DEMOND QUINTEZ DICKEY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as MODIFIED and Opinion Filed July 25, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01090-CR
No. 05-07-01214-CR
............................
DEMOND QUINTEZ DICKEY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F07-00842-NV and F06-19533-V
.............................................................
OPINION
Before Justices FitzGerald, Richter, and Lang-Miers
Opinion By Justice FitzGerald
        Demond Quintez Dickey appeals judgments in two cases based on guilty pleas. In the first, Dickey pleaded guilty to aggravated robbery, and the jury assessed his punishment at life in prison.   See Footnote 1  In the second, Dickey pleaded guilty to robbery and initially received a probated sentence. After he was convicted of the aggravated robbery, his community supervision was revoked, and he was eventually sentenced to ten years' confinement.   See Footnote 2  In the aggravated robbery case, Dickey challenges the voluntariness of his guilty plea and the admission of opinion testimony from a probation officer. In the robbery case, he contends he was denied due process of law in the revocation process. In each case, he seeks correction of clerical errors in the judgment. We modify both judgments to correct the clerical errors. As modified, we affirm the judgments of the trial court.
The Aggravated Robbery Case
        Dickey was indicted in July 2007 for the aggravated robbery of Ms. Lauren Williams. On August 7, 2007, Dickey entered a plea of guilty to the charge. Subsequently, a jury assessed his punishment at life in prison. Dickey raises four appellate issues in this case.
Voluntariness of Guilty Plea
        A trial court may not accept a plea of guilty unless it appears the defendant is mentally competent and the plea is free and voluntary. Tex. Code Crim. Proc. Ann. art. 26.13, § b (Vernon Supp. 2007). A defendant is mentally competent to stand trial if he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, or a rational as well as factual understanding of the proceedings against him. Id. art. 46.02, § 1(a). We will presume competence unless it is shown by a preponderance of the evidence that the defendant is incompetent. Id. art. 46.02, § 1(b). Proper admonishment by the trial court creates a prima facie showing that the defendant entered a knowing and voluntary plea.   See Footnote 3  McGill v. State, 200 S.W.3d 325, 332 (Tex. App.-Dallas 2006, no pet.) (citing Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998)). When that prima facie showing has been made, the burden shifts to the defendant to show he entered his plea without knowing its consequences. McGill, 200 S.W.3d at 332.
        In his first issue, Dickey contends his guilty plea was not knowingly and voluntarily given because he had a mental impairment and a learning disability. The record establishes that Dickey's IQ was in the 82 to 86 range, which is classified as on the lower end of average. Dickey was attending high school at the time of the aggravated robbery, but school records indicate he read at a second-grade level and had a learning disability. Thus, the record indicates Dickey experienced some level of difficulty reading. However, the record also indicates Dickey's plea cannot be attributed to frustrating attempts to read difficult legal materials on his own. The Dallas Police detective who questioned Dickey and took his statement testified that she wrote the statement for him, but that she read it aloud to him and made the corrections he requested, which he then initialed. Dickey was with his attorney when he signed his judicial confession and admonitions; both were signed by the attorney as well indicating Dickey had understood their contents. In response to questions from the court, Dickey responded that (a) he had gone over the admonitions with his attorney and he understood the rights he was waiving, and (b) he knew he was confessing to the offense charged in the indictment. Finally, Dickey's counsel engaged him in a lengthy series of oral questions concerning the plea. Nothing in the record indicates Dickey failed to understand the proceedings generally or the specific rights he was waiving by pleading guilty. Dickey has failed to carry his burden to show his learning disability or intelligence level prevented him from making a knowing and voluntary plea. See Ortiz v. State, 866 S.W.2d 312, 316 (Tex. App.-Houston [14th Dist.] 1993, pet. ref'd) (appellant's “very poor writing, reading, and mathematics skills, and some learning disabilities” not sufficient to show appellant did not understand effect of waiving right to trial by jury); see also Westley v. State, 754 S.W.2d 224, 229 (Tex. Crim. App. 1988) (State's evidence indicated appellant's illiteracy did not prevent him from understanding what was read to him). We decide Dickey's first issue against him.
        In his second issue, Dickey argues the record does not affirmatively show Dickey had a full understanding of his guilty plea and its consequences. He contends this violated his due process rights and rendered his guilty plea involuntary. Dickey relies on Boykin v. Alabama, 395 U.S. 238 (1969), in which the United States Supreme Court stated that a decision to admit a confession “must be based on a reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant.” Id. at 242. The Court stressed that, because the federal constitutional rights against compulsory self-incrimination, to trial by jury, and to confront one's accusers are all implicated by a guilty plea, we cannot presume their waiver from a silent record. Id. at 243. “What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.” Id. at 243-44.
        Dickey alleges the record in his case fails to reflect affirmatively that his plea was intelligently and voluntarily entered. We disagree. We point again to the assurances identified above to establish Dickey understood the documents he signed, including his statement to the police, his judicial confession, and the admonishments. Dickey complains there was insufficient “meaningful colloquy” with the trial judge, but nothing in Boykin demands that the judge, and only the judge, make the record of a voluntary plea. Dickey's attorney asked him a lengthy series of questions concerning his understanding of the plea, the forty-year plea bargain he was rejecting, the range of punishment, probation issues, and the fact he'd received no promises or guarantees concerning sentencing outcomes. The trial court concluded this inquiry by explaining the different possible probation possibilities depending on whether Dickey had his sentence assessed by the jury or by the court. Throughout the hearing, Dickey consistently expressed his desire to plead guilty. The record of this case is not silent, as the record was in Boykin. We conclude it affirmatively shows Dickey's guilty plea was entered voluntarily. We decide Dickey's second issue against him as well.
Opinion Testimony From Probation Officer
        In his third issue, Dickey claims the trial court erroneously ruled a community supervision officer was qualified to testify as an expert witness concerning the probability of Dickey's rehabilitation. Melissa Burke, a Dallas County probation officer assigned to the trial court, testified that she had reviewed Dickey's file. The prosecutor asked Burke's opinion concerning Dickey's “rehabilitation chances.” Dickey objected that the witness was not qualified to give such an opinion; the trial court overruled the objection. Burke then testified that, based on her experience,
 
