                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-07-120-CR


ISSAC WRIGHT                                                         APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

                                    ------------

        FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                                   OPINION

                                    ------------

      In two issues, appellant Isaac Wright contends that his conviction and ten

year sentence for aggravated sexual assault of a child should be reversed and

remanded to the trial court for a new trial because his guilty plea was not freely

and voluntarily entered. We affirm.
                                  Background

      On December 21, 2005, the State charged appellant with three counts

of aggravated sexual assault of a child. The trial court had already appointed

Roxanne Robinson as appellant’s attorney on October 19, 2005.

      In early January 2006, Robinson filed a motion for a competency

examination, in which she stated that appellant “hears voices, . . . does not

always appear to understand what is said to him and [his] responses are

frequently not responsive to [the] issue at hand.” The trial court granted the

motion, and Dr. Ross Tatum examined appellant on January 12, 2006.

Although Dr. Tatum concluded that appellant was competent to stand trial, he

did diagnose appellant with “Psychosis NOS” and noted that appellant’s

intelligence was “in the low average.” Dr. Tatum also concluded that appellant

“demonstrated an understanding of the pleas of guilty and not guilty and of the

plea bargain process. After being taught the pleas of ‘no contest’ and ‘not

guilty by reason of insanity’, he was later able to again discuss these pleas and

how they might be used.” According to Dr. Tatum, appellant demonstrated

understanding of “the role of those who would participate in the courtroom

process” and the confidential nature of his relationship with his attorney.

Appellant also showed “the ability to engage in a reasonable and rational




                                       2
manner”; however, Dr. Tatum noted that appellant should continue his

medication and psychiatric treatment.

      Approximately nine months later, on October 19, 2006, Robinson filed a

second motion for a competency examination, stating that appellant hears

voices. Dr. Barry Norman examined appellant and found him competent to

stand trial.   Dr. Norman’s findings regarding appellant’s mental state were

similar to Dr. Tatum’s.    Dr. Norman noted that appellant understood legal

concepts better if explained to him “in a simple straightforward manner without

legal jargon.” According to Dr. Norman, the jail psychiatrist had discontinued

appellant’s medication; Dr. Norman recommended that it be restarted

immediately.

      In November 2006, appellant filed a pro se Application for Writ of Habeas

Corpus seeking to be released with no bond or to have his bond reduced.

Additionally, appellant filed several pro se motions in December 2006: a motion

for examining trial, motion for DNA testing, and motion requesting Brady

evidence from the State.

      On January 9, 2007, the State offered appellant a ten-year plea bargain.

Thereafter, on March 21, 2007, appellant pled guilty pursuant to the plea

bargain to one count of aggravated sexual assault of a child. He signed written

plea admonishments, and the trial court sentenced him in accordance with the

                                        3
plea bargain. On March 30, 2007, appellant’s mother wrote a letter to the

court in which she claimed that appellant was afraid for his life and did not

understand what he was doing when he pled guilty. She claimed that Robinson

“threaten[ed] him and told him he could not have any black [jurors] on his case,

and that none of the witnesses . . . would be able to testify on his behalf.” She

also said that Robinson “told him he would get 49 years and made other threats

to him if he didn’t take the 10.” Appellant’s mother stated that the charges

against appellant had been fabricated by her ex-lover and that she was afraid

for her son’s life in prison because of his medical problems.

      Appellant also wrote a letter asking to withdraw his guilty plea because

he “did not understand and was very afraid when [Robinson] told [him] that

there could not be any black jury or any black witnesses on [his] case, and that

if [he] didn’t take the ten year[s] that [he] would get 49 years instead.”

According to appellant, this concerned him because “everything about this case

is black[:] all parties involved and all witnesses.”

      The trial court appointed new counsel for appellant, who filed a motion

for new trial on April 16, 2007 alleging that appellant’s guilty plea was

involuntary because it was based on his mistaken belief that no African-




                                        4
Americans would be allowed to serve on the jury.1 After an evidentiary hearing

on May 11, 2007, the trial court denied the motion for new trial. However, the

trial court gave appellant limited permission to appeal the voluntariness of his

plea. 2

                                  Issues on Appeal

          In two issues, appellant contends that we should reverse and remand this

case for a new trial because his guilty plea was involuntary.        Specifically,

appellant contends that his guilty plea is void because it was not entered

knowingly and voluntarily, an issue we review based on the relevant

circumstances as set forth in the record. See Boykin v. Alabama, 395 U.S.

