Martinez, Charles Edward v. The State of Texas

 
AFFIRM and Opinion Filed October 24, 2011
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-10-00440-CR
No. 05-10-00441-CR
No. 05-10-00442-CR
............................
CHARLES EDWARD MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause Nos. F09-30354-I, F09-59040-I, and F09-59041-I
.............................................................
OPINION
Before Justices Morris, Moseley, and FitzGerald
Opinion By Justice Morris
 
Although Charles Edward Martinez entered guilty pleas to two
charges of assault causing bodily injury and one charge of aggravated
assault, he sought at his sentencing hearing to withdraw the pleas and
plead not guilty instead. The trial court refused his request. He now
complains on appeal that the trial court violated his right to due
process by accepting the pleas, violated his right to withdraw his
pleas, and erred by denying his request for a hearing on his amended
motion for new trial in each case. He further complains that he received
ineffective assistance of counsel. Concluding appellant's contentions
are without merit, we affirm the trial court's judgments.
Factual Background
On February 5, 2010, appellant entered his guilty pleas to the
charged offenses without the benefit of a plea bargain. He affirmed that
was aware of the punishment range for the offenses and that he was
 
entering the pleas freely and voluntarily. The State introduced
appellant's judicial confessions into evidence. The trial judge
commented that appellant appeared to be mentally competent. The judge
also stated, “The Court finds the evidence presented substantiates the
defendant's guilt for the [charged offenses] but will not make a finding
of guilt at this time and pass the case[s] over for further proceedings
and will find the enhancement paragraphs to be true.”
On April 2, 2010, before the State called its first witness,
defense counsel asked the trial court to consider allowing appellant to
withdraw his guilty pleas. The trial court denied the motion. Elizabeth
Martinez, appellant's wife and the mother of two of his children,
testified at the hearing that he had assaulted her multiple times on a
weekly basis. She stated on February 27, 2009, when appellant was no
longer living with her, he cornered her and started punching her in the
chest, then he threw her to the ground. Martinez did not report the
offense until May 2009. She stated that she chose to report the offense
at that time because appellant was making harassing phone calls to her
and making it clear he was not going to move on with his life. Martinez
admitted she had previously served eight years' probation for possessing
fourteen pounds of marijuana. She denied posting messages on her MySpace
account saying that she is the only “real Mrs. Martinez” and bragging
that appellant was now in jail. Martinez claimed her daughter may have
posted the messages because she has the password to her account.
 
Appellant's previous wife, Eba Monuz Castillo also testified.
Castillo stated that appellant beat her only one time and then she left
him. She claimed that since that time she and appellant have had a good
relationship and she has never seen him physically abuse anyone. In
Castillo's opinion, Martinez was not trustworthy. Castillo stated that
she believed Martinez would lie in court “to get what she wants.”
Testifying in his defense, appellant stated that he is on “some
medication” and maintained that he was not guilty of the charged
offenses. He stated that he realized when talking with the probation
department about his cases that he could not have had any disagreement
with Martinez on February 27, 2009 because he was in court for parking
tickets on that day with his girlfriend Diana Premaux. He offered a
receipt for the payment of the tickets into evidence. The date on the
receipt is “2/27/2009,” and the time is 8:43 a.m. Appellant claimed that
after he was in court, he and Premaux went out to eat. Then they bought
tattoo supplies and went home at approximately 6:00 p.m. According to
appellant, he tattooed that evening Premaux's son Paul and Paul's
girlfriend Maricella. He claimed he never saw Martinez that day and had
been living with Premaux for two days at the time. Appellant claimed
Martinez made so many harassing phone calls to him that in May 2009 he
filed a complaint against her with the Irving police department.
Appellant admitted he had previously been convicted of
distributing marijuana, delivery of a controlled substance, and money
 
laundering. He was also convicted of assaulting Martinez in 2006.
Appellant stated that he has been diagnosed with “[m]ajor depression and
paranoia.” He said he took four different medications to treat his
conditions, including an anti-psychotic drug used to treat mood
disorders, but he had stopped taking these medications before he was
jailed. Appellant said that he had been on medication while in jail and
that he thought it helps him. He stated he feels different when he is
taking the medication. He had been in jail four months at the time of
trial.
Appellant claimed that he had never assaulted Martinez. He
stated that when he pleaded guilty to assaulting her, he was thinking
that he was “going to get probation.” He further claimed that when he
pleaded guilty to assaulting Martinez in the past, he had not actually
assaulted her then either. He admitted he had abused Castillo in the
past.
Appellant did not testify about the alleged assault and
aggravated assault against Premaux, but she testified for the defense.
She claimed she was with appellant on February 27, 2009 when he went to
court to pay for tickets and was with him the rest of the day. She
recalled that he did several tattoos that night, including tattoos on
her son Paul and his girlfriend Maricella. Premaux stated that Martinez
is constantly calling appellant's cell phone, and that appellant had
tried to get a protective order against her.
In addition, Premaux testified that she had lied to police about
appellant assaulting her. She said that she made two separate false
 
