Opinion
NO. 12-10-00369-CR
11-30-2011
GAYLON HAROLD RAY, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 7TH
JUDICIAL DISTRICT COURT
SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Gaylon Harold Ray appeals his conviction for forgery. In four issues, Appellant contends that (1) the evidence is insufficient for the trial court to find him guilty, (2) trial counsel was ineffective for allowing Appellant to be sentenced based on legally insufficient evidence, (3) the trial court denied him due process and due course of law by failing to consider the full range of punishment, and (4) the trial court improperly assessed what the court believed a jury would assess as punishment. We affirm.
BACKGROUND
Appellant was charged by indictment with forgery. The indictment included enhancement paragraphs alleging two prior felony convictions, which elevated the punishment range for the charged offense to that of a second degree felony.
See TEX. PENAL CODE ANN. § 12.42(a)(2) (West 2011).
Appellant entered an open plea of guilty to the offense and a plea of true to the enhancement paragraphs. The trial court found Appellant guilty of forgery and the enhancement paragraphs to be true. The trial court sentenced Appellant to imprisonment for twenty years. This appeal followed.
SUFFICIENCY OF THE EVIDENCE
In his first issue, Appellant challenges the legal sufficiency of the evidence supporting Appellant's conviction of forgery. Applicable Law
Although Appellant challenges the legal sufficiency of the evidence, this standard does not apply when a defendant knowingly and voluntarily pleads guilty to a felony. Keller v. State, 125 S.W.3d 600, 604-05 (Tex. App.-Houston [1st Dist.] 2003), pet. dism'd, improvidently granted, 146 S.W.3d 677 (Tex. Crim. App. 2004). This is because a plea of guilty waives all nonjurisdictional defenses, including challenges to the sufficiency of the evidence. Id. at 605. However, a guilty plea must be supported by evidence. See TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2005); Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). Evidence offered in support of a guilty plea may take many forms. Menefee, 287 S.W.3d at 13. A stipulation of evidence will suffice to support a guilty plea so long as it embraces every constituent element of the charged offense. Id.
A person commits the offense of forgery if he, with intent to defraud or harm another, alters, makes, completes, executes, or authenticates a writing so that it purports to be the act of another who did not authorize the act. See TEX. PENAL CODE ANN. § 32.21(a)(1)(A) (West 2011). A person commits the offense of forgery by passing if he, with intent to defraud or harm another, transfers or passes a check that has been altered, made, completed, executed, or authenticated so that it purports to be the act of another who did not authorize the act. See TEX. PENAL CODE ANN. § 32.21(a)(1)(B) (West 2011). A person acts intentionally with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Id. § 6.03(a)(1) (West 2011). Discussion
Here, Appellant stipulated that the following facts are true and correct and constitute evidence in this case:
[Appellant] did then and there, with intent to defraud or harm another, alter and make and complete and execute and authenticate a writing so it purported to be the act of Jose Valenzuela, who did not authorize the act, and said writing was a check....
[Appellant] did then and there, with intent to defraud or harm another, transfer and pass to David Rogers a forged writing, knowing such writing to be forged, and such writing had been so altered and made and completed and executed and authenticated that it purported to be the act of Jose
Valenzuela, who did not authorize the act, and said writing was a check....
This stipulation contains all the necessary elements of the forgery offenses. Therefore, this stipulation alone suffices to support Appellant's guilty plea. See TEX. CODE CRIM. PROC. ANN. art. 1.15; Menefee, 284 S.W.3d at 13.
Appellant argues that because the copy of the check set forth in the stipulation bears his own signature, the writing does not "purport to be the act of another." First, Appellant stipulated to the above facts even though the check identified in the stipulation was signed by Appellant using his own name. Second, the check Appellant signed was a personalized check of a local business. By signing the check, Appellant in fact purported to be that business. See Sales v. State, 628 S.W.2d 796, 797 (Tex. Crim. App. [Panel Op.] 1982). A person may commit forgery by signing his own name to a check where he is purporting to be another person or business regardless of the name signed. Id.
Appellant stipulated that he passed a forged writing, knowing the writing to be forged, and that it purported to the act of Jose Valenzuela. The stipulation tracks the language of the indictment, and is sufficient evidence to support the guilty plea as required under Article 1.15 of the Code of Criminal Procedure. The fact that his own signature is on the check does not change Appellant's intent to defraud a depositor or the fact the check purported to be the act of another. Accordingly, we overrule Appellant's first issue.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his second issue, Appellant argues that his trial counsel was ineffective "for allowing the Appellant to be found guilty" when there was no evidence offered to support Appellant's plea of guilty. Applicable Law
Claims of ineffective assistance of counsel are evaluated under the two step analysis articulated in Strickland v. Washington.Failure to make the required showing of either step defeats the ineffectiveness claim. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984).
