ACCEPTED 01-14-00895-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 7/7/2015 3:49:19 PM CHRISTOPHER PRINE CLERK
NO. 01-14-00895-CR IN THE COURT OF APPEALS FILED IN 1st COURT OF APPEALS FOR THE HOUSTON, TEXAS FIRST DISTRICT OF TEXAS 7/7/2015 3:49:19 PM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk
LAMAR MARCELL HUNTER, Appellant V. THE STATE OF TEXAS, Appellee
Appealed from the 10TH Judicial District Court of Galveston County, Texas Cause No. 12-CR-1921
BRIEF FOR THE STATE OF TEXAS
JACK ROADY CRIMINAL DISTRICT ATTORNEY GALVESTON COUNTY
ALLISON LINDBLADE ASSISTANT CRIMINAL DISTRICT ATTORNEY GALVESTON COUNTY STATE BAR NO. 24062850 600 59TH STREET, SUITE 1001 GALVESTON, TX 77551 (409) 766-2355, FAX (409) 766-2290 allison.lindblade@co.galveston.tx.us ORAL ARGUMENT NOT REQUESTED
i IDENTITY OF PARTIES AND COUNSEL
Presiding Judge Hon. Kerry Neves
Appellant Lamar Marcell Hunter
Appellee The State of Texas
Attorneys for Appellant Anthony Hernandez – Trial
Joel Bennett – Motion for New Trial
Joseph Kyle Verret – Appeal
Attorneys for State Xochitl Vandiver-Gaskin – Trial
Allison Lindblade – Appeal
ii TABLE OF CONTENTS
Identity of Parties and Counsel ii
Table of Contents iii
Index of Authorities v
Summary of the Argument 1
Statement of Facts 3
Second Issue 10 An ineffective assistance of counsel claim that renders a plea involuntary depends on (1) if counsel’s advice was within the range of competence and, if not, (2) if there’s a reasonable probability that, but for counsel’s errors, the defendant wouldn’t have pleaded guilty and would’ve insisted on a trial.
If the defendant was properly admonished, there is a prima facie showing that the guilty plea was made voluntarily.
How’s Hunter’s plea involuntary if the record shows he was admonished, he attested to his voluntariness, and his strategy was to avoid trial?
Argument and Authorities 10
Standard of Review and applicable law 11
A voluntary plea 13
Article 42.12 Section 5 (a) Deferred Adjudication; Community Supervision 14
Trial Court’s ruling at sentencing: “There’s no excuse just by saying you were immature.” 14
iii Trial Court’s ruling on the Motion for New Trial: “the fact of this specific finding not being discussed and making a difference to me is not at all credible.” 16
The Trial Court denied Hunter’s Motion for New Trial because he didn’t find Hunter’s argument credible 17
Hunter wanted to avoid a trial and try to reunite his family 18
Hunter cannot overcome the presumption that his plea was voluntary 19
Whichever way it’s sliced – the outcome would’ve been the same 21
Conclusion: hindsight is a useless tool 24
Conclusion and Prayer 26
Certificate of Service 27
Certificate of Compliance 27
iv INDEX OF AUTHORITIES
CASES
Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005). ............... 12, 13
Barrett v. State, 01-00-00763-CR, 2001 WL 1298867, at *2 (Tex. App.—Houston [1st Dist.] Oct. 25, 2001, no pet.)..........................................................................25
Burnell v. State, 01-10-00214-CR, 2012 WL 29200, at *7 (Tex. App.—Houston [1st Dist.] Jan. 5, 2012, pet. ref'd) .........................................................................19
Chapa v. State, 407 S.W.3d 428, 434 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ........................................................................................................................19
Dusenberry v. State, 915 S.W.2d 947, 949 (Tex App.—Houston [1st Dist.] 1996, pet. ref'd). ....................................................................................................... 20, 24
Ex parte Mable, 443 S.W.3d 129, 131 (Tex. Crim. App. 2014). ............................13
Ex parte Moody, 991 S.W.2d 856, 857–58 (Tex. Crim. App. 1999) ............... 12, 21
Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) ..........................12
Ford v. State, 845 S.W.2d 315, 316 (Tex. App.—Houston [1st Dist.] 1992, no pet.) ........................................................................................................................ 14, 20
Graves v. State, 803 S.W.2d 342, 345–47 (Tex. App.—Houston [14th Dist.] 1990, pet. ref'd) ...............................................................................................................19
Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011) ................................13
Lopez v. State, 428 S.W.3d 271, 278 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). .....................................................................................................................11
Mallett v. State, 65 S.W.3d 59, 64 (Tex. Crim. App. 2001). ...................................14
Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). ..........................13
v McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) ....................................................................................................................13
Miranda v. State, 14-14-00091-CR, 2015 WL 1870329, at *1 (Tex. App.— Houston [14th Dist.] Apr. 23, 2015, no. pet. h.) ...................................................24
Parkinson v. State, 01-14-00476-CR, 2015 WL 3637983, at *1 (Tex. App.— Houston [1st Dist.] June 11, 2015, no. pet. h.) .....................................................23
Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). ......................... 11, 17
Rodriguez v. State, 01-14-00206-CR, 2015 WL 457463, at *1 (Tex. App.— Houston [1st Dist.] Feb. 3, 2015, no pet.) .............................................................23
State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013) ..........................20
Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 2064, 2068 (1984) ............................................................................................................. 12, 21
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) ...................... 12, 24
Warren v. State, 01-12-00649-CR, 2014 WL 1516540, at *3-4 (Tex. App.— Houston [1st Dist.] Apr. 17, 2014, no pet.)...........................................................13
Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ...........................12
CONSTITUTION
U.S. CONST. AMEND. VI............................................................................................11
vi STATUTES
TEX. CODE CRIM. PROC. art. 26.13(b) ......................................................................13
TEX. CRIM. PROC. CODE § art. 42.12(a) ...................................................... 14, 17, 18
vii TO THE HONORABLE COURT OF APPEALS:
Now comes Jack Roady, Criminal District Attorney for Galveston County,
Texas, and files this brief for the State of Texas.
SUMMARY OF THE ARGUMENT
Lamar Marcell Hunter pleaded guilty to aggravated sexual assault of a child
without a sentencing recommendation. After hearing punishment evidence, where
Hunter requested probation, the Trial Court sentenced him to 20 years confinement in
the Institution of Texas Department of Criminal Justice. In his second issue on
appeal, Hunter alleged that he would not have pled guilty and requested punishment
by the Trial Court had he known that the best interest of the victim was a necessary
finding by the Trial Court to place him on deferred probation. Instead, Hunter
claimed he would have demanded a jury trial on the issue of guilt-innocence.1 Hunter
claims his Trial Counsel was ineffective and this rendered his plea involuntary.
The Trial Court said in its ruling on the Motion for New Trial that the
argument about this specific finding making a difference in the outcome of the
proceedings was not at all credible.
Hunter only prevails in his argument if he proves that, but for counsel’s errors,
he would’ve insisted on a trial. Although Hunter’s Trial Counsel admitted that he 1 Hunter brief, p. 1.
1 didn’t advise Hunter of the required best interest of the victim finding, both Hunter
and his Trial Counsel testified that Hunter didn’t want a trial. They testified that
Hunter didn’t want to put the victim through the trauma of a trial because she was
family and had gone on with her life.2 The record does not support Hunter’s claim
that he would’ve insisted on a jury trial.
The record establishes that Hunter’s plea of guilty was voluntary. Hunter
admitted that he was advised and admonished regarding the range of punishment that
the Trial Court could use. Moreover, Hunter signed admonishments attesting to the
voluntariness of his plea. For all these reasons, the Trial Court’s judgment should be
affirmed.
Hunter’s first issue on appeal addressed his right to appeal. The State joins
Hunter and agrees that the initial Trial Certificate of Defendant’s Right to Appeal
signed by Hunter and the Trial Court improperly limited Hunter’s right to appeal.3
The State and Hunter filed an agreed motion to abate this appeal to correct the Trial
Court’s Certificate of Defendant’s Right to Appeal. This Court abated the case. As a
result, the Trial Court amended the certificate of defendant’s right to appeal.4
Therefore, this issue will not be discussed herein.
STATEMENT OF FACTS
2 R.R.III:12-15, 37-38. 3 C.R. 41. 4 Supplemental C.R.
2 When A.P.5 was 9 years old, her family lived with extended family for the
summer because her father lost his job.6 Hunter, A.P.’s cousin, also lived there.7
Hunter was 25 years old that summer.8
While A.P. and her family were living with Hunter and his family, Hunter
repeatedly sexually assaulted her.9 For several years, A.P. didn’t tell anyone what
Hunter did to her because she was afraid of getting into trouble.10
A.P. outcried to her mother, Jennifer, when she was 15 years old.11 A.P. was
watching a movie with her family when a scene in the movie depicted a little girl
in a sexually abusive situation.12 A.P. ran into her room and eventually called for
her mother.13 She told her mother that Hunter raped her.14
A.P swore her mother to secrecy because A.P. was close to Hunter’s son
Nicholas.15 A.P. didn’t want Hunter to go to jail because it would leave Nicholas
5 The victim was given a pseudonym in order to protect her privacy. The pseudonym was used in the indictment. However, the victim testified at punishment using her legal name. 6 R.R.II:45; the one-volume Clerk’s Record is referred to in the State’s Brief as “C.R. page”; the Reporter’s Record is several volumes and is referred to as “R.R. volume no.: page.” 7 R.R.II:15, 45-46. 8 R.R.II:72. 9 R.R.II:30, 77. 10 R.R.II:29, 31. 11 R.R.II:47. 12 R.R.II:33, 47. 13 R.R.II:34, 47. 14 R.R.II:34, 47. 15 R.R.II:39, 47.