238, 242, 89 S. Ct. 1709, 1712 (1969). He also contends that the trial court

should have granted his motion for new trial for the same reason, an issue we

review for an abuse of discretion. See Holden v. State, 201 S.W.3d 761, 763




          1
       … In an affidavit attached to the motion, counsel notes appellant’s
mental issues and says appellant told him Tarrant County MHMR was currently
treating him.
          2
       … The trial court did not rule on the motion at the hearing; instead, the
judge deferred ruling until after she had read affidavits from Robinson and her
intern that the State offered as evidence. However, before the end of the
hearing, the judge ruled that if she denied the motion for new trial, appellant
would have the right to appeal “on the issues presented.”

                                          5
(Tex. Crim. App. 2006). Because the substantive analysis is the same for both

issues, we will review them together. 3

Applicable Law

      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. Crim. App.),

cert. denied, 127 S. Ct. 667 (2006); State v. Collazo, No. 01-06-01076-CR,

2007 WL 3227611, at *3 (Tex. App.—Houston [1st Dist.] Nov. 1, 2007, pet.

struck). Accordingly, to be consistent with due process of law, a guilty plea

must be entered knowingly, intelligently, and voluntarily. Kniatt, 206 S.W.3d

at 664; Jackson v. State, 139 S.W.3d 7, 13 (Tex. App.—Fort Worth 2004,

pet. ref’d). A plea that was not entered knowingly and voluntarily violates due

process; thus, it is void. McCarthy v. United States, 394 U.S. 459, 466, 89

S. Ct. 1166, 1171 (1969); Houston v. State, 201 S.W.3d 212, 221 (Tex.

App.—Houston [14th Dist.] 2006, no pet.).


      3
        … The State contends that the trial court gave appellant its permission
to appeal only the second issue: whether the trial court abused its discretion
by denying the motion for new trial. But it is clear from the trial court’s
comments at the hearing that the judge intended for the issues raised in the
new trial motion to be appealable. The only difference between the two issues
is that the second issue is reviewed under a more deferential standard; because
the substance is the same, we disagree that the trial court’s permission does
not extend to our review of both issues.

                                        6
      To be “voluntary,” a guilty plea must be the expression of the defendant’s

own free will and must not have been induced by threats, misrepresentations,

or improper promises.     Kniatt, 206 S.W.3d at 664; Collazo, 2007 W L

3227611, at *3. A defendant’s sworn representation that his guilty plea is

voluntary “constitute[s] a formidable barrier in any subsequent collateral

proceedings.” Kniatt, 206 S.W.3d at 664; Collazo, 2007 WL 3227611, at *3;

Labib v. State, 239 S.W.3d 322, 332 (Tex. App.—Houston [1st Dist.] 2007,

no pet.).

      The voluntariness of a plea is determined by considering “all of the

relevant circumstances surrounding it” and must be affirmatively shown in the

record. Houston, 201 S.W.3d at 221; see Brady v. United States, 397 U.S.

742, 749, 90 S. Ct. 1463, 1469 (1970); Boykin, 395 U.S. at 242, 89 S. Ct.

at 1712; Labib, 239 S.W.3d at 332. A record reflecting that a defendant was

properly admonished is prima facie evidence of a knowing and voluntary guilty

plea; the burden then shifts to the appellant to show that, notwithstanding the

statutory admonishments, he or she did not understand the consequences of

the plea. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998);

Jackson, 139 S.W.3d at 13–14. A plea is not involuntary simply because the

defendant “did not correctly assess every relevant factor entering into his




                                       7
decision.” Talbott v. State, 93 S.W.3d 521, 526 (Tex. App.—Houston [14th

Dist.] 2002, no pet.).

