Kelly Edward Carter v. State

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00034-CR

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KELLY EDWARD CARTER, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 30125-B

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Ross

O P I N I O N

          Kelly Edward Carter pled guilty before a jury to the offense of indecency with a child by contact. The trial court instructed the jury to find Carter guilty. The jury found Carter guilty, as instructed, and then assessed his punishment at twenty years' imprisonment and a fine of $10,000.00. The trial court sentenced Carter in accordance with the jury's verdict.

          Carter appeals, alleging five points of error: 1) the trial court erred in not suppressing a written statement given by Carter to police; 2) the trial court erred in finding that Carter entered his plea of guilty voluntarily; 3) Carter's trial counsel was ineffective for failing to introduce to the jury evidence of Carter's alleged mental deficiency; 4) Carter's sentence of twenty years' imprisonment and fine of $10,000.00 is cruel and unusual punishment, in violation of the Eighth Amendment to the United States Constitution; and 5) the Texas Rules of Appellate Procedure governing the procedure for pursuing a motion for new trial, perfecting an appeal, and acquiring the record of trial proceedings are unconstitutional. We overrule these contentions and affirm the judgment.

Motion To Suppress

          Carter contends the trial court erred in overruling his motion to suppress his written statement because it was not made knowingly and voluntarily. However, a guilty plea to a felony offense entered before a jury admits all elements of the offense charged and is conclusive as to the defendant's guilt. Brinson v. State, 570 S.W.2d 937, 938–39 (Tex. Crim. App. [Panel Op.] 1978). Thus, the judgment of guilt in this case was based on Carter's plea of guilty before the jury and was rendered independent of, and is not supported by, any alleged error in the trial court's ruling on Carter's motion to suppress. See Simpson v. State, 67 S.W.3d 327, 329–30 (Tex. App.—Texarkana 2001, no pet.).           Because Carter's guilty plea to the jury waived any error in the trial court's ruling on Carter's motion to suppress, we overrule his first point of error.   

Voluntariness of Plea

          Carter contends that he did not knowingly and voluntarily enter his plea of guilty and that, therefore, the trial court erred in accepting the plea. We review the voluntariness of a plea of guilty by examining the record as a whole and considering the plea in the totality of the circumstances. Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App. 1986).

          Carter predicates his argument on his assertion he was mentally incompetent to enter a plea before the trial court. A person is presumed to be competent to stand trial unless proven incompetent. Tex. Code Crim. Proc. Ann. art. 46B.003 (Vernon Supp. 2004–2005). A person is incompetent to stand trial if that person lacks "sufficient present ability to consult with [that] person's lawyer with a reasonable degree of rational understanding; or . . . a rational as well as factual understanding of the proceedings against [that] person." Id.

          The trial court appointed a medical doctor to examine Carter and report on his competency to stand trial. The letter report filed by Dr. John Hall states that Hall found Carter to "have sufficient present ability to consult with his lawyers with a reasonable degree of rational understanding and [to] have a rational as well as factual understanding of the proceedings against him. He is not mentally ill." The report further states, "it was my opinion that [Carter] could assist his counsel in his defense and had a realistic understanding of the charges against him." The trial court cited the doctor's report as part of the court's consideration in finding Carter's plea to have been made freely and voluntarily.

          Further, looking at the complete record of Carter's plea hearing, we find there was sufficient evidence of Carter's competency to stand trial. Although Carter directs us to several instances in the record where his responses to the trial court's questions were confusing, we find, after viewing these exchanges in context, that Carter entered his plea voluntarily.

          In response to the court's questions, Carter told the court his age, that he had attained "a diploma" from school, and that he had no history of insanity or of being under psychiatric care. Trial counsel advised the court he had known Carter about four months and had no indication Carter had any mental defects. He further stated, "I would point out to the Court that we had a Dr. Brown examine [Carter] for competency and found him to be competent to stand trial." Carter did not equivocate when the trial court asked how he pled to the charge of indecency with a child; he answered, "Guilty, sir." He was equally clear and direct in responses to the trial court's questions and admonishments concerning the range of punishment and the fact he would have to register as a sex offender for the rest of his life. Carter acknowledged signing the stipulation of evidence, pointing out to the trial court where his signature could be found on the page.