reports to the police because she was mad at appellant. She also claimed
that her daughter called 911 and told the dispatcher that appellant was
beating up her mother only because Premaux told her to do so. She
claimed the injuries shown in photographs taken to document one of the
assaults actually were either injuries caused by her falling off a truck
or “hickeys” from appellant.
Premaux testified that appellant had been diagnosed with major
depression, paranoia, a sleeping disorder, and mood disorders. She
stated that he had never been abusive to her and she had never seen him
be abusive to anyone. According to Premaux, the only person appellant
has a bad relationship with is Martinez.
Premaux's son also testified for the defense. He recalled that
appellant gave his girlfriend her first tattoo on February 27, 2009
because that was the anniversary of when he and Maricella “got
together.” He could not recall whether he got a tattoo that day because
he was going through withdrawal from heroin at the time. Premaux's son
recalled that on September 11, 2009, his mother and appellant exchanged
words. He acknowledged that she had a hammer at one point, but he did
not know how the altercation ended because he left. He stated that he
lives with Premaux and appellant and has never seen appellant assault
Premaux.
During closing argument, defense counsel stated, “I have had a
lot of opportunities to talk to [appellant]. Clearly he has had a lot of
issues. He's on a lot of medication - he seems like a whole 'nother
 
[sic] person.” The trial court found appellant guilty of all three
offenses.
In his amended motion for new trial, appellant alleged the
verdicts and judgments in each case were contrary to the law and the
evidence and his right to due process was violated because the trial
court proceeded with the trial, did not withdraw appellant's pleas, and
convicted and sentenced him “in the absence of a strong factual basis to
support his plea and admissions.” He also alleged that his right to due
process was violated because his guilty pleas were not made voluntarily
or knowingly, nor were his jury waivers made voluntarily or knowingly.
Three affidavits were attached to the motion. The affidavit of
Diana Premaux essentially reiterated her testimony at trial that
appellant had never assaulted her on the dates alleged and noted that
neither she nor her children ever talked to appellant's trial counsel,
whom she had hired to defend appellant, about the charges involving her.
She claimed that trial counsel was aware of appellant's mental problems
before appellant entered his pleas in February 2010. According to her
affidavit, appellant was taking four medications at that time, but he
went off the medications for approximately three weeks when he was
jailed for an insufficient bond starting in December 2009. Appellant's
caseworker eventually got appellant back on his medications in jail.
Premaux noted, “He did get substantially better after the date of that
plea. He became more focused and stopped talking about killing himself
 
and became very calm.” Premaux also offered additional alibi witnesses
for the assault against Martinez. Attached to her affidavit was a
medical statement from Parkland Hospital dated October 2, 2009 listing
appellant's diagnosis as “major depressive disorder, single episode,
severe w/ psychotic features” and his prognosis as “g[uar]ded.” The
statement referenced appellant's ability to work as “Indefinite (a
return to work is not immediately known but the condition may not be
permanently disabling).” Also attached to the affidavit were statements
from someone who claimed he got a tattoo from appellant on February 27,
2009 and a person who claimed Martinez had threatened she would put
appellant back in prison if he left her for another woman.
Appellant's trial attorney, Dwayne Corbett, stated in his
affidavit that appellant had originally decided to enter guilty pleas
because he was convinced that Martinez and at least one of his children
would testify against him. Corbett informed appellant that a
pre-sentence investigation would be performed and it would be important
for appellant to accept responsibility for the charges at that time.
When Corbett received a copy of the PSI, he noticed that appellant had
disavowed any responsibility for the offenses. Appellant told him that
after reviewing the facts of the cases with the PSI interviewer, he did
not feel he was guilty of any of the offenses. At the time of this
discussion, Corbett asserted, appellant's demeanor seemed completely
different from his demeanor during their previous conversations. Corbett
 
