Gottson v. State

181 penalty was nature of the pur- temporary jeopardy for punishment is not double conclu Appeals’ key to the Court of Criminal poses, we affirm. suspension 60-day driver’s license sion that a Tharp, 935 parte Ex was a “mild sanction.” Background 157, (Tex.Crim.App.1996). Be S.W.2d 160 designed “to penalty primarily cause the driving for while was arrested Casaretto carnage ... public from the protect intoxicated, auto and his driver’s license was drivers,” court held that caused drunk sixty days matically suspended for because failing the suspension for driver’s license statutory his breath test result exceeded the punishment purposes for was not breath test Transp. limit. See Tex. Ann Code . (applying jeopardy. Id. at 159-61 of double 022(1) (Vernon 1997). 524.012(b), §§ Casar 435, 109 Halper, v. 490 U.S. United States application of habeas etto filed an for writ 1892, 104 chapter L.Ed.2d 487 S.Ct. case, alleging that corpus in his criminal Code). Transportation 524 of the jeopardy punishment. double barred further relief, and The trial court denied Casaretto Conclusion appealed. claims one chapter suspension under 524 of License jeopardy pending that double bars his DWI “punishment” Transportation Code is not prosecution.1 trial court’s We review the jeopardy. Tharp, 935 purposes for of double standard, ruling with the abuse of discretion Accordingly, trial court did at 161 S.W.2d recognizing that Casaretto bears burden denying not abuse its discretion Casaretto establishing jeopardy a double violation. corpus relief. We overrule Casaret- habeas (Tex. Zavala, 867, parte 900 Ex 870 point of error and affirm the trial court’s to’s 1995, App. Corpus pet.). Christi no — order. Discussion jeopardy protects,

The double clause against multiple part, punishments for the Pearce, North 395 same offense. Carolina v. 711, 717, 2072, 2076, 89 23 L.Ed.2d U.S. S.Ct. (1969). purposes appeal, For of this we suspension assume license and DWI Anthony GOTTSON, Appellant, Michael prosecution involve the “same offense.” See 424, parte Ex Voisinet Avilez, 1996); (Tex.Crim.App., parte Ex Texas, Appellee. The STATE of Antonio, 677, (Tex.App. — San Nos. 04-95-00869-CR to 04-95-00876- multiple pet.). no As evidence that he faces and 04-95-00892-CR. CR “punishments,” refers to the fact Casaretto suspension temporary license is driver’s Texas, Court longer and is for those who refuse to take Antonio. Transp. test. breath Tex. Code Ann. Dec. 1996. 1997) (Vernon (suspension § for fail 524.022 60, 120, days,

ing the test is or 180 breath Rehearing Overruled Feb. past “drug-related depending on enforcement contacts”), § (suspension id. is 724.035 days refusing or 365 for to take test).

breath separately Casaretto’s state constitution and federal address 1. Casaretto discusses both state body Because Campos, constitutions in the of his brief. parte al claim. See Ex provides greater pro- h.) Constitution no Antonio, Texas pet. (Tex.App. no — San counterpart tection than its federal in cases (designated publication). misconduct, involving prosecutorial we do not Levenstein, Criminal Assistant

Brenda Antonio, appellee. Attorney, District CHAPA, C.J., and STONE Before GREEN, JJ.

GREEN, Justice. Davis, Gottson, ap- Tyrone a.k.a. Michael ag- eight charges of peals his conviction charge posses- robbery and one gravated forged check. Trial was before sion of a guilty pursuant to a pleading bench. After trial court sentenced Gott- plea bargain, the forgery years imprisonment on the son to ten aggra- thirty years on each of the charge and sentences robbery charges, with the vated concurrently. appeals each running Gottson In his grounds of error. case on identical error, that he Gottson contends first counsel, al- assistance received ineffective investigate attorney leging failed his point of insanity In his second defense. trial court argues that Gottson to allow Gottson erred when refused pleas. withdraw his