Applicable Facts

      At the hearing on the motion for new trial, appellant testified that he

talked to Robinson “for a while” before entering his plea.         According to

appellant, after he talked to Robinson, he thought that no African-Americans

would be allowed to serve on the jury because she told him, “There ain’t going

to be no black folks on the jury stand. W hat you think those white folks are

going to do to you?” He said others were there while he was talking to her and

that they also encouraged him to plead guilty. But appellant also testified that

he did not bring up the jury issue; Robinson did. Appellant testified that he did

not commit the offense and that he would not have pled guilty but for his

mistaken belief. He told Robinson he would kill himself if he had to go to

prison.

      Appellant further testified that he does not know how to read, that

Robinson read and tried to explain the plea admonishments to him, and that he

did not understand the admonishments even though he signed them. On cross-

examination, appellant admitted that he had had numerous conversations with

Robinson; that they had talked about the charges, whether he should testify,




                                       8
and if he could get probation; and that he had told Robinson that he understood

the plea paperwork after she had gone through it with him line by line.

      The State asked the trial court to take judicial notice of Robinson’s

eleven-page affidavit, which it had filed that morning.      It also offered the

affidavit of an intern who worked with Robinson, as well as Robinson’s records

showing the many phone conversations she had with appellant.           Robinson

represented appellant for almost a year and a half before he pled guilty.

      In her lengthy and detailed affidavit, Robinson recalls the many

conversations she had with appellant both in person and by telephone and with

his mother and Nicole, the mother of his child. According to Robinson, she

knew appellant was slow and that he could not read, so she

      used simple words and short simple sentences . . . [,] broke things
      down into tiny steps and parts to ensure he understood whatever
      I was discussing with him . . . [,] would tell him a few things then
      ask questions to make sure he understood what [she] had just said
      . . . [, and] [i]f there was any hint that he did not understand
      something, . . . would go over it again and ask him more questions.

      Robinson averred that appellant asked for bond reductions several times,

that she tried to get his bond reduced low enough for his family to get one, but

that she was unable to do so. She never had to explain to appellant what a

bond was or that the judge could reduce the bond. According to Robinson,

appellant wanted to go to trial; he said he was not guilty and that the child had


                                       9
made up the story because her mother—appellant’s mother’s ex-lover—was

angry that appellant’s mother had broken up with her. Robinson averred that

she investigated this defense; she gave a detailed description of her

investigation and the reason why she concluded that the defense was not

viable—that the breakup had occurred about two years before the outcry, that

it did not seem likely that the child would have waited until two years later to

make a fake outcry, and that the outcry occurred after appellant had already

been sent to live in Houston, away from the child. According to Robinson,

when she “expressed this concern” with appellant, “his response was to

immediately say that he couldn’t have ‘hurt the girl’ because he was living in

Houston at the time he was alleged to have committed this offense.” Although

Robinson said she asked both appellant and his mother several times for records

showing he was in Houston at that time, they never gave her any. In addition,

they also told her appellant was either in jail or at the Texas Youth Commission

at that time. However, according to Robinson,

      the calendar, statement of [appellant’s mother’s ex-lover], the time
      of the outcry[,] and report to the police report put the ‘I was in jail’
      and the Houston defense in jeopardy, especially after [Robinson]
      received [appellant’s] TYC records and compared the dates of his
      incarceration with the dates of the alleged offense.

      Robinson also provides detail about another defense appellant asked her

to investigate, her attempts to explain to him why it was not feasible, and

                                        10
appellant’s apparent understanding of her explanation. She also had to discuss

the same defense with appellant’s mother and Nicole. Appellant was able to

explain what he was charged with in counts two and three of the indictment.

      After providing more detail about how she would go over matters with

appellant until she felt he understood, Robinson discusses the conversation she

had with appellant about the State’s ten-year plea bargain offer. According to

Robinson,

            At one point, one of the inmates in the holdover at the time
      said something about juries in Tarrant County being all white and
      ‘you know what a white jury will do to you.’ I intervened at that
      point and said: ‘Please understand that I am not trying to be racist,
      but the reality is that in Tarrant County not a lot of black people
      show up for jury duty. Because of that, there might not be very
      many black people in the courtroom to pick a jury from. So there
      may be only one or two blacks on his jury.’ That was all that was
      said about blacks being or not being on his jury. It came up only
      the one time during my entire representation of [appellant]. And it
      was raised by a comment made by another inmate.

