                                                                  PD-1631-14 & PD-1632-14
                                                              COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                             Transmitted 3/4/2015 2:55:50 PM
                                                               Accepted 3/6/2015 2:16:17 PM
                                                                                ABEL ACOSTA
                    Nos. PD-1631-14 & PD-1632-14                                        CLERK

                               IN THE

              Court of Criminal Appeals
                       At Austin
                            __________

                    JIMMIE JOHNSON,
                            Appellant
                                  v.

             THE STATE OF TEXAS
                            Appellee
                            _________
                Cause numbers 1346765 & 1366083
                 In the 338th Judicial District Court
                      Of Harris County, Texas

          Cause numbers 01-13-01056-CR & 01-13-01057-CR
        In the Court of Appeals for the First Judicial District
                            _________

Appellant’s Petition for Discretionary Review
                             __________

                                        KELLY ANN SMITH
                                        Texas Bar No. 00797867
                                        Kelly.A.Smith.06@gmail.com
                                        P.O. Box 10751
    March 6, 2015
                                        Houston, TX 77206
                                        281-734-0668

                                        Counsel for Appellant
                             Ground For Review


             The Court of Appeals erred by holding the trial court
             did not abuse its discretion by failing to allow the
             appellant to withdraw his guilty plea because the
             Appellant’s guilty plea was not a knowing, intelligent
             act done with sufficient awareness of the relevant
             circumstances and likely consequences.



                 Statement Regarding Oral Argument

Because this case involves important issues regarding this state's jurisprudence, the

appellant submits that oral argument would benefit this Court and pursuant to TEX.

R. APP. P. 68.4 (c), requests the opportunity to present oral argument.




                                               i
                          Nos. PD-1631-14 & PD-1632-14

                                      IN THE

                     Court of Criminal Appeals
                              At Austin
                                   __________

                        JIMMIE JOHNSON,
                                   Appellant
                                         v.

                    THE STATE OF TEXAS
                                   Appellee
                                   _________
                       Cause numbers 1346765 & 1366083
                        In the 338th Judicial District Court
                             Of Harris County, Texas

                 Cause numbers 01-13-01056-CR & 01-13-01057-CR
               In the Court of Appeals for the First Judicial District
                                   _________

  Appellant’s Petition for Discretionary Review
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

      The appellant, by and through undersigned counsel, files this Petition for

Discretionary Review and urges this Court to grant discretionary review in this case

and in support demonstrates the following.




                                              ii
                      IDENTITY OF PARTIES AND COUNSEL


The Appellant has provided a complete list of all interested parties’ names below,

under TEX. R. APP. P. 68.4.

       The appellant or convicted person:
               Jimmie Johnson            Appellant
                                          TDCJ # 01898717
                                          Connally Unit
                                          899 FM 632,
                                          Kenedy, TX 78119

       Counsel for the appellant:
            Kelly Ann Smith              Counsel on appeal
                                          PO Box 10751
                                          Houston, Texas 77206
                                          Phone: (281) 734-0668

               Jerome Godinich, Jr.              Counsel at trial
                                                  929 Preston St., Ste. 200
                                                  Houston, TX. 77002
                                                  Phone: (713) 237-8388

Counsel for the State:
               Devon Anderson            District Attorney of Harris County
                                          Harris County Criminal Justice Center
               David Overhul             Assistant District Attorney in the convicting court
               John Jordan                Harris County Criminal Justice Center
                                          1201 Franklin, Suite 600
                                          Houston, Texas 77002
                                          Telephone: 713•755•5800

Trial Judge:
               Hon. Brock Thomas Presiding Judge of the 338th District Court




                                                 iii
                                               Table of Contents
                                                                                                                        Page

GROUND FOR REVIEW................................................................................................. I
STATEMENT REGARDING ORAL ARGUMENT ............................................................... I
IDENTITY OF PARTIES AND COUNSEL ....................................................................... III
INDEX OF AUTHORITIES.............................................................................................. V
STATEMENT OF THE CASE ...........................................................................................2
STATEMENT OF THE PROCEDURAL HISTORY ...............................................................2
GROUND FOR REVIEW .................................................................................................3
REASONS FOR REVIEW ................................................................................................3
PRAYER .......................................................................................................................6
CERTIFICATE OF COMPLIANCE & SERVICE ..................................................................7




