Dedrick Robbins v. State ( 2015 )

Opinion issued February 19, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00224-CR
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DEDRICK ROBBINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Case No. 1373139
MEMORANDUM OPINION
Appellant, Dedrick Robbins, was charged with the offense of aggravated
robbery. Pursuant to a plea bargain with the State, appellant pleaded guilty to the
offense in exchange for deferred adjudication community supervision.
Subsequently, the State moved the trial court to revoke his community supervision
and adjudicate his guilt. Appellant pleaded true to the State’s allegations that he
violated various provisions of his community supervision, and the trial court
assessed his punishment at confinement for ten years. Appellant now appeals,
arguing (1) that his waiver of his right to a pre-sentence investigation report at the
time of his original guilty plea was invalid and (2) that his counsel was ineffective
because she failed to present his motion for new trial to the trial court, “thereby
waiving [his] right to a hearing on the allegations in the motion.”
We affirm.
Background
Appellant was indicted for the felony offense of aggravated assault with a
deadly weapon. In May 2013, appellant pleaded guilty to aggravated robbery
pursuant to a plea agreement with the State. In conjunction with his guilty plea,
appellant signed a judicial confession and waived certain rights, including his right
to the preparation of a pre-sentence investigation report. In accordance with the
plea bargain, the trial court deferred adjudication of appellant’s guilt and placed
appellant on community supervision for a period of five years. The trial court
certified that, because it was a plea bargain case, appellant had no right of appeal.
Several months later, in December 2013, the State moved to adjudicate
appellant’s guilt, alleging that he had violated various terms of his community
supervision, including using controlled substances and failing to perform the
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required community service. Appellant pleaded true to the State’s allegations
without an agreed recommendation as to punishment. The trial court adjudicated
appellant’s guilt, assessed his punishment at ten years’ confinement, and certified
appellant’s right to appeal from that judgment.
Following the entry of judgment, appellant retained new counsel who filed a
motion for new trial. The motion asserted in a conclusory manner that appellant
was entitled to a new trial because his plea counsel was ineffective, his plea on the
motion to adjudicate was involuntary, he did not understand the nature of the
proceedings or the consequences of his actions, the trial court abused its discretion,
there was no agreed recommendation on punishment, and the punishment was
excessive. The motion for new trial was accompanied by appellant’s affidavit.
Appellant’s affidavit contained only the following sworn statements: “1.) Plea to
the motion to adjudicate was not done freely and voluntarily; 2.) I did not
understand the nature of the proceedings; 3.) I did not understand the consequences
of my actions; I affirm that all of the aforementioned facts are true and accurate.”
The record does not indicate whether this motion was presented to the trial court,
and it was overruled by operation of law. Meanwhile, appellant’s retained counsel
moved to withdraw from representing appellant after filing the motion for new
trial, stating that appellant had “voided” their contract. Appellant filed a pro se
notice of appeal.
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Waiver of Pre-Sentence Investigation Report
In his first issue, appellant argues that his waiver of his right to a pre-
sentence investigation report at the time he originally entered his guilty plea was
invalid. However, a defendant who is placed on deferred adjudication community
supervision may appeal issues relating to the original plea proceeding only in an
appeal taken when deferred adjudication is first imposed. Manuel v. State, 994
S.W.2d 658, 661–62 (Tex. Crim. App. 1999); Cozzi v. State, 160 S.W.3d 638, 640
(Tex. App.—Fort Worth 2005, pet. ref’d) (“Because Appellant’s complaint arises
from his original plea, he was required to raise the issue in an appeal from the trial
court’s order placing him on deferred adjudication community supervision.”). An
appeal on these grounds should have been commenced within thirty days of the
trial court’s order deferring adjudication of guilt. See Cozzi, 160 S.W.3d at 640;
TEX. R. APP. P. 26.2(a) (providing time for defendant’s filing of notice of appeal).
Here, appellant did not appeal from the order granting deferred adjudication, and
this Court is without jurisdiction to consider this issue. See Manuel, 994 S.W.2d at
661–62; Cozzi, 160 S.W.3d at 640.
We overrule appellant’s first issue.
Ineffective Assistance of Counsel
In his second issue, appellant argues that his counsel was ineffective because
she filed a motion for new trial with a supporting affidavit alleging
matters extrinsic to the record, thereby entitling the appellant to a
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hearing on the motion, but then never presented it to the trial court as
required by [Texas Rule of Appellate Procedure] 21.6, thereby
waiving the right to a hearing on the allegations in the motion.
Thus, appellant complains that he was entitled to a hearing on his motion for new
trial and that his counsel’s ineffectiveness deprived him of this right.
