Nos. 05-10-00440-CR, 05-10-00441-CR, 05-10-00442-CR
Opinion Filed October 24, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause Nos. F09-30354-I, F09-59040-I, and F09-59041-I.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
Opinion By Justice MORRIS.
Although Charles Edward Martinez entered guilty pleas to two charges of assault causing bodily injury and one charge of aggravated assault, he sought at his sentencing hearing to withdraw the pleas and plead not guilty instead. The trial court refused his request. He now complains on appeal that the trial court violated his right to due process by accepting the pleas, violated his right to withdraw his pleas, and erred by denying his request for a hearing on his amended motion for new trial in each case. He further complains that he received ineffective assistance of counsel. Concluding appellant's contentions are without merit, we affirm the trial court's judgments.
Factual Background
On February 5, 2010, appellant entered his guilty pleas to the charged offenses without the benefit of a plea bargain. He affirmed that was aware of the punishment range for the offenses and that he was entering the pleas freely and voluntarily. The State introduced appellant's judicial confessions into evidence. The trial judge commented that appellant appeared to be mentally competent. The judge also stated, "The Court finds the evidence presented substantiates the defendant's guilt for the [charged offenses] but will not make a finding of guilt at this time and pass the case[s] over for further proceedings and will find the enhancement paragraphs to be true." On April 2, 2010, before the State called its first witness, defense counsel asked the trial court to consider allowing appellant to withdraw his guilty pleas. The trial court denied the motion. Elizabeth Martinez, appellant's wife and the mother of two of his children, testified at the hearing that he had assaulted her multiple times on a weekly basis. She stated on February 27, 2009, when appellant was no longer living with her, he cornered her and started punching her in the chest, then he threw her to the ground. Martinez did not report the offense until May 2009. She stated that she chose to report the offense at that time because appellant was making harassing phone calls to her and making it clear he was not going to move on with his life. Martinez admitted she had previously served eight years' probation for possessing fourteen pounds of marijuana. She denied posting messages on her MySpace account saying that she is the only "real Mrs. Martinez" and bragging that appellant was now in jail. Martinez claimed her daughter may have posted the messages because she has the password to her account. Appellant's previous wife, Eba Monuz Castillo also testified. Castillo stated that appellant beat her only one time and then she left him. She claimed that since that time she and appellant have had a good relationship and she has never seen him physically abuse anyone. In Castillo's opinion, Martinez was not trustworthy. Castillo stated that she believed Martinez would lie in court "to get what she wants." Testifying in his defense, appellant stated that he is on "some medication" and maintained that he was not guilty of the charged offenses. He stated that he realized when talking with the probation department about his cases that he could not have had any disagreement with Martinez on February 27, 2009 because he was in court for parking tickets on that day with his girlfriend Diana Premaux. He offered a receipt for the payment of the tickets into evidence. The date on the receipt is "2/27/2009," and the time is 8:43 a.m. Appellant claimed that after he was in court, he and Premaux went out to eat. Then they bought tattoo supplies and went home at approximately 6:00 p.m. According to appellant, he tattooed that evening Premaux's son Paul and Paul's girlfriend Maricella. He claimed he never saw Martinez that day and had been living with Premaux for two days at the time. Appellant claimed Martinez made so many harassing phone calls to him that in May 2009 he filed a complaint against her with the Irving police department. Appellant admitted he had previously been convicted of distributing marijuana, delivery of a controlled substance, and money laundering. He was also convicted of assaulting Martinez in 2006. Appellant stated that he has been diagnosed with "[m]ajor depression and paranoia." He said he took four different medications to treat his conditions, including an anti-psychotic drug used to treat mood disorders, but he had stopped taking these medications before he was jailed. Appellant said that he had been on medication while in jail and that he thought it helps him. He stated he feels different when he is taking the medication. He had been in jail four months at the time of trial. Appellant claimed that he had never assaulted Martinez. He stated that when he pleaded guilty to assaulting her, he was thinking that he was "going to get probation." He further claimed that when he pleaded guilty to assaulting Martinez in the past, he had not actually assaulted her then either. He admitted he had abused Castillo in the past. Appellant did not testify about the alleged assault and aggravated