Opinion
No. 05-04-00423-CR
Opinion Filed June 7, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-48324-HP. Affirm.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
OPINION
Appellant Linda Henderson entered an open plea on a charge of delivery of cocaine, and she pleaded true to two enhancement paragraphs. The trial court sentenced Henderson to five years' confinement and a $1500 fine. Henderson appeals, alleging that (1) her guilty plea was involuntary because she was not taking prescribed medication when the plea was entered, and (2) the trial court should have granted her motion for new trial for the same reason. We affirm the trial court's judgment.
Background
The record on appeal actually contains transcripts of four different hearings in this cause. Because of the nature of the claim, we address the portions of each hearing that touched on Henderson's medication. The first hearing was on February 24, 2004 and addressed Henderson's motion to reduce bail. Henderson testified that she could raise the bond for a lesser bail, she had a job waiting for her if released, and she had a place to live. She also testified that she had "some concerns" about getting her medication in jail. She testified she took four different medications because she is schizophrenic and depressed, but she had not been getting the medication in jail. The judge announced she would reduce the bond but would impose certain conditions, which included assurances Henderson would take her medications. Later that same day, a second hearing took place in which Henderson pleaded guilty to delivery of cocaine and pleaded true to the two felony enhancement offenses. The trial court admonished Henderson and thoroughly questioned her concerning her plea and her understanding of the effects of that plea. The judge asked specifically whether Henderson was pleading freely and voluntarily; Henderson said she was. Henderson's written confession and plea of true were admitted into evidence without objection and both sides rested. At that point the trial court specifically asked Henderson's attorney: "You are satisfied that your client is competent?" The attorney responded that she was. The trial court then asked Henderson: "Have you understood everything that's gone on today in your case?" She responded that she had. The trial court then accepted the plea, found Henderson mentally competent to make the plea, and found the plea was freely and voluntarily made. Without entering findings of guilt, the court arranged for further adjudication, if any, and punishment to be determined at a future date. The remainder of Henderson's plea hearing took place on March 29, 2003, more than a month after the earlier proceedings. The defense put on a number of witnesses who testified in support of placing Henderson on probation. There was also specific testimony concerning Henderson's mental illness and her medication. Alison Clark — Dallas MetroCare Services' jail liaison — testified that Henderson had a prior diagnosis of mental illness. Clark testified that the jail records indicated Henderson was currently receiving medication in jail. Henderson testified again, this time stating that she was currently taking medication for her mental condition, although she had not had her dose that morning. When her attorney asked whether she understood what was happening at the hearing, Henderson responded that she did. Ultimately, the trial court again found Henderson's plea was freely and voluntarily made and that she was mentally competent to enter the plea. This time the court entered findings of guilt. But rather than placing Henderson on probation as she had requested, the court assessed her punishment at five years' confinement and a $1500 fine. Henderson filed a motion for new trial the next day, March 30, which argued that Henderson did not "fully comprehend" the plea proceeding the day before. According to the motion, Henderson should have been evaluated for competency before she appeared before the trial court because Henderson's "mental condition and the medication which was administered to her during her incarceration in Lew Sterrett Detention Center rendered her unable to assist her counsel in adequately preparing her case." Henderson also filed a separate motion for a psychiatric exam, and on April 12, 2004, the trial court ordered Dr. Michael Pittman to examine Henderson and to file his report with the court. Dr. Pittman examined Henderson on April 15, and he issued a two-part report that concluded Henderson was both sane at the time of the offense and competent to stand trial. Dr. Pittman opined that Henderson understood the charges against her and "knew the potential consequences of the proceedings." He referred to her taking anti-psychotic medicine, which was necessary to maintain her competency but which did not itself render her incompetent. Dr. Pittman stated that he reviewed a criminal database, but that "the jail could not locate any medical records concerning her." Finally, on April 26, 2004, the trial court heard Henderson's motion for new trial. Once again, Henderson testified. She identified the prescribed medications she was taking at the time. However she testified that when she entered her open plea she was not receiving any of those medications. Henderson professed not to have understood some portion of what she was in court "to accomplish" at the March 29 hearing. She testified that she had asked more than once for her medications before March 29, but she was not given any of them. At one point she stated, "I had medicine, but they wouldn't give them to me." At another point she testified she had been off her medication for two years. In closing, Henderson's counsel argued that Henderson had not been on medication at the time of her open plea. He argued that Dr. Pittman's statement that there were no medical records available at the jail supported Henderson's argument that she had not been on medication. And he asked again to have Henderson placed on probation. The trial court denied the motion for new trial, taking judicial notice of Dr. Pittman's report and specifically relying on several of his conclusions, namely that Henderson:rationally understood the charges against her, she knew the potential consequences of the proceedings and that she was able to discuss her actions and thoughts and the time period surrounding the alleged offense, and that she also seemed to make reasonable choices in matters concerning her legal situation. She understood the adversarial nature of the courtroom.Henderson appealed.
