David Allen Gann v. State ( 2009 )

Affirmed and Memorandum Opinion filed November 10, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00719-CR

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DAVID ALLEN GANN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th District Court

Gregg County, Texas

Trial Court Cause No. 36,005-B

M E M OR A N D U M   O P I N I O N

Appellant David Allen Gann pled guilty to the offense of aggravated robbery.^[1]  The trial court assessed punishment at confinement for 11 years.  Appellant contends the trial court abused its discretion by denying his motion for new trial, in which he asserted that his plea was involuntary because he received ineffective assistance of counsel.  We  affirm.

Background

 Together with three other individuals, appellant committed the first degree offense of aggravated robbery on or about June 27, 2007. Appellant retained Brandt Thorson as counsel in August 2007.  Appellant was charged with three counts of aggravated robbery on September 13, 2007.  In November 2007, a pretrial hearing was set on appellant=s motion challenging the voluntariness of appellant=s custodial statement.  At the November setting, prosecutor Brian Lemaire announced that he would be prosecuting the case against appellant.  Thorson asked for a recess to talk with Lemaire privately and inquire what recommendations Lemaire would be willing to make to the trial court regarding sentencing.

Lemaire and Thorson went into the court=s jury room, and Thorson asked Lemaire if he would Arecommend probation on a plea agreement.@  Lemaire told Thorson that the State would not recommend probation.  Lemaire stated that appellant=s best option would be to enter an open plea to the court.  Thorson then met with appellant privately in a side room and told appellant that the State was unwilling to recommend probation in his case.  Thorson invited Lemaire into the room and Lemaire stated in front of appellant and Thorson that the State would not recommend probation.  Appellant decided to not go forward on his motion, and Thorson announced to the trial court that appellant would be urging any motions at pretrial.

On February 22, 2008, appellant waived his right to jury trial.  On April 9, 2008, appellant entered an open plea of guilty.  The trial court asked whether appellant discussed the written plea admonishment forms with Thorson and understood them, and appellant replied that he did.  Appellant signed written plea admonishments containing the range of punishment, an explanation of plea bargains and deferred adjudication, an acknowledgment that appellant understood what he was doing and that he was satisfied with his attorney, and a judicial confession to the crime as charged.  The trial court fully admonished appellant regarding the perils of pleading guilty.  The trial court also admonished appellant that it would listen to the evidence presented and to the recommendations of the State and appellant=s counsel, but that it was not bound by these recommendations. 

The trial court accepted appellant=s guilty plea.  After the State presented evidence of the offense, the State asked that appellant serve time in jail.  Thorson asked for deferred adjudication community supervision.  The trial court assessed appellant=s punishment at 11 years= confinement.  On May 5, 2008, the trial court conducted a hearing on appellant=s motion for new trial.  The trial court heard testimony from appellant, Thorson, Lemaire, and appellant=s family friend, Angela Mitchell. The trial court denied appellant=s motion for new trial, finding that appellant=s trial counsel was effective and that appellant=s guilty plea was voluntary.

Analysis

In his first issue on appeal, appellant argues that the trial court abused its discretion by denying his motion for new trial, asserting that his guilty plea was involuntary due to ineffective assistance of counsel. Appellant contends his guilty plea was involuntary because he Awas induced to plead guilty as a result of the erroneous advice of his counsel that the prosecutor had agreed not to recommend prison time.@  Appellant contends evidence elicited at the motion for new trial hearing shows his trial counsel failed to inform him of Athe prosecutor=s true position on sentencing.@ Appellant argues the trial court abused its discretion by Acrediting trial counsel=s testimony denying that he misrepresented to . . . [appellant] the State=s sentencing recommendation,@ and by concluding that appellant failed to demonstrate that he received ineffective assistance of counsel.

We review the trial court=s denial of a motion for new trial for an abuse of discretion. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).  We view the evidence in the light most favorable to the trial court=s ruling and uphold the ruling if it is within the zone of reasonable disagreement.  Id.  We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court=s decision was arbitrary or unreasonable. Id. Thus, a trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court=s ruling.  Id.  At a hearing on a motion for new trial, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Alexander v. State, 282 S.W.3d 701, 706 (Tex. App.CHouston [14th Dist.] 2009, pet. filed).

When a defendant challenges the voluntariness of a plea entered upon the advice of counsel, and contends that his counsel was ineffective, the voluntariness of the plea depends on (1) whether counsel=s advice was within the range of competence demanded of attorneys in criminal cases, and if not, (2) whether there is a reasonable probability that, but for counsel=s errors, he would not have pled guilty and would have insisted on going to trial.  Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999).  As with other types of ineffective assistance of counsel claims, a defendant bears the burden to show that counsel=s performance fell below a reasonable standard of competence and that, in reasonable probability, defendant would have pled not guilty and insisted on going to trial had he been properly advised.  Id. at 858.

At the motion for new trial hearing, appellant testified that Thorson talked to Lemaire in a side room at the November pretrial hearing. Appellant testified that Thorson thereafter took him to another side room and told him Lemaire offered to not recommend prison time to the trial court if appellant pled guilty and refrained from pursuing his motion to suppress. Although appellant understood there was no formal plea agreement, he believed there was a verbal plea agreement between Thorson and Lemaire that Lemaire would A[r]ecommend no jail time@ if appellant pled guilty.  Appellant testified that he and Thorson never met with Lemaire. 

Appellant also testified that Thorson told him that the trial court will Ago with whatever the prosecutor recommends@ nine out of ten times.  Appellant stated that he Afigured there was, you know, probably a 90 percent chance, as long as . . . [Lemaire] was recommending no jail time, that I would get to go home.@  Appellant testified that he would not have pled guilty if he had known that Lemaire had not agreed to refrain from recommending jail time for appellant.

