WILLIE RAY GOLDEN v. THE STATE OF TEXAS (2012)

OPINION

Opinion By Justice Fillmore

Willie Ray Golden pleaded guilty to three offenses of delivering less than one gram of cocaine.   Pursuant to plea bargain agreements, the trial court assessed punishment at sixteen months' incarceration on each offense.   In three issues, Golden asserts the evidence is insufficient to support the imposition of court-appointed attorney's fees as court costs, his pleas were involuntary, and he received ineffective assistance of counsel.   We modify each of the trial court's judgments to delete the paragraph assessing court-appointed attorney's fees as court costs and, as modified, affirm the trial court's judgments.

Background

Golden was charged with three offenses of delivering less than one gram of cocaine.   He was found to be indigent, and trial counsel was appointed to represent him.   Although he had counsel, Golden filed a number of pro se motions, including two motions to dismiss and two applications for a pretrial writ of habeas corpus based on double jeopardy principles.   In the two applications for writ of habeas corpus and in one of the motions to dismiss, Golden asserted he pleaded guilty on August 27, 2009 to a misdemeanor assault charge.   In the other motion to dismiss, Golden claimed he pleaded guilty on August 27, 2009 to resisting arrest.   In all four pro se filings, Golden contended that all charges pending against him in Collin County on August 27, 2009 were consolidated for trial and resolved by his guilty plea and, therefore, he could not be again placed in jeopardy on the three delivery of a controlled substance charges.

The trial court held a pretrial hearing at which Golden's counsel attempted to make a record of Golden's decision to decline the State's offer in each case of a sixteen-month sentence in a state jail facility.   Under questioning from his counsel, Golden confirmed he understood that he was charged with three felonies and the State was seeking to enhance the punishment range for each charge to two to twenty years' imprisonment.   Golden also indicated he understood he had over 550 days of back-time credit and the State's offer was basically for the time he had already served.   Golden stated he wanted to fight the cases because he “didn't do it.”   Golden agreed that trial counsel had advised him to accept the State's offer.

When asked whether he had any questions, Golden responded that he wanted the trial court to know he had a “11.01 state habeas corpus in for being placed in jeopardy on these—on these cases” and the trial court had not ruled on the request.   Golden also stated he could prove by his work record that he was at work on the “days that this happened,” his daughter's mother committed the crimes, and one of the indictments incorrectly states he is a white male.

Golden clarified that his double jeopardy claim for the charged offenses was based on a misdemeanor charge for resisting arrest.   Golden's counsel explained that Golden could be charged with more than one crime based on events that happened at the same time.   Golden stated it was his understanding that the charges were “supposed to be consolidated before the Court before I was placed in jeopardy of the plea of guilty.”   Golden did not agree with his counsel that he could be tried for each separate offense.

Golden's counsel requested that the record reflect Golden understood he was being offered time served on the three offenses of delivering less than one gram of cocaine and that, if he did not accept the plea bargains, he could face up to twenty years' imprisonment with the sentences possibly “stacked.”   Golden stated, “I want to have it on the record, sir, that I take the time served if I can appeal my case, sir.   I take it right now.   I take it right now.   With the appeal.”   The trial court responded, “Well, that's really not up to me;  that's up to your attorney and the State to work out an agreement.”   Golden responded that he also wanted to keep his driver's license, but that if he could “appeal my case, I will plead guilty today.”   The trial court stated, “Well, the State heard you;  so if they want to make that offer, well—.”

The trial court told Golden that the Department of Public Safety had an independent right to suspend his driver's license, regardless of the terms of the plea agreement.   Golden indicated he understood.   The trial court responded, “Okay. That could be a consequence of you entering a plea.   Well, we'll let you know if they'll let you do this deal and appeal it.”   The prosecutor then stated, “Judge, we'll go ahead and waive the—the part about the appeal.   If Mr. Golden wants to appeal these cases, then we'll let him appeal ‘em, and we'll go ahead and let him plead guilty today.”

