Akintola Alabi Ajagbe v. State ( 2004 )

Opinion issued February 5, 2004

  In The

Court of Appeals

For The

First District of Texas

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NO. 01-03-00116-CR

NO. 01-03-00117-CR

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AKINTOLA ALABI AJAGBE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause Nos. 928071 & 928072

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MEMORANDUM OPINION

          Appellant, Akintola Alabi Ajagbe, was charged by indictment with the felony offenses of (1) aggregate theft of over $1,500 and $20,000 and (2) possession of identifying information. Appellant pleaded guilty to the charges. The trial court ordered a pre-sentence investigation (PSI) report. Following the PSI hearing, the trial court sentenced appellant to two years’ confinement for each offense with the sentences to run concurrently. In three issues, appellant challenges the judgment of the trial court on the grounds of (1) cruel and unusual punishment, (2) ineffective assistance of counsel, and (3) failing to sua sponte withdraw appellant’s guilty plea. We affirm.

Background

          Appellant was involved in an identity-theft scheme. Appellant applied for credit in the names of other individuals and committed credit fraud. Appellant also opened bank accounts in the other individuals’ names and wrote checks between the various accounts to withdraw funds that he deposited into his own bank account.

          When appellant provided bond money for two individuals involved in a scheme defrauding the Texas Comptroller’s Office, he came under suspicion by the Harris County District Attorney’s Office (HCDA). The HCDA discovered several large transfers of funds from various bank accounts and credit cards into appellant’s bank account. Investigators executed a search warrant at appellant’s residence and discovered several boxes containing credit applications and credit cards in other individuals’ names, other individuals’ social security numbers, driver’s license numbers, and dates of birth. The investigators located 20 to 25 of these people, all of whom reported being victims of identity theft.

          Appellant stole approximately $9,025.90 from complainant Jon Yonge and also stole the driver’s license number, social security number, and date of birth of complainant Mathew Kubecka.

Jurisdiction          As a preliminary matter, although neither the State nor appellant have challenged this Court’s jurisdiction, we must address whether we have jurisdiction to hear appellant’s issues on appeal, given the judgment’s declaration: “Appeal waived. No permission to appeal granted.” Appellant’s plea-of-guilty document states, “Further, I waive any right of appeal which I may have should the court accept the foregoing plea bargain agreement between myself and the prosecutor.” The court’s written admonishments to appellant also contained similar language which stated:

WAIVER OF APPEAL I hereby acknowledge that I have accepted the plea bargain offer extended to me by the State. I understand that if the court follows the plea bargain agreement the court will not permit me to appeal my case. I hereby give up any and all rights that I may have to appeal this case, including any right that I may have to file a motion for new trial.

          Appellant did not, however, reach a plea agreement with the State. Although appellant’s waiver was conditioned on the trial court’s accepting a plea agreement, it is undisputed that no such agreement existed. Because the existence of a plea agreement was a precondition to waiver, and because there was no plea agreement, appellant never waived his right to appeal. See Alzarka v. State, 90 S.W.3d 321, 324 (Tex. Crim. App. 2002) (holding that boilerplate waiver-of-appeal language in plea form ineffective when contradicted by record). We hold, therefore, that appellant did not waive his right to appeal and address his points of error below.Cruel and Unusual Punishment

          In his first issue, appellant contends that the trial court erred by imposing sentences that constitute cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution and article 1, section 13 of the Texas Constitution. See U.S. Const. amend. VIII; Tex. Const. art. I, § 13.

          To preserve a complaint of cruel and unusual punishment for appellate review, appellant had to present to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling he desired. See Tex. R. App. P. 33.1(a)(1)(A); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); In re C.E.M., 64 S.W.3d 425, 427 (Tex. App.––Houston [1st Dist.] 2000, no pet.); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d).

          A specific objection to the trial court brings the trial court’s attention to a possible error it may correct. See Solis, 945 S.W.2d at 301 (“The purpose for the rule is to allow opposing counsel to remove the objection or the trial court to cure any harm.”). By not objecting in the trial court, the defendant in Solis waived appellate review of his claims that a 20-year sentence for aggravated assault and a 40-year sentence for aggravated robbery were grossly disproportionate to the offenses and a violation of appellant’s federal and state constitutional guarantees against cruel and unusual punishment. Id.

