Anton Devon Nikkynuebe Houston AKA Anton N. Robertson v. State

• Court: Court of Appeals of Texas
• Decided: August 10, 2006
• Docket: 14-04-00725-CR
• Status: Published

Opinion

Affirmed and Majority and Dissenting Opinions filed August 10, 2006

Affirmed and Majority and Dissenting Opinions filed August 10, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00725-CR

ANTON DEVON NIKKYNUEBE HOUSTON a/k/a ANTON N. ROBERTSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th Criminal District Court

Harris County, Texas

Trial Court Cause No. 960,887

M A J O R I T Y  O P I N I O N

Appellant, Anton Devon Nikkynuebe Houston,^[1] was charged by indictment with the state jail felony of driving while intoxicated with a child passenger.  Tex. Pen. Code Ann. ' 49.045 (Vernon Supp. 2005).  The indictment also alleged appellant had been previously convicted of (1) felony attempted possession of a controlled substance and (2) felony possession of a controlled substance.  Appellant entered a plea of guilty to the primary offense, and a plea of true to the enhancement allegations without the benefit of a plea bargain agreement.^[2]  The trial court subsequently found appellant guilty, found the enhancement allegations to be true, and assessed appellant=s punishment at confinement in the state penitentiary for a term of 6 years and a $10,000 fine.  In two points of error, appellant contends the trial court erred by (1) failing to withdraw his guilty plea and (2)  failing to admonish him that he had no right to hybrid representation.  We affirm.

In his first point of error, appellant alleges the Atrial court erred in failing to withdraw his plea of guilty based upon erroneous advice from [his] attorney that he would receive probation.@  Outside of this naked allegation, appellant provides no explanation of the alleged error.  Rather, appellant states in his brief that if Aan attorney conveys erroneous information to his client, a plea of guilty based upon that misinformation is involuntary.@  This, of course, is a well established principle of law that no one disputes,^[3] but how it relates to the case before us is not explained.  Without further analysis, appellant then concludes his argument by stating, AThe trial court failed to act as a gate keeper to protect Appellant=s rights in this matter and thus abused its discretion in not authorizing the withdrawal of Appellant=s . . . plea of guilty.@

Appellant has, in short, filed a superficial brief that, with very little guidance, and simply invites this court to find any kind of reversible error associated with appellant=s plea of guilty if we can find it within our creative power to do so.  This court, however, is not appellant=s counsel, and a skeletal brief is an impermissible burden on the appellate process.  Walker v. State, 654 S.W.2d 61, 62 (Tex. App.CAustin 1983, pet. ref=d).  Both the State and this court must speculate upon appellant=s position, and the issue is, thus, poorly presented for disposition.  We will, nevertheless, in the interest of justice, attempt a review of appellant=s contentions to the extent we understand them.

Appellant cites authority for the proposition that misinformation supplied by counsel may lead to an involuntary plea.  However, appellant does not expressly seek a reversal due to an involuntary plea.  Moreover, arguments that a plea was involuntarily made on the erroneous advice of counsel are usually reviewed through a claim of ineffective assistance of counsel.  Ex Parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997); Battle v. State, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991); Morrow v. State, 139 S.W.3d 736, 744 (Tex. App.CTexarkana 2004, no pet.).  However, appellant makes no assertion that his conviction should be reversed for ineffective assistance of counsel.  Instead, appellant appears to base his claim of reversible error on his contention that the trial court abused its discretion by failing to withdraw his guilty plea.  In presenting this argument, appellant claims he attempted to withdraw his plea, and the trial court refused his request.

After examining the record, we find no such attempt by appellant to withdraw his plea; rather, he insisted on pleading guilty even after he learned of counsel=s alleged misinformation. On May 11, 2004, appellant, with his counsel present, waived a court reporter, arraignment, and formal reading of the indictment.  He pled guilty to the trial court without a plea bargain.  Although there is no reporter=s record of the plea hearing, the clerk=s record contains a AWaiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession@ signed by appellant.  In this document, appellant confessed to all facts alleged in the indictment and verified that no plea bargain existed.  The trial court=s docket sheet indicates appellant was admonished about the consequences of his plea, and appellant signed the necessary written admonishments.  Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon Supp. 2005).  These admonishments disclosed the charge against appellant and indicated the appropriate range of punishment.^[4]

The record also reflects that appellant initialed a paragraph describing the consequences of violating the conditions of deferred adjudication, should the court grant deferred adjudication.^[5]  Appellant declined, in writing, to participate in the preparation of a PSI report, and requested that no PSI report be made.  Finally, appellant confirmed that he fully understood the consequences of his plea and, after having fully consulted with his attorney, he requested the trial court accept his plea.  Although the trial court found sufficient evidence of appellant=s guilt at this hearing, the court deferred a finding of guilt and took the case under advisement.  Appellant also filed a AMotion for Community Supervision@ on the same date, disclosing the two prior felony convictions listed in the indictment and asking the court to place him on community supervision.  The trial court scheduled a hearing pending completion of the PSI report.

