Opinion issued November 15, 2018




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00150-CR
                              NO. 01-18-00151-CR
                           ———————————
                     DANIEL LEE HARRISON, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 178th District Court
                            Harris County, Texas
                  Trial Court Case Nos. 1369904 and 1370009


                         MEMORANDUM OPINION

      After appellant, Daniel Lee Harrison, without an agreed punishment

recommendation from the State, pleaded guilty to the offenses of aggravated assault
of a family member1 and aggravated assault,2 the trial court assessed his punishment

at confinement for twenty-five years and twenty years, respectively. And it ordered

that the sentences run concurrently. In his sole issue, appellant contends that the

trial court erred in accepting his guilty pleas because he entered them involuntarily.

      We affirm.

                                    Background

      A Harris County Grand Jury issued a true bill of indictment, alleging that

appellant, on or about November 26, 2012, “did then and there unlawfully,

intentionally and knowingly cause serious bodily injury to [the first complainant], a

member of [appellant’s] family[,] . . . by shooting [her] with a deadly weapon,

namely, a firearm.” A Harris County Grand Jury also issued a true bill of indictment,

alleging that appellant, on or about November 26, 2012, “did then and there

unlawfully, intentionally and knowingly threaten [the second complainant] with

imminent bodily injury by using and exhibiting a deadly weapon, namely, a

firearm.”

      On February 2, 2017, appellant’s trial counsel filed, in each trial court case, a

motion for a psychiatric examination to determine appellant’s competency to stand


1
      See TEX. PENAL CODE ANN. § 22.02(a)(1), (b)(1) (Vernon 2011); see also TEX.
      FAM. CODE ANN. § 71.003 (Vernon 2014) (defining family); appellate cause no.
      01-18-00150-CR; trial court cause no. 1369904.
2
      See TEX. PENAL CODE ANN. § 22.02(a)(2), (b); appellate cause no.
      01-18-00151-CR; trial court cause no. 1370009.

                                          2
trial, which the trial court granted. Dr. Barbara Martinez, a psychologist with the

Harris Center for Mental Health and IDD, then examined appellant and opined that

he “possesse[d] sufficient present ability to consult with [his] defense attorney with

a reasonable degree of rational understanding, and he possesse[d] a rational as well

as [a] factual understanding of the proceedings against him.” And he was competent

to stand trial.

       On December 4, 2017, appellant signed and filed, in each trial court case, a

“Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession,”

in which he pleaded guilty and admitted to the acts alleged in each indictment.

Appellant’s trial counsel also signed the “Waiver[s] of Constitutional Rights,

Agreement[s] to Stipulate, and Judicial Confession[s],” affirming that he believed

that appellant had entered his guilty pleas knowingly, voluntarily, and after a full

discussion of the consequences of the pleas. Trial counsel also affirmed his belief

that appellant was competent to stand trial.

       Further, appellant signed “Admonishments,”3 in each trial court case,

informing him that he had been indicted for the felony offenses of aggravated assault

of a family member and aggravated assault and of the punishment range for the

offenses. And appellant signed “Statements and Waivers of Defendant,”4 in each


3
       See TEX. CODE CRIM. PROC. ANN. art. 26.13 (Vernon Supp. 2018).
4
       See id.

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trial court case, affirming that he was mentally competent, “underst[ood] the nature

of the charge[s] against” him, understood the trial court’s admonishments,

understood the consequences of his guilty pleas, and had consulted with his trial

counsel about the pleas.       Further, appellant stated that he had “read the

indictment[s],” “committed each and every element alleged” therein, and freely and

voluntarily entered his guilty pleas.

      At a plea hearing, the following exchange between the trial court and appellant

occurred:

      THE COURT:                        . . . You were charged by felony
                                        indictment . . . for aggravated assault
                                        of a family member. That is a
                                        first-degree felony that carries a range
                                        of punishment from 5 years up to 99
                                        years or life, and up to a $10,000 fine.

                                        . . . [Y]ou’ve also been charged by
                                        felony indictment of the offense of
                                        aggravated assault. That one is a
                                        second-degree felony, and carries a
                                        range of punishment from 2 years up to
                                        20 years in prison, and a $10,000 fine.

                                        How do you plead on both of these
                                        felony offenses, guilty or not guilty?

      [Appellant]:                      Guilty.