          Carter calls to our attention, however, that, in response to the trial court's question concerning whether he had an opportunity to ask his attorney questions regarding the stipulation's consequences, his response was, "To a point, yes, I did." He contends this response points to a lack of competency or cognition of his situation. Nonetheless, when the trial court asked if there was anything Carter wanted to ask his lawyer that he had not been able to ask previously, Carter replied, "No."

          Carter also points to his answers to the trial court's questions in the following colloquy as illustrating his "bizarre" answers and showing that he was "mentally off in some other reality":

THE COURT: Anybody promised you any hope of a reward, the delusion of a pardon or any form of leniency causing you to come in here and plead guilty?

 

[Carter]: Well, at first -- when I first came to court to begin with, yes, I was granted a pardon to begin with, but --

 

THE COURT: What?

 

[Carter]: That was when my mom came down here the first time to the court, but I don't know.

          However confusing these responses were, Carter's responses to the court's follow-up—and more direct—questions were appropriate:

THE COURT: The question is, has anybody promised you anything to get you to plead guilty to Count II of this indictment?

 

[Carter]: No.

 

THE COURT: Has anyone threatened you?

 

[Carter]: No.

 

THE COURT: Put any pressure on you?

 

[Carter]: No.

 

THE COURT: Is your lawyer making you do something you don't want to do?

 

[Carter]: No.

          When viewed in the totality of the court's admonitions, we find no evidence that Carter lacked either sufficient present ability to consult with his attorney, or a rational and factual understanding of the proceedings. We find the trial court did not err in finding that Carter entered his plea voluntarily and in accepting such plea. Carter's second point of error is overruled.

Ineffective Assistance of Counsel

          Carter contends his trial counsel was constitutionally ineffective for failing to raise potentially mitigating evidence to the jury showing Carter's alleged mental deficiencies.

          The standard of testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To prevail on this claim, an appellant must prove by a preponderance of the evidence (1) that counsel's representation fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced the appellant's defense. Strickland, 466 U.S. at 687; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). To meet this burden, the appellant must prove that his or her attorney's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for such attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under this standard, a claimant must prove that counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686.

          Our review of counsel's representation is highly deferential; we indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689; Tong, 25 S.W.3d at 712. This Court will not second-guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979). That another attorney, including appellant's counsel on appeal, might have pursued a different course of action does not necessarily indicate ineffective assistance. Harner v. State, 997 S.W.2d 695, 704 (Tex. App.—Texarkana 1999, no pet.). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

          The two-pronged test of Strickland applies to guilty pleas. Hill v. Lockhart, 474 U.S. 52, 58 (1985); Ex parte Pool, 738 S.W.2d 285, 286 (Tex. Crim. App. 1987). The voluntariness of the plea depends (1) on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases, and if not, (2) whether there is a reasonable probability that, but for counsel's errors, appellant would not have entered his or her plea and would have insisted on going to trial. Hill, 474 U.S. at 59; Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997).

          Although Carter filed a motion for new trial, he did not pursue it to hearing, and the motion was overruled by operation of law. Accordingly, there is no evidence regarding plea negotiations or trial counsel's strategy. When ineffective assistance is raised on direct appeal, appellate counsel and the court must proceed on a trial record not developed for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose. Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003). It is true some claims may be disposed on direct appeal where "trial counsel's ineffectiveness is so apparent from the record." Massaro v. United States, 538 U.S. 500, 508 (2003); Freeman, 125 S.W.3d at 507.

          This Court has held that counsel need not undertake the same magnitude of independent factual investigation when the defendant knowingly and voluntarily pleads guilty to the alleged offense as would be required in a contested proceeding. Toupal v. State, 926 S.W.2d 606, 608 (Tex. App.—Texarkana 1996, no pet.). As noted above, trial counsel had worked with Carter on this case for at least four months. The indictment against Carter initially charged him with one count of aggravated sexual assault of a child and three counts of indecency with a child by contact. The charges against him therefore went from a four count indictment, where one of those counts was a first degree felony, to a single count of a second degree felony. Carter was sentenced to the maximum penalty for a second degree felony, but he faced the possibility of life in prison had he been tried and convicted for all the charges in the original indictment. In light of the report from the court-appointed physician who evaluated Carter and found him competent to stand trial, and the absence of any evidence in the record establishing that Carter actually has a mental deficiency, we cannot say trial counsel was ineffective. This point of error is overruled.

