James McNally v. The State of Texas--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-93-005-CR

JAMES McNALLY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 24,537

O P I N I O N

James McNally pled guilty under a plea agreement to the felony offense of theft by check and was sentenced to sixty years confinement. He raises only one point on appeal but includes three distinct multifarious contentions under the point. First, he contends that his plea of guilty was not voluntary because the court failed to properly admonish him prior to accepting his plea. Next, he argues that the court erred in denying his original motion for a new trial without a hearing. Finally, he contends that his second motion for a new trial was improperly denied. Although the point is multifarious, we will address each contention and affirm.

THE PLEA AGREEMENT AND PLEA

On January 5, 1992, McNally attempted to purchase a pickup truck by issuing and passing a personal check when he knew that he had insufficient funds to cover the check. He pled guilty to the offense of theft by check on November 16, 1992. After admonishing McNally on the range of punishment, the court inquired about any plea agreement. The prosecutor told the court that McNally and the State had agreed that, in exchange for a guilty plea, the State would ask the court to defer adjudication for two weeks to allow McNally to make $2,000 in restitution. If McNally paid his restitution, the prosecutor said, the State had agreed to withdraw the enhancement paragraphs in the indictment and recommend a sentence of ten years. However, if McNally failed to pay the $2,000 restitution in two weeks, the State would recommend that his punishment be assessed at sixty years in prison.

After hearing the plea agreement, the court told McNally it would "not agree to be bound by any agreements. If you've entered your plea based on the assumption that the court would agree to be bound, then you're permitted to withdraw your plea, at this time . . . ." Also, the court warned McNally that he would lose his right of appeal, except by the court's permission, if the punishment assessed was not greater than "the amount of time agreed to [in the plea agreement]." The following then occurred:

THE COURT: . . . Are you entering your plea this morning based on an agreement between you, your attorney, and the State?

MR. McNALLY: Yes, sir.

THE COURT: And based on what I've told you about your rights of appeal and the court not agreeing to be bound, do you still persist in entering your Plea of Guilty?

MR. McNALLY: Yes, sir.

THE COURT: And are you pleading guilty voluntarily?

MR. McNally: Yes, sir.

. . .

THE COURT: The court finds the defendant sane and mentally competent; and will accept your free and voluntary plea; and will find you guilty on such plea if the evidence presented proves you guilty; and if you're found guilty, the Court will assess your punishment within the range prescribed by law.

[At this point the State offered and the court admitted as an exhibit a written stipulation of evidence.]

THE COURT: All right. Based on the Plea Agreement, which the Court has not agreed to, but which is presently in front of the Court, we're going to be in recess in this case until November the 30, 1992, at 11:30 [a.m.].

When the court reconvened on November 30, it summarized the proceedings on November 16 and then asked the State for its recommendation on punishment. The prosecutor responded by recommending that McNally be assessed sixty years in prison. McNally testified at the hearing that his sister had mailed the restitution to the District Attorney's office by registered letter but that it had not arrived in time for the hearing.

Finally, after listening to McNally's testimony, the court found him guilty based on the evidence and assessed his punishment at sixty years in prison. Also, the court reminded McNally that, "as I explained to you on November the 16th, that if the amount of time assessed by the Court was no greater than that amount of time agreed to [in the plea agreement], you lose your right of appeal except by permission of this Court."

WAS THE PLEA VOLUNTARY?

Article 26.13 of the Code of Criminal Procedure requires that, prior to accepting a plea of guilty, the court must admonish the defendant of the range of punishment, that the recommendations of the prosecutor are not binding on the court, inquire about any plea agreement, inform the defendant whether the court will accept or reject any such agreement, and warn the defendant that the right to appeal will be limited if the punishment assessed does not exceed that agreed to in the plea agreement. Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 1989). "[S]ubstantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was mislead or harmed by the admonishment of the court." Id. art. 26.13(c).

McNally first argues that his plea of guilty was not voluntary because the court failed to inform him whether the court would accept or reject the plea agreement. He also complains that the court improperly limited his right to withdraw his plea to the November 16 hearing by stating that he could only withdraw his plea "at this time."