Prior to Golden pleading guilty, the trial court told him, “I want you to understand that very few cases are overturned on appeal, so—but at least you're locking in—.”  Golden responded, “Yes, sir.”   The trial court then admonished Golden on the charges and the range of punishment.   Golden pleaded guilty to all three charges as alleged in the indictments and stated that he was entering the pleas freely, knowingly, and voluntarily.

Under questioning from his counsel, Golden indicated he had an issue with one of the indictments describing him as a white male.   He planned to appeal based on this discrepancy and the fact that he was at work on June 25th.¹  The trial court then expressed concern that Golden was indicating he did not commit one of the offenses.   Golden confirmed he understood the indictment alleged the offense occurred “on or about” the alleged date and that he was pleading guilty because the offense may not have occurred on the specific date alleged.   In response to the prosecutor's cross-examination, Golden stated he understood the description of a white male in the indictment was clerical information and not part of the charging instrument.   Golden also indicated he wanted to appeal the fact the charges were not consolidated in his prior August 27, 2009 guilty plea.

The trial court found Golden guilty of all three offenses and assessed punishment at sixteen months' incarceration in a state jail facility on each offense with credit for time served.   The trial court then asked Golden if he wanted a court-appointed attorney for appeal.   Golden indicated that he did, and the trial court asked if Golden had employment after his release.   Golden stated he would not be released.   Golden's counsel indicated that Golden had a “TDC hold for parole on an unrelated case.”   The trial court's judgment in each case assessed court costs against Golden in a specific amount and stated, in relevant part:

It is further ORDERED that the cost to Collin County for the payment of this defendant's court-appointed attorney, if any, is taxed against this defendant as court cost.   The District Clerk is granted leave to amend the court cost to reflect this amount without the necessity of a further order.

Attorney's Fees

In his first issue, Golden complains the evidence is insufficient to support the trial court's assessment of court-appointed attorney's fees as court costs.   The State contends the issue is not ripe for appellate review because there is no evidence the district clerk has amended the court costs in each judgment to include attorney's fees.

The ripeness doctrine protects against judicial interference until a “decision has been formalized and its effects felt in a concrete way by the challenging parties.”  State ex rel. Watkins v. Creuzot, 352 S.W.3d 493, 504 (Tex.Crim.App.2011) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 148–49 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 104–05 (1977)).   In determining whether an issue is ripe for adjudication, we “evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.”  Id. (quoting Abbott Laboratories, 387 U.S. at 149).

The trial court's judgment assessed attorney's fees against Golden as court costs and authorized the district clerk to amend the court costs to reflect the amount of attorney's fees without a further order by the court.   Whether there is sufficient evidence to support the assessment of attorney's fees as court costs is a criminal law matter and should be addressed in a direct appeal of the criminal judgment.   See Armstrong v. State, 340 S.W.3d 759, 766–67 (Tex.Crim.App.2011).   Thus, the trial court's decision has been formalized, and Golden has felt its effects in a concrete way.   We conclude Golden's complaint is ripe for our consideration.

Article 26.05(g) of the code of criminal procedure governs the assessment of court-appointed attorney's fees.  Tex.Code Crim. Proc. Ann. art. 26.05(g) (West Supp.2011).   A trial court's authority to order a defendant to repay the cost of court-appointed counsel depends upon the court's determination that “the defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided.”  Id. An accused found to be indigent is presumed to remain so through the proceedings absent proof of a material change in his circumstances.  Id. art. 26.04(p) (West Supp.2011).   To require a defendant to repay court-appointed attorney's fees, the State must present evidence that the defendant's financial circumstances have materially changed since the trial court's initial finding of indigence and that the defendant is now capable of paying some or all of those fees.   See Mayer v. State, 309 S.W.3d 552, 556 (Tex.Crim.App.2010) (“[T]he defendant's financial resources and ability to pay are explicit critical elements in the trial court's determination of the propriety of ordering reimbursement of costs and fees.”).

