JAMES BELL MCCOY, SR., Appellant v. THE STATE OF TEXAS, Appellee

Affirmed; Opinion Filed August 13 , 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-00458-CR
............................
JAMES BELL MCCOY, SR., Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F02-02115-KV
.............................................................
OPINION
Before Justices FitzGerald, Francis, and Lang-Miers
Opinion By Justice Francis
        James Bell McCoy, Sr. appeals his conviction for aggravated sexual assault. In his sole issue, appellant contends his guilty plea was involuntary because the trial court wholly failed to admonish him of the requirement that he register as a sex offender. Although we agree the trial court erred, we conclude the error was harmless, and thus affirm.
        Appellant's original appellate attorney filed a brief in which he concluded the appeal was wholly frivolous, without merit, and there were no arguable grounds to advance. See Anders v. California, 386 U.S. 738 (1967); Bledsoe v. State, 178 S.W.3d 824, 825-26 (Tex. Crim. App. 2005). Appellant filed a pro se response to counsel's Anders brief. After reviewing the record, the Court determined that the trial court's failure to admonish appellant raised an arguable voluntariness error and abated the appeal for appointment of new counsel.
        When new counsel prepared his brief raising only a single issue of the involuntariness of the plea, appellant disagreed with new counsel's evaluation of the appeal. Appellant prepared his own pro se brief which new counsel attached as an appendix to the brief he filed on appellant's behalf. After the State filed its brief asserting appellant had no right to hybrid representation, appellant independently filed a pro se reply brief in response. We agree with the State's assessment.
        Appellant is not entitled to hybrid representation. See Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. [Panel Op.] 1981); see also Bledsoe, 178 S.W.3d at 827 (explaining scope of Rudd). Because appellant is represented by counsel who filed a brief on his behalf, we will not consider either of his pro se briefs.
        In his sole issue on appeal, appellant contends his guilty plea was involuntary because the trial court failed to admonish him that he would have to register as a sex offender. The State concedes appellant did not receive the sex offender admonishment, but it contends he did not preserve the error for appeal and the error was harmless.
        Appellant was charged with the aggravated sexual assault of his stepdaughter, J. D. Appellant entered a not guilty plea and proceeded to trial before a jury. At trial, the State's evidence included graphic testimony from J. D., then twenty years old, about the offense which occurred when she was seven. Appellant's son, J. M., also testified for the State. The defense cross- examination focused on the untimeliness of the complaint and suggested the charge arose from appellant's bitter custody battle with his ex-wife.
        After the State rested, appellant indicated outside the presence of the jury that he wanted to testify in his own defense. The trial court then recessed the trial for the evening. On the following morning, however, appellant changed his plea to guilty. Before accepting appellant's guilty plea, the trial court reviewed with him the rights he was waiving and admonished him of the punishment range attached to the offense. Appellant assured the trial court that he was pleading guilty because he was guilty and that no one had threatened him or promised him anything to persuade him to change his plea. The trial court then accepted the plea.
        After accepting appellant's plea, the trial court announced that appellant wanted to speak to J. D. and J. M. before the jury returned to the courtroom. With his children present, appellant stated:
        What I wanted to say, first of all, that there was a lot of bull that was spread around in here yesterday. But the one thing that was true is the fact that I did molest my daughter in 1991. You know, I have owned up to that numerous times already, you know, with my in-laws, and it was used against me at that time. And it was, you know, used to hurt my children. You know, it has never been my intention to call [J. D.] a liar. I only disrespected [J. D.] one time in her life. I'm sorry that I have to use notes, but this is important. What I did was a very selfish, alcoholic mistake. But you know, I can't go on without [J. M.], without [J. D.]. I can't deal with the way that [J. M.] is treating me. And [J. D.] has always been daddy's little girl and I miss her very deeply. They don't know the battle that has been fought for them. I never stopped fighting for them. I spent tens of thousands of dollars fighting for them. I have spent even quite a bit more of the State's money fighting for them. I have laid my life on the line for them over and over, and that is my job. I told my kids how sorry I am about the past. I think they're probably sick of hearing it. And I'm sorry. And now, like [J. D.] said, it is time to move on. I'm tired of these dreams that I have about my kids, you know, getting hurt, or being scared. They were being mean to me. And I'm tired of this loneliness. Yes, I am alcoholic, but I have-I have not drank since [J. D.] left. I haven't drank since June 6th of 1999, and it's something that my kids could be proud of. My kids are very smart people and I couldn't be more proud of them. I just want them to be happy and healthy. I want our relationship back and I want their mailing address where I can write to them without my letter being intercepted or jacked with. You know, it's a terrible thing for one week to have your daughter there with you asking you, dad, do you mean that it doesn't matter what I do to you, you will always love me, and then a couple of weeks later to have her taken out of your life.
        So you know, that's pretty much what I wanted to tell my children. I love them very much and, you know, I know what I did was a terrible thing. It was a terrible selfish alcoholic mistake. That is all I have to say.
 
