Roland S. Perkins v. State

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00751-CR
Roland S. PERKINS,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2012CR5082
The Honorable Angus K. McGinty, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Sandee Bryan Marion, Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: November 26, 2014
AFFIRMED AS MODIFIED
Roland Perkins was charged with the felony offense of driving while intoxicated with a
habitual felony offender enhancement. Pursuant to a plea agreement, Perkins pled no contest to
the felony offense of driving while intoxicated. In exchange for his plea, the State agreed to waive
the habitual offender allegation and recommend a ten-year sentence. The trial court accepted
Perkins’s plea and orally sentenced him to ten years’ confinement and a $1,000.00 fine. The oral
pronouncement was memorialized in a written judgment. However, the trial court later amended
its judgment, imposing an eight-year sentence and a $1,000.00 fine. On appeal, Perkins raises two
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issues, contending the trial court erred in: (1) proceeding with the plea hearing when Perkins was
intoxicated; and (2) refusing to allow Perkins to withdraw his plea as requested in his motion for
new trial. In addition, the State raises a cross-point, contending the trial court erred in amending
its judgment. We affirm the trial court’s judgment as modified.
BACKGROUND
A detailed rendition of the facts is unnecessary to our disposition. Accordingly, we provide
a brief background for context with regard to the issues raised by Perkins.
During Perkins’s plea hearing, the trial court was concerned that Perkins had been drinking,
a violation of his bond conditions. The trial court asked the bailiff, Deputy Martin Gamez of the
Bexar County Sheriff’s Department, to “investigate and see if there’s reason to believe that Mr.
Perkins has been drinking, and if so, we will have him tested.” Deputy Gamez examined Perkins
to determine whether he was intoxicated. According to the record, Deputy Gamez advised the trial
court that based on his professional opinion, Perkins was not intoxicated. Perkins’s attorney
concurred with the deputy’s assessment and specifically advised the court Perkins was competent
to proceed. The trial court then proceeded with the hearing, accepting Perkins’s plea, finding
Perkins guilty of driving while intoxicated, and sentencing Perkins in accordance with the parties’
plea agreement — ten years’ confinement and a $1,000.00 fine.
The trial court set the matter for a sentencing hearing at a later date. Prior to the sentencing
hearing, Perkins filed a motion to withdraw his plea, which was taken up at the sentencing hearing
prior to the actual sentencing.
At the hearing, Perkins claimed his plea was involuntary due to intoxication. Perkins called
witnesses to testify as to their recollection of the events at the original plea hearing. Perkins
presented the testimony in an effort to establish he was intoxicated at the time he entered his plea,
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rendering his plea involuntary. The witnesses included his former attorney, one of the prosecutors
who was present at the plea hearing, and Deputy Gamez.
Not a single witness testified Perkins was intoxicated at the plea hearing. Rather, the
testimony was that there was some concern at the plea hearing that Perkins had been drinking —
he smelled of alcohol. However, Perkins’s former attorney specifically testified he “was
eventually satisfied that [Perkins] was competent to take the plea.” The attorney specifically stated
he did not believe Perkins was intoxicated. Moreover, the attorney testified he discussed the plea
and its attendant consequences with Perkins before the plea. The prosecutor could recall little
about the original plea hearing, but agreed there was a concern Perkins might have been under the
influence of alcohol at the plea hearing. Deputy Gamez testified that pursuant to the trial court’s
instructions at the original plea hearing, he took Perkins to a conference room to determine if he
“smelled any intoxicants” on Perkins’s breath or if he seemed intoxicated. The deputy testified
that after being in close contact with Perkins, Perkins did not seem to be intoxicated and he did not
smell of intoxicants.
The trial court reviewed the record from the original plea hearing and considered the
testimony of the witnesses with regard to Perkins’s motion to withdraw his plea. The trial court
concluded Perkins was competent at the plea hearing and that he fully understood his legal rights
when he chose to waive them. The court then proceeded with sentencing, orally sentencing Perkins
to ten years’ confinement and a $1,000.00 fine. As noted above the trial court rendered a written
judgment memorializing the ten-year sentence, but then rendered an amended judgment reducing
Perkins’s sentence to eight years’ confinement. Thereafter, Perkins filed a motion for new trial in
which he again raised the issue of the voluntariness of his plea. The trial court denied the motion
for new trial and Perkins perfected this appeal.
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ANALYSIS
As noted above, Perkins raises two issues on appeal. Perkins contends the trial court erred
in: (1) proceeding with the plea of no contest while he was intoxicated; and (2) denying his motion
for new trial by denying his motion to withdraw his plea. Although guised as two separate issues,
it is clear from the briefing that Perkins’s true complaint is that his plea was involuntary.
Accordingly, he should have been permitted to withdraw his plea.
Standard of Review
“A defendant may withdraw his guilty plea as a matter of right any time before judgment
has been pronounced or the case has been taken under advisement.” Moreno v. State, 90 S.W.3d
887, 889 (Tex. App.—San Antonio 2002, no pet.). However, “[w]hether to allow withdrawal of a
plea pursuant to a motion filed after the judge has taken the case under advisement is within the
sound discretion of the trial court.” Id. We review the trial court’s ruling on a motion to withdraw
a plea under an abuse of discretion standard. Id. “To show the trial court abused its discretion
when it refused to allow [Perkins] to withdraw his plea[], appellant must show the trial court’s
ruling[] [was] outside the zone of reasonable disagreement.” Jagaroo v. State, 180 S.W.3d 793,
802 (Tex. App.—Houston [14th Dist.] 2005, pet ref’d).
