Coshatt, Joseph DeWayne v. State ( 2006 )

Affirmed and Memorandum Opinion filed April 6, 2006

Affirmed and Memorandum Opinion filed April 6, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00964-CR

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JOSEPH DEWAYNE COSHATT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 39,484

M E M O R A N D U M   O P I N I O N

After pleading guilty to possession of a controlled substance, appellant Joseph Dewayne Coshatt entered a drug treatment program.  He was later terminated from that program, adjudicated guilty, and sentenced.  In eight issues, appellant claims his plea was involuntary because he was not properly admonished as to the consequences of his plea, he received ineffective assistance of counsel, and the trial judge should have recused himself.  We affirm.

                                                  Background

Appellant was indicted for possession of a controlled substance.  He applied for admission into a Fort Bend county drug rehabilitation program called Closing Addiction=s Revolving Door (the ACARD@ program).  The court then appointed an attorney to represent appellant, and appellant pleaded guilty on February 26, 2004 and entered the CARD program.  If appellant completed the CARD program, his case would be dismissed, but if he did not, he would be sentenced at the court=s discretion.

Appellant subsequently tested positive for drug use and thus violated the CARD program=s rules.  On June 10, 2004, the trial court terminated appellant from the CARD program and sentenced him to two years in state jail, probated for five years and conditioned on his participation in a program called Substance Abuse Felony Treatment (ASAFT@), which required him to spend at least ninety days in a drug treatment facility.  After sentencing, appellant complained about the drug-testing procedure that showed he had used drugs during treatment, which he denied, and argued that his punishment was excessive.  The trial court appointed new counsel, who filed a motion to reconsider punishment. The court granted the motion and held a new punishment hearing.  After the hearing, the court imposed the same sentence but stayed the portion requiring participation in the SAFT program pending compliance with all terms of probation. This appeal followed.

                                                      Analysis

                                              Voluntariness of Plea

In issues five, six, and seven, appellant argues that his plea was involuntary because the trial court did not properly admonish him.  Before accepting a defendant=s guilty plea, the trial court must admonish the defendant of (1) the range of punishment, (2) the fact that the court is not bound by the State=s sentencing recommendation, (3) the limited right to appeal, (4) the possibility of deportation, and (5) sex offender registration requirements.  See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2005).  These admonishments may be oral or written.  Id. art. 26.13(d) (Vernon Supp. 2005).  Written admonishments signed by a defendant create a presumption that the plea was voluntary.  See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). For inadequate admonishments to invalidate a plea, the defendant must make an objective showing that he was harmed or misled.  See Tabora v. State, 14 S.W.3d 332, 335 (Tex. App.CHouston [14th Dist.] 2000, no pet.); Ruffin v. State, 3 S.W.3d 140, 145 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d); see also Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon Supp. 2005).

Appellant claims he was unaware of the consequences of his plea because the trial court did not admonish him about the procedures for and consequences of termination from the CARD program.  However, appellant fails to specify what procedures and consequences the trial court failed to inform him about.  Thus, his argument fails for lack of specificity.  See Costilla v. State, 84 S.W.3d 361, 364B65 (Tex. App.CBeaumont 2002) (rejecting challenge to voluntariness of plea in part because appellant failed to identify any admonishments that were not communicated to him), aff=d, 146 S.W.3d 213 (Tex. Crim. App. 2004).

Further, the record shows the trial court gave appellant extensive written admonishments and that appellant initialed each one and signed the document.  These included admonishments that (a) the range of punishment was between six months and two years in state jail and a fine of up to $10,000, (b) if he failed to successfully complete the CARD program, he was subject to punishment within this range at the court=s discretion, and (c) if he completed the CARD program, the case against him would be dismissed.  Further, appellant was given a list of ten rules and regulations for the CARD program, including a prohibition of drug use.  At the hearing on his motion to reconsider punishment,^[1] appellant testified that when he pleaded guilty, he had understood that he had to follow all of the CARD program=s rules, including refraining from drug use, and that if he did not complete the program, the judge would sentence him within a range of six months= to two years= incarceration.  We conclude the trial court properly admonished appellant on the procedures for and consequences of termination from the CARD program and that appellant has not met his burden of rebutting the presumption that his plea was voluntary.