                                                                   iv
                                           INDEX OF AUTHORITIES

Cases
Brady v. United States, 397 U.S. 742 (1970) ...................................................................... 5
DeVary v. State,
  615 S.W.2d 739 (Tex. Crim. App. 1981) ........................................................................ 4
DuBose v. State,
  915 S.W.2d 493 (Tex. Crim. App. 1996) ........................................................................ 4
Fairfield v. State,
  610 S.W.2d 771 (Tex. Crim. App. 1981) ........................................................................ 4
Jackson v. State,
   590 S.W.2d 514 (Tex. Crim. App. 1979) ....................................................................... 4
McWherter v. State,
 571 S.W.2d 312 (Tex. Crim. App. 1978) ....................................................................... 4
Montgomery v. State,
 810 S.W.2d 372 (Tex. Crim. App. 1990)
 (op. on reh’g) ................................................................................................................... 4
See Turner v. State,
   No. AP-76580, — S.W.3d —, 2013 WL
  5808250, at *11 (Tex. Crim. App. Oct. 30, 2013) .......................................................... 5
Solis v. State,
   945 S.W.2d 300 (Tex. App.—Houston
  [1st Dist.] 1997, pet. ref'd) .............................................................................................. 5

Statutes
TEX. CODE CRIM. PROC. art. 26.13 ...................................................................................... 5

Rules
TEX. R. APP. P. 68.4.............................................................................................................. i




                                                                      v
TO THE HONORABLE COURT OF APPEALS:

                             STATEMENT OF THE CASE

       The State accused the appellant of aggravated robbery in cause number 1366083

and burglary of a habitation in cause number 1346765. (CR1366083 10; CR1346765 11). The

appellant pled guilty to the indictments’ allegations, waived his right to a jury trial, and

the case on punishment was tried before the Honorable Brock Thomas, presiding judge of

the 338th District Court in Harris County, Texas (CR1366083 114, 124-29; CR1346765 11,

88, 98-103; RR Vol. III at 12-20). The judge found the appellant guilty: of aggravated

robbery then assessed his punishment at forty-five years in cause number 1366083; and

of burglary of a habitation then assessed his punishment at twenty years in prison in

cause number 1346765 (CR1366083 133-4; RR Vol. III at 56). The appellant filed a notice

of appeal, and the trial court certified the appellant’s right to appeal (CR1366083 130, 136).



                 STATEMENT OF THE PROCEDURAL HISTORY

       The First Court of Appeals affirmed the appellant’s conviction in Jimmie Johnson

v. The State of Texas, Nos. 01-13-01056-CR & 01-13-01057-CR, (Tex. App.—Houston

[1st Dist.] October 30, 2014). Neither party filed a motion for rehearing.




                                                  2
                              GROUND FOR REVIEW

             The Court of Appeals erred by holding the trial court
             did not abuse its discretion by failing to allow the
             appellant to withdraw his guilty plea because the
             Appellant’s guilty plea was not a knowing, intelligent
             act done with sufficient awareness of the relevant
             circumstances and likely consequences.

                             REASONS FOR REVIEW


      The Appellant waived his right to a jury trial and pled guilty to aggravated

robbery and burglary of a habitation (CR1366083 114, 124-29; CR1346765 11, 88, 98-103;

RR Vol. III at 12-20). The trial court heard evidence from the State and the Appellant

(RR Vol. III at 24-51). Lashad Jackson testified that the Appellant robbed him at

gunpoint (RR Vol. III at 24-30). James Bevan testified that the Appellant stole a

bicycle from his attached garage (RR Vol. III at 38-42). The Appellant testified that

he did not intentionally fire a gun while robbing Jackson (RR Vol. III at 44, 47-8).

The trial court then heard argument from both sides and assessed the Appellant’s

punishment at forty-five years in prison for the Aggravated robbery and twenty years

for the burglary (RR Vol. III at 55-6).

      A few days after the trial court sentenced him, the appellant requested

permission to withdraw his guilty plea (CR1346765 113-14; CR1366083 139-40). The

Appellant requested to withdraw his guilty plea because he did not voluntarily plead




                                             3
guilty; he was not mentally competent; and he had developed a conflict of interest

with his attorney.

      Before judgment has been pronounced or the case has been taken under

advisement, a defendant may withdraw his guilty plea as a matter of right without

assigning reason. Fairfield v. State, 610 S.W.2d 771, 778 n. 11 (Tex. Crim. App. 1981);

Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979); McWherter v. State, 571

S.W.2d 312, 313 n.2 (Tex. Crim. App. 1978). But after the case has been taken

under advisement or judgment has been pronounced, the trial court has discretion

whether or not to allow the defendant to withdraw his plea. DeVary v. State, 615

S.W.2d 739, 740 (Tex. Crim. App. 1981). The trial court abuses its discretion when

the trial court’s ruling lies outside the “zone of reasonable disagreement.” DuBose v.