The first step requires the appellant to demonstrate that trial counsel's representation fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell below the professional norm of reasonableness. See McFarland, 928 S.W.2d at 500.
In determining whether counsel's performance was deficient, there is a strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We must presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See id. Appellant has the burden of rebutting this presumption by presenting evidence illustrating why his trial counsel did what he did. See id. "[A]ny allegation of ineffectivessness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A record that specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd).
The second step of the Strickland analysis requires the appellant to show prejudice from the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To establish prejudice, an appellant must prove that but for counsel's deficient performance, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Discussion
Here, Appellant sets forth in his brief that his trial counsel's performance was deficient because he allowed his client to be sentenced with no evidence that his client forged a document. Specifically, he argues that there is no evidence that the check purported to be the act of another because Appellant signed the document using his own name. In overruling Appellant's first issue, we held that it is possible to commit forgery even when the defendant signs his own name to the check. Consequently, trial counsel could have concluded objecting to the stipulated evidence would be futile. The failure to object to admissible evidence is not ineffective assistance. McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992). Further, the record is silent on the reasons trial counsel did what he did. As a result, Appellant cannot overcome the strong presumption that his counsel performed effectively. Thus, Appellant has not satisfied the first step of Strickland. Therefore, we need not address the second step of Strickland. McFarland, 928 S.W.2d at 500. Accordingly, we overrule Appellant's second issue.
PUNISHMENT
In his third issue, Appellant argues that the trial court did not consider the full range of punishment, denying him due process and due course of law. In his fourth issue, Appellant argues that the trial court improperly assessed what the court believed a jury would assess as punishment, denying him due process and due course of law. Because these two issues are interrelated, we address them together. Applicable Law
The Fourteenth Amendment provides that the state may not "deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV; see also TEX. CONST. art. I, § 19 ("No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land."). Due process requires the trial court to conduct itself in a neutral and detached manner. Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1762, 36 L. Ed. 2d 656 (1973); Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). "[A] trial court's arbitrary refusal to consider the entire range of punishment in a particular case violates due process." Ex parte Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005) (per curiam); see also Brumit, 206 S.W.3d at 645. Additionally, a trial court that refuses to consider the evidence or imposes a predetermined punishment denies a defendant due process. Howard v. State, 830 S.W.2d 785, 787 (Tex. App.-San Antonio 1992, pet. ref'd). However, absent a clear showing of bias, we presume the trial court's actions were correct. Brumit, 206 S.W.3d at 645 (bias not shown when trial court hears extensive evidence before assessing punishment, record contains explicit evidence that trial court considered full range of punishment, and trial court made no comments indicating consideration of less than full range of punishment).
The Houston First Court of Appeals found no due process violation where a trial court stated that it was forced to assess the maximum because juries had assessed the maximum in less heinous cases.Jaenicke v. State, 109 S.W. 3d 793, 797 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd). Specifically, the court concluded that this statement was not sufficient to rebut the presumption of a neutral and detached trial court. Id. The court reasoned that this statement implicitly showed the trial court considered the evidence and compared the appellant's case to other cases. Id. Thus, by making this statement, the trial court merely explained why the maximum punishment was appropriate and attempted to assess a sentence proportionate to the seriousness of the appellant's crime. Id. The court further noted that the trial court listened to witnesses and that the statement did not show the trial court failed to consider the full range of punishment or imposed a predetermined punishment. Id.Appellant's Argument
The statement at issue in Jaenicke is as follows: "I have heard many jurors reach verdicts on cases probably not as bad as this where they assessed the maximum punishment. Therefore, I am forced to assess the maximum punishment in this case." Jaenicke v. State, 109 S.W. 3d 793, 795 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd).
Appellant calls our attention to the following statements made by the trial court during the punishment hearing:
Mr. Ray, your lawyer's heard this, the State's lawyer's heard it, because I'm convinced it's the proper way for the courts to evaluate what they do whenever they're asked to be the sentencing entity in Texas for criminal cases. And I always try to evaluate the case based upon what I would do if I were a jury and sitting over there in that jury box, making the same decision I'm required to do whenever the defendant elects to have the Court handle punishment. And I have no doubt what my decision would be over there. And I have no doubt what I think the other 11 citizens of Smith County would think about an individual that comes before them that either pleads guilty or is found guilty of offenses that are before me today with your history.