assault against Premaux, but she testified for the defense. She claimed she was with appellant on February 27, 2009 when he went to court to pay for tickets and was with him the rest of the day. She recalled that he did several tattoos that night, including tattoos on her son Paul and his girlfriend Maricella. Premaux stated that Martinez is constantly calling appellant's cell phone, and that appellant had tried to get a protective order against her. In addition, Premaux testified that she had lied to police about appellant assaulting her. She said that she made two separate false reports to the police because she was mad at appellant. She also claimed that her daughter called 911 and told the dispatcher that appellant was beating up her mother only because Premaux told her to do so. She claimed the injuries shown in photographs taken to document one of the assaults actually were either injuries caused by her falling off a truck or "hickeys" from appellant. Premaux testified that appellant had been diagnosed with major depression, paranoia, a sleeping disorder, and mood disorders. She stated that he had never been abusive to her and she had never seen him be abusive to anyone. According to Premaux, the only person appellant has a bad relationship with is Martinez. Premaux's son also testified for the defense. He recalled that appellant gave his girlfriend her first tattoo on February 27, 2009 because that was the anniversary of when he and Maricella "got together." He could not recall whether he got a tattoo that day because he was going through withdrawal from heroin at the time. Premaux's son recalled that on September 11, 2009, his mother and appellant exchanged words. He acknowledged that she had a hammer at one point, but he did not know how the altercation ended because he left. He stated that he lives with Premaux and appellant and has never seen appellant assault Premaux. During closing argument, defense counsel stated, "I have had a lot of opportunities to talk to [appellant]. Clearly he has had a lot of issues. He's on a lot of medication — he seems like a whole 'nother [sic] person." The trial court found appellant guilty of all three offenses. In his amended motion for new trial, appellant alleged the verdicts and judgments in each case were contrary to the law and the evidence and his right to due process was violated because the trial court proceeded with the trial, did not withdraw appellant's pleas, and convicted and sentenced him "in the absence of a strong factual basis to support his plea and admissions." He also alleged that his right to due process was violated because his guilty pleas were not made voluntarily or knowingly, nor were his jury waivers made voluntarily or knowingly. Three affidavits were attached to the motion. The affidavit of Diana Premaux essentially reiterated her testimony at trial that appellant had never assaulted her on the dates alleged and noted that neither she nor her children ever talked to appellant's trial counsel, whom she had hired to defend appellant, about the charges involving her. She claimed that trial counsel was aware of appellant's mental problems before appellant entered his pleas in February 2010. According to her affidavit, appellant was taking four medications at that time, but he went off the medications for approximately three weeks when he was jailed for an insufficient bond starting in December 2009. Appellant's caseworker eventually got appellant back on his medications in jail. Premaux noted, "He did get substantially better after the date of that plea. He became more focused and stopped talking about killing himself and became very calm." Premaux also offered additional alibi witnesses for the assault against Martinez. Attached to her affidavit was a medical statement from Parkland Hospital dated October 2, 2009 listing appellant's diagnosis as "major depressive disorder, single episode, severe w/ psychotic features" and his prognosis as "g[uar]ded." The statement referenced appellant's ability to work as "Indefinite (a return to work is not immediately known but the condition may not be permanently disabling)." Also attached to the affidavit were statements from someone who claimed he got a tattoo from appellant on February 27, 2009 and a person who claimed Martinez had threatened she would put appellant back in prison if he left her for another woman. Appellant's trial attorney, Dwayne Corbett, stated in his affidavit that appellant had originally decided to enter guilty pleas because he was convinced that Martinez and at least one of his children would testify against him. Corbett informed appellant that a pre-sentence investigation would be performed and it would be important for appellant to accept responsibility for the charges at that time. When Corbett received a copy of the PSI, he noticed that appellant had disavowed any responsibility for the offenses. Appellant told him that after reviewing the facts of the cases with the PSI interviewer, he did not feel he was guilty of any of the offenses. At the time of this discussion, Corbett asserted, appellant's demeanor seemed completely different from his demeanor during their previous conversations. Corbett stated, "It is my opinion that the change is a direct