Bobby Ray Latham v. The State of Texas--Appeal from 38th Judicial District Court of Medina County

OPINION
No. 04-03-00144-CR
Bobby Ray LATHAM,
Appellant
v.
The STATE of Texas,
Appellee
From the 38th Judicial District Court of Medina County, Texas
Trial Court No. 01-06-8520-CR
Honorable Charles Sherrill, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: December 10, 2003

AFFIRMED

Appellant, Bobby Ray Latham, was charged and indicted with the offense of Aggravated Sexual Assault of a Child. (1) He pled guilty, waived a jury trial, and, following a hearing, was sentenced to fifteen years' imprisonment. He now appeals in four issues.

Waiver of Right to Appeal

Before we can consider the merit of Latham's issues, we must first address the State's contention that this appeal should be dismissed under Texas Rule of Appellate Procedure 25.2(b) and Young v. State, 8 S.W.3d 656 (Tex. Crim. App. 2000). The State argues that Rule 25.2(b) does not authorize an appeal under the circumstances of the present case.

Latham is appealing from a non-bargained guilty plea. In an "open" plea such as this, there is no agreement as to punishment. Under Texas Rule of Appellate Procedure 25.2(b) and Young v. State, both bargaining and non-bargaining defendants can appeal rulings on written, pre-trial motions as well as jurisdictional issues. Monreal v. State, 99 S.W.3d 615, 620 (Tex. Crim. App. 2003). However, a non-bargaining defendant who is pleading guilty may be able to appeal an error not raised on a written pre-trial motion if it is otherwise preserved and survives Young. Id. Young mandates that a valid plea of guilty or nolo contendre, with or without an agreed recommendation of punishment, waives the right to appeal on an alleged error only when the judgment of guilt was rendered independent of, and is not supported by, the error. Young, 8 S.W.3d at 666-67.

Although the State contends Latham waived his right to appeal in its entirety, we find only three of his four issues to be in question under the mandates of Young. In his second issue, Latham contends the ten-year-old complainant was not competent to testify at his sentencing hearing. In his third issue, Latham asserts the State failed to lay a proper foundation for its expert witness. Neither of these issues affected the trial court's judgment of Latham's guilt. Latham's plea was not dependant upon, or supported by, either the witness' competence at the hearing or the foundation of the State's expert witness. Therefore, Latham waived his right to appeal these issues when he pled guilty. See Young, 8 S.W.3d at 666-67. We overrule issues two and three.

In addition, we find Latham's fourth issue to have been waived. In this issue, Latham contends he received ineffective assistance of counsel. Specifically, Latham complains of his trial counsel's failure to (1) obtain and introduce two videotapes in the possession of the prosecutor which allegedly contained exculpatory evidence, (2) obtain and introduce documentation regarding the appellant's competency, (3) obtain school medical records which could have allegedly been used to impeach a witness, and (4) object to hearsay evidence in a pre-sentence investigation report.

A claim of ineffective assistance may or may not have a direct nexus with a defendant's guilt or innocence. Martinez v. State, 109 S.W.3d 800, 803 (Tex. App.--Corpus Christi 2003, no pet.). Here, the record is devoid of any evidence that Latham would have pleaded not guilty had it not been for his counsel's alleged ineffectiveness. Therefore, we find that, as with issues two and three, the judgment of the trial court was rendered independent of, and is not supported by, the alleged ineffective assistance of counsel. See Young, 8 S.W.3d at 666-67. Issue four is overruled.

Competence of the Appellant

In his only remaining issue, Latham argues the trial court erred in failing to conduct a competency hearing and empanel a jury to determine his competency to stand trial. Although Latham phrases his argument as one of competency to stand trial, he appears to actually contend that he was not competent at the time he entered his guilty plea. (2) He argues that it was questionable whether he had the ability to consult with his lawyer with a reasonable degree of rational understanding or whether he possessed a rational and factual understanding of the proceeding against him.

Under Texas Code of Criminal Procedure art. 26.13, no plea of guilty shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary. Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 2003). Voluntariness of a plea is determined by a totality of the circumstances. Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App. 1986). When the record shows that an appellant received an admonishment on punishment, it is prima facie evidence the plea was knowing and voluntary. Kirk v. State, 949 S.W.2d 769, 771 (Tex. App.-- Dallas 1997, pet. ref'd). The burden then shifts to the appellant to show he entered his plea without understanding the consequences. Fuentes v. State, 688 S.W.2d 542, 544 (Tex. Crim. App. 1985).

The record shows Latham to have signed the trial court's plea memorandum, a document which included the range of punishment to which he would be subjected and the fact that no binding agreement regarding punishment had been made. More importantly, the memorandum stated that Latham certified he was mentally competent to stand trial, that he "kn[e]w and underst[ood] the proceedings involved in this case and fully cooperated with [his] counsel. . . ." In addition, the trial court found Latham to have been properly admonished and "sane" and uninfluenced "by any consideration of fear, or by any persuasion or delusive hope of pardon." There is nothing in the record to show Latham entered his plea without understanding the consequences. See Fuentes, 688 S.W.2d at 544. Accordingly, we overrule Latham's final issue.

The judgment of the trial court is affirmed.

Paul W. Green, Justice

Do Not Publish

1. The indictment for Aggravated Sexual Assault of a Child was Count I of a two count indictment which also included Indecency with a Child in Count II. The State subsequently dropped Count II.

2. If Latham is actually arguing that he was incompetent to stand trial during the sentencing hearing, we would have to find his complaint to be waived under Young v. State, 8 S.W.3d 656 (Tex. Crim. App. 2000), because the trial court's judgment of guilt against him was rendered independent of, and is not supported by, any mental health issues occurring after he pleaded guilty. For this reason, we assume Latham was attempting to argue against his competence at the time of his pleading, an unwaived issue.