Chatmon, Anthony v. The State of Texas--Appeal from 203rd District Court of Dallas County

Criminal Case Template COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

 
ANTHONY CHATMON,

Appellant,

 

v.

 

THE STATE OF TEXAS,

 

Appellee.

 

 

 

 

No. 08-01-00418-CR

 

Appeal from the

 

203rd District Court

 

of Dallas County, Texas

 

(TC# F-0173963-TP)

MEMORANDUM OPINION

Anthony Chatmon appeals from his conviction for aggravated assault with a deadly weapon. He contends the trial court abused its discretion in failing to hold a hearing on Chatmon's pro se motion for new trial because that motion contained allegations of ineffective assistance of counsel. We affirm the trial court's decision and Chatmon's conviction.

Facts

On June 28, 2001, appellant Anthony Chatmon appeared before the 203rd District Court of Dallas County, Texas to enter a plea of guilty to a charge of second-degree felony aggravated assault. Part of the indictment included an enhancement paragraph based upon a prior felony conviction.

The trial court specifically asked Chatmon if he understood the allegations contained in the enhancement paragraph, and he asserted he did. The trial court advised Chatmon that he had an absolute right to a trial by jury, which he declined. Chatmon agreed he was giving up his right to a jury trial freely and voluntarily, and that his attorney had advised him of the terms of the trial court's admonitions to a criminal defendant contained in a document which he freely and voluntarily signed.

The trial court then explained to Chatmon that the range of punishment for aggravated assault was two to twenty years, and a fine of up to $10,000. Chatmon told the court he understood the range of punishment. The trial court explained that it was the State's burden to prove the allegations in the indictment beyond a reasonable doubt. Chatmon agreed that he understood that burden.

The trial court advised Chatmon that he did not have a plea bargain and that his guilty plea would subject him to the trial court's discretion in deciding his punishment within the range permitted by law. The trial court again explained that if Chatmon pleaded guilty to the indictment, the enhancement paragraph would subject him to a range of punishment of five to ninety-nine years. Chatmon again agreed that he understood the effect of the enhancement paragraph.

Because Chatmon was charged with exhibiting a deadly weapon during the assault, the trial court also explained that he would be required to serve at least one-half of his sentence before he could become eligible for parole. Chatmon again agreed that he understood this aspect of the operation of his plea.

The following exchange then took place between Chatmon and the trial judge:

 

THE COURT: Now, Mr. Chatmon, has anyone promised you probation or a particular sentence in this case?

THE DEFENDANT: Yeah, I plead probation.

 

THE COURT: I understand you maybe [sic] asking for probation, but has anyone promised you that you would get probation?

 

THE DEFENDANT: No.

 

THE COURT: Has anyone promised you that you would get a particular sentence in this case?

 

THE DEFENDANT: No, ma'am.

 

THE COURT: Now, Mr. Chatmon, you understand that that is up to me after--what I am going to do is have a pre-sentence report prepared, both sides will have an opportunity to present whatever evidence they want to, to me and then, you understand, that will be my decision as to punishment.

 

THE DEFENDANT: Yes, ma'am.

 

THE COURT: Is this how you want to handle your case, Mr. Chatmon, waiving your right to a jury trial, entering a plea of guilty to the indictment, a plea of true to the second paragraph of the indictment and asking the Court to decide your punishment?

 

THE DEFENDANT: Yes, ma'am.

 

The trial court then accepted Chatmon's plea, including his confirmation that he had signed and understood the Judicial Confession which was entered in evidence at the plea hearing, and that all information contained in that confession was true and correct.

The trial court asked whether the terms of his written plea of true to the enhancement paragraph had been explained to him by his attorney. Chatmon stated they had. The trial court then recessed for the preparation of a pre-sentence report.

On July 20, 2001, the trial court reconvened for the punishment phase of Chatmon's plea. After being sworn, Chatmon's counsel recounted how the District Attorney had originally offered Chatmon a plea bargain of ten years, and Chatmon agreed that he instead chose to take an open plea. Chatmon testified to the fact that he had a place to live, and a job to go to if he was placed on probation. Chatmon also told the trial court that he wanted to be placed on probation.

On closing, Chatmon's counsel reasserted to the trial court that Chatmon had decided to take an open plea even though the District Attorney had offered the minimum sentence for incarceration. He also emphasized that Chatmon had a place to live and a job, and on this basis requested a sentence of ten years' probation.

On closing, the State made the following statement:

Your Honor, we just ask that you talk [sic] a close look at the facts in this case and use your judgment of whether or not the Defendant is a person who should be out on probation or not given the egregious nature of the crime and his history of drug problems.

 

With all that, we leave it to the Judge's discretion.