Eighth Amendment Violation

          Carter complains his sentence of twenty years' imprisonment and fine of $10,000.00 violates the prohibition of cruel and unusual punishment in the United States Constitution's Eighth Amendment. Carter did not present this issue to the trial court; therefore, he did not preserve it for our review. See Tex. R. App. P. 33.1(a); Jackson v. State, 989 S.W.2d 842, 844 (Tex. App.—Texarkana 1999, no pet.).

Constitutionality of Rules

          Finally, Carter complains that the Rules of Appellate Procedure and the time limits created thereby violate his rights under the United States and Texas Constitutions. Carter argues that, under the deadlines created by Tex. R. App. P. 35.2, it is possible that an appellate counsel will not have the reporter's record of the trial in time to review that record—and evaluate the effectiveness of trial counsel—before the deadline to argue a motion for new trial.

          Carter claims that, under the Texas Court of Criminal Appeals' holding in Ex parte Townsend, he is forced to bring his claim of ineffectiveness on direct appeal despite not having insight into trial counsel's strategies and thinking. According to Carter's reading of Townsend, any claim not brought on direct appeal is precluded from presentation on habeas corpus review. This is not totally correct. Townsend does not stand for the proposition that a claim of ineffective assistance of counsel must always be raised on direct appeal to preserve that claim for potential review on an application for habeas corpus. In Townsend, the petitioner raised, for the first time on his application for habeas relief, that the trial court erred in cumulating or "stacking" his sentence following a revocation of community supervision with his subsequent sentence for murder. Townsend, 137 S.W.3d at 80. The Texas Court of Criminal Appeals held Townsend could have raised this issue on direct appeal, and by first raising it on habeas review, had waived the claim. Id. at 81–82.

          There is a long line of cases reviewing counsel's effectiveness on habeas application where the same has not been made on direct appeal; in fact, the Texas Court of Criminal Appeals has consistently stated such is the preferred chronology for reviewing such claims. After Townsend, the Texas Court of Criminal Appeals addressed a claim of ineffective assistance on habeas review even though that claim had not been raised on direct appeal. Ex parte White, Nos. 74,757 & 74,758, 2004 Tex. Crim. App. LEXIS 1612 (Tex. Crim. App. Sept. 29, 2004). Additionally, this Court has not hesitated to find constitutionally ineffective assistance of counsel on direct appeal where the record before us supports such a holding. See Hall v. State, No. 06-03-00253-CR, 2005 Tex. App. LEXIS 508 (Tex. App.—Texarkana Jan. 25, 2005, no pet. h.).

          In this case, Townsend may require that Carter's claim of ineffective assistance be raised first on direct appeal. But in light of the Texas Court of Criminal Appeals' willingness to consider such claims for the first time on collateral review even where not raised on direct appeal, we do not find the Texas Rules of Appellate Procedure to have the debilitating effect argued by Carter. This point of error is overruled.

Conclusion

          We affirm the judgment.

                                                                           Donald R. Ross

                                                                           Justice

 

Date Submitted:      October 13, 2005

Date Decided:         April 12, 2005

Do Not Publish

nter-ideograph; mso-pagination:widow-orphan;tab-stops:center 3.25in'>   MICHAEL LYNN PHELPS, Appellant

 

                                                                V.

 

                                     THE STATE OF TEXAS, Appellee

 

 

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                                         On Appeal from the 6th Judicial District Court

                                                          Red River County, Texas

                                                          Trial Court No. CR01675

 

                                                                                                  

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                            Memorandum Opinion by Justice Moseley

                                                     MEMORANDUM OPINION

 

            After an incident in which Michael Lynn Phelps struck his wife, Roxanna, repeatedly with a 2” x 2” board with a nail protruding from it, threw scalding water on her, hit her with a broom handle, kicked her with his boot-clad feet, punched her with his fists, strangled her, slammed her head against a wall, sexually assaulted her with a shampoo bottle, and smeared dog feces on her, Phelps was convicted by a jury of aggravated assault with a deadly weapon.  After pleading true to the State’s enhancement paragraph, Phelps was sentenced to sixty years’ imprisonment.  Phelps has appealed his conviction with his sole point of error on appeal being that he says that he believes the evidence is insufficient to support the jury’s finding that he used or exhibited a deadly weapon during the commission of the assault.  Because we find the evidence sufficient to support this finding by the jury, we overrule Phelps’ sole point of error and affirm the trial court’s judgment.

