                                                                             ACCEPTED
                                                                         14-15-00046-CR
                                                         FOURTEENTH COURT OF APPEALS
                                                                      HOUSTON, TEXAS
                                                                    6/26/2015 6:38:12 PM
                                                                   CHRISTOPHER PRINE
                                                                                  CLERK

                NO. 14-15-00046-CR

          IN THE COURT OF APPEALS             FILED IN
    FOR THE FOURTEENTH DISTRICT OF TEXAS14thHOUSTON,
                                             COURT OF APPEALS
                                                      TEXAS
                                                 6/26/2015 6:38:12 PM
                                                 CHRISTOPHER A. PRINE
              ALFRED DEAN JOHNSON                         Clerk
                    Appellant

                          v.

                THE STATE OF TEXAS
                       Appellee


      On Appeal from Cause Number 1409436
 From the 182nd District Court of Harris County, Texas



               BRIEF FOR APPELLANT




                               TONYA ROLLAND MCLAUGHLIN
                               TBN 24054176
                               4301 Yoakum Boulevard
                               Houston, Texas 77006
                               Phone: (713) 529-8500
                               Fax: (713) 456-2203

                               Counsel for Appellant




ORAL ARGUMENT RESPECTFULLY REQUESTED
               IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                            Alfred Dean Johnson
                                      TDC# 01976527
                                      Garza East Unit
                                      4304 Highway 202
                                      Beeville, Texas 78102

TRIAL PROSECUTORS:                    Akilah Mance
                                      Assistant District Attorney
                                      Harris County, Texas
                                      1201 Franklin Avenue, Suite 600
                                      Houston, Texas 77002

DEFENSE COUNSEL AT HEARING:           Joe Salinas, III
                                      12 Greenway Plaza
                                      Suite 1100, PMB 121
                                      Houston, Texas 77046

COUNSEL ON APPEAL FOR APPELLANT:      Tonya Rolland McLaughlin
                                      4301 Yoakum Boulevard
                                      Houston, Texas 77006


PRESIDING JUDGE:                      Hon. Jeannine Barr
                                      182nd District Court
                                      Harris County, Texas
                                      1201 Franklin Avenue, 18th floor
                                      Houston, Texas 77002




                              2
                                                   TABLE OF CONTENTS



IDENTITY OF PARTIES AND COUNSEL .................................................................. 2

TABLE OF CONTENTS .................................................................................................... 3

INDEX OF AUTHORITIES .............................................................................................. 4

STATEMENT OF THE CASE .......................................................................................... 5

STATEMENT REGARDING ORAL ARGUMENT .................................................... 6

ISSUE PRESENTED ........................................................................................................... 7

STATEMENT OF FACTS .................................................................................................. 7

SUMMARY OF THE ARGUMENT ................................................................................. 9

ARGUMENT ......................................................................................................................... 9
          BACKGROUND............................................................................................................ 9

          ISSUE ONE: THE TRIAL COURT VIOLATED APPELLANT’S FIFTH AMENDMENT
          RIGHT TO DUE PROCESS RENDERING HIS PLEA INVOLUNTARY BY FAILING TO
          ADMONISH HIM OF THE PUNISHMENT RANGE . .................................................. 11

          ISSUE TWO: THE TRIAL COURT VIOLATED APPELLANT’S STATUTORY RIGHT
          TO VOLUNTARILY ENTER A KNOWING AND INTELLIGENT PLEA BY FAILING
          TO ADMONISH HIM OF THE PUNISHMENT RANGE. ............................................ 12

PRAYER ............................................................................................................................... 14

CERTIFICATE OF SERVICE ......................................................................................... 14

CERTIFICATE OF COMPLIANCE .............................................................................. 15




                                                                     3
                                              INDEX OF AUTHORITIES
Cases

Anderson v. State, 182 S.W.3d 914 (Tex. Crim. App. 2006) ..................................................... 12

Bessey v. State, 239 S.W.3d 809 (Tex. Crim. App. 2007) .......................................................... 13

Boykin v. Alabama, 395 U.S. 238, (1969)... ............................................................................... 11

Brady v. United States, 397 U.S. 742 (1970) ............................................................................... 11

Burnett v. State, 88 S.W.3d 633 (Tex. Crim. App. 2002) .................................................... 12, 13

Walker v. State, 524 S.W.2d 712 (Tex. Crim. App. 1975).. ...................................................... 13



