By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Failure to advise juvenile of state's ability to enhance criminal punishment with juvenile adjudication not ineffective assistance of counsel (99-3-23)
On July 23, 1999, the Dallas Court of Appeals
held that the defendant failed to show that his attorney rendered in criminal
proceedings ineffective assistance in advising him as to the ability of the
State to enhance punishment with a juvenile adjudication.
99-3-23. Davis v. State, ___ S.W.2d ___, No. 05-97-00913-CR, 1999 WL 521694,
1999 Tex.App.Lexis ___ (Tex.App.-- Dallas 7/23/99)[Texas Juvenile Law (4th Ed.
1996)].
Facts: Appellant Kendrick Rishard Davis entered nonnegotiated guilty pleas to
two cases of aggravated robbery by the use of a deadly weapon. The robberies
occurred within two and a half hours of each other on the same date, November
20, 1996; both victims were women. Appellant, who was seventeen years old, was
captured after a police chase through a residential neighborhood, at the end of
which appellant jumped out of the car while it was still running and ran from
the police. After reviewing a presentence report that included appellant's
juvenile record, the trial court assessed punishment in each case at twenty five
years' confinement.
In his first two issues on appeal, appellant contends that his guilty pleas were
involuntary because his attorney did not tell him that the State could not
enhance his two aggravated robbery cases with appellant's adjudicated juvenile
offenses committed before January 1, 1996. In three more issues, appellant
contends that trial counsel was ineffective because he did not advise appellant
the State could not use the previous adjudicated juvenile offenses for
enhancement purposes and because counsel was not properly prepared for the
sentencing hearing. We resolve appellant's issues against him and affirm the
trial court's judgments.
Held: Affirmed.
Opinion Text: Appellant does not dispute that the trial court admonished him, in
open court, of the correct range of punishment: five to ninety nine years with
an optional $10,000 fine. Furthermore, appellant signed written acknowledgments
that he had received and understood the court's admonitions. As a result of
having been properly admonished, appellant must affirmatively show that he was
not aware of the consequences of his pleas and that he was misled or harmed by
the admonishment of the court. Tex.Code Crim. Proc. Ann. art. 26.13(c) (Vernon
1989). The purpose of this article is to assure that the defendant does not
plead guilty without a full understanding of the charges against him and the
consequences of his plea. Sanchez v. State, 854 S.W.2d 677, 680 (Tex.App. Dallas
1993, no pet.).
Appellant argues, however, that he pleaded guilty in return for the State's
promise not to reindict him to add an enhancement paragraph of an adjudicated
juvenile offense. [FN1] Appellant contends that the State could not have
reindicted him to use the adjudicated juvenile offenses for enhancement
purposes. Thus, appellant asserts, the State's promise consisted of an empty
bargain. [FN2] As a result, because he was misled by the State's promise not to
reindict with an enhancement paragraph, appellant concludes that his guilty
pleas were involuntary. We disagree.
FN1. Appellant had, among others, adjudicated juvenile offenses of assault and
unauthorized use of a motor vehicle.
FN2. It should be noted that appellant did not plead guilty pursuant to a plea
bargain, but entered an open plea.
At some point in 1995, while appellant was a juvenile, he committed the offenses
of assault and unauthorized use of a motor vehicle, for which he was committed
to the Texas Youth Commission (TYC) for six months. [FN3] By citing section
51.13(d) of the Texas Family Code, appellant recognizes that effective January
1996, the legislature provided that a felony adjudication resulting in a
commitment to the Texas Youth Commission is a felony conviction for enhancement
purposes under the penal code. See Tex. Fam.Code Ann. ß 51.13(d) (Vernon
Supp.1999). Because the complainant in the 1995 offenses was neither a public
servant nor a family member, appellant argues that the assault was, at most, a
Class A misdemeanor. See Tex. Penal Code Ann. ß 22.01(b) (Vernon Supp.1999).