3 without a father.16 But when A.P. found out that Hunter had a new daughter, she
told her mother that she wanted to tell the authorities.17
La Marque Police Department’s Detective Danielle Herman received the
case from the Texas Department of Family Protective Services.18 During her
investigation, Detective Herman confirmed that A.P. outcried to the mother.19
Detective Herman corroborated some of the details given by A.P. and her mother.20
Detective Herman also interviewed Hunter and confirmed that he lived with A.P.
and the details of the residence.21
Hunter was indicted with sexual assault of a child by intentionally or
knowingly causing the penetration of the sexual organ of A.P., a child who was
then younger than 14 years of age, by the defendant’s sexual organ.22
On March 5, 2014, Hunter pled guilty and elected to be sentenced by the
Trial Court with no recommendation by the State.23 The Trial Court ordered a
Presentencing Investigation Report.24 Hunter signed an Application for
Probation.25
16 R.R.II:39, 47. 17 R.R.II:49. 18 R.R.II:12. 19 R.R.II:12. 20 R.R.II:15. 21 R.R.II:15. 22 C.R. 5. 23 R.R.II:8. 24 R.R.III:10. 25 C.R. 32.
4 A.P., now a 19 year old mother and college student studying neonatal
nursing, testified at the punishment hearing.26 She testified in detail about how
Hunter repeatedly sexually abused her when she was 9 years old.27 A.P. testified
that she didn’t tell anyone about the abuse because she thought she was going to
get into trouble “‘cause you’re not supposed to be doing that at a young age.”28
A.P. testified that when she saw the same thing happen to girls on T.V., she had
flashbacks.29 A.P. testified that she eventually told her mother about the rapes
when they were watching something on T.V. that upset her.30
A.P. testified that her family split apart after everyone found out.31 A.P. told
the Trial Court how her relationship with her father changed because her father is
torn between his daughter and his nephew.32 A.P. testified that her relationship
with her father is still shaky.33
A.P. testified that it was horrible to go through the police process.34 A.P.
testified that there was an incident after she disclosed the abuse where someone
was blocking the driveway at her house.35 A.P. testified that when she made the
26 R.R.II:21. 27 R.R.II:27-31. 28 R.R.II:29. 29 R.R.II:33. 30 R.R.II:33-34. 31 R.R.II:39. 32 R.R.II:37. 33 R.R.II:37. 34 R.R.II:40. 35 R.R.II:40.
5 circle around the cul-de-sac, they closely followed her for about 5 minutes.36 A.P.
testified that this scared her.37 A.P. testified that she continues to be watchful.38
A.P.’s mother, Jennifer Hunter, testified that after the abuse was disclosed to
the family, her and her husband separated.39 Jennifer testified that her husband is
torn and does not support A.P.40 Jennifer testified that her husband’s family, except
for A.P.’s grandfather, is estranged and not supportive.41 Jennifer testified that her
and her children have grown stronger because they support A.P. and try to keep her
confident so she can move on with her life.42
Hunter’s wife, Nicole Hunter, testified that she’s known Hunter since they
were in 6th grade.43 Nicole testified that she and Hunter had 10 year old boy, a 3
year old girl, and a child due in November.44 Nicole testified that Hunter just made
a mistake and that she had no concerns about him being around her children.45
A.P.’s father, Geoffrey Hunter, testified on behalf of Hunter.46 Geoffrey
testified that he had forgiven Hunter.47 Geoffrey told that Trial Court that to punish
36 R.R.II:40. 37 R.R.II:40. 38 R.R.II:40. 39 R.R.II:51. 40 R.R.II:51. 41 R.R.II:52. 42 R.R.II:51. 43 R.R.II:57. 44 R.R.II:58. 45 R.R.II:61. 46 R.R.II:64. 47 R.R.II:65.
