NO CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS. BRADFORD D. SIMS, Appellant. THE STATE OF TEXAS, Appellee

Transcription

1 NO CR The State Requests Oral Argument if Appellant Requests Oral Argument. IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS BRADFORD D. SIMS, Appellant v. THE STATE OF TEXAS, Appellee On appeal from Criminal District Court No. 4 of Dallas County, Texas Cause No. F K STATE S BRIEF Counsel of Record: CRAIG WATKINS JOHN R. SEARCEY Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No N. Riverfront Blvd., LB-19 Dallas, Texas (214) (Phone) (214) (Fax) ATTORNEYS FOR THE STATE OF TEXAS

2 TABLE OF CONTENTS TABLE OF CONTENTS... ii INDEX OF AUTHORITIES... iii SUMMARY OF THE CASE... 1 STATEMENT OF FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 2 INVOLUNTARY PLEA LEGAL AUTHORITY A. Preservation of Error... 2 B. Substantive Law on Involuntary Pleas... 3 ANALYSIS... 4 PRAYER... 7 CERTIFICATE OF SERVICE... 8 ii

3 INDEX OF AUTHORITIES CASES Drucker v. State, 45 S.W.3d 791 (Tex. App. Dallas 2001, no pet.)... 3 Ex parte Evans, 690 S.W.2d 274 (Tex. Crim. App. 1985)... 3 Harrison v. State, 688 S.W.2d 497 (Tex. Crim. App. 1985)... 3 Hinkle v. State, 934 S.W.2d 146 (Tex. App. San Antonio 1996, pet. ref'd) Jackson v. State, 989 S.W.2d 842 (Tex. App. Texarkana 1999, no pet.)... 2 Loredo v. State, 159 S.W.3d 920 (Tex. Crim. App. 2004)... 3 Martinez v. State, 981 S.W.2d 195 (Tex. Crim. App. 1998)... 3 Martinez v. State, 22 S.W.3d 504 (Tex. Crim. App. 2000)... 2 Mendez v. State, 138 S.W.3d 334 (Tex. Crim. App. 2004)... 3, 4 Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005)... 2 West v. State, 702 S.W.2d 629 (Tex. Crim. App. 1986)... 7 Zillender v. State, 557 S.W.2d 515 (Tex. Crim. App. 1977)... 2 STATUTES, CODES AND RULES TEX. CODE CRIM. PROC. ANN. art (a)... 4 TEX. CODE CRIM. PROC. ANN. art (b)... 3 TEX. CODE CRIM. PROC. ANN. art (c)... 3, 6 TEX. R. APP. P. 33.1(a)... 2, 4 TEX. R. APP. P. 38.2(a)(1)(B)... 1 iii

4 TO THE HONORABLE COURT OF APPEALS: The State of Texas, by and through Dallas County Criminal District Attorney Craig Watkins, submits this brief in response to the brief of Appellant, Bradford D. Sims. SUMMARY OF THE CASE In cause number F K, Appellant was charged by indictment with Aggravated Robbery of an Elderly Person (65 years of age or older), enhanced by a previous conviction. (CR: 2). After entering pleas of guilty and true to the offense charged and the enhancement paragraph, the trial court convicted Appellant of the charged offense, a first degree felony, and assessed punishment at twenty years confinement in the Institutional Division of the Texas Department of Criminal Justice, and a fine of $1,000. (CR: 5 11). Appellant timely filed his notice of appeal. (CR: 15). STATEMENT OF FACTS Appellant s brief contains a satisfactory statement of the facts except for Appellant s statement that, although he did not want to rob the complainant, he saw [the complainant] had money and he did it. (Appellant s Brief at p. 4); See TEX. R. APP. P. 38.2(a)(1)(B). The record clearly reflects Appellant s intent to rob an individual as he and his accomplice traveled through several parking lots in an effort to avoid a police presence and potentially locate an easy mark. (RR: 22, 27 28). In responding to Appellant s point of error, the State will highlight the material facts. 1

