Affirmed and Memorandum Opinion filed March 29, 2012.




                                         In The

                        Fourteenth Court of Appeals

                                  NO. 14-11-00554-CR


                         AKANNI LAJUAN COLE, Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee


                        On Appeal from the 262nd District Court
                                 Harris County, Texas
                            Trial Court Cause No. 1269918


                  MEMORANDUM                         OPINION


      Appellant entered a plea of guilty to murder without an agreed recommendation on
punishment. After a presentence investigation report was filed, the trial court sentenced
appellant to confinement for 50 years in the Institutional Division of the Texas
Department of Criminal Justice. On appeal, appellant complains that his guilty plea was
made involuntarily and that, as a result, the trial court erred in denying his motion for a
new trial. We affirm.
                                          Background

       Appellant entered a plea of guilty to the offense of murder. The record reflects he
was admonished in writing as to the range of punishment and waiver of trial by jury.
Appellant initialed plea papers in which he acknowledged he reads and writes English, is
mentally competent and understands the nature of the charges against him, understands
the trial court’s admonishments, waives oral admonishments, and understands the
consequences of his plea. He further acknowledged that he freely, knowingly, and
voluntarily executed the statement with the consent and approval of his attorney, and
fully understands the consequences of his plea.

       During appellant’s first plea hearing, the trial court orally admonished appellant of
the consequences of his plea and the range of punishment for murder.             Appellant
established on the record that he was entering a guilty plea without an agreed
recommendation as to punishment, no promises were made to him by his counsel, the
prosecutor, or the judge, he rejected an offer of 45 years imprisonment, and he was
satisfied with trial counsel’s representation. The trial court found sufficient evidence to
find appellant guilty and announced the case would be reset for a presentence
investigation report.

       After the presentence investigation report was completed, the trial court held a
punishment hearing. At the beginning of the hearing, appellant’s attorney requested that
appellant be permitted to withdraw his plea based on appellant’s statement in the
presentence investigation report. In the presentence investigation, appellant denied guilt
and claimed that he killed the complainant in self defense. The trial court questioned
appellant as to whether he wanted to have a jury trial on punishment.            The court
explained that it had accepted appellant’s guilty plea and that he could choose to have a
jury decide his punishment if that was his desire. Appellant responded that he did not




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want a jury to decide his punishment, but that he wanted a presentence investigation.1
Appellant’s attorney then requested a continuance to have a psychiatric evaluation
completed of appellant. In response to the court’s question, appellant stated he had been
previously diagnosed with bipolar disorder and schizophrenia. At the conclusion of the
hearing, the trial court granted the motion for continuance for a psychological evaluation
of appellant.

          Following the psychological evaluation, the court reconvened the sentencing
hearing. Appellant’s attorney argued that appellant admitted his guilt and raised “no
particular defenses, specifically, self-defense.” Appellant’s attorney noted that appellant
suffered from mental health issues, but nothing that would rise to the level of either
insanity or incompetence. The court assessed appellant’s punishment at 50 years in
prison.

          After his sentencing, appellant filed a motion for new trial. As grounds for new
trial, appellant stated, “The defendant bases his motion for new trial on articles 26.13 and
27.13, Tex. Code Crim. Proc.” The trial court held a hearing on appellant’s motion for
new trial in which appellant argued his plea was involuntary because he mistakenly
understood that he could raise self defense at the punishment hearing, and that the trial
court could find him not guilty even after he pleaded guilty because the evidence would
show that he acted in self defense.

          In support of the motion for new trial, appellant submitted transcripts of his plea
hearings and punishment hearing, and a copy of the presentence investigation report. The
State submitted an affidavit from appellant’s trial attorney.                                 In his presentence
investigation report, appellant recounted the offense as follows:

          On July 6, Reginald Harris came to my house to buy some Drugs from me,
          but he told me that the victim on this case had the money so I said why
          wouldn’t he come up stairs to get it from me, [While] me and Reginald
          Harris was talking, Bubba AKA Chris Salinas came bye so we went out
1
  Appellant initially told the judge that he did not wish to plead guilty and that he wanted a jury trial. However, after
the judge stated that the guilty plea already had been entered, appellant stated that he did not want a jury to decide
his punishment.