Application
Perkins repeatedly claims he was intoxicated when he entered his plea and that his claim
is clearly evidenced by the record. We disagree. Perkins contends the court announced “that the
defendant was intoxicated . . . .” However, this statement is notably absent from the record. In
actuality, the trial court stated there was a concern Perkins may have been drinking. As a result,
the trial court asked his bailiff, Deputy Gamez, to examine Perkins and determine if he was
intoxicated. Deputy Gamez, based on his professional opinion as a deputy with the Bexar County
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Sheriff’s Department, concluded Perkins was not intoxicated. Moreover, Perkins’s own attorney,
when asked at the plea hearing whether Perkins was competent, replied, “I believe he is.”
Perkins claims that during the hearing on his motion to withdraw, his prior attorney
“testified that . . . he believed [Perkins] to be intoxicated.” Again, this statement does not appear
in the record as alleged by Perkins. In fact, the record reflects the complete opposite. When asked
for his opinion as to whether he thought Perkins was intoxicated at the plea hearing, Perkins’s
former attorney replied, “I did not believe so.”
The evidence from record, with regard to Perkins’s intoxication or lack thereof, is set out
in detail above. In essence, the testimony was that Perkins was not intoxicated and was competent
to enter a plea. Deputy Gamez testified he did not even smell an odor of intoxicants emanating
from Perkins at the original plea hearing. In sum, there is simply no evidence from the original
plea hearing or from the hearing on the motion to withdraw his plea that would permit this court
to conclude the trial court’s determination that Perkins was competent and his plea was voluntary
is “outside the zone of reasonable disagreement.” Jagaroo, 180 S.W.3d at 802.
Moreover, the record contains sufficient evidence to establish Perkins was appropriately
admonished prior to his entry of the plea, and that he understood the admonishments and the
consequences of his plea. The Code of Criminal Procedure mandates that a trial court provide
certain admonishments to a defendant prior to accepting a plea of guilty or nolo contendere. TEX.
CODE CRIM. PROC. ANN. art 26.13 (West Supp. 2014). Specifically, the trial court must advise the
defendant of: (1) the range of punishment; (2) that the prosecutor’s recommendation regarding
punishment is not binding on the court; (3) a limited right of appeal; (4) immigration consequences
if applicable; and (5) requirements of sex offender registration if applicable. Id. Furthermore,
Article 23.16(c) provides:
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In admonishing the defendant as herein provided, substantial
compliance by the court is sufficient, unless the defendant
affirmatively shows that he was not aware of the consequences of
his plea and that he was misled or harmed by the admonishment of
the court.
TEX. CODE CRIM. PROC. ANN. art. 26.13(c). “The admonishment of the trial court usually assures
that an offender’s plea is voluntary[.]” Campbell v. State, 5 S.W.3d 693, 701 (Tex. Crim. App.
1999).
Here, the trial court explained to Perkins the offense with which he was charged, his waiver
of rights, limitations of appeal, the range of punishment, the existence of a plea bargain agreement,
and that the court was not bound by the plea bargain. See TEX. CODE CRIM. PROC. ANN. art. 26.13.
Perkins, when asked, advised he understood the admonishments and wished to plead “no contest”
to the offense. He agreed he was pleading “no contest” because he discussed the case with his
attorney and “it was the best thing for him to do.” Thus, we hold the trial court properly
admonished Perkins prior to accepting his plea and Perkins admitted he understood them and
wished to plead “no contest.”
State’s Cross-Point
The State contends the trial court erred in amending Perkins’s sentence from ten years’
confinement to eight years’ confinement. We agree.
As noted above, when the trial court orally pronounced sentence upon Perkins, it stated it
was sentencing Perkins in accordance with the plea agreement and specifically stated it was
assessing his punishment “at ten years TDC.” The court also imposed a $1,000.00 fine. The
sentence imposed was reduced to writing in the judgment. However, for reasons that are not
explained in the record, the trial court rendered an amended judgment, which was signed eight
days after the original written judgment, in which Perkins’s sentence was reduced to eight years’
confinement.
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“A trial court’s pronouncement of sentence is oral, while the judgment, including the
sentence assessed, is merely the written declaration and embodiment of that oral pronouncement.”
Ex parte Madding, 70 S.W.3d 131,135 (Tex. Crim. App. 2002) (citing TEX. CODE. CRIM. PROC.
ANN. art 42.02, § 1 (West. Supp. 2014)). Thus, “[w]hen there is a conflict between the oral
pronouncement of sentence in open court and the sentence set out in the written judgment, the oral
pronouncement controls.” Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003).
The State contends we must modify the judgment because the trial court improperly
reduced Perkins’s sentence to eight years’ confinement after orally pronouncing a sentence of ten
years. We agree and hold the trial court’s judgment must be modified to comport with the trial
court’s oral pronouncement. We therefore sustain the State’s cross-point and hold the trial court
erred in rendering the amended judgment assessing eight years’ confinement.
CONCLUSION
Based on the foregoing, we overrule Perkins’s issues. However, we sustain the State’s
cross-point and order the judgment modified to reflect a sentence of ten years’ confinement. As
modified, we affirm the trial court’s judgment.
Marialyn Barnard, Justice
DO NOT PUBLISH
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