Appellant further argues that unauthorized use of a motor vehicle is a state
jail felony. See Tex. Penal Code Ann. ß 31.07(b) (Vernon 1994). Appellant
relies upon three statutes to insist that his adjudicated juvenile offenses
could not be used to enhance his punishment in these aggravated robbery cases.
Two of the statutes on which appellant relies are irrelevant to these appeals.
[FN4] Appellant's reliance is best placed on section 12.42(e) of the penal code:
"A previous conviction for a state jail felony punished under Section
12.35(a) may not be used for enhancement purposes under Subsection (b), (c), or
(d)." Tex. Penal Code Ann. ß 12.42(e) (Vernon Supp.1999). Appellant
understands this statute to mean that, despite the State's threat to reindict
appellant and add an enhancement paragraph, the State could not have legally
done so.
FN3. The record does not clearly reflect whether he was committed to TYC for the
offenses of assault and unauthorized use of a motor vehicle, or whether those
offenses were used by the State as grounds for moving to revoke probation that
appellant had received for earlier offenses. Appellant testified that he was
committed because of the assault and the unauthorized use of a motor vehicle.
His grandfather testified that he was committed as a result of a probation
revocation. There is no documentary record of appellant's juvenile history in
the appellate record. Appellate counsel tells us, in a footnote, that she
reviewed appellant's juvenile history, and "[a]ppellant was committed to
TYC once in 1995, after the assault and UUMV which were the cause for revoking
his juvenile misdemeanor probation." She concludes, "With the
exception of appellant's counsel UCW [sic ] which was corrected by the trial
court, (R.R. at III 59), no gun was used or exhibited in the assault and UUMV,
appellant pushed the complainant. (R.R. at III 59)."
FN4. One of the statutes on which appellant relies does not concern enhancement
at all, but concerns whether an extraneous offense is admissible into evidence.
See Tex.Code Crim. Proc. Ann. art. 37.07, ß 3(h) (Vernon Supp.1999) (a prior
misdemeanor offense punishable by confinement in jail is admissible only if the
conduct occurred on or after January 1, 1996). At any rate, this statute became
effective only on September 1, 1997, six months after appellant pleaded guilty
to these offenses. Act of June 2, 1997, 75 th Leg., R.S., ch. 1086, Sects. 31(h)
& 55(a), 1997 Tex. Gen. Laws 4191 & 4199. (The State asserts that this
statute became effective on May 20, 1997, but that assertion is incorrect. In
1997, the legislature passed two sections 3(h) to article 37.07, the first in
chapter 144, and the second in chapter 1086. The first section 3(h) did become
effective May 20, 1997, but it prohibits admitting evidence that a defendant
plans to undergo an orchiectomy and is clearly irrelevant here. The second
section 3(h), with which we are concerned, became effective September 1, 1997.
See Tex.Code Crim. Proc. Ann. art. 37.07, ß 3(h), Vernon Supp. at 56 & 58
(1999). The State is mistakenly, albeit understandably, looking at the wrong
section 3(h) to determine its effective date.)
Another statute on which appellant relies is section 51.13(d) of the Texas
Family Code. Act of June 2, 1997, 75 th Leg., R.S., ch. 1086, ß 5, 1997 Tex.
Gen. Laws 4183. This statute also became effective only on September 1, 1997.
Act of June 2, 1997, 75 th Leg., R.S., ch. 1086, ßß 5 & 55(a), 1997 Tex.
Gen. Laws 4183 & 4199. Appellant does not direct this Court's attention to
the appropriate predecessor statutes, if any.
We do not address the specific issue appellant raises for two reasons: first,
appellant's complete juvenile criminal history is not in the appellate record
before us, nor is the presentence report on which the trial court relied in
assessing punishment; second, assuming, without deciding, that appellant's
punishment range could not have been enhanced, there is no record evidence
before us that had appellant known that, appellant would not have pleaded guilty
anyway. A finding that a defendant was duly admonished creates a prima facie
showing that a guilty plea was entered knowingly and voluntarily. Martinez v.