Robinson also averred that appellant

      was receiving some encouragement to take the offer from the
      inmates in the holdover with him. I wasn’t too concerned about
      this because the last time we spoke, he told me he was seriously
      thinking about taking the ten (10) year offer. On the day he pled,
      his questions and comments were not argumentative as they had
      been in the past. They sounded like he was going over things one
      last time and reassuring himself that he understood all the things
      we had discussed over the previous year. He finally told me he
      wanted to take the offer and plead guilty. The first thing I said to
      him after this was to ask if he was sure that was what he wanted


                                       11
      to do. He said yea. I told him that I would be glad to take his case
      to trial. He said he knew. He said, “Let’s do it”.

When she came back with the plea paperwork, appellant “appeared relieved and

much more relaxed” than she had ever seen him.

      Robinson then explained in detail how she went over the plea paperwork

with appellant, holding the papers up to the window and pointing to each word

with her pen as she read it slowly. She asked appellant what every sentence

she read meant and reread it or rephrased it if he could not give her a proper

answer in his own words. Robinson averred that appellant “understood every

word and sentence in his plea paperwork before he went into the courtroom.”

Robinson further averred that

             [b]efore going back into the courtroom to file the plea
      paperwork, I told [appellant], that even though he had signed the
      papers it was not too late to change his mind. He said he didn’t
      want to take a chance on a big sentence, that he wanted to take
      the ten years so he would know he would be out no later than ten
      years from now. . . . I also reminded him about the part in the
      paperwork that said he would have no right to appeal if the judge
      went along with the plea bargain agreement. . . . I had discussed
      his right to appeal or complain with [appellant]. His comments
      indicated that he already knew basically what an appeal is. I said:
      “You can’t complain tomorrow about what you agreed to today.
      You asked the judge to give you the ten years and if she does,
      you[‘re] stuck with it.” He said he knew that and that he wasn’t
      going to complain. That reminded me about his mother and Nicole.
      I told him that his mother would not like him taking this plea. He
      said he knew and then he asked me not to tell her because he
      wanted to tell her. I asked if he would be able to stand up to her


                                      12
and he said he would. I have my doubts about that, but it was
clear [appellant] knew she wouldn’t like it.

       There is no doubt in my mind that based on the facts of this
case, our lack of a viable defense or witnesses, the dangers of
[appellant] taking the stand and our limited punishment evidence
that it was in [appellant’s] best interest to take the ten year offer.
There is also no doubt in my mind that he understood fully what he
was doing when he told me he wanted to take the offer and he
knew his mother wouldn’t like it, but he wanted to do it any way
[sic]. [Appellant] clearly understood his right to a trial by jury
because he spent over a year asking when his trial would be. I am
confident he understood the true nature of the jury system because
of the questions he would ask and the comments he would make
when discussing a jury trial. I know he understood he was waiving
some fundamental rights because when we got to the waiver
section of the plea paperwork, I told him that ‘since you have all
those right[s] we just talked about and we are entering into a plea
bargain agreement with the state, you do not need those rights so
we will waive or give up those rights. They will no longer be there
for you.” He said okay. . . .

       I also am confident that his plea was voluntary. I know this
because I reminded him before we started reading the plea papers
and before I left the holdover with them that he did not have to do
this, that he did not have to plead guilty. He said “Let’s go ahead
and do it.” Even after I mentioned his mother and said she
wouldn’t like him doing this, [appellant] told me he knew she
wouldn’t but he wanted to do it anyway.

      . . . [A]t no time did anyone tell [appellant] that blacks would
not be allowed on his jury. An inmate said something about
Tarrant County juries being white, and I explained that there tended
not to be many blacks on juries here because there aren’t as many
blacks that show up for jury duty as there are whites. And this
issue was only raised the one time. At no time did anyone tell
[appellant] that blacks would not be allowed on his jury.