Approximately two weeks after entering his plea, appellant filed three, handwritten, pro se motions on May 27, 2004.  His first motion was entitled AMotion to dismiss court appointed counsel and appoint new counsel to act on behalf of defendant.@^[6]  In this motion, appellant accused his court-appointed attorney of providing ineffective assistance of counsel for a variety of reasons, but one cryptic notation reads: AMisrepresentation, for as lying to me, telling I=m signing for probation, come to find out it was something different.@  However, when interviewed by the probation officer who prepared the PSI report, appellant modified his accusation significantly.  Appellant told the investigating officer that Ahis attorney told him the Judge would consider given [sic] him probation if he plead guilty.@  (emphasis added).

Despite appellant=s alleged dissatisfaction with his trial attorney, he thereafter persisted on pleading guilty again. On July 21, 2004, appellant appeared with his attorney before the trial court.  No court reporter was present or requested.  The court=s docket sheet indicates appellant, once again, waived arraignment and a formal  reading of the indictment, pled guilty a second time, and was admonished of the consequences of his plea.  On this occasion, the trial court found appellant guilty and assessed his punishment.

We recognize that a guilty plea must be entered into voluntarily and freely.  Tex. Code Crim. Proc. Ann. art. 26.13(b); Anderson v. State, 182 S.W.3d 914, 921 n.1 (Tex. Crim. App. 2006) (Hervey, J., concurring).  When considering the voluntariness of a guilty plea, we must examine the entire record.  Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam).  If the trial court properly admonished the defendant before a guilty plea was entered, there is a prima facie showing the plea was both knowing and voluntary.  Id.  The burden then shifts to the defendant to show he pled guilty without understanding the consequences of his plea and, consequently, suffered harm.  Pena v. State, 132 S.W.3d 663, 666 (Tex. App.CCorpus Christi 2004, no pet.).  Therefore, a defendant who attests during the initial plea hearing that his plea is voluntary bears a Aheavy burden@ to prove in a subsequent hearing that he entered the plea involuntarily.  Coronado v. State, 25 S.W.3d 806, 809 (Tex. App.CWaco 2000, pet. ref=d); Cantu v. State, 988 S.W.2d 481, 484 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d).  A guilty plea is not involuntary simply because the sentence exceeded what an accused expected, even if that expectation was raised by his attorney.  Hinkle v. State, 934 S.W.2d 146, 149 (Tex. App.CSan Antonio 1996, pet. ref=d).

Here, the defendant=s burden is compounded by the absence of a record.  A defendant who waives his right to have a court reporter record the proceedings and, thereafter, challenges on appeal the voluntariness of his plea, nevertheless retains his burden to ensure a sufficient record is presented on appeal to establish error.  Lopez v. State, 25 S.W.3d 926, 928B29 (Tex. App.CHouston [1st Dist.] 2000, no pet.).  Moreover, we presume recitals in court documents are correct unless the record affirmatively shows otherwise.  See Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984).

A defendant may withdraw his plea as a matter of right, without assigning a reason, until judgment is pronounced or the case is taken under advisement by the trial court.  Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979).  If, however, a defendant desires to withdraw his guilty plea after the court has taken the case under advisement, withdrawal of the plea is within the sound discretion of the court.  Jagaroo v. State, 180 S.W.3d 793, 802 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).  After a trial court has admonished a defendant, received the plea and evidence, and passed the case for a pre‑sentence investigation, the case has been taken under advisement.  Id.  An abuse of discretion is shown only when the trial court=s ruling lies outside the Azone of reasonable disagreement.@  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh=g).  Appellant does not contend that he sought to withdraw his guilty plea until after his case was taken under advisement.  Therefore, he could not withdraw his plea as a matter of right.

Appellant concedes that he did not expressly request to withdraw his plea.  However, he contends that, while his handwritten pro se motions were inartful, they constituted the Afunctional equivalent@ of a motion to withdraw his guilty plea.  First, we know of no authority requiring a trial court to Aread between the lines@ of a defendant=s pro se motion to discern his unstated intent.  In fact, the trial court was not obliged to read or rule upon appellant=s pro se motions.  See Meyer v. State, 27 S.W.3d 644, 648 (Tex. App.CWaco 2000, pet. ref=d) (holding trial court is not required to consider pro se motions filed when accused is represented by counsel).  Further, appellant never presented any evidence in support of his motions or obtained a ruling thereon.^[7]  Under these circumstances we find no support for appellant=s contention that he requested to withdraw his plea of guilty.