Voluntary nature of the Pleas
Henderson's first issue argues that her guilty plea and plea of true were involuntary because she did not understand the consequences of those pleas. No guilty plea may be accepted by the trial court unless it appears the defendant is mentally competent and the plea is made freely and voluntarily. Tex. Code Crim. Pro. art. 26.13(b) (Vernon 1989). To determine whether a guilty plea was voluntary, we look to the totality of the circumstances, and we review the entire record. Ybarra v. State, 960 S.W.2d 742, 745 (Tex.App.-Dallas 1997, no pet.). A record of proper admonishment makes a prima facie showing that a plea was knowing and voluntary. Id. The burden then shifts to the defendant to show the plea was not voluntary. Id. In this case there is no question Henderson was properly admonished. Accordingly, to prevail on this issue, Henderson was required to make an affirmative showing that she was not aware of the consequences of her plea. See Tex. Code Crim. Pro. art. 26.13(c); see also Martinez v. State, 981 S.W.2d 195, 196-97 (Tex.Crim.App. 1998). The record does not support such a conclusion. Henderson's argument on appeal relies exclusively on the premise that she was denied her medication at the time she entered her plea and that without the medication, she could not understand the effect of her plea. This has not always been Henderson's argument. Initially, Henderson's motion for new trial argued that her plea was involuntary not because she was denied medicine, but because the medication she was taking left her unable to assist her counsel. However Dr. Pittman's report — issued after the motion was filed but before the hearing on the motion — rejected this theory, saying that Henderson's medicines were necessary but not debilitating. At the hearing on the motion, Henderson argued that it was the absence of medicine that had rendered the plea involuntary. Henderson's appellate premise — that she was denied medication — is not established in the record. Henderson did testify when she wanted her bond reduced that she had some concerns about getting her medications in jail; she testified at the hearing that she was not getting her prescribed medications. That same day she first entered her plea; the issue of her medication was not raised, but her attorney stated on the record that Henderson was competent and Henderson stated she understood everything that had gone on in the courtroom that day. Although punishment issues were not heard until more than a month later, the proceedings are considered unitary. See Carroll v. State, 975 S.W.2d 630, 631 (Tex.Crim.App. 1998) (once guilty plea is entered, procedure becomes "unitary trial" to determine remaining issue of punishment). At the second hearing, Henderson testified she was getting her medication at that time, although she had not had her dose that day. Likewise, Dallas MetroCare Services' jail liaison testified that she had reviewed jail records that indicated Henderson was receiving medication in jail at the time of the second hearing. A plea of guilty is not final until the trial court enters judgment. Bowie v. State, 135 S.W.3d 55, 64 (Tex.Crim.App. 2004). A defendant may withdraw his guilty plea as a matter of right up until the judgment has been pronounced or the case has been taken under advisement. Saldana v. State, 150 S.W.3d 486, 490 (Tex.App.-Austin 2004, no pet.). The record establishes that by the end of the guilty-plea proceeding, Henderson was taking her medication. She could have withdrawn her plea at that point if she had not understood its implications when it was entered, but she did not. To the contrary, she testified that she did understand the proceedings. She answered questions coherently and even read a letter she had written to the court requesting probation. Only when the trial court denied her probation did Henderson argue that her plea had been involuntary. She did testify at the hearing on her motion for new trial that she had been repeatedly denied her medicine at the March 29 hearing. But to the extent that this testimony conflicted with her own earlier testimony, the trial court was the appropriate judge of Henderson's credibility. See Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd) (appellate court must defer to factfinder and may not substantially intrude upon factfinder's role as sole judge of weight and credibility of witnesses). Henderson has failed to make an affirmative showing that she did not understand the effect of her plea. Accordingly, she has not carried her burden to establish her plea was involuntary. We decide her first issue against her.Motion for New Trial
In her second issue, Henderson argues that the trial court abused its discretion in overruling her motion for new trial. Henderson correctly asserts that the granting or denial of a motion for new trial is a matter entirely within the trial court's discretion. See Melton v. State, 987 S.W.2d 72, 75 (Tex.App.-Dallas 1998, no pet.). However, Henderson's entire argument under this issue states:As previously discussed in Issue No. One, and incorporated herein by reference, Henderson's pleas were involuntarily made because she was not receiving her prescribed medication at the time of entering the pleas. She suffered from major depression and heard voices. Based on the evidence presented, the trial court should have granted the Motion for New Trial.Henderson is relying upon precisely the same ground in this issue as she did in her first issue. We have already concluded that Henderson has not established that her plea was involuntary. Accordingly, the trial court did not abuse its discretion in denying the motion for new trial. We decide Henderson's second issue against her.