      THE COURT:                        Are you pleading guilty freely and
                                        voluntarily?

      [Appellant]:                      Yes, ma’am.


                                          4
THE COURT:     Has anyone forced you to plead guilty
               today?

[Appellant]:   No, Your Honor.

THE COURT:     As you know, we have a jury selected,
               and they have been impaneled, and
               they’re waiting in the back room. Is
               this what you want to do?

[Appellant]:   No, ma’am.

THE COURT:     . . . So you are pleading guilty to both
               of these offenses?

[Appellant]:   Yes, ma’am.

THE COURT:     I’m asking if you’re pleading guilty?

[Appellant]:   Yes, ma’am.

THE COURT:     Have you gone over both of these plea
               packets with your lawyer?

[Appellant]:   Yes, ma’am.

THE COURT:     Has he explained everything that is
               contained within these plea packets?

[Appellant]:   Yes, ma’am.

THE COURT:     Do you understand by pleading guilty
               today that you’re giving up important
               rights which include[] releasing that
               jury and moving forward on these
               guilty pleas?

[Appellant]:   Yes, ma’am.



                 5
      THE COURT:                        Okay. Is that your signature in the
                                        middle of this page underneath the
                                        waiver of rights?

      [Appellant]:                      Yes, ma’am.

      THE COURT:                        And on the second-degree, right here
                                        in the middle?

      [Appellant]:                      Yes, ma’am.

      The trial court then found that it had admonished appellant of the

consequences of his pleas, appellant was mentally competent, and appellant’s trial

counsel was competent and had effectively represented him. Further, the trial court

found sufficient evidence of appellant’s guilt and that he had entered his guilty pleas

freely, knowingly, and voluntarily after discussion with his trial counsel. The trial

court admonished appellant of his legal rights, accepted his guilty pleas, and ordered

a presentence investigation in each trial court case.

      At the sentencing hearing, appellant testified that he had pleaded guilty to the

felony offenses of aggravated assault of a family member and aggravated assault as

alleged in the Harris County Grand Jury’s indictments. He had previously discussed

both of his trial court cases with his trial counsel, and his counsel was present at the

time that he pleaded guilty. Appellant stated that he had pleaded guilty freely and

voluntarily and he had pleaded guilty because he was guilty “and for no other

reason.” Appellant also explained that at the time that he pleaded guilty, the trial



                                           6
court asked him certain questions about whether his pleas were given freely and

voluntarily, and he had responded “[y]es.”

      On cross-examination, the following exchange took place between appellant

and the State:

      [State]:                        And who has pled guilty now to two
                                      aggravated felonies, correct?

      [Appellant]:                    Under duress, yes, ma’am.

      [State]:                        You pled guilty?

      [Appellant]:                    Yes, ma’am, I pled guilty under duress.

When further questioned by his own counsel, appellant testified:

      [Appellant’s Counsel]:          . . . [S]omehow this morning when you
                                      wanted to talk to me, you now want to
                                      withdraw you[r] plea of guilt?

      [Appellant]:                    Yes, sir.

      [Appellant’s Counsel]:          On both cases?

      [Appellant]:                    Yes, sir.

      [Appellant’s Counsel]:          And you mentioned just like you
                                      mentioned     in    testimony    on
                                      cross-examination that you felt you
                                      were under duress?

      [Appellant]:                    Yes, sir.

      [Appellant’s Counsel]:          . . . What [does] duress mean to you?

      [Appellant]:                    To me it means being, like, stressed
                                      out, I mean, forced to do something
                                        7
                         under your own will due to stress,
                         duress, anything along that line that it
                         could be. I feel like it was stress. I
                         suffer from major depression. I hung
                         myself in 2005. I was in a coma, and I
                         was diagnosed with major depression.
                         And I do feel like I don’t quite
                         understand what’s going on. And I
                         also feel like me pleading guilty to this,
                         and I’m innocent, it’s like I’m
                         straddling the fence. And it’s like I
                         know it’s not right to try and get a less
                         plea. And I’m being looked at like a
                         criminal, you know, this and that,
                         being disrespected by other family
                         members. I mean, I feel like that
                         would be the best bet right now.

[Appellant’s Counsel]:   Now, the procedure is you are entitled
                         to a jury trial. You knew that; is that
                         correct?

[Appellant]:             Yes.

