Williams, Ebony Dawone v. State ( 2004 )

Affirmed and Opinion filed March 25, 2004

Affirmed and Opinion filed March 25, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00551-CR

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EBONY DAWONE WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209^th District Court

Harris County, Texas

Trial Court Cause No. 931,757

O P I N I O N

Appellant, Ebony Dawone Williams, pled guilty to aggravated robbery without an agreed recommendation on January 22, 2003.  The finding of guilt was withheld and sentencing was deferred pending a presentence investigation.  After receiving the PSI, the trial court found appellant guilty and assessed appellant=s punishment at 30 years= confinement in the Texas Department of Criminal Justice, Institutional Division.  Appellant challenges his conviction and sentence asserting (1) his plea was involuntary and unknowing, and (2) he was sentenced in violation of the Fifth and Fourteenth Amendments.  We affirm.

On November 8, 2002, the complainant, Denise Shullenberger, was at home with her sister=s two children, ages 2 and 5, when appellant and another man came to her door, asking if AJermaine@ was there.  They left when Shullenberger told them they had the wrong house.  About 15 or 20 minutes later, the doorbell rang again; when Shullenberger looked out the window, she did not see anyone there. When she turned the door handle, the men pushed the door open, came inside, and demanded that she give them her purse.  She told them her purse was in the Suburban parked in the driveway. 

While appellant went to search for her purse in the truck, the other man held a gun on Shullenberger, ordered her to lie on the floor, put a cap over her face, and told her to do what she was told to do.  The two-year-old child was on the floor next to Shullenberger; the man with the gun motioned for the 5-year-old child to go toward the back of the house. The children were crying. 

Appellant came back into the house and said he could not find the complainant=s purse; Shullenberger told him where it was. Appellant went back outside to get the purse and then returned for the keys to the truck.  Shullenberger gave appellant the keys.  Appellant went outside; Shullenberger heard the truck start and the horn honk.  The man with the gun left and the men drove away in the truck.

In his first issue, appellant complains that his plea was involuntary and unknowing because the statutory provisions governing the punishment range for aggravated robbery are so broad they deprived him of any meaningful understanding of his legal position.  Appellant claims that at the time of his plea, the only information he had was that the court could assess a term of imprisonment ranging from as little as fifteen years to as much as 99 years or life, essentially a range of 84 years.^[1]  Facing such an indeterminate, unspecified period of time, subject to the complete discretion of the trial court, appellant argues he was left without a meaningful way to consider any offers made by the prosecutors, or the costs and benefits of entering a plea versus exercising his right to trial. 

The trial court shall not accept a guilty plea unless it appears that the defendant is mentally competent and the plea is free and voluntary.  Tex. Code Crim. Proc. Ann. art. 26.13(c)) (Vernon 1989).  The purpose of article 26.13 is to assure that the defendant does not plead guilty unless it is with full understanding of the charges against him and the consequences of his plea.  Ex parte Evans, 690 S.W.2d 274, 276 (Tex. Crim. App. 1985) (quoting Basham v. State, 608 S.W.2d 677, 678 (Tex. Crim. App. 1980)).

When the record shows that the defendant received admonishments on punishment, it is a prima facie showing the guilty plea was knowing and voluntary.  Miller v. State, 879 S.W.2d 336, 337 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d); see also Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (stating that prima facie showing that guilty plea was entered knowingly and voluntarily is created when defendant was duly admonished).  The burden then shifts to the defendant to show that he entered his plea without understanding the consequences of his plea.  Martinez, 981 S.W.2d at 197; Miller, 879 S.W.2d at 337.  When the record is silent, we will presume the correctness of a recital in the judgment regarding the voluntariness of the guilty plea.  Miller, 879 S.W.2d at 337.  When considering the voluntariness of appellant=s guilty plea, we will examine the record as a whole.  Martinez, 981 S.W.2d at 197.  When the defendant attests to the voluntariness of his plea at his original plea hearing, he is subject to the heavy burden at a subsequent hearing to demonstrate the absence of voluntariness.  Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d); Hayden v. State, 818 S.W.2d 194, 196 (Tex. App.CCorpus Christi 1991, no pet.).

The written admonishments state that appellant was charged with the felony of aggravated robbery, and if convicted,

face[d] the following range of punishment. . . . FIRST DEGREE FELONY:  a term of life or any term of not more than 99 years or less than 5 years in the Institutional Division of the Texas Department of Criminal Justice, and in addition, a fine not to exceed $10,000.00 may be assessed; if enhanced with one prior felony conviction, a term of life or any term of not more than 99 years or less than 15 years in the Institutional Division of the Texas Department of Criminal Justice, and in addition, a fine not to exceed $10,000.00 may be assessed.

The admonishments instructed appellant to initial each item if he fully understood it; appellant initialed the paragraph which explained the range of punishment, indicating that he understood the range of punishment he faced upon conviction. 

Under the AStatements and Waivers of Defendant,@ appellant further initialed that he fully understood the admonishments, that he fully understood the consequences of his plea after having consulted with his attorney, and that he freely, knowingly, and voluntarily executed this statement in open court.  Furthermore, under the AWaiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession,@ appellant=s trial counsel stated that he believed Athis document was executed by [appellant] knowingly and voluntarily after [he] fully discussed it and its consequences with him.@ The trial court similarly stated that after it had admonished appellant of the consequences of his plea, it ascertained that appellant entered into the plea knowingly and voluntarily after discussing the case with his attorney.

          The record shows that appellant was fully admonished as to the consequences of his guilty plea.  Appellant=s real complaint is that he pleaded guilty without an agreed recommendation.  However, appellant has not met his burden to show that he entered his plea of guilty without understanding the consequences of his plea.  Appellant=s first issue is overruled.

In his second issue, appellant argues he was sentenced in violation of the Fifth and Fourteenth Amendments because the statutory provisions governing the punishment range for aggravated robbery are so broad he had no meaningful understanding of his legal position and he was treated unequally in comparison with others who were similarly situated. 

A review of the record reflects that appellant failed to object in the trial court. Having failed to raise his constitutional challenges in the trial court, appellant has waived them on appeal.  See Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) (AEven constitutional errors may be waived by failure to object at trial.@).  Appellant=s second issue is overruled. 

Accordingly, the judgment of the trial court is affirmed. 

/s/      J. Harvey Hudson

Justice

Judgment rendered and Opinion filed March 25, 2004.

Panel consists of Justices Yates, Hudson, and Fowler.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The punishment range for a first degree felony, enhanced by one prior felony is 15 to 99 years.  Tex. Pen. Code Ann. ' 12.42(c)(1) (Vernon Supp. 2003).