people with this kind of history, these kinds of offenses, they do not make good candidates for rehabilitation.
 
        We review a trial court's decision to admit evidence under an abuse of discretion standard. See McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). If the trial court's decision was within the “bounds of reasonable disagreement,” we do not disturb the ruling. See Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). Dickey argues the trial court's ruling was an abuse of discretion because it amounted to expert testimony under rule 702 of the Texas Rules of Evidence, and the State did not establish that Burke was qualified as an expert to testify concerning chances of rehabilitation.
        We conclude, however, that we need not address the substance of Dickey's evidentiary argument. Even if we assume, without deciding, that Burke offered an expert opinion and that she was not qualified to do so, Dickey has failed to establish that admission of Burke's opinion testimony was reversible error. A non-constitutional error that does not affect substantial rights must be disregarded. Tex. R. App. Pro. 44.2(b). And our Court of Criminal Appeals has determined:
 
substantial rights are not affected by the erroneous admission of evidence “if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.”
 
Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)). Our assessment of the effect of the error on the jury requires us to consider the entire record. Motilla, 78 S.W.3d at 355.
        Evidence of the defendant's guilt is a factor to be considered in any thorough harm analysis. Id. at 358. In this case, the evidence of Dickey's guilt is overwhelming. His judicial confession was read to the jury and admitted as an exhibit. In that confession, Dickey admitted to stealing the complainant's car, jewelry, clothes, credit card, bank cards, and cash. He also confessed to striking the complainant with a handgun. The complainant testified to the details of Dickey's criminal attack: after her car broke down the complainant was approached by Dickey and his uncle; Dickey pulled a gun and forced the complainant to walk to a nearby field; Dickey took her credit card and jewelry; Dickey forced her to undress and to perform oral sex on him; Dickey forced her to use her debit card to withdraw money for him; Dickey forced her into the trunk of her car; Dickey hit her with the pistol; under Dickey's direction, she was forced to undress again and Dickey's uncle sexually assaulted her; Dickey and his uncle left her, taking her car.
        As to whether Dickey was a good candidate for rehabilitation, the jury had ample factual evidence from which to draw its own conclusions, even without Burke's opinion. The State introduced evidence of Dickey's lengthy juvenile record, which included his placement in a number of programs intended to encourage rehabilitation; Dickey failed to complete any of the programs successfully. His adult criminal record included probated convictions for misdemeanor assault and for robbery. He committed a series of probation violations; indeed he was on probation for the robbery conviction (discussed below) when he committed this aggravated robbery. A rational jury could have concluded Dickey's pattern of criminal behavior was not likely to change.         Dickey's argument that Burke's testimony was not harmless is conclusory and unpersuasive. In its entirety, the argument he proffers is:
 
