Johnson, Walter Lee v. The State of Texas

 
AFFIRM and Opinion Filed December 20, 2011
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-10-00960-CR
No. 05-10-00961-CR
No. 05-10-00962-CR
............................
 
WALTER LEE JOHNSON, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F09-30732-Q, F09-30733-Q, F09-30735-Q
.............................................................
 
MEMORANDUM OPINION
 
Before Justices Bridges, Richter, and Murphy
Opinion by Justice Murphy
Walter Lee Johnson appeals his three convictions for possession
with intent to deliver more than four but less than 200 grams of a
controlled substance, crack cocaine. See Tex. Health & Safety Code Ann.
§ 481.112(d) (West 2010). Appellant claims in a single point of error
that the trial court erred by refusing to allow him to withdraw his
guilty plea in each case. We affirm.
BACKGROUND
 
Appellant was indicted in three separate cases for possession
with intent to deliver a controlled substance of more than four but less
than 200 grams. The indictments covered three discrete arrests on August
27, November 20, and December 4, 2009. Each indictment included an
enhancement paragraph alleging the offense was committed within 1,000
feet of an elementary school. See id. § 481.134(a)(5), (c). The State
also filed a notice of intent in each case to enhance appellant's
 
punishment range with a prior felony conviction for attempted aggravated
assault with a deadly weapon. See Tex. Penal Code Ann. § 12.41(c)(1)
(West 2011). Appellant thus was facing minimum punishment of twenty
years in each case. See id.; Tex. Health & Safety Code Ann. §§
481.112(d), 481.134(c).
Appellant pleaded guilty in all three cases at his arraignment,
reserved his right to go to a jury for punishment, and signed judicial
confessions to the allegations in each indictment. The State agreed to
abandon the sentence enhancements in all three cases in exchange for
appellant's guilty pleas. As a result, appellant faced minimum
punishments of five years in each case instead of twenty years. See Tex.
Penal Code Ann. § 12.32(a). The trial court informed appellant at his
arraignment that appellant could change his pleas if some evidence was
presented indicating his “plea ought to be not guilty instead of
guilty.”
The three cases were tried together, and appellant pleaded
guilty before the jury in the punishment phase. The State presented
evidence supporting the allegations in the indictments and in support of
punishment. Appellant rested without presenting any evidence, and the
trial court recessed the punishment hearing until the next day.
The next morning, before the court's charge was read to the jury
and before closing jury arguments, appellant asked to withdraw his
guilty pleas and enter pleas of not guilty. The trial court denied
appellant's request.
DISCUSSION
 
A defendant has an absolute right to withdraw a guilty plea any
 
time before the jury retires. See Fairfield v. State, 610 S.W.2d 771,
776 (Tex. Crim. App. [Panel Op.] 1981). The trial court's denial of a
defendant's request to withdraw his guilty plea is constitutional error
subject to the harm standard set out in Texas Rule of Appellate
Procedure 44.2(a). See Abrego v. State, 977 S.W.2d 835, 839 (Tex.
App.-Fort Worth 1998, pet. ref'd). The harm standard for constitutional
error requires an appellate court to “reverse a judgment of conviction
or punishment unless the court determines beyond a reasonable doubt that
the error did not contribute to the conviction or punishment.” Tex. R.
App. P. 44.2(a).
In applying a harmless error analysis to the failure of a trial
court to allow a timely request to withdraw a guilty plea, the Texas
Court of Criminal Appeals noted in Payne v. State, that it had found the
error harmless only “when there is no evidence suggesting that the
defendant is not guilty or is guilty only of a lesser included offense.”
 790 S.W.2d 649, 651 (Tex. Crim. App. 1990). In Payne, the defendant was
convicted of aggravated robbery. The court of criminal appeals stressed
in its opinion that the defendant had taken the stand to testify and had
“failed to make an unequivocal oral judicial confession.” Id. at 652.
The court also emphasized that the defendant's testimony that he used a
“toy” gun contradicted his signed confession in which he stated he had
used a gun. Id. The distinction between a real gun and a toy gun would
be the difference between aggravated robbery and robbery, a lesser
 