A court need not comply with the exact wording of the statute when admonishing a defendant prior to accepting his plea of guilty. Tellez v. State, 522 S.W.2d 500, 502 (Tex. Crim. App. 1975). A court substantially complies with the statute, even though it fails to expressly tell the defendant whether the plea agreement is accepted or rejected, if the court does in fact follow the agreement. Adams v. State, 745 S.W.2d 536, 539 (Tex. App. Houston (1st Dist.) 1988, no pet.); also Stubblefield v. State, 659 S.W.2d 496, 499 (Tex. App. Fort Worth 1983, no pet.) (finding substantial compliance when court followed plea agreement without ever expressly inquiring about its existence).

Here, the record clearly demonstrates that the court did accept and follow the plea agreement precisely as it had been presented by the prosecutor. Furthermore, the record does not reflect and McNally did not affirmatively show that he was unaware of the consequences of his plea and that he was misled or harmed by the court's admonishment.

Proper admonishment of the consequences of a plea of guilty requires that the defendant be informed of "the punishment provided by law for the offense and the punishment which could be inflicted under his plea." See Eubanks v. State, 599 S.W.2d 815, 816 (Tex. Crim. App. [Panel Op.] 1980). The court not only informed McNally of the range of punishment for the offense of theft by check, with and without enhancement, but was affirmatively assured by McNally that he understood the range of punishment. Moreover, McNally could withdraw his plea if the court rejected the plea agreement. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(2). As noted above, the record not only reflects that the court accepted and followed the plea in assessing punishment but that the punishment assessed did not exceed that agreed to in the plea agreement.

We hold that the court substantially complied with article 26.13. The record reflects that McNally's guilty plea was freely, voluntarily and intelligently entered. Accordingly, we reject his first contention under point one.

MOTION FOR NEW TRIAL

McNally next argues under point one that the court erred when it denied his first motion for a new trial without a hearing. A court can deny a motion for a new trial without a hearing only if it raises matters that are discernable from the record. McIntire v. State, 698 S.W.2d 652, 660 (Tex. Crim. App. 1985). McNally asserted in the first motion that he was entitled to a new trial because the court refused to admit evidence that would tend to establish his innocence, refused to grant him a continuance, and refused to permit him to withdraw his plea of guilty when "plea negotiations fell apart." Nowhere in his first motion did McNally allege that he was entitled to a new trial on the grounds that his plea was not voluntary or that he received ineffective assistance of counsel.

McNally did not raise any issue that could not be determined from the record. Therefore, the trial court did not abuse its discretion when it denied the first motion for a new trial without a hearing. His second contention under point one is overruled.

Finally, McNally argues that the court erred in denying his "second" motion for a new trial. In June 1993, seven months after the court denied his first motion, McNally filed another motion for a new trial. He filed it after this court had acquired jurisdiction of his appeal in January 1993. In the so-called second motion, he alleged that the court erred in admonishing him before accepting his plea of guilty and therefore his plea of guilty was not voluntary.

A motion for a new trial may be filed and amended within thirty days of the sentence being imposed. Tex. R. App. P. 31(a)(1), (a)(2). McNally's second motion was filed seven months after his sentence was imposed and after his first motion was denied. Clearly, the second motion could not be considered a timely amendment to his first motion.

Furthermore, the rules do not contemplate or permit more than one motion for a new trial, including timely amendments, to be filed. Under the circumstances, the second motion was a nullity, and the court thus did not err when it failed to grant it. See Drew v. State, 743 S.W.2d 207, 222-23 (Tex. Crim. App. 1987). Therefore, we also reject the third contention under point one.

INEFFECTIVE ASSISTANCE OF COUNSEL

McNally alleges in his brief that he received ineffective assistance of counsel in the trial court because his attorney failed to file pretrial discovery motions, failed to seek dismissal of the enhancement allegations, and also failed to investigate the enhancement offenses to determine whether they could be used for enhancement. Although he expressly raised this complaint in the purported second motion for a new trial, one cannot clearly tell whether he is also asserting ineffective assistance as a complaint on appeal. Out of an abundance of caution we will consider it to be raised on appeal.

McNally has to prove that his counsel's advice was not within the range of competence demanded of attorneys in criminal cases and that, but for his counsel's errors, he would not have pled guilty but insisted on going to trial. See Ex parte Pool, 738 S.W.2d 285, 286 (Tex. Crim. App. 1987). Other than the bald allegations in his brief, there is no evidence to substantiate either prong of the test in Pool. Consequently, we reject the contention of ineffective counsel.

We overrule point one and affirm the judgment.

BOB L. THOMAS

Chief Justice

Before Chief Justice,

Justice Cummings, and

Justice Vance

Affirmed

Opinion filed and delivered November 24, 1993

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