Constitutional Provisions, Statutes and Rules

U.S. Const. amend V .............................................................................................................. 11

U.S. CONST. AMEND XIV ...................................................................................................... 11

Tex. Penal Code § 29.03(a)(2). .................................................................................................. 5

Tex. Code Crim. Proc. Ann. Art. 26.13(a)(1). ........................................................................ 12

Tex. Code Crim. Proc. Ann. Art. 26.13(b). ............................................................................ 12

Tex. Code Crim. Proc. Ann. Art. 26.13(c). ............................................................................. 12

Tex. R. App. P. Rule 38.1(e). .................................................................................................... 6

Tex. R. App. P. Rule 44.2(a). .................................................................................................. 12

Tex. R. App. P. Rule 44.2(b) ................................................................................................... 13




                                                                 4
                                        STATEMENT OF THE CASE

         Appellant was charged in cause number 1409436 with aggravated robbery with

a deadly weapon alleged to have occurred on or about November 21, 2013. See Tex.

Penal Code § 29.03(a)(2). (CR at 6).1 Appellant entered a plea of guilty without agreed

recommendation on August 15, 2014 and was set for a presentence investigation

hearing. (CR at 88). On January 5, 2015, the trial court presided over the hearing and

sentenced Appellant to thirty (30) years in the Texas Department of Corrections –

Institutional Division with a Deadly Weapon finding. (CR at 105). Appellant filed

timely notice of appeal on January 5, 2015. (CR at 108).




1”CR” refers to the Clerk’s Record. “Supp. CR” refers to the Supplemental Clerk’s Record. “RR” refers to the
Reporter’s Record.

                                                          5
                   STATEMENT REGARDING ORAL ARGUMENT

      Oral argument should be permitted because this appeal is not frivolous and the

facts and legal arguments are adequately presented. TEX. R. APP. PROC. 38.1(e).

Appellant requests oral argument because the Court of Appeal’s decision, whether the

trial court failed to admonish Appellant of the punishment range and if it is an error

of constitutional or statutory magnitude, would be significantly aided by oral

argument.




                                          6
                                  ISSUES PRESENTED

      ISSUE ONE:        THE TRIAL COURT
                                    VIOLATED APPELLANT’S FIFTH
      AMENDMENT RIGHT TO DUE PROCESS RENDERING HIS PLEA
      INVOLUNTARY BY FAILING TO ADMONISH HIM OF THE PUNISHMENT
      RANGE.

      ISSUE TWO: THE TRIAL COURT    VIOLATED APPELLANT’S STATUTORY
      RIGHT TO VOLUNTARILY ENTER A KNOWING AND INTELLIGENT PLEA BY
      FAILING TO ADMONISH HIM OF THE PUNISHMENT RANGE.

                                STATEMENT OF FACTS

      The weeks leading up to Appellant’s arrest for aggravated robbery were filled

with personal tragedy. Appellant’s mother passed away and was buried November 9,

2013. (Supp. CR at 22; CR at 98). On November 11, 2013, Appellant’s employer

relieved him of duties on November 11, 2013, which exacerbated the fact that

Appellant would be incarcerated the following month if he did not pay $27,000.00 in

back child support. (Supp. CR at 22; CR at 98). Child Protective Services informed

Appellant on November 14, 2014 his stepson was being taken into custody due to

mother, Tamekia Victor’s, drug addiction. (Supp. CR at 22). Furthermore, Ms. Victor

notified Appellant she has AIDS and on November 21, 2013 a test revealed Appellant

is HIV positive. (Supp. CR at 22; CR at 99). This course of events led Appellant to

want to die because he felt there was nothing left to live for. (CR at 99).

      On November 21, 2013, a suicidal Appellant, took Vicodin and Seroquil and

smoked Marijuana laced with PCP. (Supp. CR at 23). Appellant then armed with an

unloaded handgun robbed the Cash America Pawn. (Supp. CR at 23). Afterward,

                                            7
Appellant stole a pawn shop employee’s truck to flee from police and crashed into a

tree before ultimately being arrested. (Supp. CR at 23).

        On August 15, 2014, Appellant accepted responsibility and entered a guilty plea

to aggravated robbery without an agreed recommendation and set his case for a

presentence investigation hearing. (CR at 88). Appellant submitted a packet to the trial

court containing letters in lieu of testimony, accomplishments, mitigating evidence,

medical records and photographs. (Supp. CR at 19-76). The packet contains a one

page letter to the trial court from the Appellant that appears to be missing pages.