5 SUMMARY OF ARGUMENT Appellant failed to preserve error for review in accordance with TEX. R. APP. P. 33.1(a). In the alternative, the trial court substantially complied with TEX. CODE CRIM. PROC. ANN. art by admonishing Appellant, orally and in writing, of the applicable punishment range for the charged offense. As such, there has been a prima facie showing of voluntariness, which Appellant has failed to rebut. ARGUMENT INVOLUNTARY PLEA Legal Authority A. Preservation of Error As a prerequisite to presenting a complaint for appellate review, the complaining party must have lodged a timely and specific request, objection, or motion in the trial court stating the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint. See Tex. R. App. P. 33.1(a)(1)(A); Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005); Jackson v. State, 989 S.W.2d 842, 844 (Tex. App. Texarkana 1999, no pet.). The purpose behind requiring a timely and specific request, objection, or motion is two-fold: (1) to give the trial court the opportunity to correct the error or remove the basis for the complaint, and (2) to afford the opposing party the opportunity to respond thereto in a substantive fashion. See, e.g., Reyna, 168 S.W.3d at 179; Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000); Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). The theory underlying the preservation of error rules are based on the concept of fundamental fairness, which 2

6 requires a party to advance his complaints at a time when there is an opportunity to respond [to] or cure them. Loredo v. State, 159 S.W.3d 920, 923 (Tex. Crim. App. 2004). Of significance in the instant case, the Texas Court of Criminal Appeals has noted that the voluntariness of a guilty plea cannot be raised for the first time on appeal. See Mendez v. State, 138 S.W.3d 334, 339 n. 5 (Tex. Crim. App. 2004)( Because a challenge to the voluntariness of a guilty plea does not implicate one of the fundamental requirements identified by the Supreme Court, an appellant must properly preserve such a complaint for appellate review. ). B. Substantive Law on Involuntary Pleas It is well settled that a guilty plea should be freely, knowingly, and voluntarily entered. See Ex parte Evans, 690 S.W.2d 274, 276 (Tex. Crim. App. 1985); TEX. CODE CRIM. PROC. ANN. art (b). In determining voluntariness, a totality of the circumstances test is employed. See Drucker v. State, 45 S.W.3d 791, 796 (Tex. App. Dallas 2001, no pet). Under the Texas Code of Criminal Procedure, substantial compliance with Article is sufficient to establish a prima facie showing, or create a presumption, that the defendant entered his plea voluntarily. See TEX. CODE CRIM. PROC. ANN. art (c); Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); Harrison v. State, 688 S.W.2d 497, 499 (Tex. Crim. App. 1985). Upon this showing, it is then the defendant s burden to show that he entered his plea without understanding the consequences and was thereby harmed. See Martinez, 981 S.W.2d at 197; Harrison, 688 S.W.2d at

7 Analysis Appellant in seeking reversal contends his guilty plea was not knowingly and voluntarily entered. (Appellant s Brief at pp. 5, 11). In fact, Appellant claims his plea was involuntary given his belief that the trial court would grant him deferred adjudication probation and the opportunity [to attend] drug treatment. (Id. at p. 5). Specifically, Appellant takes issue with the court s failure to orally inquire (1) whether he was entering his guilty plea freely and voluntarily and (2) whether he had any expectation of receiving probation. The State initially contends Appellant has not preserved error for review given his failure to lodge a timely and specific request, objection, or motion in the trial court stating the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint. See TEX. R. APP. P. 33.1(a); Mendez, 138 S.W.3d at 339 n. 5. If, however, this Court elects to entertain Appellant s unpreserved complaint, the State would firstly direct this Court s attention to Appellant s open plea agreement. (CR: 5 8). Appellant was properly admonished, in writing, in accordance with Article 26.13, which he fully admits. (CR: 5 8) (Appellant s Brief at p. 8). See TEX. CODE. CRIM. PROC. ANN. art (a). In fact, Appellant was specifically admonished that the court may assess... punishment anywhere within the range allowed by law in the absence of an agreement between the parties. (CR: 6). Importantly, the punishment range for Aggravated Robbery of an Elderly Person, a first degree felony, was reflected in the plea 4