                                 13
             I would not have proceeded with [appellant’s] plea if I had
      not been convinced that he fully understood what he was doing
      and it was his desire to do it. I had [appellant’s] plea put on the
      record because I anticipated that his mother . . . and Nicole . . .
      would be upset with him for taking this plea. This was also one of
      the reasons I so carefully discussed everything in such detail with
      [appellant]. My obligation is my client and his best interest, not
      whether mother will be pleased. I wanted his plea on the record
      because I wanted it to be clear that we had discussed everything,
      that he understood what he had signed and what he was doing,
      and that he understood the consequences of entering his plea of
      guilty and accepting the ten year sentence.

      The State also offered the affidavit of Robinson’s intern, Michelle Galaviz,

who averred that she was “very familiar with [appellant’s] case and plea

because [she had] spoken with him and his mother several times on the phone,

visited him in custody, and attended several of his court settings including his

March 17, 2007 setting.” Galaviz spoke to appellant over thirty times on the

phone and went to three or four different jail visits.      In her affidavit, she

describes in detail the various conversations she had with appellant.

      Galaviz also describes in detail what happened when Robinson discussed

the plea bargain offer with appellant. According to Galaviz,

            [S]omeone also in the holdover cell yelled out something
      about how the juries here in Tarrant County are nothing but white
      people. And this showed some interest in [appellant] and also in
      the other jailers.

             . . . Robinson started off by explaining to [appellant] how the
      jury selection process worked. . . . Then [she] told [appellant] that
      from her experience of being a prosecutor in Tarrant County, a

                                       14
      public defender in Tarrant County and now a defense attorney in
      Tarrant County, that blacks and Hispanics are notorious for not
      showing up to jury duty, but more specifically blacks. And because
      so few blacks show up for jury duty, there will not be much of a
      selection to choose from when we “pick a jury.” She then told
      [appellant] that she knows that is not fair, and she is not racist, but
      that is just how things work in Tarrant County—there are “white”
      juries.

            This was the only time I ever heard Ms. Robinson discuss
      “white” juries with [appellant]. And at no time did I ever hear Ms.
      Robinson say: “blacks will not be allowed to serve on a jury in
      Tarrant County.”

Galaviz corroborated Robinson’s account of how she explained the plea

paperwork to appellant.

Analysis

      Appellant admits that because the record shows he was properly

admonished, it was his burden to show that, nevertheless, he did not enter his

guilty plea knowingly and voluntarily.       According to appellant, he did so

because his testimony at the motion for new trial shows that he had a

“fundamental misunderstanding” of the law applicable to his case and that this

misunderstanding was the final factor that led to his decision to plead guilty.

      We first note that the trial court’s determination as to whether appellant

understood Robinson’s advice regarding whether African Americans would be

able to serve on the jury involved questions of credibility; the trial court was not

required to believe appellant’s testimony at the motion for new trial.          See

                                        15
Ybarra v. State, 93 S.W.3d 922, 924–25 (Tex. App.—Corpus Christi 2002, no

pet.); Ex parte Lafon, 977 S.W.2d 865, 868 (Tex. App.—Dallas 1998, no pet.).

Rather than simply testifying that he misunderstood Robinson’s explanation,

appellant testified that Robinson actually told him something significantly

different than what she recalled saying to him.      And appellant’s testimony

regarding other details about their conversation was significantly different from

Robinson’s.4 Additionally, Robinson’s affidavit testimony was corroborated by

the affidavit testimony of her intern, Galaviz.

      Moreover, we conclude and hold that the totality of the circumstances as

set forth in the record shows that appellant did not meet his burden to

overcome the prima facie proof that his guilty plea was knowing and voluntary.

Two mental health professionals examined appellant and determined he was

competent and that he could understand the legal proceedings against him if


      4
       … Specifically, appellant testified that Robinson brought up the matter
while Robinson testified that another inmate did. In addition, appellant testified
that Robinson affirmatively told him that there wouldn’t be any African
Americans on the jury and that she said, “[W]hat you think those white folks
are going to do to you?”. Robinson said she merely explained that there might
be fewer African Americans on the jury. Appellant also said that he was very
upset and agitated when he and Robinson discussed the matter and that her
answer was what convinced him to take the plea. Instead, Robinson recalled
that the conversation was isolated, that appellant had already been considering
the plea offer when the other inmates encouraged him to take it, and that on
the day he pled, he was less argumentative and more relaxed than he had been
before.

