Jerry Ray Wiggins v. The State of Texas--Appeal from 401st District Court of Collin County

11th Court of Appeals

Eastland, Texas

Opinion

Jerry Ray Wiggins

Appellant

Vs. No. 11-03-00025-CR -- Appeal from Collin County

State of Texas

Appellee

Jerry Ray Wiggins entered open pleas of guilty to the offenses of sexual assault of a child and indecency with a child by contact. The trial court convicted appellant of both offenses and assessed the punishment for each count at confinement for 15 years. We affirm.

Appellant presents three points of error. In the first point, he contends that the trial court erred in finding that appellant received effective assistance of counsel at trial. Appellant points specifically to his testimony before the grand jury; to his trial counsel=s Aconfusion regarding terminology, procedure and issues@; to trial counsel=s subpoenaing of adverse witnesses whom he had not interviewed; to trial counsel=s acknowledgment of his incompetence in advising appellant to plead guilty; and to trial counsel=s misrepresentations.

In order to determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App.1986). In order to assess counsel=s performance, we must make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances, and to evaluate the conduct from counsel=s perspective at the time. We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508 09 (Tex.Cr.App.1991).

The record shows that appellant filed a motion for new trial based in part upon his claim that trial counsel was ineffective. The trial court held a hearing on the motion for new trial, found that appellant=s trial counsel was not ineffective, and overruled appellant=s motion. At the hearing, appellant testified that he pleaded guilty only because his trial counsel had said he would get probation and that, otherwise, he would have gone to trial. According to appellant, his pleas were involuntary and his counsel was ineffective. Appellant testified that trial counsel did not inform him that he did not have to testify before the grand jury and that trial counsel failed to interview the victims and potential witnesses. However, appellant agreed that none of these potential witnesses were Amaterial@ witnesses.

Trial counsel also testified at the hearing on the motion for new trial. Trial counsel testified that, in his discussions with appellant, appellant continuously maintained he was innocent. Nonetheless, trial counsel advised appellant to plead guilty based on the circumstances in this case, but trial counsel informed appellant that it was up to appellant to decide for himself. The circumstances in this case include the following: appellant was charged with sexually assaulting a mentally handicapped child and with committing an indecent act with another mentally handicapped child; appellant had given a written confession admitting to these crimes; appellant had failed a polygraph and then confessed to the polygraph examiner; and appellant had also admitted to these crimes when testifying before the grand jury.

At the hearing, trial counsel=s recollection was lacking with respect to some of the events involving this case. Trial counsel had told the trial court in a previous hearing that he was incompetent; however, during the hearing on the motion for new trial, trial counsel testified that he made such statements as a mere ploy Ato get [appellant] off.@

In hindsight, it may not have been prudent to allow appellant to testify before the grand jury or to subpoena the victims= father and stepmother. However, the record shows that appellant had maintained his innocence when talking to his attorney and that the State, rather than trial counsel, called the victims=father and stepmother to testify at the sentencing hearing.

Appellant has not shown that trial counsel=s performance fell below an objective standard of reasonableness. Moreover, appellant has not shown that the result of the proceeding would have been different but for counsel=s performance. The first point of error is overruled.

In the second point of error, appellant argues that the trial court erred in finding that his pleas were knowing and voluntary. Appellant asserts that he pleaded guilty based upon the misinformation and bad advice given to him by trial counsel. We disagree.

In order for a plea of guilty to be appropriate, it must be made freely and voluntarily. TEX. CODE CRIM. PRO. ANN. art. 26.13 (Vernon 1989 & Supp. 2003). Proper admonishments by the trial court create a prima facie showing that a plea of guilty was entered knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Cr.App.1998); Ex parte Gibauitch, 688 S.W.2d 868 (Tex.Cr.App.1985). However, a guilty plea may not have been made voluntarily or knowingly if it was based upon erroneous advice or misinformation from trial counsel. Ex parte Battle, 817 S.W.2d 81, 83 (Tex.Cr.App.1991). When a defendant enters a plea of guilty based upon the advice of counsel but subsequently challenges the voluntariness of that plea based upon ineffective assistance of counsel, an appellate court must determine (1) 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, the defendant would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Cr.App.1997), cert. den=d, 525 U.S. 810 (1998).

Appellant testified at the hearing on the motion for new trial that he did not want to plead guilty because he was not guilty but that he pleaded guilty at the behest of trial counsel. According to appellant, when he told trial counsel that he was not signing the plea papers because he was not guilty, trial counsel told him to Ago ahead and sign it, and we will get you some probation.@ Appellant testified that he would not have pleaded guilty and that he would have gone to trial but for counsel=s assurance regarding Aprobation.@

Trial counsel testified that he did advise appellant to plead guilty but that he did not promise appellant that he would receive community supervision. Based upon appellant=s lack of criminal history, trial counsel thought at the time of the pleas that the trial court might defer the adjudication of appellant=s guilt and place him on community supervision. Trial counsel testified that he explained to appellant that there was no plea bargain agreement and that he informed appellant of his right to a jury trial, of the right to call witnesses, and of the potential range of punishment. Although trial counsel testified at first that he could not recall whether he told appellant that appellant could withdraw his pleas after entering them, trial counsel subsequently confirmed that he did not tell appellant prior to pleading guilty that appellant could later withdraw his pleas if he was not satisfied with the outcome. In response to a question asking whether he promised appellant that he would receive probation, trial counsel testified: ANever. Not an open plea, you don=t do that.@

Although appellant subsequently contended that his pleas were involuntary, appellant had previously stated at the plea hearing that he understood his pleas and his rights, that he was pleading guilty because he was guilty, and that he entered his pleas freely and voluntarily. The record shows that the trial court properly admonished appellant and that the trial court properly informed appellant regarding the applicable range of punishment for these offenses, including the possibility that the trial court could Astack@ the sentences. See TEX. PENAL CODE ANN. ' 3.03(b)(2) (Vernon 2003). The trial court accepted appellant=s pleas and found that they were made freely, voluntarily, and competently.

Appellant has not shown that his pleas were involuntary. Consequently, we overrule appellant=s second point of error.

In his third point, appellant argues that the trial court erred in failing to sua sponte withdraw appellant=s guilty pleas because appellant subsequently maintained his innocence. A trial court is not required to sua sponte withdraw a guilty plea and enter a plea of not guilty when the accused enters the guilty plea before the court after waiving a jury. Thomas v. State, 599 S.W.2d 823 (Tex.Cr.App.1980); Moon v. State, 572 S.W.2d 681 (Tex.Cr.App.1978). This rule applies even if evidence is presented which raises an issue of fact as to the guilt of the accused. The trial court, as the trier of fact, may decide the issue of the accused=s guilt without withdrawing the plea. Thomas v. State, supra; Moon v. State, supra. Furthermore, the record contains evidence showing appellant=s guilt, including a stipulation of facts for each count, appellant=s written statement confessing to the crimes, and an audiotape of appellant=s grand jury testimony. Accordingly, the trial court did not err in failing to sua sponte withdraw appellant=s guilty plea. The third point of error is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

September 18, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.