Darrell Pickett II v. State

Opinion issued June 10, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00976-CR

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Darrell Pickett II, Appellant

V.

The State of Texas, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Case No. 1145172

MEMORANDUM OPINION

          Appellant Darrell Pickett II pleaded guilty to committing aggravated robbery with a deadly weapon, and the jury sentenced him to 50 years’ confinement in prison.  See Tex. Penal Code Ann. § 29.03 (Vernon 2003).  After an evidentiary hearing, the trial court denied Pickett’s motion for new trial, in which he argued that he had received ineffective assistance of counsel.  The motion for new trial also presented the arguments Pickett now urges on appeal: the trial court erred and violated his Fifth Amendment due process rights by failing to admonish him about the consequences of his plea in accordance with article 26.13 of the Code of Criminal Procedure.

          The trial court clearly erred by failing to give the statutorily required admonishments.  But because we conclude that Pickett was not harmed by the trial court’s failure to give the statutory admonishments, we affirm.

Background

          Before trial, Pickett indicated to the trial court that he intended to plead guilty.  However, at the pretrial conference, he indicated that he intended to plead not guilty.  Therefore, the parties conducted voir dire for the purpose of selecting a jury to determine both the question of his guilt or innocence and, if necessary, punishment.

During voir dire, the trial court instructed the venire panel on the different types of theft offenses up to and including aggravated robbery.  The venire panel was advised that the State had the burden to prove Pickett’s guilt beyond a reasonable doubt.  The trial court also addressed the panel regarding the punishment range, stating the following: 

Aggravated robbery is a first degree felony.  It’s in there with murder, aggravated sexual assault of a child.  All of those are first degree felonies.

They carry a standard range of punishment of no less than 5 years nor more than 99 years or life in the Texas Department of Criminal Justice and up to a $10,000 fine.

The law also says that if a jury finds that a person . . . should receive a sentence of 10 years or less, so between 5 and 10, and that this person has never been convicted of a felony in this state or any other state, the jury can give that person a probated sentence, which means they don’t go to prison.  They’re on probation under court supervision. 

. . . .

Probation is not automatic.  It is entirely up to the jury.  Okay? So, it only becomes an issue if the sentence is 10 years or less and . . . if you find the person’s never been convicted of a felony in this or any other state, all right?

The trial court asked the venire members if they could consider the full range of punishment. In so doing, the trial court reiterated the full punishment range no fewer than five times.  Pickett’s trial counsel also mentioned the punishment range at least twice during voir dire. 

After the jury was seated—and to the surprise of the trial court—Pickett pleaded guilty to the charges against him, and the trial proceeded on punishment only.  The jury sentenced Pickett to 50 years in prison.  After his conviction, Pickett filed a motion for new trial based on ineffective assistance of counsel, in which he alleged that his attorney abandoned him on the day of trial, was unprepared for trial, gave him erroneous advice about the probable punishment he would receive, and failed to inform him of the consequences of an affirmative deadly weapon finding with respect to his eligibility for parole.  In addition, Pickett alleged that his guilty plea was involuntary because his trial counsel misinformed him, threatened him, and improperly induced him to plead guilty. 

The trial court held an evidentiary hearing on the motion for new trial. Pickett testified that his trial counsel visited him only once during the nine months he spent in jail awaiting trial.  He testified that he met with his trial counsel, his mother, and his aunt on the morning of his trial.  According to Pickett, his trial counsel told him that if he pleaded guilty he would get probation but that if he pleaded not guilty he would be convicted and sentenced to life in prison.  Pickett testified he felt abandoned by his trial counsel, who told him these were the only choices Pickett had, that he was not prepared for trial, and that he could not obtain a continuance.  Pickett said that he was innocent but his trial counsel called him a liar and coerced him into pleading guilty.  Pickett testified that his trial counsel instructed him to act guilty but remorseful and to seek mercy from the jury.  The trial court questioned Pickett, who acknowledged that the trial court had previously explained the range of punishment and parole eligibility to him.  During the punishment hearing, Pickett admitted having lied to police officers and his mother about this offense and having violated the terms of probation that was previously imposed for an unrelated theft.