result of the medications Mr. Martinez was taking." Corbett claimed that he then contacted the assistant district attorney assigned to the case and told her that he did not believe they could continue with a guilty plea and that the cases needed to be set for trial. They discussed the matter with the trial judge, who informed them that he would proceed with the plea. Corbett stated, I believe that due to Mr. Martinez's mental issues, and the medications that were prescribed while he was incarcerated in the Lew Sterrett jail, that he did not fully understand the meaning or the consequences of his initial pleas of guilt. I was not aware of the issue until my later discussions with Mr. Martinez, when I noticed a drastic change in his demeanor and personality. In appellant's affidavit, he alleged that he told Corbett he was innocent of all three charges against him but Corbett advised him to plead guilty so that he might get probation. He stated, "I would not have pleaded guilty and waived my right to a jury trial in my cases but for my lawyer saying that I could maybe get probation. If it were really my own decision, I would have otherwise insisted on having a jury trial in all three of my cases. I did not commit the offenses as alleged in the indictments." He repeated his alibi defense for the offense against Martinez. Appellant also stated, "I believe that my mental state played a role in my inability to deal with my lawyer. I believe that I might have stood up to him and refused to plead guilty in any of the cases, which is what I really wanted." He claimed that his medication "did not really kick in until after the plea proceeding." The trial court specifically acknowledged that the amended motions for new trial and appellant's requests for a hearing on the matter had been presented. The trial court, however, declined to rule on the motions and the requests, so the motion for new trial was denied by operation of law in each case. Discussion
In his first three points of error, appellant complains the trial court violated his right to due process by accepting his guilty pleas. He contends his pleas were "involuntary due to mental impairment from inadequate medication." At trial, however, appellant acknowledged that he was pleading guilty freely and voluntarily after being correctly admonished by the trial court about the consequences of his pleas Accordingly, appellant bears the burden of proving his pleas were involuntary over the prima facie showing that they were not. See Kirk v. State, 949 S.W.2d 769, 771 (Tex. App.-Dallas 1997, pet. ref'd). Nothing in the appellate records before us supports appellant's claim that he was medically impaired at the time of his pleas. Moreover, the allegations addressing this matter found in the affidavits attached to appellant's amended motion for new trial in each case are not evidence in this case. To constitute evidence, affidavits attached to a motion for new trial must be introduced into evidence. See Jackson v. State, 139 S.W.3d 7, 20 (Tex. App.-Fort Worth 2004, pet. ref'd). There was no hearing on appellant's amended motion for new trial. And nothing in our record reveals any attempt by appellant to have the affidavits admitted into evidence otherwise. Thus, the affidavits are not evidence in these cases. At trial, appellant testified that he pleaded guilty because he thought he was going to get probation in the cases. This claim does not demonstrate that his pleas were involuntary. We overrule points of error one through three. In points of error four through six, appellant complains the trial court erred in refusing to allow him to withdraw his guilty plea in each case. A defendant may withdraw his guilty plea as a matter of right until judgment has been pronounced or the case has been taken under advisement. See Thompson v. State, 852 S.W.2d 268, 269-70 (Tex. App.-Dallas 1993, no pet.). If a defendant requests to withdraw his guilty plea after the judge has taken the case under advisement, the withdrawal of the plea is within the sound discretion of the trial court. See id. at 270. After the trial court has admonished the defendant, received his plea and evidence, and passed the case for a pre-sentence investigation, the case has been taken under advisement. Houston v. State, 201 S.W.3d 212, 218 (Tex. App.-Houston [14th Dist.] 2006, no pet.). Appellant's cases had already been taken under advisement at the time he sought to withdraw his pleas. See id. As discussed in the first three points of error, appellant had already claimed he was aware of the consequences of his pleas and affirmed that he entered the pleas knowingly and voluntarily. The trial judge specifically stated that appellant appeared competent at the time he entered the pleas. Moreover, the trial judge was not bound to find appellant guilty simply because he had entered guilty pleas. After considering the evidence in the cases, he could find him guilty of the charged offenses, guilty of lesser included offenses, or not guilty of the charged offenses. See Aldrich v. State, 104 S.W.3d 890, 893-94 (Tex. Crim. App. 2003). Based on the record before us, we cannot conclude the trial court abused its discretion in refusing to allow appellant to withdraw his pleas. We overrule his fourth through