Appellant acknowledged that the trial court informed him Athere was no plea agreement in the case; that this was an open plea to the Court, that . . . [the trial court] would listen to the evidence and the recommendations from both Mr. Thorson and Mr. Lemaire but that . . . [the trial court] wasn=t bound by these recommendations.@  Appellant also acknowledged that Thorson explained to him before he entered his plea that the trial court would listen to the attorneys= recommendations, but that the trial court was not required to follow any of the recommendations.  Appellant acknowledged that he pled guilty because he believed that this was his Abest option.@

Thorson=s testimony at the motion for new trial hearing conflicted with appellant=s testimony.  Thorson testified that he asked for a recess to meet with Lemaire privately after Lemaire announced at the November pretrial hearing that he would be prosecuting appellant=s case.  Thorson previously had been dealing with prosecutor Zach Austin and wanted to ask what recommendations Lemaire would be willing to make to the trial court regarding sentencing.

Lemaire and Thorson went into the court=s jury room, and Thorson asked Lemaire if he would Arecommend probation on a plea agreement.@  Lemaire told Thorson that the State would not recommend probation.  According to Thorson, Lemaire stated that appellant=s best option would be to enter an open plea to the court. 

Thorson then met with appellant privately in a side room and told appellant about his conversation with Lemaire.  Thorson said the State was unwilling to recommend probation in his case.  Thorson testified that he conveyed all plea recommendations by the State to appellant, and that he never misrepresented any plea recommendation made by the State.  Thorson also testified that he told appellant Athe options at this point are a full-blown jury trial with the State asking for you to go to prison for a very long time, or the possibility of an open plea later on.@

Thorson testified that he invited Lemaire into the room at that point.  Lemaire stated in front of appellant and Thorson that the State would not recommend probation.  Thorson testified that Lemaire never said he would refrain from recommending jail time.  Thorson said he told Lemaire that appellant had been cooperating and could testify for the State against the co-defendants; Lemaire replied that the State did not need appellant=s testimony, and that appellant=s Abest option in this case is to plea open to the Court.@ 

Lemaire further stated that he would Amake a soft rec,@ which Thorson interpreted to mean that Athere would not be a specific recommendation of a term of years of prison time.@  Thorson testified that Lemaire made these statements in appellant=s presence, and that appellant understood what Lemaire was saying.  After Lemaire left the room, Thorson talked to appellant about what Lemaire had told them.  Thorson also explained appellant=s options to him in light of Lemaire=s unwillingness to recommend probation.

Thorson testified that appellant decided to not go forward on his motion at that time. Thorson testified that appellant decided to enter a waiver of jury trial when the case was set on the trial docket in February 2008.  Thorson testified that he discussed at length with appellant what a waiver of jury trial meant, and that the trial court also admonished appellant in that respect.

Thorson further testified that appellant entered his guilty plea only after Thorson discussed at length the consequences of his plea with appellant.  Thorson testified that he also  explained to appellant that the trial court was not required to follow his or Lemaire=s recommendation.  Finally, Thorson testified that in his professional opinion, and based on the facts of the case and his understanding of the practices in Gregg county and the trial judges, he believed that appellant=s Abest shot at getting deferred adjudication probation was to enter an open plea to a judge regardless of what the prosecutor said.@

Lemaire confirmed that he and Thorson met privately in the court=s jury room to discuss appellant=s case.  Lemaire testified that he told Thorson the State would never recommend probation in this case.  Lemaire also confirmed that he met afterwards with Thorson and appellant, and told them the State would not offer probation in the case.  According to Lemaire, Thorson asked if the State would be willing to offer probation in return for appellant=s testimony against other co-defendants but Lemaire declined Thorson=s offer.

Lemaire testified that he told Thorson and appellant that Ahis best right is to ask for . . . [probation] through an open plea.@  Lemaire explained to Thorson and appellant that the State would never recommend probation Abecause of the number of aggravated robberies that the State had witnessed in the time period leading up to this arrest.@  Lemaire testified that there was no doubt in his mind that appellant listened to him and understood that he was Anot  going to offer probation in this case.@

According to Lemaire, he told Thorson and appellant that he would not object to appellant asking for probation in an open plea, but he also stated that he would never recommend probation in this case.  Lemaire testified, AI told them that this was never B this was never anything but a pen time case in the State=s mind.@

Appellant called his family friend, Angela Mitchell, as a rebuttal witness.  Mitchell testified that, although she recalled Thorson and Lemaire going into a room and then later Thorson and appellant going into another room, she did not recall seeing Lemaire join Thorson and appellant in that room.

Based on this evidence, the trial court did not abuse its discretion in (1) denying appellant=s motion for new trial; and (2) concluding that the trial counsel=s performance was not deficient, and that appellant=s plea was voluntary.  Accordingly, we overrule appellant=s first issue.^[2]

Conclusion

We affirm the trial court=s judgment.

/s/        William J. Boyce

Justice

Judgment rendered and Memorandum Opinion filed November 10, 2009.

Panel consists of Chief Justice Hedges and Justices Anderson and Boyce.

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

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^[1]  See Tex. Penal Code Ann. ' 29.03 (Vernon 2003)

^[2]  Having concluded that the trial court did not abuse its discretion in finding that trial counsel=s performance was not deficient in this case, we need not address appellant=s second issue, in which he complains that the trial court abused its discretion by concluding that appellant failed to prove prejudice.