          Appellant failed to preserve his issue on appeal. The record contains neither an objection by appellant, when he was sentenced, nor a motion for new trial, after he was sentenced, concerning any complaints that his two-year sentences were cruel and unusual. Having concluded that appellant was required to object timely and specifically by stating the grounds for the ruling he desired, we hold that appellant waived his federal and state challenges to his two-year sentences on the grounds of cruel and unusual punishment.

          We overrule appellant’s first issue.

Ineffective Assistance of Counsel

          In his second issue, appellant contends that he was denied his right to reasonably effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984), Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986). Appellant must show both that (1) counsel’s performance was so deficient that counsel was not functioning as acceptable counsel under the Sixth Amendment, and (2) but for counsel’s error, the result of the proceedings would have been different. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2064; Gamble v. State, 916 S.W.2d 92, 93 (Tex. App—Houston [1st Dist.] 1996, no pet.).

          It is the defendant’s burden to prove ineffective assistance of counsel. Id. A defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. Strickland, 466 U.S. at 689, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93. A claim of ineffective assistance of counsel must be firmly supported in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). An appellate court will not find ineffectiveness based on speculation. Gamble, 916 S.W.2d at 93.

          Appellant claims that he was deprived of a fair trial because his trial counsel (1) advised appellant to enter guilty pleas, (2) did not to object to appellant’s two-year sentences as cruel and unusual punishment, (3) did not attempt to withdraw appellant’s guilty plea, and (4) did not request a jury trial. The State responds that appellant has waived appellate review of his ineffective assistance of counsel claim because the issue is inadequately briefed.

          It is insufficient that an appellant raise only a general constitutional doctrine in support of his request for relief. Bell v. State, 90 S.W.3d 301, 305 (Tex. Crim. App. 2002). An appellant must cite specific legal authority and provide legal arguments based on that authority. Id.

          In this case, appellant merely recites the general constitutional doctrine regarding effective assistance of counsel and claims that the errors committed by his trial counsel violated his rights to a fair trial. Appellant provides no legal analysis to support his argument as to how his constitutional right to effective assistance of counsel was violated. Appellant’s conclusory argument lacks any supporting authority or legal analysis, is inadequately briefed, and thus presents nothing for our appellate review. See id.

          We overrule appellant’s second point of error.

Sua Sponte Withdrawal of Guilty Plea

          In his third issue, appellant claims that the trial court erred by not withdrawing appellant’s guilty plea sua sponte because evidence was introduced that reasonably and fairly raised the issue of appellant’s innocence.

          It is well-settled that a defendant may withdraw his guilty plea as a matter of right before the trial court takes the case under advisement or pronounces judgment. Jackson v. State, 590 S.W.2d 514, 515 ( Tex. Crim. App. 1979). However, when the defendant decides to withdraw his guilty plea after the trial court takes the case under advisement or pronounces judgment, withdrawal of the plea is within the sole discretion of the trial court. Id. There is no requirement that a trial court withdraw a guilty plea sua sponte after the defendant waives his right to a jury trial and enters a guilty plea before the court, even if evidence subsequently arises that might reasonably and fairly raise an issue of fact as to the guilt of the defendant. Thomas v. State, 599 S.W.2d 823, 824 (Tex. Crim. App. 1980). As the trier of fact, the trial court may find the defendant either not guilty or guilty as the facts require, without withdrawing the defendant’s plea. Id.

          In this case, the trial court accepted appellant’s guilty plea and found sufficient evidence to support his guilt. The trial court then took the case under advisement. Thereafter, both in the PSI report and at the sentencing hearing, appellant denied actual knowledge of committing the offenses because the checks he cashed were given to him by his friend and he believed them to be good. But appellant never asked the trial court to withdraw his guilty plea and never objected to his punishment. After the trial court took appellant’s case under advisement, it was well within the court’s discretion to disbelieve appellant’s version of events and to find appellant guilty of the offense. See Jackson, 590 S.W.2d at 515. We hold that the trial court did not abuse its discretion by not withdrawing appellant’s guilty plea sua sponte.

          We overrule appellant’s third issue

Conclusion

          We affirm the judgment of the trial court.

                                                             Elsa Alcala

                                                             Justice

Panel consists of Justices Nuchia, Alcala, and Hanks.

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