I.          Standard of Review

            In evaluating legal sufficiency, we review all the evidence in the light most favorable to the jury’s verdict to determine whether any rational jury could have found the essential elements of aggravated assault with a deadly weapon beyond a reasonable doubt.  Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).  Our rigorous legal sufficiency review focuses on the quality of the evidence presented.  Brooks, 323 S.W.3d at 917 (Cochran, J., concurring).  We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”  Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19). 

            Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically-correct jury charge.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008); Vega v. State, 267 S.W.3d 912, 916 (Tex. Crim. App. 2008).  Under the hypothetically-correct jury charge, the State was obligated to prove (1) that Phelps intentionally or knowingly caused bodily injury to Roxanna and (2) that he used or exhibited a deadly weapon during the commission of the assault.  Tex. Penal Code Ann. §§ 22.01, 22.02(a)(2) (West 2011).  Here, the State’s indictment alleged Phelps “did then and there use or exhibit a deadly weapon, to-wit:  a piece of wood with a nail protruding from it.”  Phelps does not challenge the allegation that he intentionally or knowingly caused bodily injury to Roxanna.  Rather, Phelps complains, “Although there is evidence that the piece of wood was capable of causing, and did cause, bodily injury in its manner of use, there is insufficient evidence that it was capable of causing serious bodily injury.”Â

            Under the Texas Penal Code, a deadly weapon is “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury”; it need not actually cause death or serious bodily injury.^[1]  Tex. Penal Code Ann. § 1.07(a)(17)(B) (West 2011); Charleston v. State, 33 S.W.3d 96, 100 (Tex. App.—Texarkana 2000, pet. ref’d).  Serious bodily injury includes bodily injury that creates a “protracted loss or impairment of the function of any bodily member or organ.” Tex. Penal Code Ann. § 1.07(a)(46) (West 2011). 

            Because the wooden board in this case was not designed, made, or adapted for the purpose of inflicting bodily injury, it is not a deadly weapon per se.  See McCain, 22 S.W.3d at 502; In re S.B., 117 S.W.3d 443, 446 (Tex. App.—Fort Worth 2003, no pet.); Charleston, 33 S.W.3d at 99.  The following five-factor test can be used in determining whether the wooden board could have been determined to be classified as a deadly weapon:  (1) physical proximity between the victim and the object; (2) the threats or words used by the assailant; (3) the size and shape of the weapon; (4) the weapon’s ability to inflict death or serious injury; and (5) the manner in which the defendant used the weapon.  Nash v. State, 175 S.W.3d 427, 430 (Tex. App.—Texarkana 2005, pet. ref’d) (citing Brown v. State, 716 S.W.2d 939, 946–47 (Tex. Crim. App. 1986); Tisdale v. State, 686 S.W.2d 110, 115 (Tex. Crim. App. 1984); English v. State, 647 S.W.2d 667, 669 (Tex. Crim. App. 1983); Blain v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983); Williams v. State, 575 S.W.2d 30 (Tex. Crim. App. [Panel Op.] 1979)).  No one factor is determinative, and each case must be examined on its own facts.  Either expert testimony or lay testimony may be sufficient to support a finding.  English, 647 S.W.2d at 668–69.

