony about not using a gun during one of the aggravated robberies and had before it Gray's contradictory written statement that he did use a gun during the robbery. The trial court heard testimony from Gray, his father, his father's girlfriend, and his brother about the claimed auditory hallucinations, Gray's drug use and possible mental illness, the circumstances of Gray's childhood, and that with treatment Gray could be successful on community supervision. The trial court also heard testimony about Gray's conduct while he was on community supervision and his father's attempts to have the probation department assert more control over Gray. Based on the record, we cannot conclude the admission of Dr. Pittman's evaluation for the purpose of attacking Gray's credibility had a substantial or injurious effect on the outcome of the proceeding. Accordingly, Gray was not harmed by any error by the trial court in admitting the evaluation for the limited purpose of attacking Gray's credibility. We overrule Gray's third point of error.

Sentencing

In his fourth point of error, Gray contends the trial court abused its discretion and violated the objectives of the penal code by sentencing him to confinement on each of the offenses because the sentences are merely punitive and not necessary to prevent the recurrence of his criminal behavior. Gray asserts that in light of his "obvious mental issues and long-term drug use any sentence of imprisonment, without provisions for intensive psychiatric care and drug treatment, is overly harsh and designed to thwart proper rehabilitation." Gray did not complain about the sentences either at the time they were imposed or in any motion for new trial. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.) (for error to be preserved for appeal, the record must show appellant made a timely request, objection, or motion). Thus, Gray has not preserved this complaint for our review. In addition, we note that, as a general rule, punishment assessed within the statutory range for an offense is not excessive or unconstitutionally cruel or unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd). In this case, the trial court imposed punishments within the statutory range for each offense. See Tex. Penal Code Ann. §§ 29.03(b) (aggravated robbery is first degree felony);12.32 (West 2011) (punishment range for first degree felony is confinement for term of five years to ninety-nine years or life and fine not to exceed $10,000); 30.02(c)(2) (West 2011) (burglary of habitation is second degree felony); 12.33 (West 2011) (punishment range for second degree felony is confinement for term of two to twenty years and fine not to exceed $10,000); 28.03(b)(4) (West 2011) (criminal mischief resulting in pecuniary loss of $1,500 or more but less than $20,000 is state jail felony); 12.44 (West 2011) (after considering gravity and circumstances of offense and history, character, and rehabilitative needs of defendant, trial court may punish defendant convicted of state jail felony by imposing confinement permissible as punishment for Class A misdemeanor); 12.21(2) (West 2011) (confinement permissible for Class A misdemeanor is term in jail not to exceed one year). We conclude the trial court did not abuse its discretion by sentencing Gray to confinement on each offense. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (as long as a sentence is within the proper range of punishment, it will not be disturbed on appeal). We resolve Gray's fourth point of error against him.

Modification of Judgment

In one of the aggravated robbery offenses (F08-55511-NS), Gray was charged with a violation of section 29.03 of the penal code. However, the trial court's judgment recites Gray was convicted under section 22.02 of the penal code. We may modify the trial court's written judgment to correct a clerical error when we have the necessary information before us to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly, on our own motion, we modify the trial court's judgment in cause number F08-55511-NS to reflect Gray was convicted under section 29.03 of the penal code. We affirm the trial court's judgments in cause numbers F08-13076-NS, F06-86426-US, and F06-15151-NS. As modified, we affirm the trial court's judgment in cause number F08-55511-NS.