Nicholas Letroy Jenkins v. The State of Texas Appeal from 156th District Court of Live Oak County (memorandum opinion)

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NUMBER 13-15-00426-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG NICHOLAS LETROY JENKINS, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 156th District Court of Live Oak County, Texas. MEMORANDUM OPINION Before Justices Rodriguez, Contreras, and Benavides Memorandum Opinion by Justice Contreras Appellant Nicholas Letroy Jenkins entered an “open” plea of nolo contendere to murder, a first-degree felony offense. See TEX. PENAL CODE ANN. § 19.02 (West, Westlaw through 2017 R.S.). He was convicted and sentenced to sixty years’ imprisonment. On appeal, Jenkins argues that: (1) he did not voluntarily, knowingly, or intelligently waive his right to a jury trial; (2) his plea was not voluntarily and intelligently entered; and (3) the trial court erred in denying his motion to appoint an investigator. We affirm. I. BACKGROUND Jenkins was charged by indictment on December 19, 2013 with causing the death of Rafael Garcia Jr. by stabbing him with a knife. Jenkins was originally represented by retained counsel, but on August 27, 2014, counsel moved to withdraw, Jenkins filed a sworn affidavit of indigence, and the trial court appointed new counsel to defend him. At that time, trial was tentatively set for November 10, 2014, but the trial court granted a motion to continue filed by appointed defense counsel. On January 7, 2015, the trial court granted Jenkins’s motion to allow appointed counsel to withdraw and to substitute a new retained attorney. Newly-retained counsel filed a motion for continuance on March 24, 2015, stating that he has five ongoing murder cases on his docket and is set for trial in federal court on March 27. Counsel also filed a motion for a court-appointed investigator. At a hearing on March 30, 2015, counsel explained that the case “proved to be a whole lot more investigation and a whole lot more work than I initially anticipated,” that he has “been trying to track down witnesses” and that he is “doing all the investigation personally.” Counsel stated that, were trial to go forward, he would be “wholly ineffective.” The State announced it was ready. The trial court noted that it had previously admonished defense counsel that “these dates would not be reset and that you needed to be ready” and that counsel had agreed to that. Counsel reiterated that he “cannot go to trial” and that he would be “wholly ineffective to represent [Jenkins] currently” because he has “had no opportunity to subpoena any witnesses” due to his “tremendously crazy schedule.” The trial court noted that counsel “took on this representation knowing the 2 dates” and had over ninety days to prepare. The trial court eventually “reluctantly granted” the continuance and set trial for June 16, 2015. However, the trial court denied the motion to appoint an investigator, stating: “I don’t have a problem with you using an investigator but not at the county’s expense.” At a pre-trial hearing on June 10, 2015, counsel again announced that he was not ready, citing scheduling conflicts and the need for a bench warrant for a certain witness, and he requested a continuance. The prosecutor objected to the continuance and offered into evidence a 2001 article from the Houston Press suggesting that defense counsel had previously employed delay as a trial strategy in an unrelated case.1 The trial court observed that counsel had issued no subpoenas and had not applied for a bench warrant for any witnesses, and the court denied the motion for continuance. Defense counsel then stated that he intended to prepare an application for a bench warrant, and the hearing recessed. When the hearing resumed, the parties informed the court that Jenkins would be entering an “open” plea of no contest. The trial court proceeded to question Jenkins regarding his mental health. Jenkins stated that he was treated by a psychologist or psychiatrist when he was younger, and he was prescribed medication, but he discontinued that medication on his own. He stated that he had recently seen a mental health expert for treatment, that the expert told him he has depression, and that he is currently taking Paxil, an antidepressant medication. He stated that the medication helps him focus and that he has been taking the medication regularly. Jenkins affirmed that he knew what was going on, that he was able to confer with counsel, that he has been able to help counsel prepare a defense, and that he fully 1 The article does not appear in the appellate record. 3 read and understood the various warnings contained in the plea documents. Defense counsel stated that, in his opinion, Jenkins was competent. Defense counsel further stated that Jenkins had been examined by two mental health doctors and that the results from those examinations did not indicate that Jenkins was incompetent to proceed or to stand trial. Jenkins testified that he understood the applicable punishment range for a first-degree felony, and that he was freely and voluntarily waiving or giving up his rights to remain silent, to have a jury trial, and to cross-examine witnesses. When the trial court inquired whether Jenkins wanted to have a jury or the judge decide punishment, the following colloquy occurred: THE COURT: Do you know what a jury trial is? THE DEFENDANT: Yes, sir, I do. THE COURT: Do you have any questions about what a jury trial is? THE DEFENDANT: No, sir, I don’t. THE COURT: Or what a jury does? THE DEFENDANT: No, sir. THE COURT: You understand that you have the right to have a jury trial if you want one? THE DEFENDANT: Yes, sir. THE COURT: Or the case could be presented to me as the Judge to make those decisions that the jury would otherwise make. THE DEFENDANT: Honestly I want to have a jury. THE COURT: You do want to have a jury trial? THE DEFENDANT: Yes, sir. THE COURT: Okay. Do you want to visit with your attorney some more about that? 4 THE DEFENDANT: Yeah, if I can. THE COURT: I’ll give you a minute to talk. (Short break in proceedings.) [Defense counsel]: He’s ready to go forward. THE COURT: . . . Mr. Jenkins, you’ve had an opportunity to visit briefly with your attorney; is that correct? THE DEFENDANT: Yes, sir. THE COURT: And we were talking about your right to have a jury trial. Once again you understand what a jury trial is, and you understand that you have the right to have a jury trial if you want one. THE DEFENDANT: Yes, sir. THE COURT: Do you want to have a jury trial in this case? THE DEFENDANT: I’m going to follow what my attorney says. THE COURT: And what’s your decision? THE DEFENDANT: To waive. THE COURT: To waive your right or give up your right to have a jury trial and have me hear your case. THE DEFENDANT: Yes, sir. THE COURT: You’re comfortable with that? THE DEFENDANT: Yes, sir. THE COURT: That’s what you had written to me in writing under oath on this document here. THE DEFENDANT: We discussed it. THE COURT: Just want to make sure that was your choice. .... THE COURT: Mr. Jenkins, do you fully understand the charge that’s currently pending against you? 5 THE DEFENDANT: Yes, sir. THE COURT: Do you need to have me read it out loud to you here in open court? THE DEFENDANT: No, sir. THE COURT: How do you plead to that charge? THE DEFENDANT: No contest. THE COURT: No contest. You understand that by a plea of no contest that is telling me that you understand the charge that’s pending against you, you understand the evidence that may be presented by the State against you, but you just do not wish to contest or challenge either the charge or the evidence that you expect to be presented. Is all of that correct? THE DEFENDANT: Yes, sir. THE COURT: You understand that if the evidence—if the evidence supports a finding of guilty that a plea of no contest, if the evidence is sufficient, that can put you in the same place as if you had actually pled guilty. THE DEFENDANT: Yes, sir. THE COURT: Some of the other rights you were giving up are the right to fully appeal your case. There are some rights that you would still retain regarding appeal, but by entering a plea of no contest, and certainly if there is a stipulation regarding evidence, that’s going to severely limit your right to appeal any disposition that we have in this case. Do you understand that as well? THE DEFENDANT: Yes, sir. THE COURT: Do you have any questions about that? THE DEFENDANT: No, sir. The prosecutor then offered into evidence a stipulation of evidence form, initialed and signed by Jenkins, as well as a police report, photographs, and witness statements evidencing the crime. Also entered into evidence was a written form, initialed and signed 6 by Jenkins, acknowledging that he was waiving, among other things, his rights to a jury trial and to confront witnesses. The trial court stated that the evidence was sufficient, found Jenkins guilty of murder as alleged in the indictment, and set a punishment hearing for August 4, 2015. The following colloquy then occurred: THE COURT: . . . Do you understand where we are currently with this case? THE DEFENDANT: Yes, sir. THE COURT: Do you understand where we’re headed? THE DEFENDANT: Yes, sir. THE COURT: If you have any questions or concerns you can contact your attorney and he’ll bring those to my attention if it’s something we need to take up before we come back here on August 4th. Anything else for today, [prosecutor]? [Prosecutor]: Your Honor, just for point of clarification, there were two photographs that were offered, one which depicted the Defendant in the store purchasing the bleach and the other items, the other is the type of knife that was purchased. We were not able to recover the actual knife, but we were able to identify the type of knife that was purchased. They had a same or similar—they had an identical knife, same model number, and that is the photograph that is offered, not suggesting that is the actual physical one, but that’s the exact type that he used. THE DEFENDANT: I work in a chemical plant, I had no intentions of killing that guy. I don’t know that man, I had no motive. THE COURT: All right, thank you, Mr. Jenkins. I appreciate your commentary. You may visit with your attorney about how you want to present any additional evidence when it comes to us coming back here on the 4th. THE DEFENDANT: Yes, sir. 7 THE COURT: Anything else, [defense counsel], for today? [Defense counsel]: Nothing further, Judge. The trial court then confirmed on the record that there was no plea bargain or agreement in this case and that the full range of punishment would be available. The trial court again admonished Jenkins that “since you have entered a plea today that is going to limit your ability to appeal in this case” and Jenkins replied that he understood. The record reflects that the trial court convened a punishment hearing on August 3, 2015, but defense counsel did not appear. The trial court then reset the punishment hearing for August 9, 2015. Following that hearing, at which counsel appeared, the trial court assessed punishment at sixty years’ imprisonment and a $5,000 fine, and certified Jenkins’s right to appeal. This appeal followed. II. DISCUSSION A. Waiver of Jury Trial and Plea of No Contest By his first two issues, Jenkins contends that he did not voluntarily, knowingly, or intelligently waive his constitutional right to a jury trial, and that his conviction therefore violated that right. By his third and fourth issues, he argues that his plea of no contest was not given voluntarily or intelligently because (1) he remarked to the trial court that he had no intent or motive to kill the victim, and (2) his counsel was not ready for trial. A plea of guilty2 is a waiver of several federal constitutional rights, including the protections against self-incrimination, the right to a speedy and public trial by jury, and the right to confrontation. Ex parte Barnaby, 475 S.W.3d 316, 322 (Tex. Crim. App. 2015) A plea of nolo contendere has the same legal effect as a plea of not guilty, except that it “may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.” TEX. CODE CRIM. PROC. ANN. art. 27.02(5) (West, Westlaw through 2017 R.S.). 2 8 (citing Boykin v. Alabama, 395 U.S. 238, 242–43 (1969)). To be statutorily and constitutionally valid, the plea must be free and voluntary. See TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (West, Westlaw through 2017 R.S.) (“No plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.”); Bousley v. United States, 523 U.S. 614, 618 (1998) (“A plea of guilty is constitutionally valid only to the extent it is ‘voluntary’ and ‘intelligent.’”). “Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” United States v. Brady, 397 U.S. 742, 748 (1970). The standard for voluntariness is that [a] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g. bribes). Barnaby, 475 S.W.3d at 322 (quoting Brady, 397 U.S. at 755). A plea is also involuntary if it is given “in total ignorance of the precise nature of the charge and the range of punishment it carries.” Davison v. State, 405 S.W.3d 682, 686 (Tex. Crim. App. 2013). An involuntary guilty plea must be set aside. Fimberg v. State, 922 S.W.2d 205, 207 (Tex. App.—Houston [1st Dist.] 1996, pet. ref'd) (citing Boykin, 395 U.S. at 244; Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975)). It is undisputed that, before accepting Jenkins’s plea, the trial court properly admonished him as required by statute. See TEX. CODE CRIM. PROC. ANN. art. 26.13(a). When the trial court properly admonishes a defendant before a plea is entered, there is a prima facie showing that the plea was both knowing and voluntary. Martinez v. State, 9 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam); see Mitschke v. State, 129 S.W.3d 130, 136 (Tex. Crim. App. 2004). The burden then shifts to the defendant to show that he pleaded guilty without understanding the consequences of his plea and that he therefore suffered harm. Martinez, 981 S.W.2d at 197; Pena v. State, 132 S.W.3d 663, 666 (Tex. App.—Corpus Christi 2004, no pet.). Accordingly, an accused who attests that he understands the nature of his plea and that it is voluntary, as in this case, has a heavy burden on appeal to show that his plea was involuntary. See Ex parte Tomlinson, 295 S.W.3d 412, 419 (Tex. App.—Corpus Christi 2009, no pet.); Fielding v. State, 266 S.W.3d 627, 636 (Tex. App.—El Paso 2008, pet. ref’d). Jenkins correctly notes that, prior to giving his plea at the June 10, 2015 hearing, he twice stated on the record that he wanted to have a jury trial.3 However, after briefly meeting with counsel, Jenkins stated that he was “going to follow what my attorney says” and would waive a jury trial and plead no contest. Jenkins cites no authority, and we find none, providing that a defendant may not change his mind about strategic decisions after discussing them with counsel. Additionally, there is nothing in the record showing that his plea was induced by threats, misrepresentations, or improper promises, or that it was coerced in any way. See Brady, 397 U.S. at 755; Barnaby, 475 S.W.3d at 322. Instead, the record reflects that Jenkins was clearly and repeatedly admonished, both orally and in writing, as to the ramifications of a no contest plea and the nature of the charges against him. See Davison, 405 S.W.3d at 686. 3 It is not clear from the record whether Jenkins was referring to a jury trial at the guilt-innocence phase, at the punishment phase, or both. 10 Moreover, although Jenkins remarked to the trial court that he “had no intentions of killing that guy” and “had no motive,” that position is consistent with a plea of nolo contendere. By signing the written admonishment form, Jenkins affirmed that he was entering a plea of nolo contendere “because I do not want to contest the charges against me, though I do not admit criminal responsibility.” His comment indicated that he did not wish to admit criminal responsibility, but it did not preclude a strategic decision to decline to contest the charge, and it did not indicate that Jenkins failed to understand the essential elements of the charge. See id. Jenkins further asserts that “[t]he record shows that counsel failed to take any steps in preparation for either trial setting, was wholly unprepared for trial, and as represented was unable to provide [him] his constitutional right to effective assistance.” He notes that his counsel stated he was not ready for trial on June 10, 2015, the day Jenkins eventually gave his no contest plea. To the extent Jenkins raises a claim of ineffective assistance of trial counsel, he must prove the following by a preponderance of the evidence in order to show reversible error: “(1) counsel’s performance fell below an objective standard of reasonableness and (2) counsel’s deficient performance prejudiced the defense, resulting in an unreliable or fundamentally unfair outcome of the proceeding.” Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). He has the burden to overcome the “strong presumption” that counsel’s conduct fell within the wide range of reasonable professional assistance and that counsel’s actions could be considered sound trial strategy. See Strickland, 466 U.S. at 689; Jaynes v. State, 216 S.W.3d 839, 851 11 (Tex. App.—Corpus Christi 2006, no pet.). An allegation of ineffectiveness must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). The record here does not show that counsel’s performance was deficient. Although counsel stated that he would not be ready for trial on June 10, 2015 because of scheduling conflicts and the need to subpoena a witness, there is nothing in the record indicating that counsel’s advice to Jenkins to plead nolo contendere was based on his lack of readiness. Instead, the decision to plead nolo contendere could be considered sound trial strategy based on the perceived strength of the State’s case. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007) (“[A] reviewing court on direct appeal will rarely be able to fairly evaluate the merits of an ineffective-assistance claim, because the record on direct appeal is usually undeveloped and inadequately reflective of the reasons for defense counsel’s actions at trial.”); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005) (noting that “we commonly assume a strategic motive if any can be imagined and find counsel’s performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it”). Moreover, Jenkins affirmed in the written admonishment form as follows: I have had sufficient opportunity to consult with my attorney and have discussed with him all relevant facts and the law applicable in this case. I am satisfied with the representation my lawyer has given me, and I have no complaints against my lawyer or objections to his/her representing me. On this record, we conclude that Jenkins has failed to overcome the “strong presumption” that counsel provided reasonable assistance. See Strickland, 466 U.S. at 689.4 We note that “claims of ineffective assistance of counsel rejected due to lack of adequate information may be reconsidered on an application for a writ of habeas corpus.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). 4 12 Further, considering the entire record, we conclude that Jenkins has not met his heavy burden to establish that his plea of no contest and waiver of jury trial were involuntary. See Martinez, 981 S.W.2d at 197; Tomlinson, 295 S.W.3d at 419; Fielding, 266 S.W.3d at 636. Jenkins’s first four issues are overruled. B. Denial of Motion to Appoint Investigator By his fifth and sixth issues, Jenkins argues that the trial court erred, thereby denying his constitutional rights to due process and access to the courts, when it denied his motion to appoint an investigator. We review such a ruling for abuse of discretion. Perales v. State, 226 S.W.3d 531, 536 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Griffith v. State, 983 S.W.2d 282, 287 (Tex. Crim. App. 1998)). Due process requires the appointment of an expert to an indigent defendant if necessary to provide the defendant with the “basic tools” to present his defense. Ake v. Oklahoma, 470 U.S. 68, 74 (1985); Rey v. State, 897 S.W.2d 333, 339 (Tex. Crim. App. 1995); Perales, 226 S.W.3d at 536. To be entitled to such an appointment, an indigent defendant must make “a preliminary showing” that the matter that the expert will address “is likely to be a significant factor at trial.” Ake, 470 U.S. at 74; Rey, 897 S.W.2d at 339; Perales, 226 S.W.3d at 536. Jenkins argues that, although he had twice retained counsel during the course of these proceedings, he had also previously filed an affidavit of indigence and there was nothing in the record showing that his indigent status had changed. Assuming but not deciding that Jenkins was still technically indigent at the time his retained counsel filed the motion to appoint an investigator, we cannot say the trial court abused its discretion in denying that motion. The motion stated the following as grounds for relief: “Based on 13 the limited investigation in this case, the undersigned counsel knows that there are a number of witnesses who must be sought out and interviewed. This can only be done properly and effectively through the use of a private investigator.” At the March 30, 2015 hearing, counsel stated: “[Jenkins] needs an investigator because then we have somebody local here that is working on his behalf so I would ask if the Court would grant that. That would give me a local contact that I can talk to immediately.” There is nothing in the record, however, establishing that the testimony of the witnesses referred to by counsel was likely to be a significant factor at trial or that it was a “basic tool” necessary for his defense. See Ake, 470 U.S. at 74; Rey, 897 S.W.2d at 339; Perales, 226 S.W.3d at 536. Therefore, the trial court neither abused its discretion nor violated Jenkins’s constitutional rights by denying the motion to appoint an investigator. We overrule Jenkins’s fifth and sixth issues. III. CONCLUSION The trial court’s judgment is affirmed. DORI CONTRERAS Justice Do not publish. TEX. R. APP. P. 47.2(b). Delivered and filed the 28th day of September, 2017. 14

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