sixth points of error. In his seventh through ninth points of error, appellant complains of ineffective assistance of counsel. He specifically complains that his attorney failed to effectively investigate his mental status. We evaluate claims of ineffective assistance of counsel under the two-part test formulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), requiring a showing of both deficient performance and prejudice. An ineffective assistance claim must be "firmly founded in the record," and the record must affirmatively demonstrate the claim's merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). In guilty-plea cases, the appellant must show there is a reasonable probability that, but for counsel's errors, he would not have entered his plea and would have insisted on going to trial. See Melton v. State, 987 S.W.2d 72, 76 (Tex. App.-Dallas 1998, no pet.). As discussed in the first three points of error, the allegations of appellant and his trial counsel contained in the affidavits attached to the amended motions for new trial are not admitted evidence in the record before us The evidence before us shows appellant knowingly and voluntarily entered his pleas at the plea hearing and the trial judge observed that appellant appeared competent at the time. Appellant noted at trial that he had chosen to plead guilty because he hoped to receive probation. Based on the record before us, we conclude appellant has failed to meet his burden of affirmatively demonstrating ineffective assistance of counsel. We overrule his seventh through ninth points of error. In his tenth through fifteenth points of error, appellant complains the trial court erred in denying his request for a hearing on his motion for new trial because he was entitled to develop his claims that he was denied due process when the trial court accepted his involuntary guilty pleas and that he received ineffective assistance of counsel. The alternative purposes of a new trial hearing are to (1) determine whether the case should be retried or (2) complete the record for presenting issues on appeal. Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009). A trial court can abuse its discretion in failing to hold a hearing on a motion for new trial. An abuse may occur if the motion and accompanying affidavits (1) raise matters that are not determinable from the record and (2) establish reasonable grounds showing the defendant could potentially be entitled to relief. If the supporting affidavits are conclusory, are unsupported by facts, or fail to provide requisite notice of the basis for the relief claimed, no hearing is required. See id. We may reverse based on failure to grant a hearing on a motion for new trial only when the trial court's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. See Gonzales v. State, 304 S.W.3d 838, 842 (Tex. Crim. App. 2010). Here, the record shows that Corbett discussed "the matter" of appellant's desire to change his plea with the trial judge before the sentencing hearing. After the judge informed Corbett that he would proceed with appellant's guilty pleas, Corbett told the judge that he would be moving to withdraw the pleas. Although Corbett maintained that, due to appellant's mental and medication issues, appellant did not fully understand the meaning or the consequences of his initial pleas of guilty, the trial judge was able to observe appellant both at the time of the pleas and at the sentencing hearing. No evidence demonstrates that appellant was legally incompetent at the time he entered his pleas, nor does it show that Corbett should have been aware of appellant's mental health difficulties when he met with appellant before the entry of his pleas. The document from Parkland Hospital discussing appellant's diagnosis and prognosis was not authenticated in any way, but simply attached to Premaux's affidavit. And appellant himself was equivocal in his affidavit about whether he would have pleaded not guilty had he been adequately medicated at the time Corbett discussed with him the possibility of probation and the difficulty of getting not guilty verdicts in all three cases. Clearly, appellant was able to offer his defenses of alibi and fabrication at the sentencing hearing, so these same matters recounted in Premaux's affidavit were merely cumulative of evidence the trial court had already heard. The trial court had heard Premaux's testimony at trial and had already assessed her credibility. We surmise that, having expressly acknowledged presentment of the motions for new trial and deciding not to grant a hearing on them, the trial court saw nothing in the motions that would change the judgment in the cases it had already entered. Our review of the content of the motions for new trial and the affidavits attached to them reveals that they did not raise any matter that was not already reflected in the record of the cases and did not establish any reasonable grounds showing appellant could be entitled to the relief he requested in his motions. Therefore, we conclude the trial court did not abuse its discretion in denying appellant's request for a hearing on his amended motions for new trial. We overrule his tenth through fifteenth points of error We affirm the trial court's judgments.