included offense. Because of the factual dispute, the court could not
“say beyond a reasonable doubt that the trial error” did not affect the
outcome. Id.
The court compared and distinguished two of its prior cases in
concluding in Payne that it could not find the trial court's refusal to
allow withdrawal of a guilty plea to be harmless. Id. at 651-52 (citing
McWherter v. State, 571 S.W.2d 312 (Tex. Crim. App. 1978), and Wilson v.
State, 515 S.W.2d 274 (Tex. Crim. App. 1974)). Wilson was the court's
first time to conclude this form of trial court error was harmless. Id.
at 651. The court emphasized that in Wilson, “there apparently was never
any challenge to the substance of any of the confessions and the
defendant's guilt was not a factual issue”-defendant had testified and
made a judicial confession, a written judicial confession was admitted
as evidence, and the evidence of guilt was overwhelming. Id. at 652. The
court distinguished Wilson in light of the factual dispute created by
the evidence in Payne and compared that factual dispute to the situation
faced by the court in McWherter.
McWherter involved a defendant's guilty plea in the presence of
the jury and a request to withdraw the plea before the jury retired to
deliberate. 571 S.W.2d at 313. The trial court denied the request, and
the court of criminal appeals concluded the error was reversible in
light of defendant's challenge to the sufficiency of the evidence and
the admission of defendant's oral confession over his objection and
without a separate hearing to determine voluntariness of the confession.
 
Id. at 314.
Here, appellant pleaded guilty to each indictment before the
jury, the State presented uncontradicted evidence in support of the
allegations in the indictments, and appellant presented no evidence. The
evidence admitted without objection included testimony of citizen
complaints that drugs were being sold from a particular residence within
1,000 feet of an elementary school. The police verified the activity
through confidential informants and surveillance of the residence.
Search warrants were executed on the residence on August 27, November
20, and December 4, 2009, during which appellant and others were found
in the residence. Each time the police recovered sellable rocks of crack
cocaine and other items associated with drug trafficking. Appellant and
the others were in a different area of the residence from where the
drugs were located during the first two searches. During the third
search, appellant was lying down in front of a clothes dryer. The
officers recovered a plate from the dryer containing sellable crack
cocaine and bearing appellant's fingerprint. Appellant told the officers
during the third search that he lived in the residence and clothes
belonging to him were located there. Subsequent police investigation
indicated the other persons found in the residence during the three
searches did not live there. Appellant was the only one who was in the
residence during all three searches.
Appellant did not contradict this evidence, and the record
reveals no factual dispute, as in Payne where the testimony was
 
conflicting, as to appellant's guilt. See Payne, 790 S.W.2d at 652.
Similarly, appellant does not challenge the voluntariness of his
judicial confession. Rather, more like the facts of Wilson, the
uncontradicted evidence shows appellant was the only person living in
the house from which drugs were being sold on a regular basis, he was
the only person present during all three searches, and his fingerprint
was on the plate of sellable drugs.
Although appellant does not challenge the sufficiency of the
evidence to support his guilt, he claims that, based upon application of
traditional “affirmative links” criteria, the evidence sufficiently
raised questions regarding his guilt to justify the withdrawal of his
guilty pleas. Citing Evans v. State, 202 S.W.3d 158 (Tex. Crim. App.
2006), appellant claims only a few of the fourteen affirmative links
identified in that case existed for the three incidents covered by the
indictments. Specifically, he claims only three links existed for the
August 27 and November 20 incidents and only five existed for the
December 4 incident.
The court of criminal appeals in Evans, summarized a
non-exclusive list of possible “affirmative links” that may be
sufficient, either singly or in combination, to establish a person's
possession of contraband. Id. at 162. The court emphasized that it is
not the number of links that is dispositive, but rather the logical
force of all of the evidence, direct and circumstantial, that supports a
jury's verdict. Id. at 166. The logical force of the combined pieces of
 
uncontroverted circumstantial evidence of appellant's residence in the
house from which drugs were being sold, his presence and proximity to
the drugs during each search, and his fingerprint linking him to the
sellable drugs in the residence, coupled with reasonable inferences from
those facts, do not raise significant questions that appellant was
merely an “innocent bystander.” Id. at 161-62.
Of additional relevance to the harm analysis, is the State's
abandonment of the enhancements in consideration of appellant's guilty
pleas. Had the trial court permitted appellant to withdraw his guilty
pleas, appellant would have been subject to the enhancements. With the
uncontested evidence supporting a guilty verdict and the likelihood the
jury would have found the enhancements to be “true,” appellant would
have faced a twenty-year minimum sentence in each case-not the five-year
minimum sentences that he faced with his guilty pleas. The jury assessed
appellant's sentences at a $10,000 fine in each case and ten years'
confinement in trial court cause number F-09-30735-Q (appeal number
05-10-00962-CR), fifteen years' confinement in trial court cause number
F-09-30733- Q (appeal number 05-10-00961-CR), and twenty years'
confinement in trial court cause number F-09- 30732-Q (appeal number
05-10-00960-CR). Accordingly, we conclude beyond a reasonable doubt that
the error in not allowing appellant to withdraw his guilty pleas did not
contribute to the conviction or punishment and was harmless. Tex. R.
App. P. 44.2(a). We therefore overrule appellant's sole point of error
 
and affirm the trial court's judgment.
 
 
MARY MURPHY
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100960F.U05
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