Nonetheless, by accusing the trial court of failing to act as a Agate keeper,@ appellant may be suggesting the trial court had a duty to sua sponte withdraw appellant=s guilty plea.  A trial judge, however, is not required to sua sponte withdraw a defendant=s guilty plea, even if evidence is brought to the judge=s attention making the defendant=s innocence evident.  Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App. 1978); Fisher v. State, 104 S.W.3d 923, 924 (Tex. App.CHouston [14th Dist.] 2003, no pet.).  Appellant seems to implicitly suggest, however, that the trial court had a duty to withdraw his plea because he was not eligible for deferred adjudication.  Appellant cites no authority for this contention.

Certainly, Article 42.12 of the Code of Criminal Procedure excludes deferred adjudication as a possible punishment for driving while intoxicated.  See Tex. Code Crim. Proc. Ann. art. 42.12 ' 5(d)(1)(A) (Vernon Supp. 2005) (stating trial judge may grant deferred adjudication unless the defendant is charged with an offense under Texas Penal Code sections 49.04, 49.05, 49.06, 49.07, or 49.08).  However, appellant was charged and convicted of driving while intoxicated with a child passengerCan offense described in Section 49.045 of the Penal Code^[8] that is noticeably absent from the list of excluded offenses found in Article 42.12, ' 5(d)(1)(A) of the Code of Criminal Procedure.  Accordingly, we find appellant was eligible for deferred adjudication and the trial court preserved that punishment option during the pendency of the PSI report by deferring a finding of guilt.^[9]

Because appellant was properly admonished by the trial court, there is a prima facie case that his plea was entered knowingly and voluntarily.^[10]  We find appellant did not meet his Aheavy burden@ to prove his plea was entered involuntarily; in fact, he has presented no evidence in support of his claim.  After considering the totality of the circumstances, viewed in light of the entire record, we find the trial court did not abuse its discretion in failing to withdraw appellant=s guilty plea.  Appellant=s first point of error is overruled.

In his second point of error, appellant argues the trial court erred by failing to admonish him Aabout hybrid representation and the choice of self representation or representation by legal counsel.@  When a defendant partially represents himself in a case but remains fully represented by counsel, no question of waiving the right to counsel is involved, and a trial court does not err by failing to admonish the defendant of the dangers, if any, of hybrid representation.  Phillips v. State, 604 S.W.2d 904, 908 (Tex. Crim. App. 1979);  see Robertson v. State, 934 S.W.2d 861, 855B56 (Tex. App.CHouston [14th Dist.] 1996, no writ) (holding because admonishment is not required for hybrid representation, it is not required for standby counsel).  Here, appellant was represented by counsel at all critical stages of his case.  Appellant filed a handwritten motion requesting hybrid representation in which he specifically asked that he not be required Ato waive his right to counsel in order to be permitted to file motions, and not to force him to choose a pro se defense in order to fully exercise his Sixth Amendment rights under the United States Constitution.@  We find appellant was not entitled to any admonishment from the trial court about hybrid representation.  We overrule appellant=s second point of error.

Accordingly, the judgment of the trial court is affirmed.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Majority and Dissenting Opinions filed August 10, 2006.

Panel consists of Justices Hudson, Frost, and Seymore (Seymore, J., dissenting).

Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant identified himself to the police as Anton N. Robertson.  However, at his arraignment, he identified himself as Anton Devon Nikkynuebe Houston.  A fingerprint identification revealed appellant has been arrested or prosecuted under at least nine different aliases.

^[2]  The pre-sentence investigation report (PSI) states that a charge against appellant for burglary with intent to commit a felony was dismissed on the same day appellant entered his plea of guilty in this case.  Moreover, appellant refers at one point in his brief to the Aplea bargain agreement,@ but later says Athere was no specific plea agreement.@

There are two basic kinds of plea bargains that affect punishment:  (1) sentence bargaining and (2) charge bargaining.  Carender v. State, 155 S.W.3d 929, 930 (Tex. App.CDallas 2005, no pet.).  Sentence bargaining may be for binding or nonbinding recommendations to the court on sentences, including a recommended Acap@ on sentences and a recommendation for deferred adjudication community supervision.  Id. at 931.  Charge bargaining involves questions of whether the defendant will plead guilty to the offense that has been alleged or a lesser or related offense and whether the prosecutor will dismiss or refrain from bringing other charges.  Id.  Both sentence bargaining and charge bargaining affect punishment.  Id.