Facts possession of a pled guilty to

Gottson charges aggra- eight forged check and plea bargain. robbery pursuant to a vated evidence, trial court ac- hearing After pleas and found him cepted Gottson’s 21, or- February 1995. The court then investigation. On pre-sentence dered a 1995, 6, a motion to Gottson filed March claiming pleas his were pleas from the trial involuntary due to duress this motion. judge; trial court denied Burkholder, attorney, Boyd Gottson’s trial psychiatric evaluation a motion for filed jail and after he visited Gottson Gottson appar- and incoherent” “depressed him found attempt. suicide ently due to a failed 7, 1995, Raymond Dr. Potterf On June pursuant to a court order examined compe- directing him determine page report, tency In a six to stand trial. was not that Gottson Potterf concluded Dr. that Gott- trial and noted competent to stand time he committed not sane at the son was report, Antonio, on this Seharff, crimes.1 Based appellant. Alex J. order, simply conclusion, consisted of being responsive to the addition to non latter (Tex.Crim.App.1988), filed another motion to withdraw his denied, August which the trial court denied. On cert. 489 U.S. 109 S.Ct. (1989); 1995, Dr. 103 L.Ed.2d 863 Hernandez v. Cesar Garcia evaluated Gottson (Tex.Crim.App.1986). 54-55 pursuant to court order and determined that competent to The Strickland test focuses on reasonable Gottson was stand trial. The ness, measuring hearing the assistance received competency court then conducted a against prevailing legal jury norms of the jury, and the found Gottson before Strickland, profession. competent trial. U.S. to stand Hernandez, 2064-65; S.Ct. at attorney, Subsequently, Gottson’s Burk- two-pronged 55. Under the Strickland anal holder, sought attorney to withdraw as ysis, a convicted defendant must show appointed record. The trial court a new performance his trial counsel’s was defi attorney who then filed another motion to deficiency prejudiced the cient and the guilty pleas upon withdraw Gottson’s based such that he was de defense to an extent pursue insanity Burkholder’s failure to Holland, at prived of a fair trial. matter, hearing defense. At the on this Strickland, 687, 691-92, 314; at see U.S. attorney presented new Gottson’s 104 S.Ct. at 2066-67. spoken that Burkholder had with Gottson prior pleas concerning to his Gottson’s men- test, prong Under the first of the illness, decided, tal and Burkholder after con- presumed to have ade counsel is rendered Gottson, they that sultation with would use assistance, quate on the and is incumbent mitigation Gottson’s mental condition in identify defendant to those acts or omissions insanity punishment and not as an defense. profes which do not amount to reasonable that he was shocked Burkholder also testified “range judgment and are outside the sional report after he read Dr. Potterfs that Gott- professionally competent assistance.” time son was insane at the of the offenses. Strickland, 690, 104 at 2066. 466 U.S. S.Ct. ultimately court the motion The trial denied making difficulties inherent Because years imprison- and sentenced Gottson to ten evaluation, indulge strong a a court must forged possession ment for the check and provided presumption that the assistance was robbery thirty years aggravated on the reasonably professional, and the defendant charges, running all sentences concur- with that, presumption must overcome the rently. circumstances, challenged action overruling After the of Gottson’s motion reasonably might be considered sound trial supplemental trial and motion for for new 689, 104 strategy. at 2065. Id. S.Ct. trial, permitted to new Gottson prong requires de The second appeal. by focusing prove prejudice fendant proceeding was the result of the whether