6 Hunter to the highest degree would make everything a lot worse between both
families.48 Geoffrey told that Trial Court that he didn’t want to see Hunter away
from his family but he wanted some justice.49
Hunter testified at punishment. He testified he was deeply sorry for what he
had done.50 Hunter testified how he was sexually abused from the age of 5 until he
was 9 years old.51 Hunter testified how he never disclosed the abuse.52 He testified,
“and being that I done it to her, I pretty much feel that she would be upset too
because that happened to me as well.”53
Hunter testified that he wasn’t sexually attracted to his cousin even though
he raped her repeatedly.54 Hunter testified that he didn’t know why he repeatedly
sexually assaulted his cousin.55 He testified he was young and he didn’t know what
he was thinking.56 Hunter testified that he was very immature at the age of 25.57
Hunter testified that he didn’t realize the consequences of his actions at age 25.58
48 R.R.II:67. 49 R.R.II:67. 50 R.R.II:74. 51 R.R.II:77. 52 R.R.II:77. 53 R.R.II:77. 54 R.R.II:79. 55 R.R.II:83-84. 56 R.R.II:85. 57 R.R.II:78. 58 R.R.II:72, 79.
7 Hunter testified that he was a different man now.59 Hunter testified that he
would never do it again even though he didn’t know why he did it the first time.60
Hunter testified that he had not attended any classes or counseling to address the
sexual abuse issues.61
Hunter told the Trial Court that he could abide by all the conditions of
probations.62 Hunter testified that he could successfully complete probation if the
Trial Court were to give him probation.63
The Trial Court told Hunter that he had no excuse saying he was immature
at 25 and sentenced him to 20 years confinement in the Texas Department of
Criminal Justice.64
Hunter filed a timely Motion for New Trial.65 The Trial Court held a
hearing, heard evidence, and denied the motion.66 The details of the hearing will be
discussed in the issue.
This appeal followed.
59 R.R.II:72. 60 R.R.II:85. 61 R.R.II:79. 62 R.R.II:74. 63 R.R.II:74. 64 R.R.II:92-94. 65 C.R. 45. 66 C.R. 52.
8 ISSUE TWO
An ineffective assistance of counsel claim that renders a plea involuntary depends on (1) if counsel’s advice was within the range of competence and, if not, (2) if there’s a reasonable probability that, but for counsel’s errors, the defendant wouldn’t have pleaded guilty and would’ve insisted on a trial.
If the defendant was properly admonished, there is a prima facie showing that the guilty plea was made voluntarily.
How’s Hunter’s plea involuntary if the record shows he was admonished, he attested to his voluntariness, and his strategy was to avoid trial?
ARGUMENT AND AUTHORITIES
Hunter claims he would’ve demanded a jury trial on the issue of guilt-
innocence had he known that the best interest of the victim was a necessary finding
by the Trial Court to place him on deferred probation.67 The Trial Court said in its
ruling that the issue of the specific finding making a difference in the outcome of the
proceeding was not at all credible.68 Although Hunter’s Trial Counsel admitted that
he didn’t advise Hunter of the required finding, this didn’t render his Trial Counsel
ineffective or Hunter’s plea involuntary in view of their trial strategy and all of
Hunter’s admissions and admonishments.
Standard of review and applicable law 67 Hunter brief, p. 1. 68 R.R.III:53.
9 When an ineffective assistance of counsel claim is brought in a motion for
new trial, the appellate court reviews the trial court’s denial of the motion for an
abuse of discretion.69 The appellate court reverses the trial court’s motion for new
trial only if the trial court’s order “was clearly erroneous and arbitrary.”70 The
evidence is reviewed in the light most favorable to the ruling and upheld if it is
within the zone of reasonable disagreement.71 Almost total deference must be
shown to a Trial Court’s findings of historical facts as well as mixed questions of
law and fact that turn on an evaluation of credibility and demeanor.72
The Sixth Amendment to the United States Constitution guarantees the right
to reasonably effective assistance of counsel in criminal prosecutions.73 Generally,
to show ineffective assistance of counsel, a defendant must demonstrate both (1)
that his counsel’s performance fell below an objective standard of reasonableness
and (2) that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.74 Failure to make the
required showing of either deficient performance or sufficient prejudice defeats the
69 Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). 70 Id. 71 Id.; Lopez v. State, 428 S.W.3d 271, 278 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). 72 Riley, 378 S.W.3d 453 at 458. 73 See U.S. CONST. AMEND. VI. 74 Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005).
