Opinion
NO. 09-11-00088-CR
02-01-2012
PAUL FRANK WELKER, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 10-02-01082 CR
MEMORANDUM OPINION
Without the benefit of a plea bargain agreement, Paul Frank Welker, Jr. pled guilty to injuring a child. The trial court sentenced Welker to thirty-five years in prison. In two issues, Welker challenges the voluntariness of his plea and contends that he did not receive the effective assistance of counsel. We affirm the trial court's judgment.
Background
Welker pled guilty to intentionally or knowingly injuring a child, a first degree felony. See Tex. Penal Code Ann. § 12.32 (West 2011), § 22.04(a), (e) (West Supp. 2011). The record of the plea hearing reflects the following:
THE COURT: . . . Mr. Welker, you're charged with the first degree felony offense injury to a child. Do you understand that?At that point, the trial court reset Welker's case pending its receipt of a Presentence Investigation Report; Welker's sentencing hearing occurred approximately four months later.
[Welker]: Yes, ma'am.
THE COURT: I'm showing you admonitions, waivers, consent, judicial confession[,] and plea agreement. Did you read and sign these?
[Welker]: Yes, ma'am.
THE COURT: Go over them with your attorney?
[Welker]: Yes, ma'am.
THE COURT: Did he explain everything in there to you?
[Welker]: Yes, ma'am.
THE COURT: Do you understand that when you signed this you gave up your right to a trial by jury and other rights that you have under the law?
[Welker]: Yes, ma'am.
THE COURT: Do you understand also that you made a judicial confession in this case?
[Welker]: Yes, ma'am.
THE COURT: And I'm noting that there is no recommendation.
[The State]: There's no recommendation. Well, there's a recommendation, but we're going to you.
THE COURT: Let me ask you, [Welker's counsel], do you believe your client understands everything in this document as well as the consequences of the waivers?
[Welker's counsel]: Yes, Your Honor.
. . . .
THE COURT: . . . How do you plead to the first degree felony offense injury to a child, guilty or not guilty?
[Welker]: Guilty.
THE COURT: Are you pleading guilty freely and voluntarily?
[Welker]: Yes, ma'am.
THE COURT: Is anyone making you plead guilty today?
[Welker]: Correct.
Subsequently, during Welker's sentencing hearing, the State called a pediatrician, Dr. Marcella Donaruma, whose entire practice focused on "seeing children who are suspected victims of physical abuse[.]" In August 2009, approximately two weeks after the child was discharged from the hospital, Dr. Donaruma saw the child that the State alleged Welker injured. According to Dr. Donaruma, the child's injuries included multiple skull fractures and an extensive brain injury. Dr. Donaruma testified that she thought the child's brain injury was not likely caused by a fall, which was the history she had initially been given, and that the child's brain injury "didn't happen by accident[.]" Dr. Donaruma also stated that squeezing of the head partially explained the mechanism of the child's injuries. The child's head injury alone, according to Donaruma, justified a conclusion of abuse, but the child also had a rib fracture and a wrist fracture, both of which had occurred before the child suffered a fractured skull. Dr. Donaruma explained the child's head was crushed, and that there was no doubt in her mind that the child's skull had been fractured by someone intentionally.
Two other witnesses were called by the State at Welker's punishment hearing, Detective Elias Perez and G.S., the child's maternal grandmother. Welker, his mother, and Doss Burleson, who knew Welker because Welker was dating his sister, testified on Welker's behalf. Following closing arguments, the trial court found Welker guilty of the first degree offense of injury to a child and assessed his punishment at thirty-five years in prison.
On the date the trial court signed the final judgment, Welker's trial counsel filed an unsworn motion for new trial. The trial court appointed another attorney to represent Welker on appeal, and Welker's appellate counsel filed a notice of appeal four days after the trial court signed the judgment. Welker did not obtain an evidentiary hearing on his motion for new trial, and his motion for new trial was subsequently overruled by operation of law. See Tex. R. Civ. P. 329b(c).
Voluntariness
Welker argues that his plea was not voluntary because the trial court, during his plea hearing, failed to advise him of the punishment range for intentionally or knowingly injuring a child. The Texas Code of Criminal Procedure requires the trial court to admonish the defendant of the range of punishment attached to the offense prior to accepting a guilty plea. Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (West Supp. 2011). The court is permitted to admonish the defendant orally or in writing. Id. art. 26.13(d). If the admonitions are written, the trial court must receive a statement signed by the defendant and the defendant's attorney that the defendant "understands the admonitions and is aware of the consequences of his plea." Id. Substantial compliance by the court with article 26.13 will suffice, "unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court." Id. art. 26.13(c).
The State can make a prima facie case to show that a defendant's plea was knowingly and voluntarily made when the record indicates the trial court properly admonished the defendant before accepting the defendant's plea. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). Nevertheless, even when properly admonished, a defendant may still claim that his plea was not voluntary, but the burden shifts to the defendant to demonstrate that he was harmed because he did not fully understand the consequences of his plea. Id.