State, 915 S.W.2d 493, 496-97 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d

372, 391 (Tex. Crim. App. 1990) (op. on reh’g).

      In this case, the Appellant entered a plea of guilty, following the required

admonishments by the trial court, and the trial court accepted the appellant’s plea.

The appellant inexplicably decided to plead guilty during testimony from the state’s

first witness (RR Vol. III at 11). The trial court accepted the Appellant’s plea and

assessed his punishment.

      Thereafter, the Appellant asked to withdraw his guilty plea, in part because he

was incompetent: “he was not in his right state of mind during the trial proceedings,

trial was moving too fast . . .”. which rendered his plea involuntary (CR1366083 at 139;

                                              4
CR1346765 at 113). The court of appeals erred by finding there was no abuse of

discretion on the trial court’s part in refusing to allow the appellant to withdraw his

guilty plea.

       No plea of guilty shall be accepted by the court unless it appears the defendant

is mentally competent and the plea is free and voluntary. TEX. CODE CRIM. PROC. art.

26.13(b); cf. Brady v. United States, 397 U.S. 742 (1970). While the trial court’s

admonishments may establish a prima facie showing that the plea was knowing and

voluntary, the record demonstrates otherwise. See Solis v. State, 945 S.W.2d 300, 302

(Tex. App.—Houston [1st Dist.] 1997, pet. ref'd).

       The record shows the Appellant suffered from several mental illnesses

(CR1366083 at 117-23; CR1346765 at 90-6). When the court asked if the defense was ready

to proceed to trial, although trial counsel indicated the defense was ready, the

Appellant stated, “No we’re not ready” (RR Vol. III at 5). The Appellant said he did

not want to go to trial and requested new counsel. The trial court denied his request

(RR Vol. III at 5). The Appellant had a serious illicit drug addiction and was taking

several prescription medications (RR Vol. III at 51-3). The Appellant submits this is

evidence that the Appellant’s “mental illness operates in such a way as to prevent him

from rationally understanding the proceedings against him or engaging rationally with

counsel in the pursuit of his own best interests.” See Turner v. State, No. AP-76580, —

S.W.3d —, 2013 WL 5808250, at *11 (Tex. Crim. App. Oct. 30, 2013).



                                              5
      The record shows that the Appellant’s guilty plea was not a knowing, intelligent

act done with sufficient awareness of the relevant circumstances and likely

consequences. The trial court therefore abused its discretion in failing to permit the

Appellant to withdraw that plea and the court of appeals erred by holding otherwise.




                                     PRAYER

      The appellant respectfully urges this Honorable Court to grant the Appellant’s

Petition for Discretionary Review.


                                                 ______ /s /___________________
                                                 KELLY ANN SMITH
                                                 Texas Bar No. 00797867




                                             6
                 CERTIFICATE OF COMPLIANCE & SERVICE

      Under TEX. R. APP. P. 9.4, 9.5 & 68.11, this certifies that this document contains

2543 words and the undersigned served a copy of this petition on the State of Texas and

the State Prosecuting Attorney at the following addresses:


      Devon Anderson                            Lisa C. McMinn
      Harris County District Attorney           P.O. Box 13046
      1201 Franklin, Suite 600                  Capitol Station
      Houston, Texas 77002                      Austin, Texas 78711
                                                (512) 463-1660




                                                   ______ /s /___________________
                                                   KELLY ANN SMITH
                                                   Texas Bar No. 00797867
                                                   P.O. Box 10752
                                                   Houston, TX 77206
                                                   281-734-0668




                                               7
Opinion issued October 30, 2014.




                                    In The
                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                            NOS. 01-13-01056-CR
                                 01-13-01057-CR
                           ———————————
                       JIMMIE JOHNSON, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                  On Appeal from the 338th District Court
                           Harris County, Texas
                  Trial Court Case Nos. 1346765 & 1366083



                         MEMORANDUM OPINION

      Appellant, Jimmie Johnson, pleaded guilty to aggravated robbery and

burglary of a habitation. The court accepted appellant’s pleas, found him guilty,

and, after a punishment hearing, assessed punishment at forty-five years’

                                       2
confinement for the aggravated robbery and twenty years’ confinement for the

burglary of a habitation. After sentencing, appellant mailed motions to withdraw

his guilty pleas to the trial court. The trial court did not rule on the motions. On

appeal, Appellant contends the trial court erred by denying his motions to

withdraw his guilty pleas, arguing that they were involuntary. We affirm.