10 ineffectiveness claim.75
“When a defendant challenges the voluntariness of a plea entered upon the
advice of counsel, contending that his counsel was ineffective, ‘the voluntariness
of the plea depends on (1) whether counsel’s advice was within the range of
competence demanded of attorneys in criminal cases and if not, (2) whether there
is a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.’”76
Under either test, the defendant bears the burden to prove the elements by a
preponderance of the evidence.77 Any allegation of ineffectiveness must be firmly
founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness.78 It is presumed that counsel’s conduct falls within the wide range
of reasonable professional assistance, and counsel’s performance will be found
deficient only if the conduct is so outrageous that no competent attorney would
have engaged in it.79
75 See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see also Andrews, 159 S.W.3d at 101. 76 Ex parte Moody, 991 S.W.2d 856, 857–58 (Tex. Crim. App. 1999) (quoting Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997)). 77 See Moody, 991 S.W.2d at 858 (holding defendant's burden is same as other types of ineffective assistance of counsel claims); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (holding defendant bears burden of proving by preponderance of evidence that counsel was ineffective). 78 Thompson, 9 S.W.3d at 813. 79 Andrews, 159 S.W.3d at 101; Warren v. State, 01-12-00649-CR, 2014 WL 1516540, at *3-4 (Tex. App.—Houston [1st Dist.] Apr. 17, 2014, no pet.) (not designated for publication).
11 The Court of Criminal Appeals stated that “[i]n making an assessment of
effective assistance of counsel, an appellate court must review the totality of the
representation and the circumstances of each case without the benefit of
hindsight.”80
A voluntary plea
It is well established that a guilty plea must be entered into knowingly and
voluntarily.81 The applicable standard of review is whether the plea is a voluntary
and intelligent choice among the alternative courses of action open to the
accused.82 A record that indicates that the trial court properly admonished the
defendant provides a prima facie showing that the guilty plea was made voluntarily
and knowingly.83 A defendant signing the admonishments, an attestation of
voluntariness, at the original plea hearing imposes a heavy burden on him at a later
hearing to show a lack of voluntariness.84
Article 42.12 Section 5 (a) Deferred Adjudication; Community Supervision
The Texas Code of Criminal Procedure reads:
80 Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). 81 See TEX. CODE CRIM. PROC. art. 26.13(b); McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Ex parte Mable, 443 S.W.3d 129, 131 (Tex. Crim. App. 2014). 82 McCarthy, 394 U.S. at 466; Mable, 443 S.W.3d at 131. 83 Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). 84 Ford v. State, 845 S.W.2d 315, 316 (Tex. App.—Houston [1st Dist.] 1992, no pet.); see also Mallett v. State, 65 S.W.3d 59, 64 (Tex. Crim. App. 2001).
12 A judge may place on community supervision under this section a defendant charged with an offense under Section 21.11, 22.011, or 22.021, Penal Code, regardless of the age of the victim, or a defendant charged with a felony described by Section 13B(b) of this article, only if the judge makes a finding in open court that placing the defendant on community supervision is in the best interest of the victim. The failure of the judge to find that deferred adjudication is in the best interest of the victim is not grounds for the defendant to set aside the plea, deferred adjudication, or any subsequent conviction or sentence.85
By a plain reading of the statute, whether or not the Trial Court found that deferred
adjudication was in the best interest of the victim couldn’t have been grounds for
Hunter to set aside the plea.86
Trial Court’s ruling at sentencing: “There’s no excuse just by saying you were
immature.”
After hearing the evidence in Hunter’s punishment hearing, the Trial Court
gave it’s ruling on the record:
Now, Mr. Hunter, you committed a terrible crime, a horrible crime, not only once but by your testimony three, plus times. It was a huge mistake. It’s a huge mistake for you, for this young lady, for her family, for your family. And I see her mother and father sitting on separate sides of the courtroom, and there's just a schism here.
There's no way I can square a 25-year-old and a
85 TEX. CRIM. PROC. CODE § art. 42.12(a) (emphasis added). 86 See id.
13 nine-year-old and the testimony I’ve heard today in any way shape, fashion or form. You said you were immature.
In my generation, 50-some-odd thousand people died in South East Asia and a whole hell of a lot them were less than 25 years old. I was one of the fortunate ones, I guess, that didn't go over there. But I was in the Marines at that time. There’s no excuse just by saying you were immature.
Everyone admits nobody can win and it looks like people are getting on with their life. But I agree with [the State] completely that part that young lady at the age of nine ceased to function, ceased to live, ceased to exist. And while there are no winners, there will be some justice.
So, it is the judgment of this Court, Mr. Hunter, that the Bailiff is to take you into custody. And the Sheriff is to turn you over to the appropriate authorities with the Texas Department of Criminal Justice to serve a sentence of 20 years.87
Trial Court’s ruling on the Motion for New Trial: “the fact of this specific
finding not being discussed and making a difference to me is not at all
credible.”