(Supp. CR at 24). A very similar letter from the Appellant to the trial court containing

three pages was filed on November 21, 2014. (CR at 98-100). In the letter filed in

November, Appellant states he “plead guilty freely and voluntarily to the offense and

understands the full range of punishment.” (CR at 98). Appellant describes his

understanding of the punishment range to be the trial court “can sentence me to any

amount of prison time, from dropping it to a lesser charge for time served or any

amount of prison time.” (CR at 99). However, Appellant is a true habitual offender

and the punishment range is a minimum of 25 years to life in prison. (CR at 89 and

105).




                                           8
                            SUMMARY OF THE ARGUMENT

       Appellant complains that the trial court did not admonish him of the

punishment range in his case rendering his plea involuntary and unknowing because

his decision was based on a false understanding of his minimum punishment available.

In the first issue, Appellant complains the trial court’s failure to admonish of the

punishment range is constitutional error. In the second issue, Appellant contends the

trial court’s failure to admonish of the punishment range is statutory error.

                                      ARGUMENT

BACKGROUND

       Appellant entered a guilty plea without an agreed recommendation to

aggravated robbery and set his case for a pre-investigation sentencing hearing before

the trial court. (CR at 88). Appellant signed the trial court’s preprinted admonishment

and waiver forms. (CR at 87-92). The record then falls silent as to whether the trial

court advised Appellant of the punishment range applicable at the sentencing hearing

or whether Appellant understood the forms he signed. Appellant is a habitual

offender making his punishment range a minimum of 25 years to life in prison due to

the fact, prior to the present aggravated robbery charge, he had been convicted of two

prior felonies one in 1986 and the other in 1993. See Tex. Pen. Code § 12.42(d). (CR at

87).

       There is no reporter’s record of the plea and there are no docket sheet entries

in the clerk’s record verifying the trial court admonished Appellant of the punishment
                                            9
range. However, there is a letter filed on November 21, 2014, from Appellant to the

trial court outlining his understanding of the punishment range. (CR at 98-100). The

letter is filed with the trial court the same day as his original sentencing hearing

setting. (CR at 96). Appellant states “Your Honor I know you can sentence me to

any amount of prison, from dropping it to a lesser charge for time served or any

amount of prison time.” (CR at 99). Due to the mitigating circumstances leading up

to his offense and his false understanding of the punishment range, Appellant

believed by pleading guilty the trial court could consider releasing him from jail on

time served. (CR at 98-100).

      It is clear from Appellant’s letter to the trial court that he entered into his plea

without full knowledge that the minimum prison time the trial court could sentence

him to was 25 years. (CR at 98-100). The letter reveals he lacked a basic understanding

of the consequences of his plea and believed he was at a minimum eligible for a lesser

charge that could result in time served. (CR at 98-100). The trial court had an

opportunity to clarify the punishment range at Appellant’s January 5, 2015, sentencing

hearing and did not. (RR at 4).




                                           10
   ISSUE ONE: THE TRIAL COURT VIOLATED APPELLANT’S FIFTH
   AMENDMENT RIGHT TO DUE PROCESS RENDERING HIS PLEA
   INVOLUNTARY BY FAILING TO ADMONISH HIM OF THE PUNISHMENT
   RANGE.

   The trial court’s failure to admonish Appellant of the range of punishment caused

his plea to be obtained in violation of the Due Process Clause of the Fifth

Amendment made applicable to the States through the Fourteenth Amendment. U.S.

Const. amend. V, XIV. To be consistent with due process, a guilty plea must be

entered knowingly, intelligently, and voluntarily. Brady v. United States, 397 U.S. 742,

748 (1970). All relevant circumstances surrounding Appellant’s plea must be

considered to determine voluntariness. Id. at 749.

   In Boykin v. Alabama, the United States Supreme Court held that a violation of

constitutional due process occurs when a trial court accepts a guilty plea without an

affirmative showing “spread on the record” that the guilty plea was intelligent and

voluntary. Boykin v. Alabama, 395 U.S. 238, 243–44 (1969). Appellant’s record does not

affirmatively demonstrate that Appellant understood all of the constitutional that he

understood the consequences of his guilty plea. The only mention of the punishment

range is once on the signed admonishment. (CR at 89). There is no recording of the

plea, no docket sheet notations and the trial court does not advise of the punishment

range at the sentencing hearing. Unique to Appellant’s case, what this Court does

have to consider is the letter he filed to the trial court detailing his understanding of

the punishment range. (CR at 99). The letter expresses Appellant’s false

                                            11
understanding that the trial court could sentence him to less than 25 years in prison

resulting in time served if she so chose. (CR at 99).