Golden was found indigent prior to the plea hearing and before trial counsel was appointed.   Further, Golden remained incarcerated on unrelated charges following the plea hearing and no evidence was presented that there had been a material change in his financial status.   Accordingly, the evidence was insufficient to support the trial court's judgment and order assessing attorney's fees as part of Golden's court costs.   See Mayer, 309 S.W.3d at 557.   When the evidence does not support the assessment of attorney's fees as court costs, the proper remedy is to modify the judgment to delete the requirement.  Id.

We resolve Golden's first issue in his favor.   We modify each of the trial court's judgments to delete the paragraph assessing attorney's fees against Golden as court costs.

Voluntariness of Pleas

In his second issue, Golden contends his guilty pleas were involuntary because the trial court participated in the plea negotiations, leading Golden to believe he could appeal the convictions when, in fact, no issues had been preserved for appellate review.   Generally, to preserve a complaint for appellate review, a party must make a timely, specific request, objection, or motion in the trial court and obtain an adverse ruling from the trial court.   Tex.R.App. P. 33.1(a).   Except for complaints involving systemic requirements, or rights that are waivable only, all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a).  Mendez v. State, 138 S.W.3d 334, 342 (Tex.Crim.App.2004).   The voluntariness of a plea is not a systemic requirement;  thus, complaints related to voluntariness must be raised in the trial court to be preserved for appellate review.   See id. at 338–39, 350;  Sims v. State, 326 S.W.3d 707, 713 (Tex.App.—Texarkana 2010, pet. struck).²  Further, the improper intrusion by a trial court into the plea-bargaining process is not systemic error and may not be brought for the first time on appeal.  Moore v. State, 295 S.W.3d 329, 333 (Tex.Crim.App.2009).   Because Golden did not complain in the trial court, either before or after his sentencing, that his pleas were involuntary based on the trial court interjecting itself into the plea-bargaining process, he failed to preserve the issue for appeal.

Even if Golden had preserved the complaint, it is without merit.   The court of criminal appeals has suggested that a trial judge should avoid participation in plea negotiations until an agreement has been reached between the prosecutor and the defendant.  Perkins v. Court of Appeals, 738 S.W.2d 276, 282 (Tex. Crim App.1987).  “The reason for this suggestion is that the trial judge should always avoid the appearance of any judicial coercion or prejudgment of the defendant since such influence might affect the voluntariness of the defendant's plea.”  Id. If a trial judge improperly participates in plea negotiations, the error is not reversible if the record reflects the plea was voluntarily entered into and not the result of judicial coercion.   Ex parte Shuflin, 528 S.W.2d 610, 615 (Tex.Crim.App.1975).

In this case, a pretrial hearing was held to make a record of the State's plea offer and that Golden was declining the offer.   Trial counsel discussed with Golden the State's plea offer, that the offer was basically for time served, and that, if the cases proceeded to trial, the State was seeking to enhance the punishment range for each offense.   When asked whether he had any questions, Golden brought up his pro se application for habeas relief.   Under questioning from his counsel, Golden stated he believed double jeopardy principles barred the prosecution of the charges based on Golden's prior plea of guilty to the resisting arrest charge.   Golden's counsel attempted to explain to him that he could be charged with more than one crime arising from a common series of events, but Golden stated he did not agree with counsel.

Golden's counsel requested the record clearly reflect that Golden understood the offer and the consequences of refusing it.   At that point, Golden stated he would plead guilty if he could appeal his case.   The trial court correctly informed Golden that including that term in the plea agreement was between the State and Golden's attorney.   After the State agreed that Golden could have a right to appeal, the trial court admonished Golden that very few cases were overturned on appeal.

Golden, not the trial court, first raised the issue of including the right to appeal in the plea agreement.   The trial court noted the terms of any agreement were between Golden and the State.   The trial court made no statement that could be viewed as judicial coercion or prejudgment of Golden.   See Costilow v. State, 318 S.W.3d 534, 538 (Tex.App.—Beaumont 2010, no pet.) (trial court's recitation and explanation of new conditions, which defendant's counsel proposed, was not tantamount to trial court's improper intrusion into plea bargain process).   We conclude the trial court did not improperly interject itself into the plea negotiations.