A. Standard of Review
To establish that trial counsel rendered ineffective assistance, an appellant
must demonstrate, by a preponderance of the evidence, that (1) his counsel’s
performance was deficient and (2) a reasonable probability exists that the result of
the proceeding would have been different but for his counsel’s deficient
performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); Perez v. State, 310 S.W.3d 890, 892–93 (Tex. Crim. App. 2010). The
appellant’s failure to make either of the required showings of deficient
performance or sufficient prejudice defeats the claim of ineffective assistance.
Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Williams
v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (“An appellant’s failure to
satisfy one prong of the Strickland test negates a court’s need to consider the other
prong.”).
The first prong of Strickland requires the appellant to show that his
counsel’s performance fell below an objective standard of reasonableness.
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); Thompson v.
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State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The second prong of Strickland
requires the appellant to demonstrate prejudice—“a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at
812. A reasonable probability is a probability sufficient to undermine confidence
in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
A defendant does not have an absolute right to a hearing on his motion for
new trial. Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009). “But a
trial judge abuses his discretion in failing to hold a hearing if the motion and
accompanying affidavits (1) raise matters which are not determinable from the
record and (2) establish reasonable grounds showing that the defendant could
potentially be entitled to relief.” Id.; Smith v. State, 286 S.W.3d 333, 338 (Tex.
Crim. App. 2009). Thus, “[a] new-trial motion must be supported by an affidavit
specifically setting out the factual basis for the claim,” and if the affidavit “is
conclusory, is unsupported by facts, or fails to provide requisite notice of the basis
for the relief claimed, no hearing is required.” Hobbs, 298 S.W.3d at 199. While a
defendant need not plead a prima facie case in his new trial motion, “he must at
least allege sufficient facts that show reasonable grounds to demonstrate that he
could prevail.” Id. at 199–200.
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B. Analysis
Here, appellant argues that his counsel was ineffective for failing to present
his motion for new trial to the trial court. He argues that he was deprived of
effective representation during a crucial phase of his proceeding—the thirty-day
period after the trial court signed the judgment—and that he was prejudiced
because, if the motion for new trial had been properly presented, the trial court
might have granted it, and, even if the trial court would have denied it, he was
entitled to a hearing at which he could adduce additional facts to support his claim
upon review. He further argues that we should abate his case so that the trial court
may properly consider his motion for new trial. He does not argue that the motion
itself or the affidavit attached to it was defective.
Appellant’s claim that he suffered prejudice as a result of his counsel’s
alleged ineffectiveness hinges on his claim that he was entitled to a hearing on his
motion for new trial. To be entitled to a hearing on his motion for new trial,
appellant’s motion and accompanying affidavit had to raise matters that were not
determinable from the record and had to establish reasonable grounds showing that
he could potentially be entitled to relief. See Hobbs, 298 S.W.3d at 199; cf. Cooks
v. State, 240 S.W.3d 906, 911–12 (Tex. Crim. App. 2007) (holding that deprivation
of counsel during critical thirty-day window for filing motion for new trial was
harmless beyond reasonable doubt because appellant’s motion to abate presented
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no “facially plausible claims” that could have been presented in motion for new
trial). Here, however, the motion for new trial and his accompanying affidavit
were conclusory and unsupported by facts. See Hobbs, 298 S.W.3d at 199
(holding that where affidavit “is conclusory, is unsupported by facts, or fails to
provide requisite notice of the basis for the relief claimed, no hearing is required”).
Appellant’s motion for new trial contained only conclusory assertions that
he was entitled to a new trial because his plea counsel was ineffective, his plea on
the motion to adjudicate was involuntary, he did not understand the nature of the
proceedings or the consequences of his actions, the trial court abused its discretion,
there was no agreed recommendation on punishment, and the punishment was
excessive. Likewise, appellant’s affidavit was conclusory and contained only the
following sworn statements: “1.) Plea to the motion to adjudicate was not done
freely and voluntarily; 2.) I did not understand the nature of the proceedings; 3.) I
did not understand the consequences of my actions; I affirm that all of the
aforementioned facts are true and accurate.” Thus, appellant was not entitled to a
hearing on his motion for new trial regardless of whether the motion had been
presented to the trial court. See id.
Likewise, in his brief on appeal, appellant fails to identify any “facially
plausible claims” or other evidence that could have been presented in a hearing on
his motion for new trial. See Cooks, 240 S.W.3d at 911–12. We conclude that any
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ineffectiveness of his counsel regarding the motion for new trial was harmless
beyond a reasonable doubt, and he is not entitled to an abatement for a hearing on
his motion for new trial. See id. Thus, appellant has failed to demonstrate
prejudice as a result of his counsel’s alleged ineffectiveness. See Strickland, 466
U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812; see also Williams, 301
S.W.3d at 687 (“An appellant’s failure to satisfy one prong of the Strickland test
negates a court’s need to consider the other prong.”).
We overrule appellant’s second issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Brown.
Do not publish. TEX. R. APP. P. 47.2.
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