   The trial court’s failure to admonish Appellant of the punishment range resulted in

constitutional error requiring reversal because it contributed to Appellant’s

punishment of thirty (30) years and was not harmless beyond a reasonable doubt.

Tex. R. App. P. Rule 44.2(a). (CR at 105). Appellant’s plea was involuntary,

unknowing and unintelligent.


   ISSUE TWO: THE TRIAL   COURT VIOLATED APPELLANT’S STATUTORY
   RIGHT TO VOLUNTARILY   ENTER A KNOWING AND INTELLIGENT PLEA
   BY FAILING TO ADMONISH HIM OF THE PUNISHMENT RANGE.



      Texas statutes require courts to do more than is required to meet the minimum

standards of due process when a defendant pleads guilty in a felony case. Anderson v.

State, 182 S.W.3d 914, 918 (Tex. Crim. App. 2006). Not only must Appellant’s guilty

plea be entered into voluntarily and freely, but the trial court is required to admonish

the defendant of the direct consequences of his plea including the range of

punishment. Tex. Code Crim. Proc. Ann. Art. 26.13(a)(1) and (b). Substantial

compliance by the trial court in admonishing Appellant is sufficient unless he

affirmatively shows he was not aware of the consequences of his plea and was misled

or harmed. Tex. Code Crim. Proc. Ann. Art. 26.13(c).       If the trial court does not

admonish the Appellant, it does not substantially comply with Article 26.13 and error

occurs. Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002).
                                            12
Complaints about non-compliance with Article 26.13 may be raised for the first time

on appeal. Bessey v. State, 239 S.W.3d 809, 812 (Tex. Crim. App. 2007).

       Appellant was not aware of the consequences of his plea, specifically the

punishment minimum of twenty five (25) years. The only mention of the punishment

range in the entire record is on the preprinted admonishments signed by Appellant

and the record does not reflect an affirmative understanding of the forms or that they

were entered into voluntarily. (CR at 89-90). In fact, the Appellant’s letter to the trial

court suggests just the opposite. (CR at 98-100). A reversal is warranted on direct

appeal when the record supports an inference that Appellant did not know the

consequences of his plea. Burnett, 88 S.W.3d at 638.

   The trial court’s failure to admonish Appellant of his punishment range violated

Texas statute and there is no assurance that Appellant would not have changed his

decision to plead guilty had the trial court properly admonished him of the

punishment range. When the trial court fails to admonish the Appellant of the

punishment range, it is complete disregard for Tex. Code Crim. Proc. Ann. Art. 26.13

and the conviction must be reversed. Walker v. State, 524 S.W.2d 712 (Tex. Crim.

App. 1975). The result in this case is statutory error that substantially harmed

Appellant. Tex. R. App. Proc. 44.2(b).




                                            13
                                       PRAYER

      Appellant asks this Court to reverse and remand this case to the trial court.

TEX. R. APP. PROC. 44.2.



                                               Respectfully submitted,




                                               _s/Tonya Rolland McLaughlin
                                               Tonya Rolland McLaughlin
                                               4301 Yoakum Boulevard
                                               Houston Texas 77006
                                               Phone: (713) 529-8500
                                               Fax: (713) 453-2203
                                               TBN 24054176


                              CERTIFICATE OF SERVICE

       This is to certify that a copy of the foregoing instrument has been delivered via
email to the following:

      Alan Curry
      Chief Prosecutor, Appellate Division
      Harris County District Attorney’s Office
      1201 Franklin Suite 600
      Houston, Texas 77002-1923

                                               _s/Tonya Rolland McLaughlin
                                               Tonya Rolland McLaughlin




                                          14
                         CERTIFICATE OF COMPLIANCE

       I certify that this computer-generated document has a word count of 2, 380
words, based upon the representation provided by the word processing program used
to create the document.


                                            _s/Tonya Rolland McLaughlin
                                            Tonya Rolland McLaughlin




                                       15