Citing Ex parte Pruitt, 689 S.W.2d 905 (Tex.Crim.App.1985), Golden also asserts his plea was involuntary because a condition of his plea bargain, the right to appeal, was impossible to fulfill because no issue was preserved for appellate review.   However, Golden has appealed pursuant to the right given him in the plea agreement and has prevailed on his complaint that the trial court erred by assessing attorney's fees as court costs.   Further, to the extent Golden's argument is premised on the trial court's failure to rule on Golden's pro se application for writ of habeas corpus based on the alleged violation of double jeopardy principles, Golden has not asserted his double jeopardy claim on appeal.   Under certain circumstances, a double jeopardy claim that was not preserved in the trial court can be raised on appeal.   See Young v. State, 8 S.W.3d 656, 666–67 (Tex.Crim.App.2000);  Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App.2000);  see also Bigon v. State, 252 S.W.3d 360, 369 (Tex.Crim.App.2008).³  We cannot conclude that Golden's plea was involuntary because the condition in the plea agreement giving him a right to appeal was impossible to fulfill.

We resolve Golden's second issue against him.

Ineffective Assistance of Counsel

In his third issue, Golden contends he received ineffective assistance of counsel because trial counsel (1) failed to obtain a ruling on Golden's pre-trial application for habeas relief and then led Golden to the erroneous belief that he could appeal based on that motion and (2) actively participated with the trial court in inducing Golden to enter an involuntary plea.

A defendant has the right to effective assistance of counsel in deciding whether to enter a guilty plea.  Lafler v. Cooper, No. 10–209, 2012 WL 932019, at *5 (U.S. Mar. 21, 2012).   A guilty plea is not voluntary if made as a result of ineffective assistance of counsel.   Ex parte Moussazadeh, No. AP–76439, 2012 WL 468518, at *3 (Tex.Crim.App. Feb. 15, 2012).

To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) trial counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that the result of the proceeding would have been different but for the deficiency.  Strickland v. Washington, 466 U.S. 668, 687 (1984);  see also Missouri v. Frye, No. 10–444, 2012 WL 932020, at *5 (U.S. Mar. 21, 2012) (claims of ineffective assistance of counsel in plea bargain context governed by Strickland test).   More specifically, when a person challenges the validity of a guilty plea on the ground that counsel was ineffective, “ ‘the voluntariness of the plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty’ to the charged offense and would have insisted on going to trial.”   Ex parte Harrington, 310 S.W.3d 452, 458 (Tex.Crim.App.2010) (quoting Ex parte Moody, 991 S.W.2d 856, 857–58 (Tex.Crim.App.1999));  see also Frye, 2012 WL 932020, at *9 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

To satisfy his burden under the first prong of the Strickland test, the defendant must overcome a strong presumption that counsel's performance fell within the wide range of reasonable professional assistance.  Strickland, 466 U.S. at 689;  Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999).   The defendant must prove objectively, by a preponderance of the evidence, that counsel's representation fell below prevailing professional norms.   Ex parte Martinez, 330 S.W.3d 891, 901 (Tex.Crim.App.), cert. denied, 131 S.Ct. 3073 (2011);  Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App.2002).   Our review of counsel's representation is highly deferential and presumes counsel's actions fell within the wide range of reasonable and professional assistance.  Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002).   We 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.  Andrews v. State, 159 S.W.3d 98, 101–02 (Tex.Crim.App.2005).

The court of criminal appeals has made clear that, in most cases, a silent record which provides no explanation for trial counsel's actions will not overcome the strong presumption of reasonable assistance.   See Rylander v. State, 101 S.W.3d 107, 110–11 (Tex.Crim.App.2003).   Further, trial counsel should generally be accorded an opportunity to explain his actions before being denounced as ineffective.  Id. at 111.   Because the reasonableness of trial counsel's choices often involve facts that do not appear in the appellate record, an application for writ of habeas corpus is often the more appropriate vehicle to raise ineffective assistance of counsel claims.   See Mitchell, 68 S.W.3d at 642.

