Donovan Lewis Shepard v. The State of Texas--Appeal from 176th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-92-103-CR

No. 10-92-104-CR

No. 10-92-105-CR

DONOVAN LEWIS SHEPARD,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 176th District Court

Harris County, Texas

Trial Court Nos. 617,917, 618,918 & 560,394

O P I N I O N

Donovan Shepard, pursuant to a plea bargain, waived indictment and pleaded guilty to sexual assault in cause number 618918 and to aggravated sexual assault in cause number 617917. The court sentenced him to twenty years for the sexual assault and twenty years for the aggravated sexual assault with a deadly weapon finding. Shepard also pleaded "true" to a motion to adjudicate his guilt in a burglary of a motor vehicle in cause number 560394 and was sentenced to ten years in that cause. The sentences were not cumulated. All three pleas were received by the court on February 3, 1992. On March 2, Shepard filed a motion for new trial on the grounds that his court-appointed attorney had rendered ineffective assistance of counsel. The court denied the motion.

Shepard appeals the judgments in the three causes on the sole point that the court erred in denying his motions for new trial, which were based on his claim that he was denied his constitutional right to reasonably effective assistance of counsel under article 1, section 10, of the Texas constitution. We will overrule the point and affirm the judgments.

The granting of a new trial on the grounds of ineffective assistance of counsel is not among the grounds listed in Rule 30 of the Rules of Appellate Procedure. Tex. R. App. P. 30. The trial court may, in its discretion, grant a motion for new trial in a criminal case on the ground that justice so requires. State v. Gonzales, 820 S.W.2d 9, 12 (Tex. App. Dallas 1991, pet. granted). Presumably, if the court had found that a constitutional violation occurred at trial e.g., ineffective assistance of counsel it should and would have granted a new trial in the interest of justice.

An essential requisite in attacking a plea of guilty on the ground of ineffective assistance of counsel is a showing that the plea of guilty was not knowingly and voluntarily entered. Ex parte Adams, 707 S.W.2d 646, 648 (Tex. Crim. App. 1986). The United States Supreme Court established a two-prong test for analyzing a claim of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This test also applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985). Under the first prong of the test, Shepard must show that his trial counsel's performance fell below an objective standard of reasonableness. See id., 474 U.S. at 57, 106 S. Ct. at 369. Once this burden is met, Shepard must show that there is a reasonable probability that, but for counsel's errors, he would not have entered his pleas and would have insisted on going to trial. See id., 474 U.S. at 59, 106 S. Ct. at 370.

The Strickland standard has been adopted for ineffective assistance claims arising under Article 1, Section 10, of the Texas Constitution. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). The right to reasonably effective counsel does not mean errorless counsel or counsel whose competency is judged by hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). Rather, the right to counsel affords an accused an attorney "reasonably likely to render and rendering reasonably effective assistance." Cannon v. State, 668 S.W.2d 401, 402 (Tex. Crim. App. 1984). The burden of proving ineffective assistance of counsel is on Shepard and it must be proved by a preponderance of the evidence. See id. at 403.

Shepard was accused of aggravated sexual assault in cause number 617917. The alleged assault occurred on November 15, 1991. Trial counsel was appointed and met briefly with Shepard on December 13. A subsequent complaint against Shepard was filed on December 24, charging him with a sexual assault that occurred on July 24, 1991. Shepard had previously been placed on deferred adjudication in 1990 for the burglary of a motor vehicle in cause number 560394. The State filed a Motion to Adjudicate Guilt in the burglary case. Appointed counsel represented Shepard in all three cases.

On February 3, Shepard waived indictment and pleaded guilty in both sexual assault cases. The court sentenced him to twenty years in each case and made an affirmative finding that a deadly weapon had been used. Shepard pleaded "true" to the Motion to Adjudicate Guilt in the burglary of a motor vehicle case and was sentenced to ten years. In entering his guilty plea to the sexual assaults, the court asked Shepard if he was pleading guilty "because you are guilty and not because of any promises, not because of any fear, not because of any persuasion, but because you are guilty and for no other reason?" Shepard responded, "Yes." The court admonished Shepard on the range of punishment five to ninety-nine years or life for the aggravated sexual assault and two to twenty years for the sexual assault. The court further admonished him that it was not bound by the State's recommendation of twenty years. Shepard acknowledged that he understood the plea bargain.

