Nayome Walters, Appellant v. The State of Texas, Appellee

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Court of Appeals of Texas, Beaumont.

Nayome Walters, Appellant v. The State of Texas, Appellee

NO. 09–14–00433–CR

Decided: February 24, 2016

Before McKeithen, C.J., Kreger and Horton, JJ.

MEMORANDUM OPINION

Pursuant to a plea-bargain agreement, Nayome Walters pleaded guilty to the lesser-included offense of second-degree felony theft.  The trial court followed the plea agreement and sentenced Walters to twelve years imprisonment.  Although Walters waived her right to appeal as a condition of her plea-bargain agreement, the trial court gave her permission to appeal.  Walters filed a notice of appeal.  In a single issue, Walters contends that the trial court abused its discretion in failing to hold a hearing on her motion for new trial.  Walters asks this Court to remand her case for an evidentiary hearing on her motion for new trial.  We affirm the trial court's judgment.

I. Background

The State charged Walters by indictment with first-degree felony theft in an amount over $200,000 on or about June 1, 2011.  See generally Act of May 29, 2011, 82d Leg., R.S., ch. 1234, § 21, 2011 Tex. Sess. Law Serv. 3301, 3310 (West) (amended 2015) (current version at Tex. Penal Code Ann. § 31.03(e)(7) (West Supp.2015)).  On July 8, 2014, Walters entered into a plea-bargain agreement wherein she agreed to plead guilty to the lesser-included offense of second-degree felony theft in exchange for a punishment recommendation of twelve years of confinement in the penitentiary.  In the agreement, Walters waived a number of rights, including her right to appeal and her time to file a motion for new trial.  Later the same day, Walters entered a plea of guilty.  The trial court accepted Walters's plea, and in accordance with the plea-bargain agreement, found Walters guilty of the lesser-included offense of second-degree felony theft and sentenced Walters to twelve years of confinement.

On August 6, 2014, Walters filed a verified motion for new trial alleging she received ineffective assistance of counsel.  In her motion, Walters argued that her trial counsel was ineffective for not filing a motion to quash the State's indictment, which charged her with a single offense of theft of over $200,000 instead of charging her with felony aggregate theft of over $200,000.  Compare Act of May 29, 2011, 82d Leg., R.S., ch. 1234, § 21, 2011 Tex. Sess. Law Serv. 3301, 3310 (West) (amended 2015), with Tex. Penal Code Ann. § 31.09 (West 2011).  According to Walters's motion for new trial, there is no evidence in the State's file to support a single occurrence of theft of over $200,000 on June 1, 2011, and she was not punished for a single occurrence of theft but was punished under a “multiple occurrence and aggregate framework[.]”  We note Walters does not claim that there is no evidence to prove a continuing scheme or course of conduct.  Walters also argued that trial counsel was ineffective for advising her to plead guilty to the lesser-included offense when there was no evidence to support the allegations in the indictment.  In support of this claim, Walters alleged that her trial counsel never reviewed the indictment or the evidence supporting the indictment with her before she entered her guilty plea.  From these circumstances, Walters concluded she did not knowingly and intelligently enter a plea of guilty with an understanding of the consequences of her plea.

Initially, the trial court determined that Walters was entitled to a hearing on her motion for new trial.  The trial court held a hearing on September 15, 2014.  Before the hearing commenced, the State objected to the trial court holding a hearing on Walters's motion because, according to the State, Walters had waived her right to file a motion for new trial as a condition of her plea agreement.  The trial court sustained the State's objection, but allowed Walters to supplement the record with affidavits to support her motion and granted Walters the right to file a direct appeal of the trial court's decision.

Walters supplemented the record with three affidavits, including the affidavit of her trial counsel, the affidavit of the lead law-enforcement investigator in the case, and Walters's own affidavit.  Walters's trial counsel denied the allegations of deficient performance.  However, she testified by affidavit that “the evidence associated with this case alleged many thefts over many years which amounted to embezzlement and not a single act of theft, as alleged in the Indictment.”  She further testified that she believed she should have filed a motion to quash the indictment.  The lead investigator for law enforcement testified by affidavit that his investigation uncovered evidence of “an embezzlement over a period of time of approximately five years” and not a single theft of $200,000 on June 1, 2011.  In her own affidavit, Walters testified that her trial counsel's failure to file a motion to quash the indictment “amounted to ineffectiveness.”  She further testified that she “should not have plead (sic) to this case[,]” and that she pled because she “was scared and [her] attorney told [her] if [she] didn't [she] would go to prison for 20 years or even life.”