State, 981 S.W.2d 195, 197 (Tex.Crim.App.1998). Although appellant can still
raise the claim that his pleas were not voluntary, the burden shifts to him to
demonstrate that he did not fully understand the consequences of his pleas such
that he suffered harm. Id. In considering the voluntariness of a guilty plea, we
examine the record as a whole. Id.
During the plea hearing, appellant's trial counsel asked appellant, "Are
you pleading guilty to both of these offenses charged because you are guilty and
for no other reason?" Appellant answered, "Because I am guilty."
During the sentencing hearing, the State asked appellant, "And you pled
guilty because you are guilty of both of these offenses, both of these
aggravated robberies, and pled guilty because you are guilty and for no other
reason; is that right?" Appellant answered, "Yes, sir." Thus, the
record contains no evidence that indicates that appellant was actually harmed or
misled in making his determination to enter guilty pleas. Martinez, 981 S.W.2d
at 197. To the contrary, the record reflects that appellant did not rely on the
State's promise not to reindict in choosing to enter guilty pleas. Appellant
twice testified, under oath, that he pleaded guilty because he was guilty and
for no other reason. Although appellant filed a motion for new trial, he did not
allege as a ground therein either voluntariness of his pleas of guilty or
ineffective assistance of counsel, nor was a hearing held on the motion. There
is no record evidence that if appellant had known he could not have been
reindicted and subjected to enhanced punishment, he would not have pleaded
guilty. Thus, he fails to sustain his claim that his pleas were not voluntary.
Id. We resolve appellant's first two issues against him.
Appellant's remaining three issues raise the question of whether appellant's
trial counsel was ineffective. Appellant asserts that counsel was ineffective
because he did not realize that appellant's juvenile adjudications were not
"admissible" and could not be used for enhancement purposes. [FN5] The
last issue also questions whether retained trial counsel had familiarized
himself sufficiently with appellant's juvenile record to provide an adequate
defense.
FN5. Appellate counsel treats the admissibility of an extraneous offense into
evidence as the equivalent of the State's use of a prior conviction for
enhancement purposes. The two issues are not the same, however. For whatever
reason, the State may choose not to enhance at all, but may still introduce
evidence of an extraneous offense. Conversely, if the State does enhance, the
State must prove the prior conviction(s) unless the defendant pleads true to the
enhancement paragraph(s). But the prior conviction(s) might be admitted solely
for that limited purpose. In any case, evidence of extraneous offenses is
admitted, if at all, only during the course of trial, after a defendant has
already pleaded. It is difficult to see, therefore, how the admission of
extraneous offense evidence has anything to do with the voluntariness of a
defendant's plea.
In order to show ineffective assistance of counsel, a convicted defendant must
show that his trial counsel's performance was deficient, in that counsel made
such serious errors he was not functioning effectively as counsel, and the
deficient performance prejudiced the defense to such a degree that the defendant
was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687
(1984). This two pronged test applies to challenges to guilty pleas based on
ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985); Ex
parte Adams, 707 S.W.2d 646, 649 (Tex.Crim.App.1986). Appellant must show that
there is a reasonable probability that, but for counsel's errors, he would not
have entered his pleas of guilty and would have insisted on going to trial.
Hill, 474 U.S. at 59. Appellant, however, can make no such showing because the
record affirmatively reflects that he pleaded guilty because he was guilty and
for no other reason. There is no record evidence that if appellant had known he
could not have been reindicted and subjected to enhanced punishment he would not
have pleaded guilty. We resolve appellant's third and fourth issues against him.
Appellant's fifth issue questions whether trial counsel was sufficiently
prepared at the sentencing hearing: appellant argues that trial counsel was not
familiar with the facts of his juvenile history. [FN6] The court discussed
appellant's prior record with appellant and his counsel. When appellant was
adjudicated of the offenses of assault and unauthorized use of a motor vehicle
in 1995, he had been originally charged with robbery. At one point, trial
counsel expressed his belief that the robbery charge was reduced to a charge of
unlawfully carrying a weapon. The record also reflects that appellant's counsel
did not review the presentence report with appellant before the sentencing
hearing. For these reasons, appellant now asserts that trial counsel was
ineffective because counsel was not familiar with the facts of appellant's
juvenile history.