[Appellant’s Counsel]:   As a matter of fact . . . we were going
                         to start the trial, we were in here in the
                         room, and we selected jury?

[Appellant]:             Yes, sir, we did.

[Appellant’s Counsel]:   And [a] jury of 12 that was going to sit
                         in [the] jury box to be the trier of facts
                         and listen to the evidence,
                         and . . . decide whether the State ha[d]
                         proven the case beyond a reasonable
                         doubt; is that correct?

[Appellant]:             Yes, sir.



                           8
[Appellant’s Counsel]:   And you knew that . . . that’s what the
                         jury does because you asked for a jury
                         trial?

[Appellant]:             Yes.

[Appellant’s Counsel]:   And so basically . . . at that point in
                         time, you were pleading not guilty; is
                         that correct?

[Appellant]:             Yes.

[Appellant’s Counsel]:   And that’s why you were asking for a
                         jury trial?

[Appellant]:             Yes.

[Appellant’s Counsel]:   . . . [But] when the jury [was] ready to
                         be brought in to start the case, you
                         decided you wanted to plead guilty; is
                         that correct?

[Appellant]:             Yes.

[Appellant’s Counsel]:   . . . [T]he procedure was this: You
                         knew that . . . you could continue with
                         the jury trial because the jury had
                         already -- we selected members of the
                         jury, and the [trial court] could call
                         them in and sit them in the jury box,
                         and we could continue the process.
                         You knew that; is that correct?

[Appellant]:             Yes.

....

[Appellant’s Counsel]:   But . . . on that day, the [State]
                         prepared the paperwork on both cases,
                         and you and I sat down and went over
                           9
                         the paperwork. And you signed and
                         initialed the appropriate places in that
                         paperwork; is that correct?

[Appellant]:             Yes.

[Appellant’s Counsel]:   And then after that was done, we went
                         in front of the clerk who enter[ed] you
                         in that. You had a chance to read the
                         paperwork, and you had any questions,
                         and things of that nature; is that
                         correct?

[Appellant]:             Yes.

[Appellant’s Counsel]:   And then she asked you how you pled.
                         And you said you were pleading guilty
                         to the clerk; is that correct?

[Appellant]:             Yes, sir.

[Appellant’s Counsel]:   And then the last stage was we shuffled
                         over in front of the [trial court],
                         and . . . [it] ha[d] those plea papers in
                         [its] hands, and [it] ask[ed] you a
                         bunch of questions regarding whether
                         it was freely and voluntarily given,
                         your plea. And just like you testified
                         in cross-examination a while ago, you
                         voluntarily pled guilty to the case
                         involving you shooting [the first
                         complainant], and also the other case
                         threats on aggravated assault; is that
                         correct?

[Appellant]:             Under duress I pled guilty to that, yes,
                         sir.

[Appellant’s Counsel]:   Now -- and the trouble I have with
                         under duress that you brought up this
                           10
                         morning is that all these times that I
                         went to the jail and the times that you
                         and I talked and you came in the office
                         and discussed the cases. We had an
                         investigator appointed by the [trial
                         court], so he could help us out to look
                         for defenses and to help you in your
                         defense. After all that, you finally
                         came to the conclusion that you would
                         rather plead guilty in front of the [trial
                         court], and ask[] for [it] to assess
                         proper punishment, including if [it]
                         wanted to deferred adjudication; is that
                         correct?

[Appellant]:             On that day, I decided to plead guilty
                         to that. But the other times, yes, sir, I
                         said I was innocent the whole time.

[Appellant’s Counsel]:   Well, sure. And that’s why you asked
                         for a jury trial, right?

[Appellant]:             Yes.

[Appellant’s Counsel]:   And we actually selected a jury?

[Appellant]:             Yes.

[Appellant’s Counsel]:   And on day the jury was going to be
                         brought in, you said you wanted to
                         plead guilty instead of going to trial;
                         isn’t that true?

[Appellant]:             Yes.

....

[Appellant’s Counsel]:   And [the] other thing that caught my
                         attention when you answered the
                         questions for the [State], you said you
                           11
                                       pled guilty under threats. What kind of
                                       threats?

      [Appellant]:                     No, I said -- to me, that’s my definition
                                       of duress.       Threats, involuntarily,
                                       involuntarily statements, you know,
                                       admits this and that, along that line. I
                                       didn’t say anything that I was
                                       threatened. That’s just my definition.
                                       It doesn’t mean that I was threatened.