II. Motion for New Trial

In Walters's sole issue on appeal, she contends the trial court abused its discretion in denying her a hearing on her motion for new trial.  The State argues that the trial court did not err in denying Walters a hearing on her motion for new trial and, even if it was error, it was harmless error.

A hearing on a motion for new trial has two purposes:  (1) to determine whether the case should be retried, and (2) to complete the record for presenting issues on appeal.  Smith v. State, 286 S.W.3d 333, 338 (Tex.Crim.App.2009).  A defendant's right to a hearing is not absolute, i.e. a trial court is not required to hold a hearing when the matters raised in the motion are subject to being determined from the record.  Id. A trial court abuses its discretion in failing to hold a hearing if the motion and accompanying affidavits raise matters not determinable from the record and establish reasonable grounds showing that the defendant could possibly be entitled to relief.  Id. at 338–39.  As a prerequisite to a hearing on a motion for new trial based on matters not already in the record, the motion must be supported by affidavit testimony that specifically sets out the factual basis for the claim.  Id. at 339.  “[A]ffidavits that are conclusory in nature and unsupported by facts do not provide the requisite notice of the basis for the relief claimed;  thus, no hearing is required.”  Id. The motion and affidavits need not present a prima facie case for a new trial, but the movant “must at least allege facts that show reasonable grounds to believe that [she] could prevail under both prongs of the test for ineffective assistance of counsel under Strickland.”  Id. at 338;  see also Wallace v. State, 106 S.W.3d 103, 108 (Tex.Crim.App.2003).

We review a trial court's denial of a hearing on a motion for new trial for an abuse of discretion.  Smith, 286 S.W.3d at 339;  Wallace, 106 S.W.3d at 108.  If a defendant raises grounds that are both undeterminable from the record and reasonably could entitle the defendant to relief, the trial court has no discretion to withhold a hearing and abuses its discretion in failing to hold a hearing.  Smith, 286 S.W.3d at 340.  As indicated above, Walters raised two grounds for relief in her motion for new trial.  We address each ground below to determine whether Walters's motion and affidavits established reasonable grounds to prove that she could possibly be entitled to relief.

III. Ineffective Assistance of Counsel

An accused is entitled to effective assistance of counsel during the plea bargaining process.  See Hill v. Lockhart, 474 U.S. 52, 56–58 (1985).  In the context of guilty pleas, we apply the two-part Strickland test in evaluating ineffective assistance of counsel claims.  Id. at 58;  see generally Strickland v. Washington, 466 U.S. 668 (1984).  To satisfy the first part of the Strickland test, a defendant must show that counsel's representation fell below an objective standard of reasonableness.  Strickland, 466 U.S. at 687–88.  The second part of the Strickland test requires a defendant to show that there is a reasonable probability that the outcome of her case would have been different but for counsel's errors.  Id. at 694.  In order to satisfy the prejudice prong of Strickland in the context of a guilty plea, the defendant must show that counsel's deficient performance affected the outcome of the plea process—that is, “the defendant must show that there is a reasonable probability that, but for counsel's errors, [she] would not have pleaded guilty and would have insisted on going to trial.”  Hill, 474 U.S. at 59.

A. Motion to Quash

Walters's motion alleged that her trial counsel rendered ineffective assistance by failing to file a motion to quash her indictment.  Walters argued that a motion to quash was appropriate because the State indicted her for a single occurrence of theft on June 1, 2011, which was not supported by the State's evidence.

Theft and aggregate theft are different offenses.  Graves v. State, 795 S.W.2d 185, 187 (Tex.Crim.App.1990).  If the State chooses to indict a defendant based on section 31.09, it must include language alleging that the thefts occurred pursuant to one scheme or a continuing course of conduct to that effect.  See Tex. Penal Code Ann. § 31.09. See also Thomason v. State, 892 S.W.2d 8, 11 (Tex.Crim.App.1994);  Dickens v. State, 981 S.W.2d 186, 188 (Tex.Crim.App.1998);  Graves, 795 S.W.2d at 187.  This language is considered an element of the offense.  Whitehead v. State, 745 S.W.2d 374, 376–77 (Tex.Crim.App.1988);  see also Thomason, 892 S.W.2d at 10–11.