8 agreement. (CR: 6). 1 Moreover, Appellant affirmed that his plea and judicial confession [were] freely and voluntarily made, and not influenced by any consideration of fear, persuasion, or delusive hope of pardon or parole. (CR: 7). Lastly, Appellant acknowledged, by signing the plea agreement, that his statements and waivers [were] knowingly, freely, and voluntarily made with full understanding of the consequences, and thereafter, request[ed] that the Court accept all [of his] waivers, statements, agreements, and [his] plea. (CR: 8). Both Appellant and his attorney signed the plea agreement after consultation. (CR: 8). In addition to the written admonishments contained within the plea agreement, Appellant was also orally admonished by the trial court at his plea hearing, in relevant part, as follows: [Trial Court]: This is Cause No. F , State of Texas versus Bradford D. Sims; it that your name? [Appellant]: Yes, sir. [Trial Court]: Mr. Sims, you stand charged by indictment with the offense of Aggravated Robbery; do you understand that? [Appellant]: Yes, Your Honor. [Trial Court]: The range of punishment for this offense is 5 to 99 years or life confinement in the penitentiary and an optional fine not to exceed $10,000; do you understand that? [Appellant]: Yes, sir. [Trial Court]: The State has also alleged that you ve been previously convicted of a felony offense. If you have been found guilty of the primary 1 Appellant correctly notes that the written admonishments did not take into account enhancement of the first degree felony by a previous conviction. Yet, the oral admonishments correctly stated the enhanced punishment range as Appellant rightly points out. (Appellant s Brief at p. 8). 5

9 (RR: 5 6). offense and you ve entered a plea of true to that paragraph and the evidence shows it to be true, I will find it true. Under those circumstances[,] the range of punishment is 15 to 99 years or life confinement in the penitentiary and an optional fine not to exceed $10,000; do you understand that? [Appellant]: Yes, sir. [Trial Court]: Have you gone over your indictment and discussed the facts of your case with your lawyer? [Appellant]: I have, Your Honor. [Trial Court]: Have you gone over all of the documents and plea papers that you have signed? [Appellant]: I have, Your Honor. [Trial Court]: Do you understand all of your rights and the waiver of those rights that are contained within those documents? [Appellant]: Yes, sir. Thus, the trial court substantially complied with Article by admonishing Appellant orally and in writing. See TEX. CODE CRIM. PROC. ANN. art (c). As such, there is a prima facie showing, or presumption, that Appellant s plea was freely and voluntarily entered, which Appellant has failed to rebut. See Id. Finally, it does not appear from the record that Appellant expected to receive probation. While his defense focused on obtaining probation, and as a by product, treatment, Appellant was admonished and acknowledged that the trial court, in the absence of an agreement between the parties, may assess punishment anywhere within the range provided by law. Despite his desire to receive treatment, Appellant should not 6

10 now be allowed to claim that his plea was involuntary simply because he received jail time instead of the probation that he had hoped for. Hinkle v. State, 934 S.W.2d 146, 149 (Tex. App. San Antonio 1996, pet. ref d). In fact, Appellant fully recognizes this principle. (Appellant s Brief at p. 10). See West v. State, 702 S.W.2d 629, 633 (Tex. Crim. App. 1986). Yet, Appellant implies that his plea was based on significant misinformation from the court or one of its officers, which would render it involuntary. (Appellant s Brief at p. 10). Appellant fails, however, to explain the significant misinformation received from the court or one of its officers that would render his plea involuntary. As such, Appellant has failed to rebut the prima facie showing, or presumption, that his plea was voluntary. Therefore, his point of error should be overruled. PRAYER The State prays this Honorable Court will affirm the judgment of the trial court. Respectfully submitted, CRAIG WATKINS JOHN R. SEARCEY Criminal District Attorney Assistant District Attorney State Bar No State Bar No Dallas County, Texas 133 N. Riverfront Blvd., LB-19 Dallas, Texas (214) (phone) (214) (fax) 7

11 CERTIFICATE OF SERVICE A true and correct copy of this brief has been served on Lori L. Ordiway, attorney for appellant, P.O. Box , Dallas, Texas 75379, by depositing same in the U.S. mail, postage prepaid, on August 30, John R. Searcey 8