      [Appellant’s Counsel]:           . . . I’m asking you, who threatened
                                       you to plead guilty?

      [Appellant]:                     I mean, I wasn’t threatened, I was just
                                       misunderstood what I was signing. By
                                       being under duress, being stressed out,
                                       having to deal with these cases, like,
                                       2012 has been so long it has taken a lot
                                       out of my life. . . .

                          Voluntariness of Guilty Pleas

      In his sole issue, appellant argues that the trial court erred in accepting his

guilty pleas because he entered them involuntarily.

      A guilty plea constitutes a waiver of three constitutional rights: (1) the right

to a jury trial, (2) the right to confront one’s accusers, and (3) the right not to

incriminate oneself. 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. at 242–44, 89 S. Ct. at

1712–13; McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1171

(1969); Fuller v. State, 253 S.W.3d 220, 229 (Tex. Crim. App. 2008); see also TEX.

                                         12
CODE CRIM. PROC. ANN. art. 26.13(b) (Vernon Supp. 2018). 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. Brady v. United

States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472 (1970); Kniatt v. State, 206 S.W.3d

657, 664 (Tex. Crim. App. 2006).

      In examining the voluntariness of a guilty plea, we examine the record as a

whole. Martinez v. State, 981 S.W.2d 195, 196–97 (Tex. Crim. App. 1998). When

the record reflects that a defendant was duly admonished by the trial court before

entering a guilty plea, it constitutes a prima facie showing that the plea was both

knowing and voluntary. Id.; Rios v. State, 377 S.W.3d 131, 136 (Tex. App.—

Houston [1st Dist.] 2012, pet. ref’d). The burden then shifts to the defendant to show

that he entered his plea without understanding the consequences of his actions and

was harmed as a result. Martinez, 981 S.W.2d at 197; Rios, 377 S.W.3d at 136. A

defendant who attests at a plea hearing that his plea is voluntary bears a heavy burden

to later establish that he entered the plea involuntarily. Martinez v. State, 513 S.W.3d

87, 96 (Tex. App.—Houston [14th Dist.] 2016, no pet.); Labib v. State, 239 S.W.3d

322, 332 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

      Appellant “acknowledges that he was correctly admonished through the

written waivers and admonishments and attested to the [trial] court that he was

entering his pleas voluntarily.” However, he argues that “an examination of the


                                          13
record” reveals that he “did not understand the consequences of [his] pleas and did

not enter them intelligently and knowingly” because he “entered [his] pleas under

duress” and claimed that he was innocent.

      Here, the record establishes a prima facie showing that appellant entered his

guilty pleas voluntarily and with knowledge of the consequences of entering them,

and he has not meet his burden to rebut this showing. Appellant signed and filed, in

each trial court case, a “Waiver of Constitutional Rights, Agreement to Stipulate,

and Judicial Confession,” stating that he was pleading guilty and admitting to the

acts alleged in each of the Harris County Grand Jury’s indictments. Appellant’s trial

counsel also signed the “Waiver[s] of Constitutional Rights, Agreement[s] to

Stipulate, and Judicial Confession[s],” affirming that he believed that appellant had

executed his guilty pleas knowingly, voluntarily, and after a full discussion of the

consequences of the pleas. Trial counsel also affirmed that he believed that appellant

was competent to stand trial.

      Further, appellant signed “Admonishments”5 in each trial court case,

informing him that he had been indicted for the felony offenses of aggravated assault

of a family member and aggravated assault and of the punishment range for the

offenses. And appellant signed “Statements and Waivers of Defendant” 6 in each


5
      See id.
6
      See id.

                                         14
trial court case, affirming that he was mentally competent, “underst[ood] the nature

of the charge[s] against” him, understood the trial court’s admonishments,

understood the consequences of his guilty pleas, and had consulted with his trial

counsel about the pleas.        Further, appellant stated that he had “read the

indictment[s],” “committed each and every element alleged” therein, and freely and

voluntarily entered his guilty pleas.

