POTH v. STATE

Full title: DARREN ARTHUR POTH, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Dec 8, 2005

No. 01-05-00149-CR (Tex. App. Dec. 8, 2005)

Opinion

No. 01-05-00149-CR

Opinion issued December 8, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 228th District Court, Harris County, Texas, Trial Court Cause No. 972,609.

Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.

MEMORANDUM OPINION

TERRY JENNINGS, Justice.

Appellant, Darren Arthur Poth, pleaded guilty to the third-degree felony offense of evading arrest¹ without an agreed punishment recommendation from the State. The trial court found appellant guilty and, after finding true the allegations in two enhancement paragraphs that appellant had two previous felony convictions, assessed his punishment at confinement for 25 years. In two points of error, appellant contends that his plea of guilty was involuntary and his sentence of 25 years was "illegal." We affirm.

Factual and Procedural Background

A Harris County grand jury issued a true bill of indictment, alleging that appellant, before the commission of the instant offense of evading arrest, had been convicted of three prior felony offenses: evading arrest, robbery, and burglary of a building. On March 8, 2004, appellant's trial counsel filed a motion for a psychiatric exam to determine the sanity of appellant. Dr. Emilio Cardona conducted an initial psychiatric exam on April 14, 2004 and recommended initiating treatment of appellant for psychosis. On April 29, 2004, Dr. Ramon Laval, a psychiatrist with the Forensic Unit of the Harris County Jail, examined appellant and stated that, in his opinion, appellant was legally sane on or about the time of the instant offense and was competent to stand trial. Laval re-examined appellant on October 19, 2004 and reiterated his findings with respect to appellant's sanity and competence. On November 18, 2004, appellant signed a "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession" in which he pleaded guilty and admitted to the acts alleged in the indictment. Appellant also signed "Admonishments" and "Statements of Waivers of Defendant." These forms substantially complied with article 26.13(a) of the Code of Criminal Procedure.² There was "no agreed recommendation as to punishment." The case was reset for a pre-sentencing investigation (PSI) hearing, which was conducted on January 13, 2005. Appellant waived a court reporter at the PSI hearing and at sentencing. The trial court's handwritten notations on the docket sheet indicate that both appellant and the State reviewed the PSI report and made no corrections. Handwritten notations on the docket sheet also indicated that the "enhancements [were] found true."

Voluntariness of Plea

In his first point of error, appellant asserts that, "given the entire record, the trial court failed to make an adequate assessment as to whether the appellant's plea was knowing and voluntary as required by the Due Process Clause of the Fifth Amendment."³ Appellant asserts that the trial court had an affirmative duty to produce a complete record relevant to the voluntariness determination, especially "in a case like this in which the trial court is on notice that the defendant may have psychological issues." Standard of Review A plea of guilty should not be accepted unless it is free and voluntary. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2005). The voluntariness of a plea is determined by an examination of the totality of the circumstances. Edwards v. State, 921 S.W.2d 477, 479 (Tex.App.-Houston [1st Dist.] 1996, no pet.). When a defendant states that he understands the nature of his plea and that it is voluntary, on appeal the burden shifts to him to prove that his plea was involuntary. Id. The Court of Criminal Appeals has explained that it is a due process violation for a trial court to accept a defendant's guilty plea without an affirmative showing "spread on the record" that the plea was "intelligent and voluntary." Aguirre-Mata v. State, 125 S.W.3d 473, 474-75 (Tex.Crim.App. 2003) (citing Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S. Ct. 1709, 1711 — 1712 (1969)). Such a constitutional error in failing to make an adequate record requires reversal without regard to a harm analysis. Id. However, the Court of Criminal Appeals has explained that Boykin "did not specifically set out what due process requires to be `spread on the record' except to say generally that state courts should make sure that a guilty-pleading defendant `has a full understanding of what the plea connotes and of its consequences.'" Id. at 475. The reviewing court must reverse if the record supports an inference that the defendant did not know the consequences of his plea, which a silent record would do, and if, after simultaneously considering facts supporting an inference that the defendant did know the consequences of his plea, the reviewing court is left with "grave doubt" on the matter. Burnett v. State, 88 S.W.3d 633, 638 (Tex.Crim.App. 2002). Adequacy of Record Appellant argues that his case is proper for reversal because "appellant underwent psychological testing on three separate occasions prior to his plea" and "there is much in [the] record to suggest that the appellant's plea arose out of a confused mental state." Given these circumstances, appellant asserts that the record is inadequate to satisfy the Due Process Clause of the Fifth Amendment. Appellant contends "given the evidence regarding appellant's mental health, there is `grave doubt' as to the voluntariness of the appellant's plea." However, even appellant concedes that by the time appellant entered his guilty plea, "competency and sanity were not made issues." Furthermore, there is much evidence in the record affirmatively demonstrating that appellant was competent to enter a plea. One month prior to appellant's guilty plea, Dr. Laval, who examined appellant on two occasions, stated that appellant "demonstrate[d] the present ability to . . . engage in a reasoned choice of legal strategy. Thus, [appellant] should be considered competent to stand trial at the present time." There is no contradictory evidence as to this issue because the initial evaluation by Dr. Cardona did not address the issues of competency or sanity. Furthermore, the trial court signed an acknowledgment stating, in relevant part, "I admonished the defendant of the consequences of his plea, I ascertained that he entered it knowingly and voluntarily after discussing the case with his attorney. It appears that the defendant is mentally competent and the plea is free and voluntary." Appellant signed a judicial confession and pleaded guilty to the offense in writing. The record also contains written plea admonishments, which were signed and initialed by appellant. Appellant also signed a "Statements and Waivers" form waiving, among other rights, his right to have a reporter's record made of the plea proceedings. We note that there is no requirement that a trial court orally inquire about the voluntariness of a plea after a defendant has signed written admonishments, statements, or waivers, and it is established that the defendant has understood them. See Lee v. State, 39 S.W.3d 373, 375 n. 1 (Tex.App.-Houston [1st Dist.] 2001, no pet.). Furthermore, there is no constitutional requirement that appellant's plea be noted in a court reporter's record. Id.; see also Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon Supp. 2005) (permitting trial court to admonish defendant orally or in writing); Cantu v. State, 988 S.W.2d 481, 484 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd) (holding defendant who waived court reporter and received written admonishments could not show plea was involuntary). Appellant has not presented evidence to rebut the presumption that the guilty plea was free and voluntary, much less that "appellant's plea arose out of a confused mental state rather than his actual guilt." Range of Punishment Appellant also contends that "[t]here is no affirmative showing in the record that [he] had ever been admonished as to the very severe range of punishment for this offense before his plea." Appellant points to the fact that the admonishment paragraph indicating appellant's range of punishment as a habitual offender is not initialed by appellant. The "Admonishments" form stated that the appellant faced the "Habitual Offender" range of punishment of 25 to 99 years confinement.⁴ Again, we note that appellant's receipt of the statutory admonishments is prima facia evidence that his plea was knowing and voluntary. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998); Williams v. State, 960 S.W.2d 758, 759-60 (Tex.App.-Houston [1st Dist.] 1997, no pet.). Although appellant's initials are not contained next to this provision, the record affirmatively supports a finding that appellant was nevertheless aware of the range of punishment for his offense and the consequences of pleading guilty to the offense. In the "Statements and Waivers" form, appellant initialed a clause stating that he "under[stood] the admonishments of the trial court set out herein and [he was] aware of the consequences of [his] plea." Appellant also signed at the end of the "Statements and Waivers" form. Furthermore, we note that even if appellant had not properly been admonished as to the range of punishment, the Court of Criminal Appeals has determined that there is no United States Supreme Court authority holding either that due process requires an admonishment on the range of punishment on a guilty plea or that the failure to give such an admonishment renders a guilty plea invalid. Aguirre-Mata, 125 S.W.3d at 475 n. 7. The record in this case simply does not support appellant's assertions that he was not properly admonished or that his guilty plea was not knowingly and voluntarily entered. Accordingly, we overrule appellant's first point of error.