                                   BACKGROUND

      In March 2012, James Bevan discovered appellant had broken into his

garage and was stealing a bicycle. Bevan attempted to chase appellant, but was

unsuccessful. In May of that year, appellant was charged with burglary of a

habitation relating to the bicycle theft.

      Later that year, in October 2012, appellant entered a Radio Shack store and

pointed a gun at Lashad Jackson, the store manager. Appellant proceeded to duct

tape Jackson’s hands and demanded the keys to the safe. When Jackson could not

unlock the safe, appellant fired a shot in Jackson’s direction, hitting a filing cabinet

nearby. Appellant then took several cell phones and approximately $300 from the

cash register.   He was apprehended by police as he was leaving the store and

charged with aggravated robbery. The two offenses were to be tried separately.

      The aggravated robbery case was tried first.            Appellant underwent a

competency evaluation and was found competent to stand trial. For aggravated

robbery, appellant originally pleaded not guilty. However, during trial he changed

                                            3
his plea to guilty. In addition to pleading guilty to the aggravated robbery,

appellant also pleaded guilty to the burglary of a habitation case, which was an

open case at that time.

      Appellant’s attorney stated that he believed that appellant understood the

nature and consequences of his plea and was competent. The trial court found that

appellant’s pleas were freely and voluntarily given, and accepted them. For both

offenses, appellant pleaded guilty without an agreed recommendation. Appellant

also stipulated to evidence that he had prior convictions for burglary and tampering

with evidence. By stipulating to the State’s evidence, appellant agreed that all of

the evidence against him was true. On November 25, 2013, he was sentenced to 45

years’ confinement in the aggravated robbery case and 20 years’ confinement in

the burglary of a habitation case, to run concurrently.

      Ten days later, on December 5, 2013, appellant mailed motions to withdraw

his guilty pleas to the trial court, which were filed on December 11, 2013. The trial

court never ruled on the motions, thus they were overruled by operation of law.

                                   DISCUSSION

      In his sole point of error, appellant contends “[t]he trial court erred in failing

to allow the appellant to withdraw his guilty plea[s].”




                                           4
1. Motion to Withdraw Guilty Plea – presentment requirement

      Generally, a defendant may withdraw his plea any time before judgment is

pronounced or the case is taken under advisement by the court. Jackson v. State,

590 S.W.2d 514, 515 (Tex. Crim. App. [Panel Op.] 1979). When a defendant files

a motion to withdraw a guilty plea after he has been adjudged guilty, the motion

operates as a motion for new trial, and the trial court’s decision whether to allow a

defendant to withdraw his plea is discretionary. Id. Abuse of discretion is shown

only when the trial court’s ruling lies outside the zone of reasonable disagreement.

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g).

      Under Texas Rule of Appellate Procedure 21.6, a criminal defendant is

required to “present” a motion to the trial court within 10 days of filing it. TEX. R.

APP. P. 21.6; Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998). The

mere fact that a defendant has filed a motion is insufficient to satisfy this

presentment requirement. Stokes v. State, 277 S.W.3d 20, 21 (Tex. Crim. App.

2009). The term “present” means that “the record must show the movant for new

trial sustained the burden of actually delivering the motion for new trial to the trial

court or otherwise bringing the motion to the attention or actual notice of the trial

court.” Butler v. State, 6 S.W.3d 636, 640 (Tex. App.—Houston [1st Dist.] 1999,

pet. ref’d) (citing Carranza, 960 S.W.2d at 79). Actual notice may be shown by




                                          5
such things as the judge’s signature or notation on a proposed order or by a hearing

date set on the docket. Carranza, 960 S.W.2d at 79.

      Unlike Butler v. State, in which the record showed that defense counsel

informed the court coordinator that the motion was filed and the coordinator

scheduled a hearing, 6 S.W.3d at 630, the record in this case does not indicate that

appellant notified the court of his motions to withdraw and does not establish that

the court had actual knowledge of the motions. Rather, the record shows that the

motions to withdraw were accompanied by a proposed order, which was blank and

unsigned by the trial judge. In addition, the record is also devoid of any ruling on

the motions, or a docket entry evidencing a hearing on the motions.           Finding

nothing in the record to suggest otherwise, we conclude that appellant failed to

timely present his motions for new trial. Because it is not apparent from the record

that the motions to withdraw guilty plea were timely presented, the trial court did

not abuse its discretion in failing to grant them.