II.        Roxanna’s Testimony Established that the Wooden Board Was a Deadly Weapon

            At trial, Roxanna recounted a history of domestic violence.  She testified that Phelps believed she might have been having an affair, at one point telling her that he had seen someone “running out the back door” of their residence, and at another point becoming jealous when he came across MySpace and Facebook pages that appeared to be Roxanna’s.  Roxanna insisted that she had not created new profiles on MySpace and Facebook and that the profile Phelps was viewing was not hers.  She claimed that Phelps’ jealousy was provoked on the day of the incident by the barking of their dogs.  She testified:

He says, go look and see who’s out there, or what’s out there.  And I told him, if I look and tell you there’s nothing out there, you’re not going to believe me anyway.  . . . I said, you go look out the window.  The next thing I know, he’s done swung a punch and hit me in the face.  . . . He was yelling at me and then he looked and he seen the blood and he said, oh, my God, you know, what did I do.  He went and got ice.  He said, see, if you wouldn’t talk to me that way, I wouldn’t have to get angry with you like this.

 

            Phelps next advised Roxanna to admit that the profiles he saw on Facebook and MySpace were created by her.  In an effort to put an end to Phelps’ violent behavior, Roxanna told Phelps that the profiles were hers.  Contrary to her belief, the requested admission did not cause a cessation of the violent conduct.  She testified,

He calmed down for a little bit and then he got angry again.  He said, you lied to me, you lied to me, and then it just got worse and worse and it escalated again.  He started hitting me again.  . . . He hit me in the face several times.  Drug me into the living room.  I was on the couch.  He said do not move.  He came back with a board.

 

            A nail protruded from the board, described as a “2x2,” which appeared to be a board that had been separated from a railing used on the deck of the residence.  Phelps used the board to hit Roxanna’s face, the nail in the board leaving a deep scar on her cheek.  One of the blows with the board by Phelps on Roxanna’s knee was of sufficient force and violence as to cause the board to break in two, not an inconsiderable blow. Roxanna testified, “He said he was going to bust my kneecap.” 

            Phelps continued his abuse of Roxanna by throwing scalding water at her face, which caused the skin contacted by the water to “bubble[] out at the time.”  He also beat her on her legs with a broom handle, kicked her while wearing boots, punched her with his fists, strangled her, rubbed her with dog feces, slammed her head against a wall, and sexually assaulted her with a shampoo bottle. After the incident, Roxanna was left severely battered and bruised, as demonstrated in the pictures taken by the police after the incident had come to an end.^[2]  She was transported by ambulance to Paris Regional Medical Center, where medical personnel noted that she had sustained “multiple lacerations, bruising, [and] burns from head to toe.”  Roxanna testified that the wooden board could have caused her death or serious injury and that she still bore scars on her knee from the incident. 

            Reviewing all the evidence in the light most favorable to the jury’s verdict, we find it sufficient for a rational jury to have concluded that the piece of wood, as used and as threatened to be used, was a deadly weapon.  First, Roxanna testified (and Phelps concedes) “that the piece of wood with a protruding nail was theoretically capable of causing serious bodily injury.” According to Phelps, “the more difficult issue is whether the manner of the use of the piece of wood in this particular situation establishes that it was used as a deadly weapon.”  Phelps used the board to hit Roxanna in the face and on her knee.  In addition to the actual employment of the piece of wood to strike her, he threatened her with serious injury or protracted loss or impairment to her knee by stating he was “going to bust [her] kneecap.”  Because Phelps used the board, which he concedes was capable of causing bodily injury, to hit Roxanna in the knee with such force that the board broke in two, the jury could find that the manner of his use of the board could inflict serious injury.  Therefore, we find the evidence legally sufficient for a jury to have found that Phelps used a deadly weapon during the commission of his assault against Roxanna. See Bailey v. State, 46 S.W.3d 487 (Tex. App.—Corpus Christi 2001, pet. ref’d) (finding boards capable of causing serious bodily injury).

            We overrule Phelps’ sole point of error. 

III.       Conclusion

            We affirm the judgment of the trial court.

 

 

                                                                        Bailey C. Moseley

                                                                        Justice

 

Date Submitted:          July 19, 2011

Date Decided:             July 21, 2011

 

Do Not Publish          

 

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^[1]In McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000), the court stated regarding Section 1.07(a)(17)(B) that: 

 

The provision’s plain language does not require that the actor actually intend death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury.  The placement of the word “capable” in the provision enables the statute to cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force.

^[2]Roxanna also suffered a broken nose, which required plastic surgery to remedy.  However, it is unclear from the record whether her nose was broken when Phelps hit her in the face with the board, or whether this injury occurred before or after the board was used.