Here, the State charged Walters with first-degree felony theft.  Walters did not argue in her motion for new trial or on appeal that the charging instrument with which she was charged was invalid on its face.  Rather, her only argument is that the State had no evidence to support the charge of a single occurrence of theft on June 1, 2011.  However, a pretrial motion to quash “cannot be used to argue that the prosecution could not prove one of the elements of the crime [,]” and should not lead to “a mini-trial on the sufficiency of the evidence to support an element of the offense.”  Lawrence v. State, 240 S.W.3d 912, 916 (Tex.Crim.App.2007) (internal quotation omitted);  see also State v. Rosenbaum, 910 S.W.2d 934, 947–48 (Tex.Crim.App.1994) (dissenting op. adopted on reh'g).  “A charging instrument returned by a legally constituted grand jury and valid on its face is sufficient to mandate trial of the charge on its merits.”  Rosenbaum, 910 S.W.2d at 947.  Generally, an indictment that tracks the language of a statute will satisfy constitutional and statutory requirements.  Smith v. State, 309 S.W.3d 10, 14 (Tex.Crim.App.2010) (quoting State v. Mays, 967 S.W.2d 404, 406 (Tex.Crim.App.1998)).We conclude that Walters's indictment tracks the language of section 31.03 of the Texas Penal Code and alleges all of the elements required by the statute.  See Act of May 29, 2011, 82d Leg., R.S., ch. 1234, § 21, 2011 Tex. Sess. Law Serv. 3301, 3310 (West) (amended 2015).  Therefore, the indictment was facially valid and the trial court had jurisdiction over Walters's case.  See Mays, 967 S.W.2d at 406.  Because Walters's only basis for challenging counsel's decision not to file a motion to quash was the sufficiency of the evidence to support the indictment, the trial court could have reasonably determined from Walters's motion and attached affidavits that she was not entitled to relief on this ground.  See Smith, 286 S.W.3d at 340.

B. Voluntariness of Guilty Plea

Walters also argued that the trial court should have granted her motion for new trial because her plea was “not a knowing and intelligent plea[.]”  She contends that her trial counsel rendered ineffective assistance of counsel when trial counsel did not review the indictment and the evidence supporting the indictment with Walters before her plea and when counsel advised Walters to enter a guilty plea to an indictment unsupported by the evidence.

A guilty plea must be freely, knowingly, and voluntarily entered.  Tex.Code Crim. Proc. Ann. art. 26.13(b) (West Supp.2015).  For a defendant to demonstrate that her plea was involuntary due to ineffective assistance of counsel, she must prove that counsel's advice was outside the range of competency demanded of attorneys in criminal cases and that there is a reasonable probability that but for her counsel's erroneous advice, she would not have pleaded guilty and would have insisted on going to trial.  Ex parte Moody, 991 S.W.2d 856, 857–58 (Tex.Crim.App.1999).  A plea of guilty based on erroneous information conveyed to the defendant by her trial counsel renders the plea involuntary.  Courtney v. State, 39 S.W.3d 732, 735 (Tex.App.—Beaumont 2001, no pet.) (quoting Fimberg v. State, 922 S.W.2d 205, 207 (Tex.App.—Houston [1st Dist.] 1996, pet. ref'd)).

Walters complained that her trial counsel did not review the indictment or the evidence with her before she entered the plea.  She further complained that her trial counsel misled her into a guilty plea to a charge that was unsupported by evidence.  Walters did not contend that the trial court's admonitions concerning the possible sentencing range were inadequate, and we find the trial court properly admonished Walters concerning the range of punishment.  See Tex.Code Crim. Proc. Ann. art. 26.13.  After placing Walters under oath, the trial court determined that Walters had no mental illness and that she was satisfied with her trial counsel's services.  Walters testified that she was pleading guilty to the offense in the indictment freely and voluntarily.  The trial court questioned Walters about the guilty plea memorandum, and Walters responded that she had adequate time to review the memorandum and understood the rights she was waiving by signing the document.  The memorandum also properly admonished Walters regarding her guilty plea.  In the memorandum, Walters acknowledged that her guilty plea and all statements were made “knowingly, freely, and voluntarily ․ with full understanding of the consequences.”  In her affidavit, Walters made a conclusory statement that her “plea was not voluntary or intelligently given.”  In response to Walters's motion for new trial, Walters's trial counsel denied that her representation of Walters was either unprofessional or ineffective.