Here, despite its dismissal of the burglary case, the State asserts that no plea bargain existed.  Likewise, the recordCincluding the trial court=s judgment, appellant=s signed AWaiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession,@ and the ATrial Court=s Certification of Defendant=s Right to Appeal@Cindicates no plea bargain existed.  Accordingly, we presume the State=s dismissal of the burglary charge was not part of a plea bargain agreement.

^[3]  See Ex parte Kelly, 676 S.W.2d 132, 135 (Tex. Crim. App. 1984); Morrow v. State, 139 S.W.3d 736, 744 (Tex. App.CTexarkana 2004, no pet.); Burke v. State, 80 S.W.3d 82, 93 (Tex. App.CFort Worth 2002, no pet.); Courtney v. State, 39 S.W.3d 732, 735 (Tex. App.CBeaumont 2001, no pet.).

^[4]  The admonishments include a paragraph that begins: AIf convicted, you face the following range of punishment@ followed by a list of several Acheck-box@ paragraphs.  Each of these paragraphs was clearly marked out by hand except for one, which was circled and initialed by appellant.  It reads:  Aif a state jail felony punishable under Section 12.35(a) of the Texas Penal Code is enhanced with two final state jail felony convictions, a term of not more than 10 years or less than 2 years in the Texas Department of Criminal Justice, and in addition, a fine not to exceed $10,000 may be assessed.@  The portions underlined herein were underlined by hand.

^[5]  Appellant also initialed various provisions not applicable to him, including a statement partially underlined by hand that Athe Court will permit you to withdraw your plea of guilty or nolo contendere should it reject any plea bargain agreement.@ As there was no plea agreement in effect, this statement was clearly inapplicable to appellant=s case.  See Tabora v. State, 14 S.W.3d 332, 334 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (stating preprinted boilerplate form containing provisions clearly meaning to apply to a wide variety of situations did not misinform defendant, as not all paragraphs apply to every defendant).  The record contains no explanation for this underlining, and we will not speculate as to its significance.  Appellant argues the underlined text is significant because it is the only admonishment underlined in the document .  However, we observe that another underlined portion of the same form is a statement that appellant faced a range of punishment between two and ten years.

^[6]  Appellant=s other two motions were entitled a AMotion for Hybrid Representation@ and ADefendant=s Motion to Have Written Rulings on all Motions Filed by the Defendant.@   In his second motion, appellant requested the trial court allow him to assist his attorney in filing Anecessary pretrial motions.@  Appellant=s third motion sought nothing more than its title implies.

^[7]  We observe that even if we were to construe appellant=s pro se motions as a request to withdraw his guilty plea, a motion to withdraw a guilty plea is the equivalent of a motion for new trial.  See Tex. R. App. P. 21.1 (defining a new trial as Athe rehearing of a criminal action after the trial court has, on the defendant=s motion, set aside a finding or verdict of guilt@); State v. Evans, 843 S.W.2d 576, 577 (Tex. Crim. App. 1992) (stating order granting a motion to withdraw a guilty plea has precise effect of granting a new trial).

A party making a motion for new trial must present that motion to the trial court.  Tex. R. App. P. 21.6.  To prove presentment, the record must contain more than just proof that the motion was timely filed; it must also contain proof that the movant actually delivered the motion to the trial court or that the motion was otherwise brought to the trial court=s attention.  Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998); Longoria v. State, 154 S.W.3d 747, 762 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d).  A trial court does not abuse its discretion by denying a motion for new trial without a hearing when the motion was not timely presented.  Birdwell v. State, 996 S.W.2d 381, 384 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).

^[8]  Tex. Pen. Code Ann. ' 49.045 (Vernon Supp. 2005). 

^[9]  After a defendant enters a guilty plea, the trial becomes a unitary proceeding, and the issues of guilt and punishment cannot be separated.  State v. Kersh, 2 S.W.3d 636, 638 (Tex. App.CHouston [14th Dist.] 1999), aff=d, 127 S.W.3d 775 (Tex. Crim. App. 2004).  Thus, when a trial court defers a finding of guilt after the entry of a guilty plea, it also defers a finding of true after the entry of a plea of true to the enhancement allegations.  See Washington v. State, 893 S.W.2d 107, 109 (Tex. App.CDallas 1995, no pet.) (holding trial court did not err in refusing to allow defendant to withdraw his plea of true after the case had been taken under advisement).

^[10]  Although appellant mentions various inconsistencies between the boilerplate admonishments form and the realities of his situation, such as his wavier of indictment after an indictment had been filed, he does not argue the trial court misled him by incorrectly admonishing him.  He argues only that his attorney misled him, and that the trial court should have withdrawn his plea because of this.