Cannon, Leroy v. The State of Texas--Appeal from 177th District Court of Harris County

Affirmed and Memorandum Opinion filed October 14, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00828-CR

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LEROY CANNON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 884,755

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M E M O R A N D U M O P I N I O N

Appellant Leroy Cannon pleaded guilty to murder, and the trial court sentenced him to twenty-five years confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant filed a motion for new trial arguing his guilty plea was involuntary because, based on discussions with his attorney, appellant allegedly believed that he was assured of deferred adjudication if he pleaded guilty. The trial court denied this motion for new trial. On appeal, appellant asserts this was an abuse of discretion. We affirm.

I. Factual and Procedural Background

Appellant was charged by indictment with murder and pleaded guilty without an agreed recommendation from the prosecutor as to punishment. There is no reporter s record from the original plea hearing; however, the record contains plea papers, signed and initialed by appellant, that indicate the following:

(1) appellant was admonished that he was subject to a range of punishment that included a term of life or any term of not more than 99 years or less than 5 years confinement in the Institutional Division of the Texas Department of Criminal Justice;

(2) appellant was informed as to how the deferred-adjudication process would work, if the trial court were to place him on deferred adjudication;

(3) appellant agreed that he reads and writes the English language;

(4) appellant wished to waive his right to have a court reporter make a record of his plea hearing;

(5) appellant s attorney fully discussed with appellant the plea papers and the consequences of his guilty plea; and

(6) appellant understood the admonishments in the plea papers and was aware of the consequences of his plea, which he made freely and voluntarily.

In the plea papers, appellant s trial counsel and the trial court both verified that appellant entered his plea knowingly and voluntarily after having discussed the case with his attorney.

After the trial court sentenced him to twenty-five years confinement in the Texas Department of Criminal Justice, Institutional Division, appellant filed a motion for new trial arguing that his guilty plea was involuntary. In the affidavit in support of his motion for new trial, appellant testified:

My attorney in this case was Jim Stafford. He advised me that if I wanted probation I would have to plead guilty and have a PSI. Based on my discussions with Mr. Stafford, I believed that if I entered a plea of guilty and had a PSI, I would be assured of a probated sentence. Mr. Stafford did not tell me that if I entered a plea of guilty without an agreed recommendation, the judge was free to assess punishment within the range provided for in the Texas Penal Code. If I had known that I was not assured of probation, and that the judge was free to sentence me to prison, I would not have entered a plea of guilty.

I entered a plea of guilty without understanding the consequences. In particular, I did not understand the range of punishment available to the judge as a result of my plea of guilty without an agreed recommendation. If I had understood the consequences, and the available range of punishment, I would not have entered a plea of guilty in this case. Therefore, when I waived my right to a jury trial and my right against self-incrimination, I did not do so knowingly and voluntarily. My plea of guilty was involuntary and I ask the Court to permit me to withdraw it.

In the pertinent part of his affidavit, Mr. Stafford, appellant s trial attorney at the time of his guilty plea, contradicted appellant s testimony, stating:

I was appointed to represent Leroy Cannon. We met at my office several times and discussed the merits of his case. We explored our defenses and discussed the pros and cons of having a jury trial. Since Mr. Cannon had two previous felony convictions in the fifties, he was not eligible to receive probation from a jury. We discussed pleading guilty to a PSI and asking the trial court to place him on probation. I explained and he understood that the only way he could receive probation in this case would be after a PSI was prepared and only if the judge thought the facts warranted placing him on probation. At no time did I promise him that the trial court would grant our request. Mr. Cannon acknowledged that he understood that the trial court could send him to prison.

We prepared a sentencing package for the trial court to consider. I told him that based on what we were presenting to the Court such as the Complainant s history of violence, the Complainant [sic] possessing a pistol at the time of the offense, the Defendant s history of no violence, his age, his long history [sic] serving the community, his ministry and involvement in the church [sic] coupled with all of the fine character letters, in my opinion, he was worthy to be placed on probation. If the trial court didn t grant him probation, I told him that I felt based on what we were presenting, the trial court would probably sentence him [sic] between five and ten years. He understood.

There was no promise or guarantee made as to what sentence the trial court would assess.