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       side. When I seen the victim I give him the Dope. When I give it to him he
       pulled a knife on me. Being I was just shoot on 1-10-10, I had a gun on me
       and I thought he was going to stab me so I pulled my gun out. When he
       seen the gun he jump at me and me being nervous already, I shot him.
       With regard to the issue of self defense, appellant’s trial attorney stated in his
affidavit:

       Mr. Cole lied to me about his involvement in this case from the very
       beginning. [His] “story” went from: “I was not present when the murder
       took place (a lie after checking with his so called alibi); I heard about the
       killing at my apartment (another lie); I was present but did see who
       committed the murder (another lie) to I was present but did not commit the
       crime another person did (another lie). In fact Mr. Cole threatened the
       witness that if he told what happened Mr. Cole would kill him. Mr. Cole
       never mentioned anything about self defense. I specifically told Mr. Cole
       that the complainant had a knife and asked him if the complainant used,
       exhibited or threatened him with the knife. Mr. Cole emphatically said no
       and that he never saw a knife. I was the one who raised the issue of self
       defense. A defense that Mr. Cole continually denied. Since all of his
       versions had him not involved, a self defense argument was not
       appropriate.


                               Voluntariness of Appellant’s Plea

       In a single issue, appellant contends the trial court erred in denying his motion for
new trial because the record shows that appellant’s guilty plea was not entered freely and
voluntarily.

       The standard of review for a trial court’s order denying a motion for new trial is
abuse of discretion. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). An
appellate court does not substitute its judgment for that of the trial court, but decides only
whether the trial court’s decision overruling a motion for new trial was arbitrary and
unreasonable. Id. The credibility of the witnesses is primarily a determination for the
trial court. Hoyos v. State, 951 S.W.2d 503, 511 (Tex. App.—Houston [14th Dist.]
1997), aff’d, 982 S.W.2d 419 (Tex. Crim. App. 1998).




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       The defendant ordinarily has the burden of proof on a motion for new trial. See
Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995). As a general rule,
appellate courts should afford almost total deference to the trial court’s determination of
historical facts supported by the record, especially, but not only, where based on an
assessment of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997); Guardiola v. State, 20 S.W.3d 216, 221–22 (Tex. App—Houston [14th
Dist.] 2000, pet. ref’d).

       A defendant’s guilty plea must be made freely, voluntarily, and knowingly. Ex
parte Evans, 690 S.W.2d 274, 276 (Tex. Crim. App. 1985). In determining whether a
guilty plea is voluntary, this court considers the totality of the circumstances. George v.
State, 20 S.W.3d 130, 135 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).

       Before accepting a guilty plea, a trial court must admonish the defendant in
accordance with article 26.13 of the Code of Criminal Procedure, either orally or in
writing, to assure that the defendant understands the charges against him and the
consequences of his plea. Ex parte Gibauitch, 688 S.W.2d 868, 870 (Tex. Crim. App.
1985); Tex. Code Crim. Proc. Ann. Art. 26.13.

       Proper admonishment by the trial court establishes a prima facie showing that the
defendant entered into a knowing and voluntary plea. George, 20 S.W.3d at 135. A
defendant may, of course, still raise the claim that his plea was not voluntary, but the
burden shifts to him to demonstrate that he did not fully understand the consequences of
his plea. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). Further,
when a defendant affirmatively indicates at the plea hearing that he understands the
proceeding’s nature and is pleading guilty because the allegations in the indictment are
true, not because of any outside pressure or influence, he has a heavy burden to prove that
his plea was involuntary. George, 20 S.W.3d at 135.

       Here, appellant was admonished orally and in writing by the court. Appellant
signed and initialed written admonishments, which included the range of punishment,
waiver of a jury trial, representations that he understood the consequences of his plea,

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that he was mentally competent, that he made his plea freely and voluntarily, and that he
was satisfied with his attorney’s representation. When appellant raised the issue of
withdrawal of his plea, the trial court specifically questioned appellant about his plea and
whether he wanted a jury trial on punishment. Appellant restated his desire to seek a
presentence investigation report and have the trial court assess punishment.

       The trial court’s admonishments substantially complied with the requirements of
the Code of Criminal Procedure, and, therefore, there is a strong presumption that
appellant’s plea was voluntary. Because appellant stated that he understood the nature of
the hearing and plea, he has a heavy burden to show that the plea was involuntary. Id.

       Appellant’s claim of self-defense directly conflicts with his trial counsel’s account
of events. There is direct as well as circumstantial evidence to indicate that appellant’s
plea was entered freely and voluntarily. Given the conflicting affidavits, and the totality
of the circumstances, the trial judge could have reasonably decided that appellant’s guilty
plea was made knowingly and voluntarily. Appellant has not met his high burden to
show the plea was involuntary; therefore, the trial court did not abuse its discretion in
denying his motion for new trial. Appellant’s sole issue is overruled.

       The judgment of the trial court is affirmed.

                                                 PER CURIAM



Panel consists of Chief Justice Hedges and Justices Jamison and McCally.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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