stated, “It is my opinion that the change is a direct result of the
medications Mr. Martinez was taking.”
Corbett claimed that he then contacted the assistant district
attorney assigned to the case and told her that he did not believe they
could continue with a guilty plea and that the cases needed to be set
for trial. They discussed the matter with the trial judge, who informed
them that he would proceed with the plea. Corbett stated, I
believe that due to Mr. Martinez's mental issues, and the medications
that were prescribed while he was incarcerated in the Lew Sterrett jail,
that he did not fully understand the meaning or the consequences of his
initial pleas of guilt. I was not aware of the issue until my later
discussions with Mr. Martinez, when I noticed a drastic change in his
demeanor and personality.
In appellant's affidavit, he alleged that he told Corbett he was
innocent of all three charges against him but Corbett advised him to
plead guilty so that he might get probation. He stated, “I would not
have pleaded guilty and waived my right to a jury trial in my cases but
for my lawyer saying that I could maybe get probation. If it were really
my own decision, I would have otherwise insisted on having a jury trial
in all three of my cases. I did not commit the offenses as alleged in
the indictments.” He repeated his alibi defense for the offense against
Martinez. Appellant also stated, “I believe that my mental state played
a role in my inability to deal with my lawyer. I believe that I might
 
have stood up to him and refused to plead guilty in any of the cases,
which is what I really wanted.” He claimed that his medication “did not
really kick in until after the plea proceeding.”
The trial court specifically acknowledged that the amended
motions for new trial and appellant's requests for a hearing on the
matter had been presented. The trial court, however, declined to rule on
the motions and the requests, so the motion for new trial was denied by
operation of law in each case.
Discussion
In his first three points of error, appellant complains the
trial court violated his right to due process by accepting his guilty
pleas. He contends his pleas were “involuntary due to mental impairment
from inadequate medication.” At trial, however, appellant acknowledged
that he was pleading guilty freely and voluntarily after being correctly
admonished by the trial court about the consequences of his pleas
Accordingly, appellant bears the burden of proving his pleas were
involuntary over the prima facie showing that they were not. See Kirk v.
State, 949 S.W.2d 769, 771 (Tex. App.-Dallas 1997, pet. ref'd).
Nothing in the appellate records before us supports appellant's
claim that he was medically impaired at the time of his pleas. Moreover,
the allegations addressing this matter found in the affidavits attached
to appellant's amended motion for new trial in each case are not
evidence in this case. To constitute evidence, affidavits attached to a
motion for new trial must be introduced into evidence. See Jackson v.
 
State, 139 S.W.3d 7, 20 (Tex. App.-Fort Worth 2004, pet. ref'd). There
was no hearing on appellant's amended motion for new trial. And nothing
in our record reveals any attempt by appellant to have the affidavits
admitted into evidence otherwise. Thus, the affidavits are not evidence
in these cases. At trial, appellant testified that he pleaded guilty
because he thought he was going to get probation in the cases. This
claim does not demonstrate that his pleas were involuntary. We overrule
points of error one through three.
In points of error four through six, appellant complains the
trial court erred in refusing to allow him to withdraw his guilty plea
in each case. A defendant may withdraw his guilty plea as a matter of
right until judgment has been pronounced or the case has been taken
under advisement. See Thompson v. State, 852 S.W.2d 268, 269-70 (Tex.
App.-Dallas 1993, no pet.). If a defendant requests to withdraw his
guilty plea after the judge has taken the case under advisement, the
withdrawal of the plea is within the sound discretion of the trial
court. See id. at 270. After the trial court has admonished the
defendant, received his plea and evidence, and passed the case for a
pre- sentence investigation, the case has been taken under advisement.
Houston v. State, 201 S.W.3d 212, 218 (Tex. App.-Houston [14th Dist.]
2006, no pet.).
Appellant's cases had already been taken under advisement at the
time he sought to withdraw his pleas. See id. As discussed in the first
three points of error, appellant had already claimed he was aware of the
 
consequences of his pleas and affirmed that he entered the pleas
knowingly and voluntarily. The trial judge specifically stated that
appellant appeared competent at the time he entered the pleas. Moreover,
the trial judge was not bound to find appellant guilty simply because he
had entered guilty pleas. After considering the evidence in the cases,
he could find him guilty of the charged offenses, guilty of lesser
included offenses, or not guilty of the charged offenses. See Aldrich v.
State, 104 S.W.3d 890, 893-94 (Tex. Crim. App. 2003). Based on the
record before us, we cannot conclude the trial court abused its
discretion in refusing to allow appellant to withdraw his pleas. We
overrule his fourth through sixth points of error.
In his seventh through ninth points of error, appellant
complains of ineffective assistance of counsel. He specifically
complains that his attorney failed to effectively investigate his mental
status. We evaluate claims of ineffective assistance of counsel under
the two-part test formulated by the Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984), requiring a showing of both deficient
performance and prejudice. An ineffective assistance claim must be
“firmly founded in the record,” and the record must affirmatively
demonstrate the claim's merit. Goodspeed v. State, 187 S.W.3d 390, 392
(Tex. Crim. App. 2005). In guilty-plea cases, the appellant must show
there is a reasonable probability that, but for counsel's errors, he
would not have entered his plea and would have insisted on going to
 