Pickett’s mother and aunt testified at the hearing on the motion for new trial, corroborating Pickett’s allegations about what transpired when they met with his trial counsel before trial.  Pickett and his mother acknowledged that his trial counsel had represented him in three or four prior criminal matters, beginning in 2005, in which he also pleaded guilty.  For example, Pickett testified that he pleaded guilty to misdemeanor theft in 2005, on his counsel’s advice, despite his innocence.

          Pickett’s trial counsel testified that he spoke with Pickett by telephone on 20 to 50 occasions, during which Pickett wanted to discuss only bond and his release. He also said that Pickett refused to contact him when he was released on bond.  Trial counsel denied coercing Pickett into pleading guilty and saying that he was not ready for trial.  He denied calling Pickett a liar, telling him that he would receive life in prison on a “not guilty” plea, or promising Pickett that he would get probation.  He acknowledged that he did not discuss parole with Pickett.  He testified that Pickett denied stabbing the complainant, but he said that Pickett told him he was present at the time of the charged offense.  Pickett’s trial counsel testified that he explained to Pickett that he could still be found responsible for the charged offense under the law of parties.

          The trial court denied Pickett’s motion for new trial, specifically finding that Pickett and his witnesses were not “credible as to the situation that went on,” and ruling as follows:

The Court finds that [Pickett’s trial counsel]—that on the day of trial, [Pickett’s trial counsel] advised the Court that his client intended, after the client had already indicated both to the Court and to [his trial counsel] that he was going to plead guilty and ask the jury to assess punishment, that he then changed his mind and a jury was selected as such, in regards to both the guilt and innocence of the defendant and punishment. That at the time the defendant was asked what his plea was, in front of the jury, he indicated that he was going to plead guilty.

Based on all the conversations this Court had with the defendant, both before, during and after he entered that plea, the Court finds that Mr. Pickett freely and voluntarily entered a plea of guilty and that [Pickett’s trial counsel’s] assistance during the trial is—his representation was effective.

MOTION FOR NEW TRIAL

          On appeal, Pickett argues that the trial court erred by failing to give him the statutory admonishments and violated his due process rights by (1) failing to inform him of the consequences of his plea and (2) failing to determine that his plea was made knowingly, intelligently, and voluntarily.  Because Pickett raised these issues in a motion for new trial, we analyze his issues as a challenge to the denial of his motion for new trial.  See Starz v. State, 309 S.W.3d 110, 2009 WL 3152115, at *6 (Tex. App.—Houston [1st Dist.] 2009, pets. ref’d) (analyzing ineffective-assistance-of-counsel issue as challenge to denial of motion for new trial).

In Charles v. State, the Court of Criminal Appeals explained the standard for reviewing a trial court’s ruling on a motion for new trial:

An appellate court reviews a trial court’s denial of a motion for new trial under the “abuse of discretion” standard.  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. We must view the evidence in the light most favorable to the trial court’s ruling and presume that all reasonable factual findings that could have been made against the losing party were made against that losing party. 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.        

Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004) (citations omitted); see also State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007) (“A trial judge has discretion to grant or deny a motion for new trial ‘in the interest of justice,’ but ‘justice’ means in accordance with the law.”).  This deferential standard of review applies even to the trial court’s resolution of the historical facts from conflicting sources.  Manzi v. State, 88 S.W.3d 240, 244 (Tex. Crim. App. 2002).

Statutory Admonishments

          In his first issue, Pickett complains that the trial court failed to admonish him as required by the Texas Code of Criminal Procedure.  Prior to accepting a guilty plea, a trial court must admonish a defendant about the punishment range attached to an offense and the immigration consequences of a guilty plea if the defendant is not a United States citizen.  Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2009).  The record reflects that the trial court did not administer the required admonishments. The State concedes that the trial court did not administer the required admonishments. The trial court clearly erred by failing to give the statutory admonishments.  See Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002) (holding that trial court clearly erred by wholly failing to admonish defendant as to applicable range of punishment). 