1 Tex. Pen. Code Ann § 38.04(b)(2)(A) (Vernon 2003).

2 See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2005).

3 U.S. Const. amend V.

4 The record shows that the relevant range of punishment, "Habitual Offender" was set\ off by brackets and the remaining sentencing ranges were crossed out by handwritten\ notations.

Sentencing Enhancements

In his second point of error, appellant argues that his sentence of 25 years was illegal because "the judgment reflects that only the first two enhancement paragraphs were pled to and found to be true" and therefore the record supports a range of punishment of only 2 to 20 years. Here, appellant is accused of the third degree felony offense of evading arrest, i.e., having committed the instant offense of evading arrest when he had previously been convicted of the felony offense of evading arrest. This primary offense was further enhanced with two paragraphs alleging two prior, sequential felony convictions for the offenses of robbery and burglary of a building. Accordingly, appellant was subject to sentencing as a "habitual offender" with a specified term of confinement of not more than 99 years or less than 25 years. See Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2005). Appellant asserts that his prior conviction for felony evading arrest was actually a third enhancement paragraph, and argues that his sentence is illegal because the judgment reflects pleas of "true" to only two enhancement allegations. Thus, appellant asserts that his sentence of 25 years is beyond the permissible range of punishment for a third degree felony enhanced with only one prior felony conviction. The elements of the third degree felony offense of evading arrest under section 38.04 are: (1) the actor intentionally fled from a person he knew was a peace officer attempting to lawfully arrest him; (2) the actor used a vehicle in fleeing from the officer; and (3) the actor has been previously convicted under section 38.04. Tex. Pen. Code Ann. § 38.04(a), (b)(2)(A). The State must plead and prove the prior conviction as an element of the offense of felony evading arrest. Holley v. State, 167 S.W.3d 546, 548 n. 2 (Tex.App.-Houston [14th Dist.] 2005, no pet.). Under subsection (b)(2), a prior conviction is part of the forbidden conduct, i.e., recidivism, that the statute intends to punish. Id. The statute's language, structure, subject matter, context, and history make it clear that a prior conviction constitutes an element of the felony offense of evading arrest, and the prior conviction is not an enhancement provision. Ford v. State, 112 S.W.3d 788, 791 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Furthermore, in his "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession," appellant acknowledged the allegations contained in the indictment, including the prior felony evading arrest, and "confess[ed] that they [were] true." Accordingly, it was not necessary that appellant plead true to the prior conviction for evading detention. As the State notes, the judgment incorrectly reflects that appellant was convicted of the state-jail felony of evading arrest with a motor vehicle when all of appellant's plea papers demonstrate that appellant was to be sentenced as a habitual offender. The "Admonishments" form, which appellant signed, shows that he was to be sentenced as a habitual offender for the third degree felony of evading arrest, with a punishment range of "any term of not more than 99 years or less than 25 years." "An appellate court has the power to correct and reform a trial court judgment to make the record speak the truth when it has the necessary data and information to do so." Tex.R.App.P. 43.2(b); Nolan v. State, 39 S.W.3d 697, 698 (Tex.App.-Houston [1st Dist.] 2001, no pet.). Here, appellant was convicted of the third degree felony offense of evading arrest, enhanced with two prior, sequential felony convictions. Accordingly, we overrule appellant's second point of error.

Conclusion

We order the judgment reformed to correctly reflect that appellant was convicted of the third degree felony offense of evading arrest. As reformed, we affirm the judgment of the trial court.