After hearing the evidence in Hunter’s Motion for New Trial hearing, the
Trial Court gave it’s ruling on the record:
When we had the sentencing hearing, I am very confident the Defendant fully understood the full range of punishment.
87 R.R.II:92-94.
14 Probation was argued for the fact of this specific finding not being discussed and making a difference to me is not at all credible. He simply made a bad choice. You can critique or second guess whatever Mr. Hernandez for hoping and thinking that on these facts I would show mercy or be kind and put him on deferred or some type of probation. In my mind, that was a bad call.
Looking back over the transcript and looking at what I said when I found you guilty and sentenced you, Mr. Hunter, again, there’s no way you could square a 25- year-old and a 9-year-old, an aggravated sexual assault. You got up and testified you were immature and things of that nature. And I think I responded to that with a little bit of discussion about my history, and I didn't find that credible.
So, you simply chose a wrong goal here of getting probation. And based on those facts, there was absolutely no way in Heaven I was ever going to give you probation. So, the Motion for New Trial is denied.88
The Trial Court denied Hunter’s Motion for New Trial because he didn’t find
Hunter’s argument credible
In its ruling, the Trial Court stated that the finding of in the best interest of
the victim would not have made a difference in the outcome of the proceedings.
The Trial Court told Hunter that he didn’t find him credible. The Trial Court told
Hunter that probation wasn’t an option. The Trial Court’s ruling should be upheld
88 R.R.III:53.
15 because it’s based, at least in part, on the Court’s assessment of Hunter’s
credibility and demeanor.89
Moreover, the Trial Court’s Motion for New Trial should be upheld by the
plain meaning of the Article 42.12§5(a): “The failure of the judge to find that
deferred adjudication is in the best interest of the victim is not grounds for the
defendant to set aside the plea, deferred adjudication, or any subsequent conviction
or sentence.”90 Whether or not the Trial Court found that deferred adjudication was
in the best interest of the victim couldn’t have been grounds for Hunter to set aside
the plea.
Hunter wanted to avoid a trial and try to reunite his family
Trial Counsel admitted that he didn’t advise Hunter about the finding the
Trial Court was required to make regarding the best interest of the victim in order
to place a defendant on deferred probation.91 Nonetheless, this lack of advice didn’t
render his Trial Counsel ineffective or Hunter’s plea involuntary in view of their
trial strategy and all of Hunter’s admissions and admonishments.
89 See Riley, 378 S.W.3d at 457. 90 TEX. CRIM. PROC. CODE § art. 42.12(a). 91 R.R.III:11; TEX. CRIM. PROC. CODE § art. 42.12(a).
16 Both Hunter and his Trial Counsel testified that they wanted to avoid a trial
in order to spare the victim from going through a trial.92 Hunter didn’t want to have
to put the victim through the trauma of a trial because the victim was a family
member and she had gone on with her life.93 Hunter testified at sentencing that he
wanted to try to reunite the family.94
Hunter’s strategy was to plea to the Trial Court and hope for deferred
adjudication.95 Hunter testified at the motion for new trial that he knew the family
had rejected a plea to probation.96 Hunter testified at the motion for new trial that
he was aware that the victim’s family was not going to support his request for
probation.97 Hunter testified that he thought the victim wanted him in prison.98
Hunter testified at the motion for new trial that his trial attorney told him
that if they went to a trial by jury, that it wouldn’t go well for him.99 Hunter
testified that his trial attorney told that if he completes the PSI, he would be able to
receive probation, if everything goes well, and if the Court found mercy upon
92 R.R.III:12-15, 37-38. 93 R.R.III:12-15, 37-38. 94 R.R.II:74. 95 R.R.III:32-34. 96 R.R.III:34. 97 R.R.III:34. 98 R.R.III:34. 99 R.R.III:32.
17 him.100 The record does not support Hunter’s claim that he would’ve insisted on a
jury trial for guilt-innocence.