 

The trial court sentenced Chatmon to eight years' imprisonment and assessed a fine of $1,500 with credit for time served. Chatmon then filed a pro se motion for new trial alleging that he had been denied effective assistance of counsel such that his guilty plea was not entered knowingly and intelligently. The trial court did not hold a hearing on the motion for new trial and Chatmon timely appealed.

Discussion

In his sole point of error, Chatmon asserts the trial court abused its discretion by failing to hold a hearing on Chatmon's pro se motion for new trial concerning the knowing and intelligent nature of his plea. He correctly concedes that the right to receive a hearing on a motion for new trial is not absolute, and admits that his entitlement to a hearing on a motion for new trial would be determined by whether his motion raised matters not determinable from the record, and whether the affidavit supporting the motion specified the grounds for the attack and the truth of those allegations. Reyes v. State, 849 S.W.2d 812, 815-16 (Tex. Crim. App. 1993).

When, as in this case, the record reflects that the trial court properly admonished the defendant, a prima facie showing that the defendant's guilty plea was knowing and voluntary is established. Rodriguez v. State, 933 S.W.2d 702, 705 (Tex. App.--San Antonio 1996, pet. ref'd) (citing Ex parte McAtee, 599 S.W.2d 335, 336 (Tex. Crim. App. 1980), overruled on other grounds, Ex parte Tovar, 901 S.W.2d 484 (Tex. Crim. App. 1995). The burden then shifts to the defendant to prove that he did not understand the consequences of his plea and was harmed. McCowan v. State, 961 S.W.2d 24, 26 (Tex. App.--Dallas 1996, no pet.); Rodriguez, 933 S.W.2d at 706; Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon 1989). That burden is a heavy one, especially in circumstances such as these where Chatmon stated orally and in writing that he understood the nature of the proceeding, that the allegations against him were true, that his plea was not coerced, and that no promises were made to him in exchange for his plea. See Rodriguez, 933 S.W.2d at 706. Stated another way, a plea does not become involuntary simply because a defendant receives greater punishment than he expected. Id.; Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.--Dallas 1993, no pet.).

To satisfy the first prong of the Reyes inquiry, Chatmon alleges two matters, not otherwise determinable from the record, were raised by his motion. First, that trial counsel incorrectly advised him of the effect of an open plea on punishment where a deadly weapon allegation is concerned. Second, that Chatmon's trial counsel led him to believe he would receive some type of probation from the trial court if he entered an open plea on punishment, even though counsel knew that Chatmon was not eligible for probation.

With regard to the first contention, the trial court properly advised Chatmon that if she found that a deadly weapon was exhibited in the commission of the assault as charged, he would be required to serve at least half of his sentence before he would be eligible for parole. The trial court also advised Chatmon of the effect of the indictment's enhancement paragraph on several occasions and Chatmon acknowledged that he understood its effect both in writing and orally.

Chatmon was thus properly advised by the trial court that probation was only one possible sentencing outcome prior to acceptance of his plea and the trial court's determination that a deadly weapon had been used in the commission of the crime. Even under the assumption that Chatmon's counsel never discussed the enhancement issue with him, the record reflects that he understood there was no promise of probation because of the deadly weapon allegation. The trial court did not therefore abuse its discretion by denying him a hearing on his motion for new trial on that ground. Bryant v. State, 974 S.W.2d 395, 400 (Tex. App.--San Antonio 1998, pet. ref'd). (1)

Having reviewed the record, we find that the effect of the open plea was more than adequately explained to Chatmon by the trial court judge. The only evidence which Chatmon provides that he believed he would receive probation, is his statement at the guilt or innocence phase of the hearing that he "plead probation." That evidence does not sustain his burden to rebut the prima facie showing established by the trial court's admonishments because his testimony subsequent to that statement reveals he understood that probation was only a possibility, not a guaranteed outcome of the open plea.

Thus, even with the assumption that the affidavit supporting Chatmon's motion for new trial specified reasonable grounds for attack, we find that the outcome of those matters is determinable from the record. See Darrington v. State, 623 S.W.2d 414, 416 (Tex. Crim. App. 1981). The fact that Chatmon received a higher punishment than that allegedly predicted by his counsel, does not render his plea unknowing or unintelligent. West v. State, 702 S.W.2d 629, 633 (Tex. Crim. App. 1986).

Conclusion

The trial court therefore did not err in refusing to grant a hearing on the motion for new trial, and Chatmon's conviction is therefore affirmed.

 

SUSAN LARSEN, Justice

February 6, 2003

 

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

 

(Do Not Publish)

1. Because Chatmon challenges only the trial court's refusal to grant his motion for new trial, we need not determine whether his trial counsel's representation was ineffective, although the record appears to support the conclusion that the opposite was true. In any event, the allegations in Chatmon's motion for new trial are conclusory. Bryant, 974 S.W.2d at 399. Without a showing that there was no reason to avoid trial, his claim of ineffective assistance of counsel would thus fail. Id.