HIRSCHELL WAYNE FLETCHER, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 20, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01096-CR
No. 05-88-01097-CR
No. 05-88-01098-CR
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HIRSCHELL WAYNE FLETCHER, Appellant
V.
THE STATE OF TEXAS, Appellee
 
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On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F87-94567/94563/94562-SV
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OPINION PER CURIAM
Before Justices Howell, Baker and Burnett
        Hirschell Wayne Fletcher was convicted of aggravated assault and two offenses of involuntary manslaughter. Punishment was assessed at eight years' confinement in the aggravated assault case, ten years' confinement in one involuntary manslaughter, and ten years' confinement probated for a period of ten years in the other involuntary manslaughter. Appellant raises three points of error on appeal, claiming that: (1) his pleas of nolo contendere were not knowingly and voluntarily made; (2) the evidence was insufficient to support his pleas; and (3) he was denied effective assistance of counsel because counsel allowed him to enter pleas of nolo contendere. We overrule his points and affirm the judgments of the trial court.
        The record reflects that on March 2, 1987, appellant was driving a vehicle on an expressway in Dallas County at a speed of between 100 and 130 miles per hour when he lost control of the car, and hit a signpost to an overhead sign, causing the support beams of the sign to collapse. The sign then fell on another car; one of the occupants of that car was killed, and another seriously injured. In addition, appellant's car was cut in half by the impact, and appellant and his passenger were thrown from the car. The passenger in appellant's car died. Appellant was taken to a hospital; cocaine was discovered in his blood. Appellant remained in a coma for two months. When he awoke, he had no memory of the accident.
        At the time he entered his plea, he was fully admonished by the court and indicated that he understood the consequences of his plea. During the hearing, he testified that he could not remember what occurred on March 2, 1987. He also testified that he had been told what had happened, and believed what he had been told. In addition to the testimony of appellant, the State offered into evidence a judicial confession signed by appellant and a probation report which contained a police report recounting the accident.
        Appellant's first and second points of error are closely related; as a result, we will treat them together. Appellant's first claim is that his plea was not knowingly and voluntarily made, because he had no memory of the events of March 2, 1987; for that reason, he claims that he necessarily could not have knowingly entered his plea. In his second point of error, he claims that the evidence is insufficient because he lacked knowledge concerning the facts of the offense.
        Before accepting a plea of guilty or nolo contendere, a court must determine that the defendant is competent and that the plea is free and voluntary. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Pamph. Supp. 1989). The voluntariness of a plea does not turn on whether an accused remembers the offense of which he is accused. Appellant entered a plea of nolo contendere. As the United States Supreme Court has said:
    . . . Implicit in the nolo contendere cases is a recognition that the Constitution does not bar imposition of a prison sentence upon an accused who is unwilling expressly to admit his guilt but who, faced with grim alternatives, is willing to waive his trial and accept the sentence . . . .
 
    . . . An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.
North Carolina v. Alford, 400 U.S. 25, 36-37 (1970) (emphasis added). In addition, in determining the sufficiency of the evidence, this Court's inquiry is limited to determining whether, evaluating the evidence in the light most favorable to the verdict, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Marroquin v. State, 766 S.W.2d 767, 770 (Tex. Crim. App. 1988). The Court must examine all the evidence, whether or not it was properly admitted. Janecka v. State, 739 S.W.2d 813, 830 (Tex. Crim. App. 1987).
        In the present cause, there is no evidence in the record that appellant did not enter his plea freely and voluntarily. Appellant insisted at all stages of the proceedings that he understood the consequences of his plea, and that he was entering the plea voluntarily. In addition, appellant argues implicitly that the judicial confession is entitled to no weight because appellant had no knowledge of the events. We disagree. The record reflects that appellant had been told of the events of March 2, and believed them to be true. In addition, other evidence was admitted which established the elements of the offense. We hold that the judicial confession, together with the evidence contained in the police report, were sufficient to support the plea. Appellant's first and second points of error are overruled.
        In his third point of error, appellant claims that counsel was ineffective because he failed to determine whether appellant's plea was made knowingly and voluntarily. See Butler v. State, 499 S.W.2d 136, 139 (Tex. Crim. App. 1973). We have already determined that appellant's plea was knowing and voluntary; as a result, we conclude that counsel was not ineffective on this basis. Appellant's third point of error is overruled and the judgments of the trial court are affirmed.
                                                  PER CURIAM
Do Not Publish
Tex. R. App. P. 90
 
881096F.U05
 
 
File Date[12-12-89]
File Name[881096F]