Hunter cannot overcome the presumption that his plea was voluntary
Prior to the plea, Trial Counsel advised Hunter about the full range of
punishment.101 Hunter testified that he understood the range of punishment at the
time of his plea.102 Hunter testified at sentencing that he accepted that he had pled
guilty and would have to accept the Court’s punishment.103 He said he understood
there was a possibility of prison.104
When Hunter entered his plea of guilty, he signed papers indicating that he
understood the consequences of his plea after consulting with his attorney and that
100 R.R.III:32-34; see Chapa v. State, 407 S.W.3d 428, 434 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (Court held that it was not ineffective assistance for a defense counsel to advise his client to plead guilty under the expectation that there would be a lighter sentence than what the client ultimately received.); see also Graves v. State, 803 S.W.2d 342, 345–47 (Tex. App.— Houston [14th Dist.] 1990, pet. ref'd); see also Burnell v. State, 01-10-00214-CR, 2012 WL 29200, at *7 (Tex. App.—Houston [1st Dist.] Jan. 5, 2012, pet. ref'd) (not designated for publication) (Even if defendant was told that the likelihood of community supervision was high in an open plea to the Trial Court, this Court cannot find this advice is below the range of competence of a reasonable defense attorney. If a defendant is eligible for community supervision, a trial counsel does not render ineffective assistance by advising him to plead guilty under the expectation that there will be a lighter sentence than what is ultimately received.). 101 R.R.III:17-18. 102 R.R.III:31-32. 103 R.R.II: 81-82: “I accept that things that I have done and for the punishment that the Court puts on me today or whatever, I will have to accept it. I have pleaded guilty to this. I have not denied it. I'm ready to put it in the past and put this behind me and to press on in my life, to move forward. So, I have to accept anything that comes at me right now. I can understand it's a possibility that I can go to prison. But, yet, I haven't accepted it, no.” 104 R.R.II: 81-82.
18 he entered his plea knowingly and voluntarily.105 The plea papers show that
Hunter’s attorney and the Trial Court verified that Hunter entered his plea
voluntarily and knowingly.106
Hunter failed to show a lack of voluntariness in his plea due to his attestation
of voluntariness at the original plea hearing.107 In addition, Hunter’s plea was
voluntary in light of the testimony that Hunter wanted to avoid a trial in order to
spare the victim from going through a trial.108 There wasn’t a reasonable
probability or a believable probability that, but for Trial Counsel’s errors, if any,
Hunter wouldn’t have pleaded guilty and would have insisted on going to trial.109
Whichever way it’s sliced – the outcome would’ve been the same
Even if Hunter’s Trial Counsel’s performance fell below an objective
standard of reasonableness, Hunter hasn’t proven that the proceeding would’ve
been different.110 In its ruling on the Motion for New Trial, the Trial Court said that
Hunter’s argument regarding a discussion of the required finding for deferred
probation was not credible because asking the Trial Court for some type of
105 See State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013) (When a person attacks the validity of his prior guilty plea as that plea is reflected in the written judgment, he bears the burden of defeating the normal presumption that recitals in the written judgment are correct. Those written recitals “are binding in the absence of direct proof of their falsity.”); see also Dusenberry v. State, 915 S.W.2d 947, 949 (Tex App.—Houston [1st Dist.] 1996, pet. ref'd). 106 See Dusenberry, 915 S.W.2d at 949; C.R. 25-26. 107 See id.; see also Ford, 845 S.W.2d at 315. 108 R.R.III:12-15, 37-38. 109 See Moody, 991 S.W.2d at 857–58. 110 See Strickland, 466 U.S. at 687-88.
19 probation was not a good choice.111 In other words, testimony supporting the “in
the best interest of the victim” finding wouldn’t have made a difference in the
outcome of the ruling.
The Trial Court heard Hunter testify at punishment and didn’t find him
credible:
Hunter testified that he was very immature at the age of 25.112
Hunter testified that he was young and he didn’t know what he was
thinking.113
Hunter testified that he didn’t realize the consequences of his actions at age
25.114
Hunter testified that he wasn’t sexually attracted to his cousin even though
he raped her repeatedly.115
Hunter testified that he didn’t know why he repeatedly sexually assaulted his
cousin.116
Hunter testified that he would never do it again even though he didn’t know
why he did it the first time.117
111 R.R.III:53. 112 R.R.II:78. 113 R.R.II:85. 114 R.R.II:79. 115 R.R.II:79. 116 R.R.II:83-84. 117 R.R.II:85.
20 Hunter testified that he had not attended any classes or counseling to address
the sexual abuse issues and that he had tried but didn’t know what type of
counseling he needed.118
Before the Trial Court sentenced Hunter, it said, “There's no way I can
square a 25-year-old and a nine-year-old and the testimony I've heard today in any
way shape, fashion or form. You said you were immature…There's no excuse just
by saying you were immature.”119 The Trial Court compared Hunter to the fallen
soldiers that had given their lives at ages younger than 25 years old. The Trial
Court did not find Hunter’s callow excuse credible.