Appellant was not eligible for probation but was eligible for and requested deferred adjudication at his sentencing hearing. Therefore, the references by appellant and his counsel to probation are presumably references to deferred adjudication.

After a hearing, the trial court denied appellant s motion for new trial. The trial judge stated that she was relying on the plea papers and Mr. Stafford s affidavit.

II. Standard of Review

We review the trial court s denial of appellant s motion for new trial for an abuse of discretion. See Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). In determining whether the trial court abused its discretion, we consider whether the court acted without reference to guiding rules and principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993). In so doing, we consider whether the trial court acted arbitrarily or unreasonably. Id. We must uphold the trial court s ruling so long as it is within the zone of reasonable disagreement. Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002).

III. Issues and Analysis

In his first issue, appellant asserts that this court has appellate jurisdiction in this case. The State does not challenge our jurisdiction, and we conclude that we do have jurisdiction. The Court of Criminal Appeals has held that appellate courts lack jurisdiction over a general notice of appeal filed by a defendant who pleaded guilty in a felony case under a plea bargain and whose punishment did not exceed the punishment agreed upon in the plea bargain, even if the defendant challenges the voluntariness of his plea. See Cooper v. State, 45 S.W.3d 77, 79 83 (Tex. Crim. App. 2001). The Cooper court left open the possibility of such an appeal from a guilty plea without an agreed recommendation from the prosecutor as to punishment; therefore, Cooper does not affect our jurisdiction in this case. See id. at 81 (majority op.), 87 (Price, J., dissenting). Furthermore, if we were to conclude that appellant s plea was involuntary, as he claims, we could not find the judgment of guilt was rendered independent of the error. Therefore, appellant s guilty plea in this case did not waive or forfeit his right to appeal and assert that his guilty plea was involuntary. See Young v. State, 8 S.W.3d 656, 666 67 (Tex. Crim. App. 2000) (holding that whether entered with or without an agreed recommendation of punishment by the State, a valid plea of guilty or nolo contendere waives or forfeits the right to appeal a claim of error only when the judgment of guilt was rendered independent of, and is not supported by, the error ); Castellano v. State, 49 S.W.3d 566, 569 (Tex. App. Corpus Christi 2001, pet. ref d) (holding court of appeals had jurisdiction over general notice of appeal asserting involuntary guilty plea where appellant pleaded guilty without a plea agreement). Accordingly, we conclude we have appellate jurisdiction. See Young, 8 S.W.3d at 666 67; Castellano, 49 S.W.3d at 569.

In his second issue, appellant asserts the trial court abused its discretion in denying his motion for new trial because his guilty plea was involuntary. The fact that appellant received greater punishment than he expected does not make his plea involuntary. See West v. State, 702 S.W.2d 629, 633 (Tex. Crim. App. 1986). Appellant s attestation of voluntariness at the original plea hearing imposed a heavy burden on him at the hearing on his motion for new trial to show a lack of voluntariness. See Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App. Houston [1st Dist.] 1996, pet. ref d). Upon a prima facie showing of voluntariness, the defendant bears the burden of showing that he entered the plea without knowing its consequences. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). On appeal, we presume the regularity of the judgment and proceedings in the trial court, and the defendant bears the burden of overcoming this presumption. Dusenberry, 915 S.W.2d at 949.

Appellant testified his attorney misinformed him by telling him the trial court could not sentence him to prison if he pleaded guilty and by indicating that he would be assured of deferred adjudication if he pleaded guilty. Appellant s attorney testified that he did not misinform appellant in this manner and that appellant understood that the trial court was free to sentence him to confinement in prison rather than deferred adjudication. Based on these disputed facts before the trial court, the trial court did not abuse its discretion by crediting the testimony of appellant s attorney rather than appellant s testimony. See Salazar, 38 S.W.3d at 148 49, Dusenberry, 915 S.W.2d at 951; Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App. Houston [1st Dist.] 1996, pet. ref d). The record supports the trial court s determination that appellant s plea was voluntary and that appellant s counsel did not misinform him. Therefore, we hold that the trial court did not abuse its discretion in denying appellant s motion for new trial. See Dusenberry, 915 S.W.2d at 951; Fimberg, 922 S.W.2d at 208. Accordingly, we overrule appellant s second issue and affirm the trial court s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed October 14, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

Do Not Publish Tex. R. App. P. 47.2(b).