Stacie Lynn Settles v. The State of Texas--Appeal from 203rd District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

STACIE LYNN SETTLES,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-05-00133-CR

Appeal from

203rd District Court

of Dallas County, Texas

(TC #F-0401410-QP)

O P I N I O N

Stacie Lynn Settles appeals her conviction of aggravated robbery of an elderly person, enhanced by a prior felony conviction. Appellant entered an open plea of guilty and pled true to the enhancement paragraph. The trial court found her guilty, found the enhancement paragraph true, and assessed her punishment at imprisonment for a term of fifteen years. We affirm.

FACTUAL SUMMARY

At a pretrial hearing on Appellant s motion to suppress in-court identification, Rosetta Beacham testified that she is the next door neighbor of Kenny Fleming, a blind elderly man. Her apartment is approximately ten feet from Fleming s apartment. One afternoon at about 4:25 p.m., Beacham had her front door open and she heard Fleming arrive at his door. Beacham heard Appellant state, Mr. Fleming, let me help you, I came to help you clean up this morning. Fleming told Appellant, I don t need anybody to help me clean up. You need to go on about your business. Appellant continued to say she was there to help him clean but Fleming resisted, shouting, I don t need you, leave me alone, go ahead on just leave me alone. The commotion caused Beacham to look out of her door and she saw Appellant, whom she recognized from the elevator and from pictures posted in the manager s office for trespassing. Beacham watched as Appellant pushed Fleming as he tried to enter his apartment and went by him into the apartment. Beacham went back inside her apartment to get her housecoat so that she could confront Appellant. As she did so, she heard another neighbor telling Appellant to get out of Fleming s apartment. Appellant exited the apartment and went to the elevator. Beacham heard Fleming say, My God, she s strong as an ox. Beacham later identified Appellant from a photo lineup. She also made an in-court identification of Appellant. She was able to identify Appellant because she had gotten a good look at her and she had seen her many times before.

Another neighbor, Tammy Elder, lived across the hall from Fleming. Elder heard him yell, Help, help, somebody get her out of here. Elder opened the door and saw Appellant inside of Fleming s apartment holding the phone. Elder told Appellant that she needed to leave because Fleming did not want her there. Appellant claimed that she had been assaulted downstairs and needed to use the phone. Elder told Appellant that Fleming did not want her to use his phone and she should leave. Appellant complied. Fleming told Elder that Appellant was strong and had almost knocked him down. Elder did not see Appellant take anything from Fleming, but he later told her that some of his money was missing. Elder later identified Appellant from a photo lineup and she made an in-court identification.

Detective Dale Lunberg showed Beacham and Elder photo lineups and both witnesses identified Appellant. Lunberg spoke with Fleming about the offense but did not show him a lineup since he is legally blind. Lunberg initially filed the case as theft from a person because Elder told him that he did not suffer any pain or injuries as a result of his confrontation with Appellant. At the conclusion of the hearing, the trial court denied Appellant s motion to suppress the in-court identifications.

Appellant subsequently waived her right to a jury trial and entered an open plea of guilty to the charged offense and a plea of true to the enhancement paragraph. The court admonished Appellant in accordance with Article 26.13 of the Code of Criminal Procedure. Trial counsel represented to the court that he believed Appellant was mentally competent to enter her plea. The State introduced Appellant s written judicial confession. Appellant confirmed that she had gone over the judicial confession with her attorney and she understood everything in the document. She told the trial court that she had committed the offense of aggravated robbery of an elderly person exactly as alleged in the indictment.

Appellant offered the testimony of Dr. David Self, a psychiatrist who had evaluated Appellant and determined that she suffered from bipolar disorder. Appellant had suffered psychotic symptoms in the past due to cocaine abuse and other events, but she was in partial remission at the time of the guilty plea. In his opinion, Appellant would benefit from probation as long as she continued with her prescribed anti-psychotic medication and abstained from using any illegal substances. But he admitted that since 1989, Appellant had not abstained from cocaine use for any substantial period time unless she was in jail.

Appellant also testified at the guilty plea hearing. She had spoken with her attorney many times about the case and was aware of the consequences of her guilty plea. When asked about the offense, Appellant said that she did not recall what really happened because she had stopped taking her medicine shortly before the offense. Counsel argued to the court that the offense was related to Appellant s mental illness and she would benefit from community-based supervision. The trial court determined that Appellant s guilty plea and her plea of true to the enhancement paragraph were freely, knowingly, and voluntarily made, and he accepted her plea. The court assessed Appellant s punishment at imprisonment for fifteen years. Appellant filed a general motion for new trial but she did not raise the ineffective assistance of counsel claim presented on appeal.

INEFFECTIVE ASSISTANCE OF COUNSEL

In her sole point of error, Appellant contends that trial counsel rendered ineffective assistance by failing to request that she be allowed to withdraw her guilty plea and by failing to request that she be convicted of the lesser included offense of theft from a person.