        During the punishment phase, appellant testified and admitted he committed the offense. Appellant attributed his offense to his alcoholism, affirmed he understood the punishment range, and asked the jury for a minimum sentence. Appellant explained his decision to plead guilty: [Counsel]: You changed your plea today, didn't you?
 
[Appellant]: Yes, sir.
 
[Counsel]: And you considered the plea and accepted that today, didn't you?
 
[Appellant]: Yes, sir.
 
[Counsel]: And why is that?
 
[Appellant]: Because I don't want to call my daughter a liar, you know, I don't want-I want to do what is right. I have always wanted to do what was right for my children. That is what this has all been about. I could have turned around and walked away years ago and never had to worry about prosecution. This isn't about me. This is about my children, you know. They're the only thing that matters to me.
 
Appellant subsequently reiterated his motivation for changing his plea as follows:
I know I could have still maintained my innocence and even though I would have gotten convicted, I still think I would have had a really good chance of getting-winning an appeal pretty quickly, but, you know, I don't feel that this fighting is what is right for my relationship with my children, you know. I wanted that to be something again so that my relationship with my children could move on so that we don't have that obstacle between us anymore, and that is what is important.
 
The jury found appellant guilty and assessed punishment at thirty-five years confinement and a $10,000 fine.
        Before accepting appellant's guilty plea, the trial court was required to admonish him of his duty to register as a sex offender. See Tex. Code Crim. Proc. Ann. Art. 26.13(a)(5) (Vernon Supp. 2006); Anderson v. State, 182 S.W.3d 914, 916-17 (Tex. Crim. App. 2006) (en banc). The trial court's total failure to deliver the registration admonishment is an error subject to harmless error analysis. See Tex. R. App. P. 44.2(b); Anderson, 182 S.W.3d at 918. In evaluating whether appellant was harmed by the trial court's error, we consider the record as a whole to determine whether we have a fair assurance that his decision to plead guilty would not have changed had the trial court admonished him. Anderson, 182 S.W.3d at 919.         The record reflects appellant understood the punishment range he faced. Provided the jury found J. D. credible, the State offered a strong case for appellant's guilt. Appellant acknowledged the strength of the State's case when he admitted he thought he would be convicted. However, appellant's statement to his children and his explanations for why he changed his plea show the potential for conviction and the legal consequences of his plea were not foremost in his mind at the time he changed his plea. Rather, he changed his plea in an effort to reconcile with his children. He did not want “to call [J. D.] a liar” when he knew she was testifying truthfully about the aggravated sexual assault. Because the record reflects appellant's change of plea was motivated by his emotional attachment to his children and not by consideration of the legal aspects of his case, we are fairly assured that an admonishment about sex offender registration would not have changed his decision to enter a guilty plea. See id. at 918-20. We overrule appellant's sole issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 47
050458f.u05