Ex Parte: Albert Bivins Hill ( 2010 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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EX PARTE ALBERT BIVINS HILL, No. 08-09-00135-CR
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Appellant. Appeal from the
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County Court at Law No. 6
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of El Paso County, Texas
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(TC# 970C24624)
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OPINION
Appellant, Albert Bivins Hill, appeals the trial court’s denial of his application for post-
conviction writ of habeas corpus. Finding no abuse of discretion, we affirm.
BACKGROUND
On December 18, 1997, Appellant was charged with the misdemeanor offense of driving
while intoxicated. Two months later, Appellant appeared pro se and entered into a written plea
agreement, where in exchange for his plea of guilty to the offense, he accepted a sentence of 180
days, probated for 15 months. The trial court assessed his sentence accordingly. However, eleven
years later, Appellant filed an application for writ of habeas corpus, seeking to set aside his
conviction on grounds that he was not admonished of the dangers and disadvantages of self-
representation prior to pleading guilty and that he entered his plea without the assistance of counsel.
At the writ hearing, Appellant, recognizing that the Court of Criminal Appeals in Hatten v.
State, 71 S.W.3d 332 (Tex. Crim. App. 2002), ruled against his position, reframed his issue as to
whether a plea can be voluntarily and knowingly made absent the constitutional warnings. He then
testified that prior to pleading guilty to the offense, he retained counsel. However, his counsel
passed away before his plea hearing, which he did not learn of until he arrived at the hearing.
Appellant did not retain new counsel because it was too difficult for him to attend court based on his
wife’s deteriorating health. The court, according to Appellant, did not advise him of the dangers and
disadvantages of self-representation but rather directed him to speak to the prosecutor. The
prosecutor simply “gave [him] some papers to sign, which [he] signed.” Appellant did not remember
if the court explained the paperwork to him. Appellant believed that the procedure “was to go ahead
and get it finished.”
The State, in an effort to establish that Appellant’s plea was knowing and voluntary, cross-
examined Appellant, learning that prior to retiring from the United States Army as a Sergeant First
Class, E7, Appellant was responsible for 50-500 soldiers. Appellant acknowledged that his position
in the army was one of trust and responsibility, and required him to make knowing decisions. The
State also established that Appellant, at the time of his plea, signed an admonishment of
representation, which explained his right to counsel on the charged offense. But Appellant testified
that he did not read that document “very well.” However, Appellant admitted that he read and
understood the plea admonishments, which noted the punishment range for the offense, his rights
to counsel, to a trial, and to present evidence and witnesses, that he waived those rights, and that he
pled freely and voluntarily to the charged offense. Appellant also admitted that he signed the plea
agreement, and that he read, signed, and understood the judgment.
At the conclusion of the testimony and argument, the trial court found Appellant’s testimony
incredible and denied the writ application:
After hearing the testimony and reviewing the file and the exhibits and taking judicial
notice of the file from where the exhibits have come, I’m going to find – deny the
Writ of Habeas Corpus based on the fact that Mr. Hill signed not in one place, but in
– not in two places, but in three places the acknowledgment that he waived his rights,
including the right to go to trial, review the documents, call witnesses. Additionally,
with the testimony that I heard today, that he was – that he is a retired E7, that matter
pains me. It pains me deeply. Because I believe to say that an individual who has
risen to the rank of E7 comes to court and doesn’t read documents that are so
important, I believe is a slap in the face to every NCO in the military then and in the
military now. The caliber of soldier in the United States military, in my view, is
incredible. What your contemporaries did in Vietnam and Korea, and what E6’s and
E7’s are doing today, goes beyond heroic. And to say that an individual of that
caliber did not know that he was knowingly and intelligently waiving these important
rights, in my view, defiles the uniform of every NCO that has ever served this
country. That does pain me, but the writ is denied.
DISCUSSION
Appellant brings three issues on appeal. His first and second issues contend that his pro se
guilty plea should be invalidated since the trial court failed to advise him of the dangers and
disadvantages of self-representation before he pled guilty, and that his waiver of his right to counsel,
in absence of those warnings, was not intelligently and knowingly made. Appellant’s third issue
asserts that prior to 2007, it was reversible error for the court to fail to warn a pro se defendant of
the dangers and disadvantages of self-representation before accepting his guilty plea.
Standard of Review
We review a trial court’s decision to grant or deny relief on a post-conviction application for
writ of habeas corpus under an abuse-of-discretion standard. Kniatt v. State, 206 S.W.3d 657, 664
(Tex. Crim. App. 2006). In so doing, we view the evidence in the light most favorable to the trial
court’s ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled in part
on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007). Recognizing
that the trial judge, as fact finder at the writ hearing, was the exclusive judge of witness credibility,
we afford almost total deference to the judge’s determination of historical facts that are supported
by the record. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006).
Applicable Law
When a criminal defendant chooses to waive his right to counsel and proceed to trial pro se,
that waiver should be knowingly and intelligently made, being first warned of the dangers and
disadvantages of self-representation. Faretta v. California, 422 U.S. 806, 835-36, 95 S. Ct. 2525,
2541 (1975). However, Faretta is not triggered when a defendant chooses to appear in court pro se
for the purpose of pleading guilty. Hatten, 71 S.W.3d at 334. At that point, “the issue is not whether
the trial court admonished the accused of the dangers and disadvantages of self-representation . . .
but rather whether there was a knowing, voluntary, and intelligent waiver of counsel.” Hatten, 71
S.W.3d at 334, citing Johnson v. State, 614 S.W.2d 116, 119 (Tex. Crim. App. 1981) (op. on reh’g);
see Blocker v. State, 889 S.W.2d 506, 508 (Tex. App.–Houston [14th Dist.] 1994, no pet.).