A record indicating that the trial court properly admonished the defendant about a guilty plea presents a prima facie showing that the guilty plea was made voluntarily and knowingly.  See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App.1998);  Ex parte Klem, 269 S.W.3d 711, 719 (Tex.App.—Beaumont 2008, pet. ref'd).  An accused who has attested that she understood the nature of her plea and that it was voluntary has a heavy burden on appeal to show that her plea was involuntary.  Klem, 269 S.W.3d at 719.

Even assuming Walters had shown that counsel's advice to her to plead guilty to the indictment was outside the range of competency demanded of attorneys in criminal cases, Walters did not show she was entitled to relief on this ground because she failed to demonstrate to the trial court that she would have pleaded “not guilty” but for trial counsel's advice and that the decision to do so would have been rational under the circumstances.  See Padilla v. Kentucky, 559 U.S. 356, 372 (2010);  Johnson v. State, 169 S.W.3d 223, 231 (Tex.Crim.App.2005).  The determination of whether it would have been rational for a defendant to plead not guilty is an objective test that “ ‘turns on what a reasonable person in the defendant's shoes would do.’ ”  Ex parte Fassi, 388 S.W.3d 881, 887 (Tex.App.—Houston [14th Dist.] 2012, no pet.) (quoting United States v. Smith, 844 F.2d 203, 209 (5th Cir.1988) (per curiam)).  We consider the totality of the circumstances surrounding the plea and the gravity of the alleged failure material to that determination.  See Moody, 991 S.W.2d at 858;  Ducker v. State, 45 S.W.3d 791, 796 (Tex.App.—Dallas 2001, no pet.).  If the prejudice prong is dispositive, as it is here, then we will only address that prong of the Strickland test on appeal.  See Fassi, 388 S.W.3d at 887.

Walters did not allege in her motion or state in her affidavit that had trial counsel informed her about the alleged deficiency in the evidence supporting the indictment, she would have pleaded “not guilty” and insisted on going to trial.  Rather, in her affidavit, Walters only states, “I should not have [pled] to this case.  I [pled] because I was scared and my attorney told me if I didn't[,] I would go to prison for 20 years or even life.”  Walters never affirmatively or definitively stated that she would have rejected the plea bargain and would have insisted on going to trial if she had known about the alleged deficiency in the evidence supporting the State's indictment.

Moreover, had Walters rejected the plea offer, the State was free to amend or seek another indictment.  See Gumpert v. State, 48 S.W.3d 450, 456 (Tex.Crim.App.2001).  Walters contends there is no evidence to support the charge of theft in the indictment;  however, she does not make the same contention regarding the evidence of aggregate theft.  Walters did not raise any other defenses to theft or aggregate theft in her motion or affidavit or otherwise explain why it would have been rational for her to reject the State's plea offer under the circumstances of her case.  The record reflects that Walters received a plea deal of twelve years of imprisonment.  Had Walters insisted on going to trial on the first-degree offense, she could have been faced with a potentially much harsher criminal penalty had she been found guilty.  See Tex. Penal Code Ann. § 12.32 (West 2011) (providing that the range of punishment for a first-degree felony is five to ninety-nine years or life in prison and a fine of up to $10,000).  Aside from Walters's self-serving statement that she should not have pled guilty, she has presented no other evidence corroborating her position or that it would have been rational for her to reject the plea offer.  Based on the motion and affidavits, the trial court could have determined that Walters failed to show reasonable grounds that she could possibly be entitled to relief on this basis.

For all these reasons, we conclude Walters did not present facts sufficient to demonstrate that reasonable grounds existed to believe she could prove a claim of ineffective assistance of counsel or a claim that her plea was involuntary at an evidentiary hearing.  We conclude the trial court did not abuse its discretion in failing to hold a hearing on Walters's motion for new trial.  We overrule Walters's sole issue and affirm the judgment of the trial court.

AFFIRMED.

CHARLES KREGER, Justice