Both the State and your witness and your lawyer have argued that I should send you to some type of substance treatment program, which, I will make an affirmative finding in the judgment. That's about all the trial courts get to do. And we will hope that with your history, the penitentiary will think it's beneficial to put you in some type of drug treatment program. But whether they do or they don't, at some point, I agree with your lawyer, you'll be released. And you'll be back out on the street.
. . . But, ultimately, it's going to be Mr. Ray making the decision whether he wants to go back and do these things again. Because I'm going to give you the max. Because I think that's what a Smith County jury would do.
Based on these statements, Appellant argues that the trial court did not consider the full range of punishment in assessing Appellant's sentences. Specifically, Appellant contends that he could not have received deferred adjudication from a jury. Therefore, he asserts that the trial court's reference to what a "Smith County jury would do" indicates the court did not consider this option in sentencing Appellant. Appellant also directs our attention to the trial court's statement that an affirmative finding on "some type of substance treatment" was "about all the trial court gets to do." He contends this shows the trial court "forgot" that deferred adjudication allows treatment, outpatient or inpatient, or through the substance abuse felony facilities. Discussion
At the plea stage of the punishment hearing, the trial court informed Appellant that (1) "the range of punishment for a second-degree felony is between 2 and 20 years in the penitentiary and up to a $10,000 fine" and that (2) the court would "hear additional evidence and decide where in that range of punishment your punishment should be." Appellant confirmed that he understood each statement. The court also stated that it "received that presentence report and had a chance to review it." Both Appellant and his mother testified regarding Appellant's addiction to drugs and alcohol. During Appellant's testimony, the trial court heard about his extensive criminal history spanning thirty years. The State showed that Appellant had eleven felony arrests resulting in eleven different convictions, fourteen misdemeanor arrests resulting in nine different convictions, and "numerous instances" where his community supervision was revoked. Also, Appellant's attorney argued that some of Appellant's prior offenses were the result of substance abuse issues and that "almost half of his arrests were for driving while intoxicated or some kind of drug or alcohol connection." His attorney also argued that "whatever he gets in TDC he's probably going to serve probably well over a quarter, if not half of. And, Judge, we think a 10-year sentence would give him 2 to 3 to 4 years down there. And, hopefully, he will come out and he will be able to control himself and he won't be back in the system."
The trial court also acknowledged that it had read the letters from Appellant's mother, brother, and daughter, and one other individual. The trial court made the complained of statements after hearing the evidence and arguments of counsel. At that point, the court was already aware that Appellant's sentences for the four convictions at issue would run concurrently, that Appellant had a criminal history that spanned thirty years, a history of drug use, and several failed community supervisions. It was not until after the statement at issue that the court sentenced Appellant.
To prevail on his third and fourth issues, Appellant must show clear bias to rebut the presumption that the trial court's actions were correct. See Brumit, 206 S.W.3d at 645 (holding judge's comments that earlier case made him think anybody who ever harmed a child should be put to death did not reflect bias, partiality, or failure to consider full range of punishment). In the instant case, the trial court's statement is insufficient to rebut the presumption of a neutral and detached trial court. See Jaenicke, 109 S.W.3d at 797. Prior to assessing punishment, the trial court explicitly informed Appellant that his sentence would be within the range of punishment for his offense, and then heard two witnesses, read four letters, and considered the evidence. The statements at issue, although superfluous, show the trial court (1) considered the evidence, (2) attempted to assess a sentence proportionate to the seriousness of Appellant's crime, and (3) by referring to what a jury would do, merely explained why the maximum punishment was appropriate in this case. See id.
The trial court made no statements that indicated bias or that showed the trial court failed to consider the full range of punishment or imposed a predetermined punishment. See id. In referring to what a "Smith County jury would do," the court did not address whether a jury could assess deferred adjudication. After considering the entire record, we decline to hold that this statement supports as inference that the trial court considered only imprisonment as punishment for Appellant. Therefore, we conclude Appellant was not denied due process and due course of law. Accordingly, we overrule Appellant's third and fourth issues.
The State contends that Appellant waived any error by failing to timely object to the trial court. Appellant argues that failure to consider the entire range of punishment is structural error and therefore no contemporaneous objection was necessary. We need not decide whether an objection in the trial court was required to preserve this type of issue for appeal because the record in this case does not reflect bias, partiality, or that the trial judge did not consider the full range of punishment. See Brumit, 206 S.W. 3d at 644-45 (declining to reach preservation issue because, in addressing merits, court held that record did not reflect partiality of trial court).
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DISPOSITION
Having overruled Appellant's four issues, we affirm the judgment of the trial court.
JAMES T. WORTHEN
Chief Justice
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.