Application
Appellant’s first and third issues assert that his waiver of his right to counsel was not
knowingly and voluntarily made since the trial court failed to admonish him of the dangers and
disadvantages of self-representation. See Faretta, 422 U.S. at 835. At the time of Appellant’s plea,
article 1.015(g) of the Texas Code of Criminal Procedure provided that if a defendant wished to
waive his right to counsel, the court was required to advise him of the dangers and disadvantages of
self-representation, and if the court determined that the waiver was voluntary and intelligently made,
the court was required to provide the defendant with a statement that he waived counsel. See Acts
1987, 70th Leg., ch. 979, § 1, eff. Sept. 1, 1987, codified as TEX . CODE CRIM . PROC. ANN . art.
1.051(g). In 2007, the statute was amended, to require a court to admonish a defendant on the
dangers and disadvantages of self-representation if the defendant wished to waived his right to
counsel and “proceed[] to trial.” See Acts 2007, 80th Leg., ch. 463, § 1, eff. Sept. 1, 2007, codified
as TEX . CODE CRIM . PROC. ANN . art. 1.051(g) (Vernon Supp. 2009). According to Appellant, we
should imply that the legislature, by adding the phrase “proceeding to trial,” intended to require those
warnings in cases prior to 2007, where a defendant, instead of proceeding to trial without counsel,
simply pled guilty. We disagree.
Prior to the amendment, the case law was well-settled that the Faretta admonishments were
not required when a defendant chose to waive counsel and plead guilty to the charged offense. See
Hatten, 71 S.W.3d at 334; Johnson, 614 S.W.2d at 119; Barras v. State, 902 S.W.2d 178, 180 (Tex.
App.–El Paso 1995, pet. ref’d); Cooper v. State, 854 S.W.2d 303, 304 (Tex. App.–Austin 1993, no
pet.). When the legislature, in 2007, chose to require the Faretta warnings in those cases where the
defendant wanted to “proceed to trial” pro se, we believe the legislature was simply codifying the
already well-established jurisprudence. See, e.g., Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim.
App. 1991) (definition of value in Section 31.08(a)(1) of the Texas Penal Code was “a codification
of the standard long established by case law”); Johnson v. State, 564 S.W.2d 707, 710 (Tex. Crim.
App. 1978) (op. on reh’g) (by enacting article 46.02(2)(b) of the Texas Code of Criminal Procedure,
the legislature sought to codify prior case law), overruled on other grounds by Williams v. State, 663
S.W.2d 832 (Tex. Crim. App. 1984).
In this case, Appellant, unlike in Faretta, did not elect to plead not guilty and to proceed to
trial. Instead, he chose to plead guilty. The Faretta admonishments were not required under these
circumstances. See Johnson, 614 S.W.2d at 119; Barras, 902 S.W.2d at 180; Cooper, 854 S.W.2d
at 304. And the statute now in effect did not mean to make those admonishments required in cases
where a defendant chose to plead guilty prior to 2007. Accordingly, because Appellant pled guilty,
the court was not required to give the Faretta admonishments prior to accepting his waiver of
counsel. We overrule Appellant’s first and third issues.
Appellant’s second issue contends that the record does not establish that he knowingly and
intelligently waived his right to counsel. Contrary to Appellant’s assertion, we find the record
replete with evidence establishing that he knowingly, voluntarily, and intelligently waived his right
to counsel. Appellant signed a waiver form that indicated he was advised of his right to counsel, that
if he was unable to afford counsel, counsel would be appointed free of charge, and that he wished
to waive his right to the same and proceed with the case. In addition, Appellant read and signed the
plea admonishments, which also concerned his right to counsel, to a trial, to present evidence and
witnesses, and that he waived those rights. Further, Appellant read and signed the judgment, which
again stated he waived his right to counsel, and he specifically testified that he knew he was pleading
guilty and was not confused about pleading guilty. Nothing in the record suggests that Appellant
was coerced or intimidated in any way into signing the waivers.
Despite this evidence, Appellant asserted at the hearing that he did not knowingly waive his
right to counsel. The trial court, however, disbelieved, and was entitled to do so, Appellant’s
testimony, noting that he signed in three places that he waived his right to counsel and that as a E7
sergeant in the United States military, he was in position of trust and responsibility, which required
him to make knowing decisions. See Amezquita, 223 S.W.3d at 367 (in habeas proceedings,
“[v]irtually every fact finding involves a credibility determination” and “the fact finder is the
exclusive judge of the credibility of the witnesses”) (citations omitted). Finding no evidence of
coercion or intimidation and that the executed documents sufficiently advised Appellant of his right
to counsel and waiver of that right, we hold Appellant knowingly and voluntarily waived his right
to counsel. See Barras, 902 S.W.2d at 181 (record sufficient to show knowing waiver of right to
counsel when appellant signed two separate documents acknowledging that he was advised of his
right to counsel and that he freely and voluntarily waived that right; there was no evidence to the
contrary and no evidence that appellant was coerced or intimidated in any way into signing the
written waivers); Blocker, 889 S.W.2d at 508-09 (holding evidence was sufficient to show a free,
voluntary, and intelligent waiver when appellant signed waiver statement and there was no evidence
he was coerced or intimidated into signing the waiver). Issue Two is overruled.
CONCLUSION
Having overruled Appellant’s three issues, we affirm the trial court’s judgment.
GUADALUPE RIVERA, Justice
March 10, 2010
Before Chew, C.J., McClure, and Rivera, JJ.
(Do Not Publish)