FN6. Appellant also reargues his contention that, because counsel did not advise
him that the State could not have reindicted him and added an enhancement
paragraph, counsel provided ineffective assistance. We have already addressed
this argument in our discussion of appellant's issues three and four and will
not repeat the discussion here.
In order to prevail on his claim, appellant must prove that counsel's errors,
judged by the totality of the representation, not by isolated instances of
error, denied him a fair trial. McFarland v. State, 928 S.W.2d 482, 500
(Tex.Crim.App.1996), cert. denied, 519 U.S. 1119 (1997). Appellant must prove,
by a preponderance of the evidence, that there is a reasonable probability that,
but for counsel's deficiency, the result of the trial would have been different.
McFarland, 928 S.W.2d at 500. Appellant received probation as a juvenile in 1991
for unlawfully carrying a weapon. He received probation a second time for
evading arrest in 1994. In 1995, he received probation in a drug case and a
theft case. Also in 1995, appellant was committed to the Texas Youth Commission
for committing the offenses of assault and unauthorized use of a motor vehicle.
Appellant was on parole from the Texas Youth Commission when the two aggravated
robbery offenses before us were committed.
Appellant testified that at the time of the robberies he lived with his
grandparents but they were out of town. He admitted taking his grandfather's
pistol without permission. Appellant's grandfather testified that he kept his
gun hidden, but that appellant knew where the gun was, and had taken it before
without permission. When asked by counsel whether he had ever been in trouble
with the police before he was fourteen, appellant replied, "Once or
twice." Counsel responded, "Minor stuff?" Appellant answered,
"It was a pistol case." Appellant further testified he committed the
robberies because he needed money for food, even though there was food in the
refrigerator at his grandparents' house. Appellant further testified that he
used marijuana two or three times a week but denied having a drug problem. He
also admitted that he targeted "easy prey" for his crimes. Under the
totality of the circumstances, we cannot say that counsel's possible confusion
about when or whether appellant was charged with unlawfully carrying a weapon
prejudiced the defense to such a degree that appellant was deprived of a fair
trial. [FN4]
FN4. With the state of the record before us, we cannot even say with confidence
that counsel's reference to appellant's "UCW" charge demonstrates that
counsel was unfamiliar with appellant's juvenile history. Appellant's commitment
to the Texas Youth Commission may have been a result of his juvenile
adjudication for the offense of unlawful carrying a weapon. See supra note 1.
Although appellate counsel asserts that the trial court "corrected"
trial counsel's reference to "UCW," see supra note 1, trial counsel
could have been merely clarifying the circumstances under which appellant was
committed to the Texas Youth Commission.
Appellant pleaded guilty. He knew that the punishment range was from five to
ninety
nine years or life. He received twenty five years, more than the minimum but far
less than the maximum. He had a history of trouble with law enforcement, even
before he was fourteen years old. Although appellant's brief is technically
accurate when it states that trial counsel did not review the presentence report
with appellant before the sentencing hearing, the trial court asked appellant
directly about his history: "Let me ask you about a few things and if
they're wrong, you tell me they're wrong." Appellant testified openly,
without objection or contradiction, concerning his prior record. Appellant has
seized upon two isolated instances of what appellant claims is error of trial
counsel. But appellant can hardly be said to have proved by a preponderance of
the evidence that there is a reasonable probability that, but for counsel's
deficiency, the result of the sentencing hearing would have been different.
Given his juvenile criminal history as appellant himself described it, the trial
court could have concluded that twenty five years' confinement was an
appropriate sentence. To the extent that appellant's fifth issue raises lack of
preparation for the sentencing hearing as a basis for trial counsel's
ineffectiveness, we resolve that issue against appellant.