2. Voluntariness of Guilty Plea

      Even if appellant had presented his motion to withdraw his guilty pleas to

the trial court, he would nonetheless have the burden of showing that his pleas

were invalid for lack of voluntariness. A guilty plea constitutes a waiver of three

constitutional rights: the right to a jury trial, the right to confront one’s accusers,

and the right not to incriminate oneself. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.


                                           6
Crim. App. 2006) (citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709,

1712 (1969)). Accordingly, a guilty plea, to be consistent with due process of law,

must be entered knowingly, intelligently, and voluntarily. Id. To be “voluntary,” a

guilty plea must be the expression of the defendant’s own free will and must not be

induced by threats, misrepresentations, or improper promises. Id. (citing Brady v.

United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1471 (1970)).

      If a plea is not entered knowingly and voluntarily, it has been obtained in

violation of due process and is void. Houston v. State, 201 S.W.3d 212, 221 (Tex.

App.—Houston [14th Dist.] 2006, no pet.) (citing McCarthy v. United States, 394

U.S. 459, 466, 89 S. Ct. 1166, 1171 (1969)). The voluntariness of a plea is

determined by considering “all of the relevant circumstances surrounding it” and

must be affirmatively shown in the record. Id. (citing Brady, 397 U.S. at 749, 90 S.

Ct. at 1469; Boykin, 395 U.S. at 242, 89 S. Ct. at 1712). A plea is not involuntary

simply because the defendant “did not correctly assess every relevant factor

entering into his decision.” Talbott v. State, 93 S.W.3d 521, 526 (Tex. App.—

Houston [14th Dist.] 2002, no pet.)).

      The general rule is that a guilty plea is voluntary if the defendant was made

fully aware of the direct consequences of his plea. State v. Jimenez, 987 S.W.2d

886, 888 (Tex. Crim. App. 1999). A guilty plea is not rendered involuntary by a

lack of knowledge as to a collateral consequence of the plea. Id. at 888–89. “There

                                         7
are numerous relevant consequences of pleading guilty . . . which are not included

in the admonishments[.]” Vasquez v. State, 889 S.W.2d 588, 590 (Tex. App—

Houston [14th Dist.] 1994, no pet.). “A trial court is not required to admonish a

defendant about every possible consequence of his plea, direct or collateral, only

about those direct consequences that are punitive in nature or specifically

enunciated in the law.” Mitschke v. State, 129 S.W.3d 130, 136 (Tex. Crim. App.

2004). “If the consequence is definite and largely or completely automatic, then it

is a direct consequence.” Id. at 135.

      When the record shows that the trial court gave an admonishment, there is a

prima facie showing of a knowing and voluntary plea of guilty. Ex parte

Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985). When a defendant attests

at his original plea hearing to the voluntary nature of his plea, a heavy burden is

placed on him at a subsequent hearing to show a lack of voluntariness. Thornton v.

State, 734 S.W.2d 112, 113 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d).

      The record in this case shows that the trial court properly admonished

appellant, thus there is a prima facie showing of knowledge and voluntariness. In

addition, both appellant and his trial counsel attested to the voluntary nature of his

pleas. Together, this creates a strong presumption of voluntariness regarding

appellant’s pleas. Nevertheless, appellant now contends that the trial court abused

its discretion in accepting his pleas of guilty because he made the pleas without

                                          8
sufficient awareness or a rational understanding of the nature of the charges and

likely consequences. Appellant argues that his pleas were invalid because he was

incompetent at the time he pleaded guilty. Specifically, appellant argues that his

history of mental illness and drug addiction, coupled with his comment to the

judge that he was “not ready” at the beginning of trial, demonstrates he was not

competent.

       Although appellant claims his pleas were invalid because he was not

competent, the record reflects otherwise.       On November 12, 2013, appellant

underwent a competency assessment and was determined competent to stand trial.

Less than two weeks later, appellant made the decision to change his plea to the

aggravated robbery case to guilty and to plead guilty to the separate offense of

burglary of a habitation. Because appellant was held to have been aware of and

have a rational understanding of the charges against him on November 12, 2013,

and there being no evidence to the contrary, it is reasonable to conclude that he

retained sufficient awareness and understanding of the charges on November 25,

and was thus competent at the time of trial. As such, the trial court did not abuse its

discretion in permitting his motions for new trial to be overruled by operation of

law.

                                    CONCLUSION

       We affirm the trial court’s judgments.

                                          9
                                             Sherry Radack
                                             Chief Justice


Panel consisting of Chief Justice Radack and Justices Jennings and Keyes. Do

not publish. TEX. R. APP. P. 47.2(b).




                                        10