In Welker's case, the record demonstrates that on the date of the guilty plea hearing, Welker signed a document acknowledging that he could receive a sentence of five to ninety-nine years in prison, and that he could receive a fine of no more than $10,000. Welker's initials appear next to the sentence advising him of the punishment range for a first degree felony. The trial judge's signature appears at the bottom of the same page, along with a finding by the trial court that "Defendant received and understood the above admonitions, is sane and competent, and is aware of the consequences of the plea." The document that Welker signed acknowledges that his attorney "explained the admonitions to [him]." Finally, Welker told the trial court during his guilty plea hearing that he had read and signed the papers given to him and that he had gone over them with his attorney.
We conclude that the record does not support Welker's argument that he was not admonished regarding the punishment range associated with a first degree felony. See Tex. Code Crim. Proc. Ann. art. 26.13(d) (providing that admonitions may be made in writing); Moussazadeh v. State, 962 S.W.2d 261, 263-64 (Tex. App.—Houston [14th Dist.] 1998, pet. ref'd) (holding that written admonishments from the trial court, even if not signed by the trial judge, satisfy the trial court's duty to advise the appellant of his rights). Because the record of Welker's plea proceeding includes a written admonishment stating the punishment range for a first degree felony, the State has established a prima facie case to show that Welker's plea, with respect to being aware of the range of his potential sentence, was voluntary. See Martinez, 981 S.W.2d at 197.
Because a prima facie showing exists, Welker has the burden to show that he entered the plea without knowing its consequences and that he was harmed. Id. Although Welker argues on appeal that the written form was confusing, Welker's argument is not supported by any actual evidence that he was not aware of the punishment range for a first degree felony before deciding to plead guilty. Unsupported, subjective assertions that the defendant did not know the punishment range for his offense, that the defendant would not have pled guilty, or that the defendant was misled or harmed by the trial court's admonishment are not sufficient to discharge the defendant's burden of proving that he was unaware of the consequences of his plea and that he was harmed. See Grays v. State, 888 S.W.2d 876, 878-79 (Tex. App.—Dallas 1994, no pet.) (requiring a defendant to show, "by evidence grounded in a judicial record subject to review both his lack of knowledge or understanding about the punishment range for his offense and, objectively, the manner in which he was misled or harmed[,]" to make the affirmative finding under article 26.13(c)). Instead, the record reflects that Welker initialed the line on the form signifying that he had been told of the punishment range available for committing a first degree felony. Because Welker failed to rebut the State's prima facie showing that Welker's plea was voluntary, we overrule his first issue.
Assistance of Counsel
In his second issue, Welker argues that he received ineffective assistance because his trial counsel failed to determine the names of the State's experts, failed to ask that Welker's confession be suppressed, failed to present crucial mitigation issues, and failed to call a medical expert to refute the testimony of Dr. Donaruma.
When challenging a guilty plea on the ground of ineffective assistance of counsel, the defendant must show that the defendant's plea of guilty was unknowingly and involuntarily made. Ex parte Adams, 707 S.W.2d 646, 648 (Tex. Crim. App. 1986). The two-pronged test announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.E.2d 674 (1984), applies to guilty plea challenges based on ineffective assistance. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Ex parte Pool, 738 S.W.2d 285, 286 (Tex. Crim. App. 1987); see also Ex parte Adams, 707 S.W.2d at 649.
Under the Strickland test, as applied to guilty pleas, the voluntariness of the plea depends (1) on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases, and if not, (2) on whether there is a reasonable probability that, but for counsel's errors, appellant would not have entered his plea and would have insisted on going to trial. Hill, 474 U.S. at 58-59; Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). But, as the Court of Criminal Appeals explained in Garza v. State, our review of ineffective assistance claims is "highly deferential" to trial counsel, as we presume "that counsel's actions fell within the wide range of reasonable and professional assistance." 213 S.W.3d 338, 348 (Tex. Crim. App. 2007).
With respect to Welker's complaints about his trial counsel's ineffectiveness, we note that Welker's motion for new trial does not assert an ineffective assistance claim and that no evidentiary hearing was conducted regarding the motion. We further note that no amended motion for new trial was filed after the trial court appointed appellate counsel to act on Welker's behalf.
When reviewing complaints about trial counsel's alleged deficiencies, an appellate court must "avoid the deleterious effects of hindsight." Thompson, 9 S.W.3d at 813. Trial counsel's decisions are viewed with great deference when trial counsel's reasons for not undertaking a suggested strategy do not appear in the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Faced with a record that includes no explanation by trial counsel of his strategy, appellate courts are not at liberty to find trial counsel's conduct ineffective, unless the challenged conduct was "'so outrageous that no competent attorney would have engaged in it.'" Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). Additionally, any Strickland claim must be "'firmly founded in the record' and 'the record must affirmatively demonstrate' the meritorious nature of the claim." Id. (quoting Thompson, 9 S.W.3d at 813 (declining to speculate on counsel's failure to object to hearsay in light of a silent record)).
Having reviewed the record, we conclude that Welker's complaints regarding his attorney are the types of complaints that require a more developed record, including one that allows Welker's trial counsel to explain his strategy. See Goodspeed, 187 S.W.3d at 392 (evaluating whether challenged conduct was "'so outrageous that no competent attorney would have engaged in it'") (quoting Garcia, 57 S.W.3d at 440); see also Ex parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App. 2005) ("[A] reasonably competent counsel need not perform a useless or futile act[.]"). Because Welker's ineffective assistance claim is not firmly founded in the record, we overrule issue two and affirm the trial court's judgment.
AFFIRMED.
HOLLIS HORTON
Justice
Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ.