STATE S RESPONSE BRIEF

Transcription

1 IN THE FIFTH COURT OF APPEALS DALLAS, TEXAS 5th Court of Appeals FILED: 12/9/11 14:00 Lisa Matz, Clerk HENRY STEVENSON, APPELLANT NO CR CR V. THE STATE OF TEXAS, APPELLEE APPEALED FROM CAUSE NUMBERS F & F IN THE 194 TH JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS; THE HONORABLE ERNEST WHITE, JUDGE PRESIDING. STATE S RESPONSE BRIEF CRAIG WATKINS Criminal District Attorney Dallas County, Texas BRADFORD CLEMENTS, Assistant Criminal District Attorney Oral Argument is requested, 133 N. Riverfront Blvd., LB 19 but only if Appellant is Dallas, Texas also requesting argument. (214) brad.clements@dallacounty.org FAX (214) State Bar No

2 TABLE OF CONTENTS INDEX OF AUTHORITIES... iv SUMMARY OF THE CASE... 1 STATEMENT OF FACTS... 2 SUMMARY OF STATE S RESPONSIVE ARGUMENTS TO APPELLANT S FOUR POINTS OF ERROR... 6 APPELLANT WAIVED ANY POTENTIAL ERROR WITH RESPECT TO AN UNCLEAR OR MISSTATED RANGE OF PUNISHMENT AT THE ORIGINAL PLEA HEARING WHEN HE DID NOT ADVANCE A SPECIFIC AND TIMELY MOTION FOR NEW TRIAL OR CONTINUANCE AND MADE THE STRATEGIC DECISION TO PROCEED WITH THE ADJUDICATION HEARING AND ARGUE FOR A LIGHT SENTENCE. ALTERNATIVELY, EVEN CONCEDING THAT APPELLANT WAS NOT PROPERLY ADMONISHED BY THE TRIAL COURT AND ASSUMING ARGUENDO THAT APPELLANT WAS NOT AWARE OF THE CONSEQUENCES OF HIS ORIGINAL PLEA, THE ENTIRE RECORD DEMONSTRATES THAT IT WAS A NON-CONSTITUTIONAL HARMLESS ERROR. APPELLANT CANNOT SATISFY HIS BURDEN OF DEMONSTRATING THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BASED ON UNCLEAR OR MISSTATED RANGE OF PUNISHMENT RECITATIONS IN PLEA DOCUMENTS BECAUSE HE CANNOT SATISFY, AT A MINIMUM, THE PREJUDICE REQUIREMENT OF APPLICABLE CASE LAW. ALTERNATIVELY, THE RECORD IS INCOMPLETE AT THE PRESENT TIME ON THE ISSUE OF ORIGINAL PLEA COUNSEL'S PERFORMANCE AND MUST BE FURTHER DEVELOPED IN THE TRIAL COURT. APPELLANT DID NOT RECEIVE AN ILLEGAL SENTENCE. NEITHER THE RECORD NOR APPELLANT'S CITED LEGAL AUTHORITY SUPPORTS HIS CLAIM THAT HE IS ENTITLED TO ADDITIONAL BACK TIME CREDIT. ARGUMENT... 8 ii

3 INVOLUNTARY PLEA... 8 INEFFECTIVE ASSISTANCE OF COUNSEL ILLEGAL SENTENCE BACK TIME CREDIT CONCLUSION AND PRAYER CERTIFICATE OF SERVICE iii

4 INDEX OF AUTHORITIES Cases Aguirre-Mata v. State, 125 S.W.3d 473 (Tex. Crim. App. 2003) Anderson v. State, 182 S.W.3d 914 (Tex. Crim. App. 2006)... 13, 14 Bigley v. State, 865 S.W.2d 26 (Tex. Crim. App. 1993) Boykin v. Alabama, 395 U.S. 238 (1969) Burnett v. State, 88 S.W.3d 633 (Tex. Crim. App. 2002)... 12, 13 Carranza v. State, 980 S.W.2d 653 (Tex. Crim. App. 1998) (en banc)... 11, 13 Ex parte Beck, 922 S.W.2d 181 (Tex. Crim. App. 1996) (per curiam)... 17, 18 Ex parte Lemke, 13 S.W.3d 791 (Tex. Crim. App. 2000) Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997) (en banc), cert. denied, 525 U.S. 810 (1998)... 11, 12 Ex parte Pena, 71 S.W.3d 336 (Tex. Crim. App. 2002) Ex parte Pizzalota, 610 S.W.2d 486 (Tex. Crim. App. 1980) (en banc), overruled on other grounds by Ex parte Hale, 117 S.W.3d 866 (Tex. Crim. App. 2003)... 19, 20 Ex parte Rodriguez, 334 S.W.2d 294 (Tex. Crim. App. 1960) iv

5 Fimberg v. State, 922 S.W.2d 205 (Tex. App. Houston [1st Dist.] 1996, pet. ref d) Franklin v. State, 693 S.W.2d 420 (Tex. Crim. App. 1985), cert. denied, 475 U.S (1986) Greenwood v. State, 948 S.W.2d 542 (Tex. App. Fort Worth 1997, no pet.) Hill v. Lockhart, 474 U.S. 52 (1985)... 15, 16 Hodges v. State, 604 S.W.2d 152 (Tex. Crim. App. 1980) Lopez v. State, 996 S.W.2d 893 (Tex. App. Corpus Christi 1999, no pet.) Martin v. State, 1994 Tex. App. LEXIS 3878 (Tex. App. Dallas Nov. 18, 1994, no pet.) (not designated for publication)...8, 9, 10, 11 Martinez v. State, 981 S.W.2d 195 (Tex. Crim. App. 1998) Mizell v. State, 119 S.W.3d 804 (Tex. Crim. App. 2003)... 17, 18 Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) (op. on reh g) Nelson v. State, 629 S.W.2d 888 (Tex. App. Fort Worth 1982, no pet.) Rice v. State, 789 S.W.2d 604 (Tex. App. Dallas 1990, no pet.) Rogers v. State, 640 S.W.2d 248 (Tex. Crim. App. 1982) (second op. on reh g)... 8, 10, 11 Strickland v. Washington, 466 U.S. 668 (1984) v

6 Weekley v. State, 594 S.W.2d 96 (Tex. Crim. App. 1980) Williams v. State, 522 S.W.2d 483 (Tex. Crim. App. 1975) Statutes TEX. CODE CRIM. PROC. Art (a)... 11, 12 TEX. GOV. CODE (a) TEX. GOV. CODE TEX. HEALTH & SAFETY CODE (3)(D)... 2, 18 TEX. HEALTH & SAFETY CODE (6)... 2, 18 TEX. HEALTH & SAFETY CODE (c)... 2, 18 TEX. PEN. CODE 12.34(a)... 2 TEX. PEN. CODE 12.42(d)... 2, 18, 21 Rules TEX. R. APP. P. 33.1(a)(1)(A) TEX. R. APP. P. 43.2(b)... 19, 20 TEX. R. APP. P. 44.2(b)... 12, 14 Treatises 24 C.J.S., Criminal Law vi

7 IN THE FIFTH COURT OF APPEALS DALLAS, TEXAS HENRY STEVENSON, APPELLANT NO CR CR V. THE STATE OF TEXAS, APPELLEE TO THE HONORABLE COURT OF APPEALS: APPEALED FROM CAUSE NUMBERS F & F IN THE 194 TH JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS; THE HONORABLE ERNEST WHITE, JUDGE PRESIDING. SUMMARY OF THE CASE THE CHARGES... POSS COCAINE < 4g + 2 ENHANCEMENTS & POSS METH < 4g + 2 ENHANCEMENTS (CRF : 5; CRF : 6) THE PLEAS...GUILTY & TRUE TO ENHANCEMENTS (CRF : 15; CRF : 50; RR2: 5, 10) TRIAL COURT S CONCLUSIONS...GUILTY & TRUE TO ENHANCEMENTS (RR3: 78) TRIAL COURT S SENTENCES...25 YEARS ID-TDCJ FOR EACH CASE (RR3: 78) 1

8 STATEMENT OF FACTS In two cases, Appellant was charged with possessing cocaine and methamphetamine, respectively, in individual amounts equal to or greater than 1 gram but less than 4 grams. (CRF : 6; CRF : 5). Each offense, standing alone, is a third-degree felony. TEX. HEALTH & SAFETY CODE (3)(D), (6); (c). The imprisonment range of punishment for a third-degree felony, standing alone, is any term of not more than 10 years or less than 2 years in the Texas Department of Criminal Justice. TEX. PEN. CODE 12.34(a). As both of Appellant s indictments also included two enhancement paragraphs, Appellant s charged range of punishment for each case was from 25 years to 99 years or life. TEX. PEN. CODE 12.42(d). In essentially identical written plea papers in both cases, Appellant signed documents stating, in pertinent part: that he was pleading Guilty ; that he was pleading True ; that it was a plea bargain; and that the recommended sentence was deferred community supervision for 8 years and a fine of $2,000. (CRF : 50; CRF : 15). In the plea documents section titled Court s Admonition of Defendant, both sets of plea documents indicate with an X that Appellant s drug charges were 3 rd Degree Felon[ies]. (CRF : 50; CRF : 15). The range of punishment listed there is 2-10 years confinement and an optional fine not to exceed $10, (CRF : 50; CRF : 15). On the second page of both sets of plea documents, Appellant agreed to the following language: I admit and judicially 2

9 confess that I committed the offense of possession of [methamphetamine/cocaine] on 10/21/07 exactly as alleged in the charging instrument. I affirm that my plea and judicial confession are freely and voluntarily made and not influenced by any consideration of fear, persuasion, or delusive hope of pardon or parole. (CRF : 51; CRF : 16). A section titled Defendant s Plea to Enhancement Paragraphs was not filled out in either set of plea documents. (CRF : 51; CRF : 16). For both indictments (each containing two enhancement paragraphs), Appellant also signed judicial confessions that did not amend the original charges in any way. (CRF : 52; CRF : 17). At the original plea hearing on October 7, 2008, the trial court told Appellant that [t]he range of punishment for each of these offenses is contained in the court s admonitions. (RR2: 5). Appellant affirmed that he reviewed the plea documents with his lawyer on each case and that he understood the full range of punishment available to the court. (RR2: 5). Appellant plead guilty and acknowledged that he was freely and voluntarily waiving or giving up the right to proceed to jury trial. (RR2: 5-6). Without objection, the State offered Appellant s signed judicial confessions as evidence to substantiate Appellant s guilty pleas. (RR2: 7). Before completing the hearing, the trial court asked both Appellant and his attorney whether Appellant was pleading true to the paragraphs. (RR2: 10). Appellant s attorney stated, with respect to the enhancement paragraphs in each case, he does plead true to those as well. (RR2: 10). Appellant also said yes, sir when asked whether he was pleading true to both enhancement paragraphs 3

10 in both cases. (RR2: 10). The trial court followed the plea bargain agreements and entered written findings and conclusions regarding the hearing, including circling that Appellant plead guilty and writing and true for each offense. (CRF : 42; CRF : 18). The trial court also filled in an X that the allegations in the enhancement paragraph(s) are true in each set of documents. (CRF : 43; CRF : 19). The trial court also found that Appellant entered his pleas freely and voluntarily and that he was admonished according to Article of the Texas Code of Criminal Procedure. (CRF : 42-43; CRF : 18-19). On February 8, 2011, the trial court heard the State s motions to adjudicate Appellant s guilt. (RR3: 1). Appellant pleaded true to certain allegations within the State s motions and proceeded with an open plea before the trial court. (RR3: 6). Before any witness testified at the adjudication hearing, Appellant s counsel made it clear that he was contesting whether Appellant [was] facing a plea enhancement or a punishment enhancement of that of a habitual offender. (RR3: 8). Appellant s counsel continued to argue that the State had not proven that Appellant [was] charged with a third-degree felony with two paragraphs. (RR3: 8). Appellant s judicial confessions were again admitted, and the State brought an expert to connect Appellant s fingerprints to the fingerprints on the two prior convictions alleged in the two enhancement paragraphs in each of Appellant s cases. (RR3: 8, 58-62). Appellant was the last witness to testify at the adjudication hearing, and he stated that he thought the range of punishment on each of his cases was two to ten, [] third degree. (RR3: 65). Appellant was asked, Had you 4

11 known that the punishment range was 25 years to life, if you had known that at that time, would you have entered into that plea? (RR3: 65). Appellant answered, No. (RR3: 65). At the close of the adjudication hearing, Appellant s counsel argued: But I will move on to the main thrust of my argument, Judge; and that is, my client s initial plea to the probation revocation. This is one of these arguments a lawyer hates to make that another lawyer was ineffective and providing ineffective assistance of counsel. But I got to call it as I see it, the plea papers are not filled out correctly. The punishment range admonishment in writing is incorrect. It is a mistake, it happens. My client is not an attorney, he relied on his attorney. And because of that, I would argue that the initial plea isn t valid. And the defendant has to be admonished correctly. And furthermore, the issue may become as the Court of Criminal Appeals rules has he been prejudiced by this. Now, the whole unrebutted testimony is that he would not have taken the deal knowing that he would be looking at life in prison. So we have incorrect admonishment. Followed by prejudice. And you know, Judge, people in the newspaper, they like to call it a technicality. But it is the constitution of it. A client has to have an effective attorney. You know you hate to use common slogans like technicality. But his attorney did not advise him correctly at the time of the plea. And I would argue, Judge, that he should be continued on probation and that the punishment range be limited at ten years. And should the Court see fit to revoke his probation, adjudicate him and send him to jail, I would just argue that it be capped at ten years. That the Court reform the judgment, correct the judgment. Now, Judge, that still doesn t circumvent the appellate issue whether his plea was knowingly and voluntarily made and whether his counsel was effective. (RR3: 74-76). Following closing arguments, the trial court ruled that Appellant violated certain community supervision conditions, granted the amended motions to adjudicate, and sentenced Appellant to 25 years confinement ID-TDCJ in each case. (RR3: 77-78). Furthermore, the trial court again found that at the time of the plea, the defendant 5

12 enter[ed] a plea of true to both enhancement paragraphs alleged in each case. (RR3: 78). On February 8, 2011, subsequent to the trial court s sentencing at the motion to adjudicate hearing, Appellant filed his only motion for new trial on each case, on the generic basis that the verdict is contrary to the law and evidence. (CRF : 49; CRF : 80). SUMMARY OF STATE S RESPONSIVE ARGUMENTS In Appellant s first point of alleged error, he claims that his original pleas were not entered into freely and voluntarily because he was unaware of the true range of punishment available in his cases nowhere mentioned in his written plea documents, or conveyed orally by the trial court or by Appellant s plea counsel and he would not have plead guilty had he known the correct range of punishment. (Appellant s Brief: 19-25). In response, the State submits that Appellant waived any potential error with respect to an unclear or misstated range of punishment at the original plea hearing when he did not advance a specific and timely motion for new trial or continuance and made the strategic decision to proceed with the adjudication hearing and argue for a light sentence. Alternatively, even conceding that Appellant was not properly admonished by the trial court and assuming arguendo that Appellant was not aware of the consequences of his original plea, the entire record demonstrates that it was a non-constitutional harmless error. In Appellant s second point of alleged error, he contends that his plea was involuntary as a result of the alleged ineffective assistance of his original plea counsel. 6

13 (Id.: 26). Appellant argues that counsel s failure to properly fill out Appellant s original plea paperwork constituted the deficient performance prong of Strickland, and that 15 additional years incarceration in TDCJ satisfied Strickland s prejudice prong. (Id.: 27-29). However, at a minimum, Appellant cannot meet the prejudice requirement of Strickland in the involuntary-plea scenario because even without original plea counsel s alleged error, there is not a reasonable probability Appellant would not have pleaded guilty (and chosen to proceed to trial instead). Alternatively, on the factual issue of original-plea counsel s alleged deficient performance, the record is incomplete at the present time and must be further developed in the trial court. In Appellant s third point of alleged error, he asserts that the trial court s imposition of a 25-year sentence constituted an illegal sentence, when the admonishment portion of the plea documents stated a punishment range of 2-10 years for each case and the enhancement portion of said paperwork was not filled out at all. (Id.: 31). Notwithstanding the plea documents, the trial court s sentence was authorized by law (within the correct range of punishment) as there is copious evidence that Appellant pleaded guilty and true to the present charges, replete with the two enhancement paragraphs for each. In Appellant s fourth point of alleged error, he argues that he should have received greater credit for back time from the trial court. (Id.: 37-39). However, neither the record nor Appellant s cited legal authority supports his claim. 7

14 ARGUMENT I. Involuntary Plea A. Preserving Error in the Trial Court 1. Legal Authority Appellate courts will not consider any error a party could have called, but did not call, to the trial court s attention when the trial court could avoid or correct the error. Martin v. State, 1994 Tex. App. LEXIS 3878, 3* (Tex. App. Dallas Nov. 18, 1994, no pet.) (not designated for publication) (citing Rogers v. State, 640 S.W.2d 248, 264 (Tex. Crim. App. 1982) (second op. on reh g)). 1 Rogers involved legitimate would-be error in the trial court s handling of certain probation continuation and revocation matters. Rogers, 640 S.W.2d at 263. However, Rogers complained on appeal about the absence of a certain revocation hearing when he ha[d] not preserved his error in the trial court by making some type of due process objection, either at the time the judge continues the hearing and/or probation, or at the time of actual revocation or at the time of sentencing. Id. Rogers s failure to make such an objection in the trial court (before it reached the appellate court) waived any error. Id. at 264. In Martin, the trial court remarked, at an initial hearing placing the defendant on deferred adjudication probation, that he would sentence the defendant to prison if she violated her probation. Martin, 1994 Tex. App. LEXIS 3878, at 2*. This indication of a 1 The purpose of an objection is to challenge the correctness of the action by the trial court to the end that such action may be corrected by the court itself, if deemed erroneous, and to lay the foundation for its review, if necessary, by the appropriate appellate tribunal; and the accused cannot remain silent, gambling on his chances for a favorable verdict, and then, when the verdict has gone against him, raise objections which he knew of and which could have been raised during trial. 24 C.J.S., Criminal Law 1670, p

15 predetermined sentence likely would have constituted error had it been properly preserved in the trial court. See id. This Court explained that the error would not be clear and preservation not yet necessary until after a probation violation had been alleged, an adjudication hearing held, and a punishment rendered. Id. At that time, a motion for new trial based on the predetermined sentence would then be the proper mode of error preservation. Id. at 2-3*. However, Martin did not file such a motion for new trial in the trial court, instead choosing to bring her complaint straight to this Court. Id. Ultimately, citing Rogers, this Court held that the complaint had been waived. Id. at 3*. 2. Application Appellant did not preserve his first point of alleged error for appellate review. Assuming arguendo that Appellant, at the time of the original plea hearing, really was unaware of the true range of punishment he faced for the third-degree felony enhanced by two prior felony convictions, he certainly was aware of the correct range of punishment by the time he had new counsel at the adjudication hearing. This is evident from the adjudication-hearing record because before any witness was called, Appellant s adjudication hearing counsel was already arguing about the range of punishment. Then, later on, Appellant s new counsel pursued the same line of questioning during Appellant s direct examination, as well as focusing the bulk of his closing argument on this precise point. If Appellant is sincere in his claim that he would not have pleaded guilty to the cases if he knew the correct range of punishment, then he should not have persisted in allowing the trial court to adjudicate his guilt and sentence him at the 9

16 adjudication hearing. Rather, he should have requested that the trial court restore his right to go to trial and contest the charges that is, he should have moved for a new trial on the basis that his original plea was involuntary. See Rogers, 640 S.W.2d at 264; Martin, 1994 Tex. App. LEXIS 3878, at 3*. Appellant had plenty of time to file such a motion in advance of the adjudication hearing, but chose not to. Appellant could have orally moved for a new trial on the record before (in the event the motion was denied) proceeding with the adjudicationhearing evidence, but chose not to. Appellant even could have moved for a continuance on this basis, but chose not to. Appellant s generic verdict is contrary to the law and evidence motion for new trial filed after the trial court delivered its sentence cannot be read as specifying sufficiently an involuntary-plea complaint. See TEX. R. APP. P. 33.1(a)(1)(A); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh g). Thus, even after the adjudication hearing began and after the sentence was delivered, Appellant, through a specific motion for new trial (on involuntary-plea grounds), arguably still could have called the potential error to the trial court s attention when the trial court could avoid or correct the error, but he chose not to. See Rogers, 640 S.W.2d at 264. Appellant s closing argument at the adjudication hearing clearly demonstrated that Appellant had made a strategic, tactical decision to go forward with the punishment hearing rather than take the necessary steps to regain his right to a jury trial. That is, a threatening closing argument at an adjudication hearing is not the kind of request or 10

17 motion (for a new trial) or objection (for having been denied a new trial) contemplated by Rule 33.1(a)(1)(A). Despite Appellant s testimony to the contrary, he truly did not want the potential error corrected, for his actions show that he really wished to avoid a jury trial; rather, he wanted to persist with his guilty plea to see if he could receive a relatively light sentence. Through a combination of sympathy for Appellant s allegedly misinformed plight and Appellant s adjudication counsel s impression of the intimidating state of the appellate law on the issue, Appellant hoped that he could convince the trial court to sentence him to a maximum of ten years in prison. For these reasons or any others, Appellant, like the appellants in Rogers and Martin, eschewed pursuit of new trials when it was an obvious available remedy to the trial court. This Court should hold that Appellant has effectively waived this complaint by failing to timely move for new trials on the specific grounds that Appellant s pleas were involuntary. See Rogers, 640 S.W.2d at 264; Martin, 1994 Tex. App. LEXIS 3878, at 3*. Appellant s first point of error should be overruled. B. Substantial Compliance with Article 26.13(a)(1), Understanding the Consequences of a Guilty Plea, and Harm 1. Legal Authority [T]o ensure that only a constitutionally valid plea is entered and accepted by the trial court, and to assist the trial court in making the determination that defendant s relinquishment of rights is knowing and voluntary, Texas law requires the trial court to admonish a defendant before accepting a plea of guilty or no contest. Carranza v. State, 980 S.W.2d 653, 656 (Tex. Crim. App. 1998) (en banc) (quoting Ex parte Morrow,