In this case, Golden did not raise an ineffective assistance of counsel complaint in his motions for new trial.   Thus, trial counsel was not given an opportunity to explain his actions.   Because the record provides no explanation for counsel's actions or inactions and, on this record, counsel's challenged conduct was not “so outrageous that no competent attorney would have engaged in it,” we conclude Golden has not met his burden of overcoming the strong presumption of reasonable assistance.   See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001)).   We resolve Golden's third issue against him.

We modify each of the trial court's judgments to delete the paragraph assessing court-appointed attorney's fees as court costs.   As modified, we affirm the trial court's judgments.

ROBERT M. FILLMORE

JUSTICE

Do Not Publish

Tex.R.App. P. 47

110093F.U05 S

Court of Appeals

Fifth District of Texas at DallasJUDGMENT

WILLIE RAY GOLDEN, Appellant

No. 05–11–00093–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 199th Judicial District Clerk of Collin County, Texas.  (Tr.Ct.No.199–82181–09).

Opinion delivered by Justice Fillmore, Justices Morris and Myers participating.

Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:

The paragraph on page 2 of the judgment that states:

It is further ORDERED that the cost to Collin County for the payment of this defendant's court-appointed attorney, if any, is taxed against this defendant as court cost.   The District Clerk is granted leave to amend the court cost to reflect this amount without the necessity of a further order.

is DELETED from the judgment.

As modified, the judgment is AFFIRMED.

Judgment entered April 4, 2012.

/Robert M. Fillmore/

ROBERT M. FILLMORE

JUSTICE

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

WILLIE RAY GOLDEN, Appellant

No. 05–11–00094–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 199th Judicial District Court of Collin County, Texas.  (Tr.Ct.No.199–82372–09).

Opinion delivered by Justice Fillmore, Justices Morris and Myers participating.

Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:

The paragraph on page 2 of the judgment that states:

It is further ORDERED that the cost to Collin County for the payment of this defendant's court-appointed attorney, if any, is taxed against the defendant as court costs.   The District Clerk is granted leave to amend the court cost to reflect this amount without the necessity of a further order.

is DELETED from the judgment.

As modified, the judgment is AFFIRMED.

Judgment entered April 4, 2012.

/Robert M. Fillmore/

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

WILLIE RAY GOLDEN, Appellant

No. 05–11–00095–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 199th Judicial District Court of Collin County, Texas.  (Tr.Ct.No.199–82615–09).

Opinion delivered by Justice Fillmore, Justices Morris and Myers participating.

Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:

The paragraph on page 2 of the judgment that states:

It is further ORDERED that the cost to Collin County for the payment of this defendant's court-appointed attorney, if any, is taxed against this defendant as court cost.   The District Clerk is granted leave to amend the court cost to reflect this amount without the necessity of a further order.

is DELETED from the judgment.

As modified, the judgment is AFFIRMED.

Judgment entered April 4, 2012.

/Robert M. Fillmore/

ROBERT M. FILLMORE

JUSTICE

FOOTNOTES

FN1. The indictment in cause number 199–82372–09 alleged the offense was committed “on or about” June 25, 2009..  FN1. The indictment in cause number 199–82372–09 alleged the offense was committed “on or about” June 25, 2009.

FN2. Golden does not contend his plea is involuntary based on a right that is “waivable-only,” such as the trial court's failure to properly admonish him.   See Bessey v. State, 239 S.W.3d 809, 812 (Tex.Crim.App.2007) (“[A] court's failure to properly admonish a defendant cannot be forfeited and may be raised for the first time on appeal unless it is expressly waived.”)..  FN2. Golden does not contend his plea is involuntary based on a right that is “waivable-only,” such as the trial court's failure to properly admonish him.   See Bessey v. State, 239 S.W.3d 809, 812 (Tex.Crim.App.2007) (“[A] court's failure to properly admonish a defendant cannot be forfeited and may be raised for the first time on appeal unless it is expressly waived.”).

FN3. We express no opinion on whether Golden could have successfully brought his double jeopardy complaint in this appeal..  FN3. We express no opinion on whether Golden could have successfully brought his double jeopardy complaint in this appeal.

ROBERT M. FILLMORE JUSTICE