“Failure to admonish a defendant on the direct consequences of his guilty plea is statutory rather than constitutional error.”  Burnett, 88 S.W.3d at 637; see Aguirre-Mata v. State, 992 S.W.2d 495, 499 (Tex. Crim. App. 1999) (holding that trial court’s error in failing to show on record that it admonished guilty-pleading defendant is subject to non-constitutional harm analysis under Tex. R. App. P. 44.2(b)). Thus, to determine if the trial court abused its discretion in denying Pickett’s motion for new trial so as to require reversal, we must also consider whether the trial court’s failure to give the statutory admonishments affected his substantial rights.  Tex. R. App. P. 44.2(b) (“Any other [i.e., non-constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”); see also Herndon, 215 S.W.3d at 908 (“Trial courts should not grant a new trial if the defendant’s substantial rights were not affected.”).

          “Neither the appellant nor the State have any formal burden to show harm or harmlessness under Rule 44.2(b).”  Burnett, 88 S.W.3d at 638.  Rather, an appellate court “must independently examine the record for indications that a defendant was or was not aware of the consequences of his plea and whether he was misled or harmed by the trial court’s failure to admonish him of the punishment range.”  Id.  “Reviewing courts must examine the entire record to determine whether, on its face, anything in that record suggests that a defendant did not know the consequences of his plea.”  Id.  In this context, a trial court’s failure to admonish a defendant will be harmless if the appellate court’s review of the record as a whole gives “fair assurance that the defendant’s decision to plead guilty would not have changed had the court admonished him.”  Anderson v. State, 182 S.W.3d 914, 919 (Tex. Crim. App. 2006). 

Punishment Range

Pickett argues that the trial court erred by failing to admonish him concerning the range of punishment.  The record shows that the trial court explained the full range of punishment at least six times during voir dire, for which Pickett was present.  Pickett’s trial counsel also explained the full range of punishment during voir dire and before trial, according to his testimony at the hearing on Pickett’s motion for new trial.  Pickett repeatedly testified that his trial counsel told him he would get “probation” if he pleaded guilty and “life” in prison if he pleaded not guilty. Indeed, the punishment range for the charged offense included both the possibility of probation and the possibility of life in prison.  Pickett acknowledged that the trial court had previously explained the range of punishment and parole eligibility to him, and during the punishment phase, Pickett testified that he understood the range of punishment.  Having reviewed the record, we find nothing in it that suggests that Pickett did not know the punishment consequences of his guilty plea.  See Burnett, 88 S.W.3d at 638.  To the contrary, the record as a whole gives fair assurance that Pickett’s decision to plead guilty would not have changed had the court admonished him.  See Anderson, 182 S.W.3d at 919.

Parole Eligibility

Pickett further argues that he would not have pleaded guilty had he known that a guilty plea would render him ineligible for parole until after he had served at least one-half of his sentence.  When a defendant pleads guilty, a trial court need only advise him of the direct, not the collateral, consequences of his plea.  See Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (“[W]hen a defendant is fully advised of the direct consequences of [his] plea, [his] ignorance of a collateral consequence does not render the plea involuntary.”); see also Brady v. United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472 (1970) (holding that in the absence of threats, misrepresentations, or improper promises, a guilty plea is voluntary if defendant is advised of all direct consequences of plea); Mitschke v. State, 129 S.W.3d 130, 135 (Tex. Crim. App. 2004) (holding that consequence is direct if it is definite and largely or completely automatic).  “Parole eligibility is a collateral consequence of a defendant’s guilty plea.” Bell v. State, 256 S.W.3d 465, 469 (Tex. App.—Waco 2008, no pet.) (citing Ex parte Young, 644 S.W.2d 3, 4 (Tex. Crim. App. 1983), overruled on other grounds by Ex parte Evans, 690 S.W.2d 274, 279 (Tex. Crim. App. 1985)); see also Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1985) (“We have never held that the United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for the defendant’s plea of guilty to be voluntary.”).