The Trial Court didn’t find Hunter credible at punishment when Hunter’s
excuse for raping a 9 year old little girl was his lack of maturity. The Trial Court
didn’t find Hunter credible at the subsequent hearing when Hunter’s reason for his
supposed involuntary plea was his trial counsel’s erroneous advice. The Trial
Court simply didn’t find Hunter credible.
Hunter claims that if his Trial Counsel would have advised him differently
about the required best interest of the victim finding, he wouldn’t have pled
guilty.120 Even if this were credible and not the product of hindsight, Hunter’s
outcome still would not have been different. Hunter’s Trial Counsel correctly
118 R.R.II:79-80. 119 R.R.II:92-94. 120 R.R.III:35-36.
21 advised him that he probably wouldn’t have received a better sentenced in front of
a jury.121 Even with the possible benefits of hindsight, Hunter has not shown that
the outcome would’ve been different.
Conclusion: hindsight is a useless tool
Despite Hunter testifying at the hearing on his motion for new trial, he
simply did not rebut the presumption that Trial Counsel made all significant
decisions in the exercise of reasonable professional judgment, and Hunter has not
demonstrated in the record that Trial Counsel rendered ineffective assistance.122
Hunter claimed that his allegedly ineffective assistance of Trial Counsel caused
him to enter an involuntary plea of guilty. Considering the voluntariness of a guilty
plea is determined by the totality of the circumstances and there is a presumption
of regularity of the judgment and the proceedings, Hunter has not overcome this
presumption.123 During the hearing on the motion for new trial, Hunter testified he
121 R.R.III:32; Rodriguez v. State, 01-14-00206-CR, 2015 WL 457463, at *1 (Tex. App.— Houston [1st Dist.] Feb. 3, 2015, no pet.) (A Harris County jury convicted defendant of the felony offense of aggravated sexual assault of a child and assessed his punishment at eighty years' confinement and a $10,000 fine.); Parkinson v. State, 01-14-00476-CR, 2015 WL 3637983, at *1 (Tex. App.—Houston [1st Dist.] June 11, 2015, no. pet. h.) (not designated for publication) (A Brazoria County jury found defendant guilty on four counts aggravated sexual assault of a child and assessed punishment at 45 years' confinement on each count.); and Miranda v. State, 14-14-00091-CR, 2015 WL 1870329, at *1 (Tex. App.—Houston [14th Dist.] Apr. 23, 2015, no. pet. h.) (not designated for publication) (A Harris County jury found appellant guilty of aggravated sexual assault of a child and the trial court sentenced appellant to twenty- five years' confinement.). 122 See Thompson, 9 S.W.3d at 814. 123 See Dusenberry, 915 S.W.2d at 949; see also Fimberg v. State, 922 S.W.2d 205, 207 (Tex. App.—Houston [1st Dist.] 1996, pet. ref'd).
22 was admonished by the Trial Court on the range of punishment and that he was
aware that the Trial Court had no restrictions on punishment within that range.124
Hunter failed to meet his burden in overcoming the presumption of regularity of
the judgment and proceedings; therefore, his plea should be found voluntary.125
Hunter’s second issue should be overruled and the Trial Court affirmed.
124 R.R.III:31-32. 125 See Barrett v. State, 01-00-00763-CR, 2001 WL 1298867, at *2 (Tex. App.—Houston [1st Dist.] Oct. 25, 2001, no pet.) (not designated for publication).
23 CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays that the
judgment of the Trial Court be affirmed in all respects.
Respectfully submitted,
JACK ROADY CRIMINAL DISTRICT ATTORNEY GALVESTON COUNTY, TEXAS
/s/ Allison Lindblade ALLISON LINDBLADE Assistant Criminal District Attorney State Bar Number 24062850 600 59th Street, Suite 1001 Galveston, Texas 77551 Tel (409)766-2453/Fax (409)765-3261 allison.lindblade@co.galveston.tx.us
24 CERTIFICATE OF SERVICE
The undersigned Attorney for the State certifies a copy of the foregoing brief
was sent via email, eFile service, or certified mail, return receipt requested, to Joseph
Kyle Verret, attorney for Hunter Marcell Hunter, at Kyle@verretlaw.com or 11200
Broadway, Suite 2743, Pearland, Texas 77584 on July 7, 2015.
/s/ Allison Lindblade ALLISON LINDBLADE Assistant Criminal District Attorney Galveston County, Texas
CERTIFICATE OF COMPLIANCE
The undersigned Attorney for the State certifies this brief is computer
generated, and consists of 5,163 words.
/s/ Allison Lindblade ALLISON LINDBLADE Assistant Criminal District Attorney Galveston County, Texas