18 S.W.2d 530, 534 (Tex. Crim. App. 1997) (en banc), cert. denied, 525 U.S. 810 (1998)); see TEX. CODE CRIM. PROC. art (a). One of these statutorily required admonitions is the range of punishment attached to the offense; however, it is not constitutionally required. See Art (a)(1); Aguirre-Mata v. State, 125 S.W.3d 473, (Tex. Crim. App. 2003). The trial court is required to substantially comply with the requirements of Article 26.13(a), either orally or in writing. Art (c), (d); see Lopez v. State, 996 S.W.2d 893, 894 (Tex. App. Corpus Christi 1999, no pet.). If the record shows the trial court delivered an incorrect admonishment regarding the range of punishment, and the actual sentence lies within both the actual and misstated maximum, then substantial compliance with Article is attained. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). On the other hand, the admonishment does not substantially comply when the defendant receives a greater sentence than the court informed the defendant was possible for the charged offense, see Weekley v. State, 594 S.W.2d 96 (Tex. Crim. App. 1980), or when the sentence actually imposed is outside the range allowed by the statute. Hodges v. State, 604 S.W.2d 152, 156 (Tex. Crim. App. 1980). A failure to properly admonish a defendant about the range of punishment before accepting a guilty plea is subject to non-constitutional harmless error analysis under Texas Rule of Appellate Procedure 44.2(b). Aguirre-Mata, 125 S.W.3d at 474. In conducting this harm analysis, the reviewing court must disregard the error unless it affected an appellant s substantial rights. TEX. R. APP. P. 44.2(b); Burnett v. State, 88 12

19 S.W.3d 633, 637 (Tex. Crim. App. 2002). In the context of a guilty plea, an error affects substantial rights when, considering the record as a whole, the reviewing court does not have a fair assurance that the defendant s decision to plead guilty would not have changed had the trial court properly admonished him. Anderson v. State, 182 S.W.3d 914, 919 (Tex. Crim. App. 2006). 2. Application If error has been preserved, the State concedes from the outset that the trial court did not substantially comply with article 26.13(a)(1) (concerning range of punishment) of the Texas Code of Criminal Procedure. Texas Rule of Appellate Procedure 44.2(b) requires that when there has been no substantial compliance with the admonishment requirements of article 26.13, a defendant is required to show no more than that he was not aware of the consequences of his plea and he was misled or harmed by the admonishment of the court. Carranza, 980 S.W.2d at 658. The State will assume arguendo that Appellant was not aware of the consequences of his pleas with respect to the true range of punishment, when he entered into them at the original plea hearing. The plea papers, viewed alone, indicate that Appellant may initially have been misled. However, the whole record demonstrates that, at least by the time of the adjudication hearing, Appellant understood his pleas and the full range of punishment attached. Per the previous section s argument (which is now incorporated by reference for all purposes), Appellant was not harmed by his guilty pleas because he was still content with avoiding trials on the merits of his drug cases and proceeding to allow the 13

20 trial court to assess his punishment. Succinctly stated, by the time the trial court delivered Appellant s sentence at the adjudication hearing, the full record shows that Appellant decried only the trial court s ultimate decision to impose a 25-year prison sentences, not that he was deceived or misled into giving up his right to jury trials. 2 Appellant s substantial rights were not affected by the trial court s inadequate admonishment at the original plea hearing, for given Appellant s conduct, posture, and requests throughout the proceedings we have far beyond a fair assurance that Appellant s decision to plead guilty would not have changed had the trial court properly admonished him. See Anderson, 182 S.W.3d at 919. Had the trial court sua sponte granted Appellant a new trial at the adjudication hearing (as he never requested one himself), there is every indication that Appellant s only desire would have been to try to sign up plea papers once again on more favorable terms than 25-year prison sentences he would never have exercised his right to a jury trial in each case. Therefore, under Anderson, the trial court s inadequate admonishment at the original plea hearing was merely non-constitutional harmless error. See TEX. R. APP. P. 44.2(b). Appellant s first point of error should be overruled. 2 Appellant s harm analysis in his ineffective-assistance section makes this abundantly clear. Rather than forgoing a trial on the merits, Appellant bemoans 15 additional years incarceration in TDCJ! (emphasis added) (Appellant s Brief: 29). 14

21 II. Ineffective Assistance of Counsel Via Misinformation about Applicable Range of Punishment A. Legal Authority To reverse a conviction based on ineffective assistance of counsel, the appellate court must find: (1) counsel s representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 695 (1984). This standard applies to challenges to guilty pleas. Hill v. Lockhart, 474 U.S. 52, 59 (1985). To satisfy the second prong of the test enunciated in Strickland, an appellant must show there is a reasonable probability that, but for counsel s errors, he would not have pleaded guilty, but would instead have insisted on going to trial. Id. To apply a standard requiring us to show but for counsel s error appellant would not have pleaded guilty, this Court must make a threshold determination that counsel erroneously advised appellant. Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App. Houston [1st Dist.] 1996, pet. ref d). A plea based upon erroneous advice from counsel of a magnitude satisfying Strickland is involuntary, and an involuntary guilty plea must be set aside. See Boykin v. Alabama, 395 U.S. 238, 244 (1969); Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975). B. Application It must first be noted that Appellant had different counsel at his original plea hearing than he did at the subsequent adjudication hearing; significantly, Appellant only 15

22 complains about the representation of his original-plea counsel. As in the harm analysis of section (I)(B)(2) above (which is now incorporated by reference for all purposes), Appellant cannot prove that he was prejudiced by his original plea counsel s alleged misinformation on the applicable punishment range in his two cases because it is undeniable that, at least by the time of the start of his adjudication hearing, Appellant had been properly informed about the full range of punishment confronting him. Appellant and his new counsel, rather than moving for new trials to effectively undo the alleged harm of an involuntary guilty pleas, still elected to go forward with the adjudication hearing. This shows that Appellant never wanted to exercise his right to a jury trial; he just wanted a relatively light punishment. Ultimately, even without Appellant s originalplea counsel s alleged misinformation error, there is not a reasonable probability that Appellant would not have pleaded guilty, but would instead have insisted on going to trial in each case. See Hill, 474 U.S. at 59. Without addressing the first Strickland prong, Appellant s ineffective-assistance-of-original-plea-counsel claim must fail because Appellant cannot satisfy the second prong. Appellant s second point of alleged error should be overruled. Alternatively, in the event this Court finds that Appellant has met his burden with respect to the prejudice prong, the record is incomplete at the present time with respect to making a determination of the first Strickland prong. In such a case, Appellant would already have alleged facts regarding the full-range-of-punishment misinformation that, if true, might entitle him to relief. See Ex parte Lemke, 13 S.W.3d 791, (Tex. Crim. 16

23 App. 2000). In these circumstances, additional facts are needed, as there is no testimony or affidavit in the record from the original-plea attorney as to what he may or not have told Appellant with respect to the range of punishment Appellant faced, and any other information he may have about the extent of Appellant s understanding of the applicable range of punishment. Furthermore, there is not a ruling from the trial court to be reviewed on the issue, and this Court is thereby left without express or implied findings of fact and conclusions of law. The State had no forewarning that Appellant was going to be presenting a case for ineffective assistance of counsel at an adjudication hearing, so the State had no chance to call its own witnesses (such as the original-plea attorney) to potentially rebut Appellant s testimony on the issue. The trial court is the appropriate forum for such findings of fact in the context of a hearing on a motion for new trial or habeas corpus petition, for example. See Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960). The State submits that, under such an alternative scenario, this matter should be held in abeyance until a proper hearing in the trial court is held, further evidence is presented, and a reviewable ruling is ultimately delivered by the trial court. III. Illegal Sentence A. Legal Authority A void or illegal sentence is one that is not authorized by law. Ex parte Pena, 71 S.W.3d 336, 336 n.2 (Tex. Crim. App. 2002); see Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) ( A sentence that is outside the maximum or minimum range of 17

24 punishment is unauthorized by law and therefore illegal. ); Ex parte Beck, 922 S.W.2d 181, 182 (Tex. Crim. App. 1996) (per curiam) (sentence of twenty-five years imprisonment for offense for which maximum range of punishment was two years imprisonment was illegal). The punishment for possession of cocaine or methamphetamine in an amount equal to or greater than 1 gram but less than 4 grams, enhanced by two prior felony convictions, is 25 years to 99 years or life and a possible fine not to exceed $10, TEX. HEALTH & SAFETY CODE (3)(D), (6); (c); TEX. PEN. CODE 12.42(d). B. Application Appellant claims, no one mentioned the enhancement paragraph during the plea hearing and the plea paperwork is silent on the issue. Appellant did not plead true to the enhancement, and the State did not offer proof of the enhancement. (Appellant s Brief: 33). The State is completely baffled by these statements, for the exact inverse is true. As cited in the Statement of Facts, Appellant s original plea counsel and Appellant both individually orally answered the trial court that Appellant was pleading true at the original plea hearing. The plea papers include X s indicating Appellant was pleading true, and Appellant signed judicial confessions admitting to both enhancement paragraphs without amendment. These judicial confessions were accepted as evidence of the enhancement allegations at the original plea hearing. At the subsequent adjudication hearing, expert fingerprint testimony conclusively linked Appellant to the penitentiary packets from his two prior felonies alleged in the enhancement paragraphs. The trial 18