Finally, even assuming that the trial court did not properly admonish appellant, appellant has not met his burden of showing that he was harmed or misled.  See Tabora, 14 S.W.3d at 335; Ruffin, 3 S.W.3d at 145.  Appellant argued that he should not be terminated from the CARD program because he did not violate a rule (by using drugs), not that he inadvertently violated a rule about which he was unaware or confused.  Thus, he has not shown that his termination from the CARD program resulted from his misunderstanding or lack of knowledge about it.

Appellant also argues that the trial court did not admonish him that his first appointed counsel had a conflict that prevented counsel from properly representing him during the first punishment hearing.  Assuming the trial court had such a duty, as discussed below, appellant has not proven that counsel had a conflict; moreover, if there was a conflict, any resulting harm was remedied when the trial court appointed new counsel, granted appellant=s motion to reconsider, and held a second punishment hearing.

We overrule appellant=s fifth, sixth, and seventh issues.

                                     Ineffective Assistance of Counsel

In his first four issues, appellant claims that his first attorney provided ineffective assistance of counsel.  Ineffective assistance claims are governed by the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984).  To prove ineffective assistance, the appellant must show (1) that trial counsel=s representation was deficient, falling below the standard of prevailing professional norms, and (2) a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance.  Id. at 687B96; Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).  In the context of a guilty plea, the appellant must show that but for counsel=s errors, there is a reasonable probability that he would not have pleaded guilty.  Tabora, 14 S.W.3d at 336.

To support his ineffective assistance claim, appellant argues that counsel (1) failed to inform him of the consequences of and procedures for termination from the CARD program, (2) had a conflict of interest that prevented her from properly representing him, and (3) did not provide meaningful representation at the first sentencing hearing.  First, as with his complaint against the trial court, appellant fails to specify which consequences and procedures counsel failed to inform him about or how any such failure harmed him.  See Garcia v. State, 112 S.W.3d 839, 845 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (stating that to prove an ineffective assistance of counsel claim, the appellant must identify the specific acts or omissions that fell below standard of professional norms).  We also note that because the trial court fully admonished appellant of the procedures for and consequences of termination from the CARD program, appellant cannot show a reasonable probability that any additional information from counsel would have made him change his plea.  See Tabora, 14 S.W.3d at 336.  Thus, this ground for appellant=s ineffective assistance of counsel claim fails.

Appellant also claims counsel suffered from a conflict of interest.  The Sixth Amendment guarantees a defendant the right to conflict-free representation.  Thompson v. State, 94 S.W.3d 11, 15 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). To prove ineffective assistance of counsel based on a conflict of interest, an appellant must prove that counsel had an actual conflict of interest adversely affecting specific instances of counsel=s performance.  See id. at 15B16.  Showing a mere possibility of a conflict is not sufficient.  Id. at 16.  Appellant alleges counsel had a conflict because she was compensated by the CARD program.^[2]  Appellant has not explained how this fact creates an actual conflict of interest or how it impacted specific instances of her performance.  Thus, his ineffective assistance claim on this basis lacks merit.

Finally, appellant complains that counsel did not provide meaningful representation during the first punishment hearing.  Even assuming counsel=s performance was deficient, appellant cannot show he was prejudiced because the trial court granted his motion to reconsider and held a new punishment hearing with new counsel, about whom he does not complain. Appellant benefitted from this second hearing because the trial court granted his request to avoid mandatory participation in the SAFT program and its ninety-day in-patient treatment requirement.  Accordingly, we reject appellant=s ineffective assistance claim based on counsel=s alleged failures at the first punishment hearing.

We overrule appellant=s first four issues.

                                                        Recusal

In his eighth issue, appellant complains that the trial judge was biased and should have recused himself.  However, appellant never filed a motion to recuse, and therefore he has waived this argument on appeal.  See Johnson v. Sepulveda, 178 S.W.3d 117, 118 (Tex. App.CHouston [14th Dist.] 2005, no pet. h.).  Further, appellant=s argument appears to center on the trial judge=s alleged Apersonal knowledge of disputed evidentiary facts concerning the proceedings,@ but bias cannot be established Abased solely on a trial judge=s previous judicial relationship with a defendant.@  Kemp v. State, 846 S.W.2d 289, 306 (Tex. Crim. App. 1992).  We overrule appellant=s eighth issue.

Having overruled appellant=s eight issues, we affirm the trial court=s judgment.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed April 6, 2006.

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

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

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^[1]  Our record contains no transcript of either the plea hearing or the first sentencing hearing.

^[2]  The order appointing counsel notes that Aone of the conditions of admission into the CARD program is that each participant must be represented by [a] CARD Team Defense Attorney.@