trial. See Melton v. State, 987 S.W.2d 72, 76 (Tex. App.-Dallas 1998, no
pet.).
As discussed in the first three points of error, the allegations
of appellant and his trial counsel contained in the affidavits attached
to the amended motions for new trial are not admitted evidence in the
record before us The evidence before us shows appellant knowingly and
voluntarily entered his pleas at the plea hearing and the trial judge
observed that appellant appeared competent at the time. Appellant noted
at trial that he had chosen to plead guilty because he hoped to receive
probation. Based on the record before us, we conclude appellant has
failed to meet his burden of affirmatively demonstrating ineffective
assistance of counsel. We overrule his seventh through ninth points of
error.
In his tenth through fifteenth points of error, appellant
complains the trial court erred in denying his request for a hearing on
his motion for new trial because he was entitled to develop his claims
that he was denied due process when the trial court accepted his
involuntary guilty pleas and that he received ineffective assistance of
counsel. The alternative purposes of a new trial hearing are to (1)
determine whether the case should be retried or (2) complete the record
for presenting issues on appeal. Hobbs v. State, 298 S.W.3d 193, 199
(Tex. Crim. App. 2009). A trial court can abuse its discretion in
failing to hold a hearing on a motion for new trial. An abuse may occur
if the motion and accompanying affidavits (1) raise matters that are not
 
determinable from the record and (2) establish reasonable grounds
showing the defendant could potentially be entitled to relief. If the
supporting affidavits are conclusory, are unsupported by facts, or fail
to provide requisite notice of the basis for the relief claimed, no
hearing is required. See id. We may reverse based on failure to grant a
hearing on a motion for new trial only when the trial court's decision
was so clearly wrong as to lie outside that zone within which reasonable
persons might disagree. See Gonzales v. State, 304 S.W.3d 838, 842 (Tex.
Crim. App. 2010).
Here, the record shows that Corbett discussed “the matter” of
appellant's desire to change his plea with the trial judge before the
sentencing hearing. After the judge informed Corbett that he would
proceed with appellant's guilty pleas, Corbett told the judge that he
would be moving to withdraw the pleas. Although Corbett maintained that,
due to appellant's mental and medication issues, appellant did not fully
understand the meaning or the consequences of his initial pleas of
guilty, the trial judge was able to observe appellant both at the time
of the pleas and at the sentencing hearing. No evidence demonstrates
that appellant was legally incompetent at the time he entered his pleas,
nor does it show that Corbett should have been aware of appellant's
mental health difficulties when he met with appellant before the entry
of his pleas. The document from Parkland Hospital discussing appellant's
diagnosis and prognosis was not authenticated in any way, but simply
 
attached to Premaux's affidavit. And appellant himself was equivocal in
his affidavit about whether he would have pleaded not guilty had he been
adequately medicated at the time Corbett discussed with him the
possibility of probation and the difficulty of getting not guilty
verdicts in all three cases.
Clearly, appellant was able to offer his defenses of alibi and
fabrication at the sentencing hearing, so these same matters recounted
in Premaux's affidavit were merely cumulative of evidence the trial
court had already heard. The trial court had heard Premaux's testimony
at trial and had already assessed her credibility. We surmise that,
having expressly acknowledged presentment of the motions for new trial
and deciding not to grant a hearing on them, the trial court saw nothing
in the motions that would change the judgment in the cases it had
already entered.
Our review of the content of the motions for new trial and the
affidavits attached to them reveals that they did not raise any matter
that was not already reflected in the record of the cases and did not
establish any reasonable grounds showing appellant could be entitled to
the relief he requested in his motions. Therefore, we conclude the trial
court did not abuse its discretion in denying appellant's request for a
hearing on his amended motions for new trial. We overrule his tenth
through fifteenth points of error
We affirm the trial court's judgments.
 
JOSEPH B. MORRIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100440F.U05
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