Shepard also responded "yes" when asked whether he had had ample time to visit with his attorney, whether his attorney had been able to answer his questions, and whether he was satisfied with his attorney. He likewise answered "yes" when asked whether he had reviewed his judicial confession with his attorney. He responded "no," however, when asked if he had any questions of the court. On his plea of "true" to the Motion to Adjudicate Guilt, the court asked him if he was "pleading true because the allegations in the motion are true and for no other reason," to which Shepard responded "yes."

At the hearing on the motion for new trial, Shepard's wife testified that she and her husband were at the movies with friends on July 24 the night of the first assault. She stated that she remembered the events of the evening because she was confronted by the victim the next day. She testified that she and Shepard were at her parents home the evening of November 15 the date of the second assault. Two friends testified that they were at the movies with the Shepards on the night of July 24. Affidavits from Shepard's in-laws stated that he was at their home on the evening of November 15. The gist of Shepard's ineffective assistance claim is that trial counsel did not conduct an independent investigation of the facts thereby failing to raise an alibi defense.

Trial counsel testified that he instructed Shepard to make a witness list but did not receive one from him. He testified that he met with Shepard's wife and mother for two to three hours on January 2, 1992, that Mrs. Shepard lied to him by saying she knew nothing of the July 24th incident, and that she failed to show for a later appointment. Counsel stated that no one, including Shepard, ever told him that Shepard was elsewhere on the nights in question. He explained that his policy is to go to trial if a defendant wants a trial and that he would not have allowed Shepard to plead guilty if he had insisted on his innocence. Regarding the plea bargain of twenty years, he told Shepard not to agree to it if he was not guilty, but to take it if he was guilty. Counsel testified that, in his professional opinion, Shepard would have received a life sentence if a jury had found him guilty.

Shepard testified that his trial counsel was "snobbish," that counsel never discussed the facts of the cases or possible defenses with him, and that he wanted to go to trial but had no choice but to accept the plea bargain "because [counsel] wasn't representing me right." Shepard stated that his attorney asked him for a list of character witnesses, but he couldn't remember if he asked for a list of fact witnesses. He testified that, if he had had an attorney with whom he could have communicated and explained his defenses, he would not have pleaded guilty but would have gone to trial. He testified, however, that he had lied to the court under oath on February 3 when he stated that he was pleading guilty because he was guilty. He admitted that he never complained to his attorney about his representation. He also testified that he telephoned his attorney regarding the proposed plea bargain, "I told him that I wanted to go with the plea bargain, but I never said anything about going into a guilty plea."

To invalidate a guilty plea on the ground of ineffective assistance of counsel, Shepard must show that the plea was not knowingly and voluntarily entered. See Ex parte Adams, 707 S.W.2d at 648. He claims his plea was involuntary as a result of his counsel's failure to investigate his alibi defense. Shepard must show that his attorney's representation fell below an objective standard of reasonableness. See Hill, 474 U.S. at 57, 106 S. Ct. at 369. Trial counsel testified that he requested a list of fact witnesses from Shepard but did not receive one. He testified that no one including Shepard ever indicated that Shepard was "elsewhere" on the nights of the assaults. Counsel's review of the district attorney's file revealed that two women had identified Shepard as their assailant, both had been similarly attacked, and both were abducted from the same place less than two blocks from Shepard's apartment.

Shepard's wife testified that counsel was rude to them and "cut them off" when they tried to go into details of the assaults. However, she admitted that she and other family members had a three- to four-hour session with counsel on January 2. Counsel estimated the session at one- to two-hours. Mrs. Shepard distinctly remembered being at the movies on July 24 because the next day she was confronted by the victim of the first attack. By tracing a check Shepard had given her mother on November 15, she then determined that she and Shepard had been with her parents on the night of the second assault. Although she had alibi information for both nights, she never passed this information along to her husband's attorney. Furthermore, while her husband was in jail, they talked almost daily by phone yet Shepard never told his attorney about these events. Shepard recalls being asked to produce a character witness list but did not remember whether his attorney had asked him to prepare a list of fact witness. Regardless, he did not produce either list. By his own testimony, Shepard called his attorney expressing his desire to accept the plea bargain.

Shepard did not prove by a preponderance of the evidence that his trial counsel's performance fell below an objective standard of reasonableness. See Cannon, 668 S.W.2d at 403. Thus, we do not find that his pleas were unknowingly and involuntarily entered. See Ex parte Adams, 707 S.W.2d at 648. We overrule the point in each cause.

We affirm the judgments.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed September 30, 1992

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