The admission of the foregoing opinion was not harmless because it clearly had more than a “slight effect” on the jury's verdict regarding punishment. More specifically, the State elicited damaging testimony from the probation officer that the Appellant could not be rehabilitated. In turn, the jury agreed and assessed a life sentence. The erroneous admission of the testimony regarding the inability of the Appellant to be rehabilitated affected the Appellant's substantive rights and cannot be disregarded.
 
Our review of the record leads us to conclude the evidence of Dickey's guilt of this brutal robbery, combined with the evidence of his lengthy pattern of criminal conduct, adequately support the jury's decision to assess a life sentence in this case. We are unpersuaded by Dickey's argument that Burke's opinion influenced the jury, or had more than a slight effect on their assessment. See Motilla, 78 S.W.3d at 355.
        We decide Dickey's third issue against him.
Modification of Judgment
        In his fourth issue, Dickey asks us to modify the judgment to reflect a different spelling of his middle name. This Court has the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). The record of the arraignment hearing establishes that Dickey's middle name should be spelled “Quintez.” The judgment, however, spells the middle name “Quinez.” We conclude the judgment contains a clerical error. We sustain Dickey's fourth issue, and we modify the judgment to reflect that Dickey's middle name is spelled “Quintez.”
The Robbery Case
        Dickey was indicted in February 2006 for the robbery of Mr. Dareon Horn. Dickey negotiated a plea agreement, and on March 30, 2006, he pleaded guilty to that offense and was sentenced to ten years' confinement, probated for five years and a $2000 fine. Dickey raises two appellate issues in this case.
Due Process in the Revocation Process
        In his first issue, Dickey contends the revocation of his community service failed to satisfy minimum requirements of due process. Those minimum requirements were set forth initially by the United States Supreme Court:
 
(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole.
 
Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973) (citing Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). Dickey's complaint is that he was denied the final of these listed requirements, i.e., a written statement by the trial court relating the evidence relied on and the reasons for revoking his probation. However, we find no indication in the record that Dickey either asked for such a written statement or objected to the trial court's failure to produce one. Texas courts require a defendant to make a request for specific findings in a revocation proceeding. See King v. State, 649 S.W.2d 42, 46 (Tex. Crim. App.1983). Without such a request, there is no reversible error when a trial court fails to make such findings. Id., Russell v. State, 685 S.W.2d 413, 417 (Tex. App.-San Antonio 1985), aff'd, 702 S.W.2d 617 (Tex. Crim. App. 1985). We decide Dickey's first issue in this appeal against him.
Modification of Judgment
        In his second issue, Dickey asks us to modify the judgment to reflect that he entered a plea of “not true” to the Amended Motion to Revoke Probation, which contained the allegation of aggravated robbery. As we discussed above, this Court has the power to modify an incorrect judgment when we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Bigley, 865 S.W.2d at 27-28. The record demonstrates that Dickey pleaded “not true” to the allegations of the Amended Motion. The judgment, however, states that he pleaded “true.” We conclude this judgment also contains a clerical error. We sustain Dickey's second issue, and we modify the judgment to reflect that Dickey pleaded “true” to the allegations in the Amended Motion.
Conclusion
        In the aggravated robbery case, we have modified the judgment as requested, but denied each of Dickey's substantive issues. Likewise, in the robbery case, we have modified the judgment as requested, but we have denied Dickey's substantive issue. Accordingly, as modified, we affirm the judgments of the trial court.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
0701090F.U05
 
Footnote 1          The aggravated robbery case was numbered F07-00842-NV in the trial court and is numbered 05-07-01090- CR in this Court.
Footnote 2          The robbery and revocation case was numbered F06-19533-V in the trial court and is numbered 05-07- 01214-CR in this Court.
Footnote 3          Dickey does not argue the trial court failed to admonish him properly.