Childress v. State

845 S.W.2d 377, 1992 Tex. App. LEXIS 3134, 1992 WL 369048

• Court: Court of Appeals of Texas
• Decided: December 17, 1992
• Docket: 01-92-00037-CR
• Status: Published

Opinions

OPINION

SAM BASS, Justice.

Appellant, Childress, was convicted for failure to stop and render aid. The judge found the enhancement paragraphs true and sentenced appellant to 25-years confinement. Appellant’s points of error all involve the enhancement paragraphs.

We affirm.

Childress was arrested in February 1986 after the vehicle he was driving struck and killed a pedestrian and he failed to return to render aid. He was found guilty by a jury and sentenced to 60 years. This Court reversed the punishment phase and remanded for a new punishment hearing. Childress v. State, 756 S.W.2d 11, 14 (Tex.App.—Houston [1st Dist.] 1988), rev’d, 784 S.W.2d 361 (Tex.Crim.App.1990). The Court of Criminal Appeals reversed and remanded to this Court for consideration of the other points of error. Childress v. State, 784 S.W.2d 361, 366 (Tex.Crim.App.1990). On remand, this Court again reversed and remanded to the trial court for a new punishment hearing.

At the second punishment hearing, appellant urged a motion to quash the enhancement paragraphs asserting he had been denied the right to counsel when he pled guilty to the felonies that were used for enhancement. Appellant testified he had no counsel present when he made the deals with the prosecutor, the appointed attorneys were in court only when the pleas were taken, and he had not been informed of his constitutional rights to confront his accusers and to remain silent. Appellant offered the testimony of an attorney, John Cutler, who had been practicing law in Harris County at the time of his second conviction. Cutler corroborated appellant’s testimony by outlining the practice at that time for handling noncapital felonies in the criminal courts. The trial judge denied the motion to quash, stating counsel had been present even though assistance had been minimal. The judge suggested the minimal assistance met the standard set out in Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984), found the enhancement paragraphs true, and sentenced appellant to 25 years.

Appellant raises six points of error attacking the enhancement paragraphs. Points of error one and three attack enhancement paragraphs one and two, respectively, on the basis that appellant was denied his right to counsel guaranteed by the sixth and fourteenth amendments of the U.S. Constitution. Points two and four challenge the paragraphs under article 1, section 10 of the Texas Constitution. Points five and six assert he was not admonished regarding his right against self-incrimination, right to trial by jury, and right to confront his accusers, in violation of the fifth, sixth, and fourteenth amendments of the U.S. Constitution.

The only evidence presented in support of appellant’s contention that he was denied the right to counsel was his own testimony. Cutler testified relative to the custom of the period, but could not address what actually took place in regards to appellant. The judgment for each prior conviction states appellant was represented by counsel. The recitations in the judgment “are binding in the absence of direct proof of their falsity.” Breazeale v. State, 688 S.W.2d 446, 450 (Tex.Crim.App.1984).

Appellant cites Ex parte Lemay, 525 S.W.2d 1 (Tex.Crim.App.1975), and Ex parte Morse, 591 S.W.2d 904 (Tex.Crim. App.1980), for the proposition that a conviction cannot be used for enhancement if the defendant was not represented by counsel at the time of the conviction. In both of those cases, the docket sheet was in evidence, corroborating the petitioners testimony that counsel was “appointed on jury waiver.” Morse, 591 S.W.2d at 905; Lemay, 525 S.W.2d at 3. The Court of Criminal Appeals stated:

Testimony of the petitioner, if uncorroborated, would be insufficient to overcome the presumption of the validity of the recitations in the judgment.

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... [T]he statement on the docket sheet sufficiently corroborates petitioner’s testimony and overcomes the recitations of the form judgment.

Lemay, 525 S.W.2d at 3.

In Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), also cited by appellant, the record stated on its face that the defendant was not represented by counsel. In the instant case, the record indicates appellant was represented by counsel, and there is insufficient evidence presented to rebut the presumption of validity of the recitation. The burden of proof to bring the full record is on the party attacking the validity of the conviction. West v. State, 720 S.W.2d 511, 519 (Tex.Crim.App.1986), cert. denied, 481 U.S. 1072, 107 S.Ct. 2470, 95 L.Ed.2d 878 (1987). Appellant has not carried his burden.

Appellant’s points of error one through four are overruled.

Points of error five and six attack the enhancement paragraphs on the basis that appellant was not admonished about his constitutional rights prior to entering a plea of guilty, citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In Boykin, the United States Supreme Court held a guilty plea, like a confession, requires “an affirmative showing that it was intelligent and voluntary.” 395 U.S. at 242, 89 S.Ct. at 1711. The Court, quoting Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962), stated “[presuming waiver from a silent record is impermissible.” Id. In the instant case, the record is not silent regarding the admonishments given to appellant. Both judgments state appellant “was admonished by the Court of the consequences of his plea, and Defendant persisted in pleading guilty.” There is no evidence in the record other than appellant’s testimony to rebut the judgment recitations. Appellant’s testimony alone is insufficient to disprove the judgment recitations. Haines v. State, 623 S.W.2d 367, 373 (Tex.Crim.App.1981); Lemay, 525 S.W.2d at 3.

Appellant’s points of error five and six are overruled.

The judgment is affirmed.

COHEN, J., dissents.