25 court, finding the enhancement paragraphs true, assessed Appellant s punishment at 25 years imprisonment, well within the applicable punishment range. Thus, Appellant did not receive an illegal sentence. Appellant s third point of alleged error should be overruled. IV. Credit for Back Time A. Legal Authority A defendant seeking credit on his sentence bears the burden of establishing he is entitled to credit by a preponderance of the evidence. Ex parte Pizzalota, 610 S.W.2d 486, 488 (Tex. Crim. App. 1980) (en banc), overruled on other grounds by Ex parte Hale, 117 S.W.3d 866 (Tex. Crim. App. 2003). If a defendant was not credited with the proper amount of back time, a reviewing court has the power to modify incorrect judgments, provided the court has the necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, (Tex. Crim. App. 1993). However, assertions in a brief, unsupported by the record, do not constitute evidence on appeal. See Rice v. State, 789 S.W.2d 604, 607 (Tex. App. Dallas 1990, no pet.) (quoting Franklin v. State, 693 S.W.2d 420, 431 (Tex. Crim. App. 1985), cert. denied, 475 U.S (1986)). Similarly, [a] motion, sworn or otherwise, is not evidence Nelson v. State, 629 S.W.2d 888, 890 (Tex. App. Fort Worth 1982, no pet.). B. Application The record is completely barren of any evidence of what Appellant s back time was, and how much back time credit he is entitled to, if any. Appellant s Motion 19

26 Requesting Credit for Back Time has no file stamp, although it is part of the Clerk s Record. (F : 85-86). It is not sworn, is not supported by evidence, and nothing in the record shows it was presented to or heard by the trial court. (F : 85-86). The assertions in this Motion do not constitute evidence on appeal, nor do the assertions in Appellant s Brief. See Rice, 789 S.W.2d at 607; Nelson, 629 S.W.2d at 890. Yet, these are the only two documents from which Appellant bases his argument on this fourth point of alleged error. Hence, without directing this Court s attention to any cognizable evidence in the record that supports his claim, Appellant has not met his burden of proof in establishing that he is entitled to back time credit, and no judgment modifications are necessary. See Ex parte Pizzalota, 610 S.W.2d at 488; TEX. R. APP. P. 43.2(b). Alternatively, even if this Court finds evidence somewhere in the record elucidating Appellant s back time, Appellant s legal argument relies entirely on an inapposite Greenwood line of cases that concerns an original state-jail felony charge, an eventual sentence in a state jail felony facility, and associated back time in a county jail. See, e.g., Greenwood v. State, 948 S.W.2d 542, 545 (Tex. App. Fort Worth 1997, no pet.). In stark contrast here, Appellant has been charged with two third-degree felonies both enhanced by two prior convictions, and he has been sentenced to 25 years confinement in the Institutional Division of the Texas Department of Criminal Justice. (RR3: 78). Clearly, ID-TDCJ does not qualify as a state jail facility. See TEX. GOV. CODE (a), (A state jail facility is a facility operated, maintained, and managed by the state jail division of the Texas Department of Criminal Justice to 20

27 confine defendants sentenced by a judge to serve a term of confinement in a state jail felony facility following a grant of deferred adjudication for or conviction of an offense punishable as a state jail felony.). Hence, Appellant s fourth point of alleged error must also fail for the alternative reason that it is not supported by any cited, remotely on-point legal authority. Finally, even if this Court finds evidence somewhere in the record elucidating Appellant s back time and attempts to apply the Greenwood rule, Appellant s argument still must be resolved against him because he was not sentenced anywhere close to the maximum sentence within the applicable range of punishment in each case. Appellant received 25-year sentences, when the applicable range for a third-degree felony enhanced by two prior felony convictions was 25 years to 99 years or life. See TEX. PEN. CODE 12.42(d). Furthermore, even adding Appellant s alleged back time to his 25-year sentences would not aggregate to the maximum of 99 years or life. Appellant s fourth point of error should be overruled. For all the aforementioned reasons, and in accord with all the legal authority cited in conjunction therewith, Appellant s multiple points of error should be overruled. 21

28 CONCLUSION AND PRAYER For all of the reasons shown above, the State prays that Appellant s conviction and sentence be affirmed. Respectfully submitted, CRAIG WATKINS, Criminal District Attorney Dallas County, Texas BRADFORD CLEMENTS, Assistant Criminal District Attorney, 133 N. Riverfront Blvd., LB 19 Dallas, Texas brad.clements@dallascounty.org (214) ; FAX (214) State Bar No CERTIFICATE OF SERVICE True copies of the State s brief have been served on Appellant s attorney Bruce C. Kaye, 2309 Boll St., Dallas, TX 75204, by depositing same in the U.S. mail, postage prepaid, on December, 2011, and by (bruce@brucekaye.com). BRADFORD CLEMENTS 22