During the hearing on his motion for new trial, Pickett acknowledged that the trial court had previously admonished him on the parole consequences of a guilty plea in this case.  Because a trial court does not err by declining to inform a defendant of the collateral consequences of his plea—and, in any event, the trial court did inform Pickett of his parole eligibility—we conclude that Pickett’s substantial rights were not affected.

Immigration Consequences

Pickett argues that the trial court’s error in failing to admonish him of possible deportation consequences of his guilty plea warrants reversal. When the record shows a defendant to be a United States citizen, the trial court’s failure to admonish him on the immigration consequences of his guilty plea is harmless error; however, when the record shows a defendant is not a citizen at the time of his guilty plea, the trial court’s error in failing to admonish him is not harmless. Compare Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) (superseded on other grounds by Tex. R. App. P. 44.2) (harmless), with Carranza v. State, 980 S.W.2d 653, 656 (Tex. Crim. App. 1998) (harmful).  If a defendant’s citizenship or immigration status is not clear, an appellate court should draw reasonable inferences from facts in the record when conducting a harm analysis.  VanNortrick v. State, 227 S.W.3d 706, 710–11 (Tex. Crim. App. 2007) (“We do not foreclose the possibility of a finding on citizenship in every case where conclusive proof is unavailable.”).  In determining whether the trial court’s failure to admonish the appellant affected his substantial rights, we must determine: (1) whether the appellant knew the consequences of his plea; (2) the strength of the evidence of the appellant’s guilt, and (3) the appellant’s citizenship and immigration status.  Id. at 712.

Pickett was present during voir dire when the direct consequences of his plea were discussed, he testified at the hearing on his motion for new trial that the trial court previously explained the consequences of his plea, and during punishment, he testified that he understood the punishment range. As to guilt, Pickett’s trial counsel testified that Pickett had given a videotaped confession, which he determined did not warrant a motion to suppress.  Pickett does not contend that he is not a United States citizen. Moreover, as to his immigration status, Pickett’s bail bond papers suggest he is a United States citizen: “Citizen status: Y.”  Drawing reasonable inferences from these facts, which includes an inference that Pickett is a United States citizen, we conclude that the trial court’s failure to admonish him on the immigration consequences of his guilty plea did not affect his substantial rights and was harmless.  See Cain, 947 S.W.2d at 264.

Mental Competence

Finally, Pickett argues that by failing to admonish him, the trial court failed to ensure that he was mentally competent and that his plea was entered freely and voluntarily.  “On the question of appellant’s mental competency, unless an issue is made of an accused’s present insanity or mental competency at the time of the plea, the court need not make inquiry into appellant’s mental competency, and it is not error to accept appellant’s guilty plea.”  Sims v. State, 783 S.W.2d 786, 788 (Tex. App.—Houston [1st Dist.] 1990, no pet.); accord Manoy v. State, 7 S.W.3d 771, 777–78 (Tex. App.—Tyler 1999, no pet.); Hall v. State, 935 S.W.2d 852, 855–56 (Tex. App.—San Antonio 1996, no pet.).

Pickett did not raise the issue of his competency when he pleaded guilty or in his motion for new trial.  At the hearing on his motion for new trial, Pickett presented no evidence to support his contention on appeal that he was not competent at the time of his plea. Because Pickett’s competence was not raised, the trial court was not required to inquire into Pickett’s mental competence and did not err by accepting his guilty plea.  See Sims, 783 S.W.2d at 788. 

Pickett also argues that his plea was not free or voluntary.  Although Pickett testified that his attorney was unprepared and coerced him into pleading guilty, Pickett’s trial counsel also testified, rebutting those accusations.  As the factfinder on the motion for new trial, the trial court was the sole judge of the credibility of the witnesses.  See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); Messer v. State, 757 S.W.2d 820, 824–25 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d).  The trial court specifically found that Pickett’s trial counsel was credible but that Pickett was not.  Moreover, as the trial court stated, it had an opportunity to observe and interact with Pickett before, during, and after accepting his guilty plea.  Based on those observations and interactions, the trial court stated in its jury charge on punishment that it found Pickett to be mentally competent and his plea freely and voluntarily given.  Based on all the conversations the trial court had with Pickett, the trial court concluded that Pickett freely and voluntarily entered a plea of guilty, and we hold that the trial court did not err in so doing.