      At the plea hearing, appellant testified that he was pleading guilty freely and

voluntarily. Although a jury had already been selected and impaneled, appellant

stated that he did not want to go forward with a jury trial, he was not being forced to

plead guilty, and he understood that he was giving up certain constitutional rights by

pleading guilty. Further, appellant reviewed his “plea packets” with his trial counsel

and signed them. And the trial court admonished appellant about the ranges of

punishment for the felony offenses of aggravated assault of a family member and

aggravated assault.

      At the sentencing hearing, appellant testified that he had pleaded guilty to the

felony offenses of aggravated assault of a family member and aggravated assault as

alleged in the Harris County Grand Jury’s indictments. He had previously discussed

both of his trial court cases with his trial counsel, and his counsel was present at the

time that he pleaded guilty. Appellant stated that he had pleaded guilty freely and

voluntarily and he had pleaded guilty because he was guilty “and for no other


                                          15
reason.” Appellant also explained that at the time he pleaded guilty, the trial court

asked him certain questions about whether his pleas were given freely and

voluntarily, and he had responded “[y]es.”

      Although appellant did also testify at the sentencing hearing that he pleaded

guilty to the felony offenses of aggravated assault of a family member and

aggravated assault “under duress,” he explained that by stating that he was “under

duress,” he meant that he was “stressed out,” he was innocent, and he was “being

looked at like a criminal, . . . being disrespected by other family members.” Further,

he confirmed that no one had “threatened” him into pleading guilty. Rather, he was

“stressed” because “these cases . . . ha[d] taken a lot out of [his] life.”

      A subsequent assertion by appellant that he pleaded guilty because he was

“stressed” or placed in a stressful situation is not sufficient to overcome his sworn

and repeated representations that he had voluntarily pleaded guilty in each trial court

case and does not satisfy appellant’s burden of establishing that he entered his guilty

pleas involuntarily. See Ex parte Morrow, 952 S.W.2d 530, 535 (Tex. Crim. App.

1997) (“[A] showing of an inducement beyond that implicit in the plea bargaining

process must be made to prevail on a claim that [a defendant’s] pleas were

‘involuntary’ because they were improperly induced.”); see e.g., Ex parte Altobji,

No. 01-14-01008-CR, 2015 WL 505202, at *3 (Tex. App.—Houston [1st Dist.] Feb.

5, 2015, no pet.) (mem. op., not designated for publication) (defendant’s assertion


                                           16
he pleaded guilty because placed in “a high stress situation” not sufficient to

overcome sworn representation he pleaded guilty voluntarily and did not satisfy his

burden (internal quotations omitted)).

      Further, a subsequent assertion of innocence likewise is not sufficient to

overcome appellant’s sworn and repeated representations that he voluntarily pleaded

guilty in each trial court case and does not satisfy his burden of establishing that he

entered his guilty pleas involuntarily. See Talbott v. State, 93 S.W.3d 521, 526 (Tex.

App.—Houston [14th Dist.] 2002, no pet.) (“We will not find an intelligently made

plea involuntary simply because the defendant did not correctly assess every relevant

factor entering into his decision” (internal quotations omitted)); see, e.g., Ex parte

Tomlinson, 295 S.W.3d 412, 419–21 (Tex. App.—Corpus Christi 2009, no pet.)

(plea not involuntary although defendant asserted innocence and his trial counsel

had advised “him to lie and admit guilt”); Matul v. State, No. 13-03-062-CR, 2005

WL 1415435, at *4, *6 (Tex. App.—Corpus Christi June 16, 2005, no pet.) (mem.

op., not designated for publication) (defendant did not meet burden of establishing

he entered plea involuntarily despite asserting innocence where record showed

properly admonished and orally affirmed “no one forced or coerced him into making

the plea”); Zimmer v. State, Nos. 14-99-00209-CR, 14-99-00210-CR, 2001 WL

224821, at *1–4 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (not designated

for publication) (although defendant claimed innocence at sentencing hearing, he did


                                          17
not meet burden of showing his plea involuntary); see also Ex parte Tuley, 109

S.W.3d 388, 393 (Tex. Crim. App. 2002) (noting “decision to plead guilty . . . may

be influenced by factors that have nothing to do with [a] defendant’s guilt”).

      Accordingly, we hold that that the trial court did not err in accepting

appellant’s guilty pleas.

      We overrule appellant’s sole issue.

                                    Conclusion

      We affirm the judgments of the trial court.




                                                Terry Jennings
                                                Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

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




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