Standard of Review

We review claims of ineffective assistance of counsel under a two-pronged test. First, an appellant must establish counsel s performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 693-94, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Crim.App. 2001). Second, the defendant must establish that counsel s deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Prejudice is established by a showing that there is a reasonable probability that but for counsel s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Mallett, 65 S.W.3d at 62-63. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mallett, 65 S.W.3d at 63. Claims of ineffective assistance must be proved by a preponderance of the evidence. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002).

When we review a claim of ineffective assistance, we must indulge a strong presumption that counsel s conduct falls within the wide range of reasonable, professional assistance, and the appellant must overcome the presumption that the challenged conduct can be considered sound trial strategy. Jackson, 877 S.W .2d at 771. Allegations of ineffectiveness of counsel must be firmly founded in the record. Mallett, 65 S.W.3d at 63, citing Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). The record on direct appeal will generally be insufficient to show that counsel s representation was so deficient as to meet the first prong of the Strickland standard because the reasonableness of counsel s choices often involve facts that do not appear in the appellate record. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003); Mallett, 65 S.W.3d at 63. An appellant challenging trial counsel s performance therefore faces a difficult burden and a substantial risk of failure. Thompson v. State, 9 S.W.3d 808, 813 (Tex .Crim.App. 1999).

Failure to Seek Withdrawal of the Guilty Plea

Appellant first argues that counsel rendered deficient performance by failing to request that the guilty plea be withdrawn after she testified that she did recall the specifics of the offense. Appellant contends that this testimony indicates that her guilty plea was not knowingly and voluntarily made.

Appellant s testimony that she did not recall what really happened does not necessarily render her guilty plea involuntary. While she apparently did not recall the specifics of the offense, she did not deny committing the offense or otherwise protest her innocence. To the contrary, Appellant told the trial court that she was pleading guilty freely and voluntarily and she had committed the offense exactly as alleged in the indictment. The record also reflects that Appellant was properly admonished by the trial court. This establishes a prima facie case that the plea was knowing and voluntary. Mallett, 65 S.W.3d at 64. Appellant has therefore failed to establish the first prong of Strickland because the record is silent regarding counsel s reasons for not requesting that the guilty plea be withdrawn. Id. Although we are not required to speculate as to counsel s strategy, it is possible that defense counsel believed he could not rebut the recitations in the record that Appellant s plea was freely and voluntarily entered. Id. at 64-65 (rejecting claim of ineffective assistance of counsel for failure to request withdrawal of guilty plea where defendant entered plea of guilty to assaulting peace officer by backing tractor rig into patrol car, but subsequently testified that he did not intend to drive into the officer s car).

Consideration of Defensive Evidence

Appellant next asserts that counsel should have requested that the trial court find her guilty of the lesser included offense of theft from a person based on Detective Lunberg s testimony that Fleming had denied suffering any bodily injury. She contends that failure to make this argument prevented Appellant from even being considered for conviction of the lesser included state jail felony.

Lunberg s testimony that Fleming reportedly did not suffer bodily injury is not evidence that Appellant is guilty of a lesser-included offense because the indictment is not based on an allegation that Appellant caused bodily injury to Fleming. A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of property, he intentionally, knowingly, or recklessly causes bodily injury to another; or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. See Tex.Penal Code Ann. 29.02(a)(1), (2)(Vernon 2003). Similarly, a person commits aggravated robbery of an elderly person if he commits robbery as defined in Section 29.02, and he (1) causes serious bodily injury to another; (2) uses or exhibits a deadly weapon; or (3) causes bodily injury to another person or places another in fear of imminent bodily injury or death. See Tex.Penal Code Ann. 29.03(a)(1), (2), (3). The indictment in this case alleged that Appellant threatened or placed the complainant in fear of imminent bodily injury or death. Because the State was not required to prove that Fleming actually suffered bodily injury, Lunberg s testimony did not raise the lesser-included offense of theft from a person.

Even if the evidence raised the lesser-included offense, trial counsel s failure to argue the issue did not, as Appellant claims, prevent the trial court from even considering the possibility.

When the defendant waives her right to a jury trial and enters a guilty plea, the trial court is authorized to consider the evidence adduced during the guilty plea and find the defendant guilty as charged in the indictment, find the defendant guilty of a lesser offense and assess the appropriate punishment, or find the defendant not guilty. See Aldrich v. State, 104 S.W.3d 890, 893 (Tex.Crim.App. 2003); Moon v. State, 572 S.W.2d 681, 682 (Tex.Crim.App. 1978)(op. on reh g). The trial court engages in this review of the evidence with or without a request by counsel. Consequently, counsel s failure to specifically argue at the guilty plea hearing that Appellant should be found guilty of the lesser included offense did not preclude the trial court from considering the evidence or finding her guilty of theft. For these reasons, we conclude that Appellant has failed to satisfy the first prong of Strickland. We overrule the sole point of error and affirm the judgment of the trial court.

October 19, 2006

ANN CRAWFORD McCLURE, Justice

Before McClure, J., Chew, J., and Barajas, C.J. (Ret.)

Barajas, C.J. (Ret.), sitting by assignment

(Do Not Publish)