Having considered and rejected each of Pickett’s arguments, we conclude that the trial court’s failure to give the statutory admonishments did not affect his substantial rights.  See Tex. R. App. P. 44.2(b).  We also conclude that the trial court did not abuse its discretion by denying Pickett’s motion for new trial as to the trial court’s failure to give the statutory admonishments.  See Charles, 146 S.W.3d at 208.  We overrule Pickett’s first issue.

Due Process

          In his second issue, Pickett argues that the trial court violated his due process rights by failing to admonish him of the consequences of his plea and by failing to determine that his plea was made knowingly, intelligently, and voluntarily.  In addition, he argues that his trial counsel coerced him to enter a guilty plea. 

Due process requires that a guilty plea be entered knowingly, intelligently, and voluntarily.  Brady, 397 U.S. at 748, 90 S. Ct. at 1468–69; Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) (citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969)).  “A guilty plea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to confront one’s accusers, and the right not to incriminate oneself.”  Kniatt, 206 S.W.3d at 664 (citing Boykin, 395 U.S. at 243, 89 S. Ct. at 1712).  A defendant’s plea is knowing and voluntary if the defendant understands the meaning and consequences of his guilty plea.  Aguirre-Mata v. State, 125 S.W.3d 473, 475 (Tex. Crim. App. 2003).  A guilty plea must express the defendant’s free will and must not be induced by threats, misrepresentations, or improper promises.  Brady, 397 U.S. at 755, 90 S. Ct. at 1472; Kniatt, 206 S.W.3d at 664.

          Pickett contends reversal is required under Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969), without a showing of harm because there is no affirmative showing that his plea was made intelligently and voluntarily.  The Court of Criminal Appeals has squarely rejected this contention.  See Mendez v. State, 138 S.W.3d 334, 338 (Tex. Crim. App. 2004) (“[Q]uestions regarding the voluntariness of a plea do not defy harm analysis and, therefore, do not involve fundamental constitutional systemic requirements.”).

          Pickett was present during voir dire, during which the trial court explained theft offenses up to and including aggravated robbery, the consequence of a finding of guilt, and the applicable punishment range. Nothing in the record indicates that Pickett did not understand the charges against him or the consequences of his plea; to the contrary, Pickett’s presence at voir dire and his testimony at the hearing on his motion for new trial show that he did understand the meaning and consequences of his guilty plea.  See Aguirre-Mata, 125 S.W.3d at 475.  Pickett does not argue that he did not understand the charges against him or the consequences of his plea.  Rather, Pickett argues that he did not know that if he pleaded guilty he would not be eligible for parole until he served at least half of his sentence.  As we have explained, this is not a direct consequence of his guilty plea and, in any event, Pickett acknowledged that the trial court, in fact, explained this to him.  See Brady, 397 U.S. at 755, 90 S. Ct. at 1472; Ex parte Morrow, 952 S.W.2d at 536; Bell, 256 S.W.3d at 469.  Pickett also reiterates his argument that his trial counsel was unprepared and coerced him into pleading guilty by promising he would receive probation. The trial court, as fact-finder, rejected this controverted version of the facts and determined that Pickett freely and voluntarily entered his guilty plea.  The record here shows that Pickett entered his plea knowingly, intelligently, and voluntarily.  See Lewis, 911 S.W.2d at 7; Messer, 757 S.W.2d at 824–25.  Therefore, we conclude that the trial court did not abuse its discretion by denying Pickett’s motion for new trial as to these arguments. See Charles, 146 S.W.3d at 208. 

We overrule Pickett’s second issue.

Conclusion

          We affirm the judgment of the trial court.

                                                          Michael Massengale

                                                          Justice

Panel consists of Justices Jennings, Alcala, and Massengale.

Do not publish.   Tex. R. App. P. 47.2(b).