                                       16
things were explained to him in a simple manner.5         The State introduced

evidence at the new trial hearing that appellant had talked to his attorney or her

employees over thirty times by telephone before he pled guilty.         Although

appellant testified at the new trial hearing that he did not understand the plea

papers even though Robinson had read and explained them to him, appellant

told the judge that he did understand them when he entered his plea. It was

not until after the plea proceeding that appellant and his mother complained

about the voluntariness of appellant’s plea, claiming for the first time that

Robinson threatened appellant and told him that no African Americans would

be allowed to serve on the jury. And, as we have already stated, the trial judge

was entitled to believe Robinson’s testimony on that issue instead of

appellant’s.




      5
        … In his November 2006 report, Dr. Norman noted that the jail
psychiatrist had stopped appellant’s antipsychotic medication and
recommended that the medication be restarted. Although it is troubling that
appellant was not given medication he apparently needed at some point during
his incarceration, there is no indication that this medication was being withheld
when he pled guilty. Robinson was diligent in requesting evaluations of her
client, doing so twice during the course of her representation. The record as
a whole indicates that she was well aware of her client’s mental issues and
attuned to changes in his behavior. In addition, at the time of the motion for
new trial, about a month after appellant pled guilty, appellant indicated he was
being treated by Tarrant County MHMR.

                                       17
      Appellant contends that in reviewing the voluntariness of his plea, we

should consider his subjective state of mind; in other words, although

Robinson’s affidavit testimony shows that she gave appellant objectively

reasonable advice, we should hold the plea involuntary because appellant

subjectively had a mistaken belief about what she told him. The Fifth Circuit

has held that a defendant’s subjective belief alone is insufficient to invalidate

a guilty plea and that a defendant must show that he was induced to plead

guilty as the result of an objective misrepresentation. 6 Montoya v. Johnson,

226 F.3d 399, 406 (5th Cir. 2000), cert. denied, 532 U.S. 1067 (2001);

Matthews v. United States, 569 F.2d 941, 943 (5th Cir.), cert. denied, 439

U.S. 1046 (1978); cf. United States v. Robertson, 582 F.2d 1356, 1367 (5th

Cir. 1978) (noting, in context of determining whether discussions with law

enforcement were for plea bargaining or other purposes, that under totality of

circumstances approach, accused’s subsequent account of his state of mind

cannot be only deciding factor because otherwise all confessions would be

vulnerable to subsequent challenge).        Here, even if we were to accept

appellant’s testimony at the new trial hearing as true, which the trial court was




      6
        … Texas courts may look to Fifth Circuit precedent as persuasive.
Jeffery v. State, 169 S.W.3d 439, 443 n.1 (Tex. App.—Texarkana 2005, pet.
ref’d); see Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993).

                                       18
not required to do,7 the totality of the other circumstances surrounding

appellant’s guilty plea nevertheless does not support a conclusion that the plea

was unknowing and involuntary.        See Kniatt, 206 S.W.3d at 664–65.

Accordingly, we overrule appellant’s issues on appeal.

                                  Conclusion

      Having overruled both of appellant’s issues, we affirm the trial court’s

judgment.




                                                 TERRIE LIVINGSTON
                                                 JUSTICE

PANEL B:     LIVINGSTON, HOLMAN, and GARDNER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: July 24, 2008




      7
        … Although we agree with appellant that his diagnosed mental health
problems give some credence to his explanation at the new trial hearing, the
trial court was in the better position to observe and evaluate appellant’s
demeanor and credibility, and it was not required to accept appellant’s
explanation as true simply because of the existence of his diagnosed mental
health issues.   See Acosta v. State, 160 S.W.3d 204, 210–11 (Tex.
App.—Fort Worth 2005, no pet.).

                                      19