Discussion unreliable, fundamentally unfair or rather Assistance Counsel Ineffective solely on the outcome determination. than his first Fretwell, 364, 369-70, 506 U.S. Lockhart was denied effective assis contends 838, 842-43, 122 L.Ed.2d 180 113 S.Ct. attorney trial failed tance of counsel after his (1993). A defendant cannot be said investigate possible insanity defense. a counsel ineffective assistance of received trial merely the outcome of his Washington, because Strickland have been different. “Unreliabili 80 L.Ed.2d 674 would U.S. S.Ct. result if the ineffec (1984), Supreme ty or unfairness does not States Court the United deprive the de of counsel does not determining for whether a tiveness enunciated test procedural any or fendant of substantive ineffective assistance defendant received him.” Id. at counsel, law entitles right to which the which the Texas Court of Criminal Thus, appellant for 113 S.Ct. at 844. adopted. Holland v. soon See stating for this alleged report to articulate a basis failed that “at the time of one sentence different offenses. of the nine not sane.” The conclusion [sic] offense Mr. Gotson was succeed, ultimately oc- gate must sentence deprived we find that he was whatever right, procedural or curred. of a substantive which him deprived turn a fair trial. we Because Although record does not indicate the representation find that Burkholder’s spent research- amount of time Burkholder reasonable, we do not address this second of such ing investigating depth and nor the prong of Strickland. investigation, research or this Court cannot attorney investiga- assume that an made no attempts deficiency to establish just as to tion a record is silent because prejudice alleging that his coun depth attorney’s investigation. investigate pursue failed to a possible sel Hernandez, Burkholder 726 S.W.2d at 57. insanity prior pleas. defense to Gottson’s To opinion admits not seek that he did a medical argument, support his Ex Gottson relies on regarding pleas, to the Duffy, (Tex.Crim.App. Parte 607 S.W.2d 507 but the does that Burkholder record reflect 1980) directly point. and claims it is We Gottson, spoke past med- read Gottsoris disagree. In Duffy, the defendant’s retained records, ical and did “research.” counsel, Conant, Joel took over case after did not Burkholder realize Gottsoris appointed attorneys already begun two had competency problem approxi could be until work for some the defendant on matter. mately after en one month were Duffy, Ex Parte Prior day, spoke tered. On that Burkholder hiring, appointed Conant’s the defendant’s Gottson, appeared and de who incoherent attorneys already investiga had an started just pressed, jail; apparently at Gottson had insanity, fact, tion into the in defendant’s and attempted using suicide some solvent. It already filed requesting had a motion was then Burkholder the neces that realized a appointment psychiatrist attempt of in an sity of evalu filing psychiatric a motion a develop insanity an Id. defense. at representa ation of Gottson. Burkholder’s replaced appointed 519. Once Conant Gottson, however, judged tion of to be is not however, attorneys, nothing Conant did Strickland, by hindsight. See 466 U.S. at investigate possibility further of an insan 689, 104 2065. S.Ct. at ity though defense even Conant knew of the attorneys’ previous in developing efforts an pleas, The record reflects that to his insanity Moreover, defense. Id. at initially or not fluctuated on whether explanation Conant offered no for this bla as he wanted to use his mental condition a which, on part, tant omission among sev factor, eventually mitigating defense or a but neglect, eral other incidents of led the Court agreed punish- in mitigation to use it of Appeals of Criminal to find that Conant ren decision, ment. Burkholder’s and Gottsoris dered ineffective Id. at assistance. 525 n. 28. acquiescence, pursue insanity to not de- admittedly strategical fense move. was attorney Dujfty, in Unlike Conant Burk- case, a similar the Court of Criminal investigate holder did possi- and research the attorney’s not to addressed an decision use bility insanity despite of an defense Gottson’s as an insan- defendant’s mental condition allegation “only cursorily that Burkholder re- ity did not defense and held this decision insanity viability viewed” the anof defense. State, result in Faz v. ineffective assistance. hearing At the third motion to (Tex.Crim.App.1974). 510 926 S.W.2d pleas, withdraw his Burkholder was asked that it could not second- court stated developing what work he did toward an in- guess attorney’s strategical move. defense, responded: to which he I And he provided [Gottson]. listened Faz, second-guess cannot Burk- As in we records, subsequent me some medical to use mental con- holder’s decision Gottsoris that. punishment instead of mitigation dition in him, it, my I told as a without the after reflection on defense benefit did, re- indicating I the extent of Burkholder’s research that that was after my opinion that, interest, light investigation. in his best we search and See id. Rather, proceed presumption that Burk- not that basis. record and along reasonably profes- anything performance be miti- those lines used to holder’s 186

sional, duty sponte provided cannot that he had the to sua withdraw the we conclude judge guilty plea after the had ineffective assistance counsel. Gottson’s defendant’s Sommer, already adjudicated guilt. 574 point first error is overruled. Sullivan, 548; 573 at 1. In S.W.2d S.W.2d cases, Guilty Pleas inno Withdrawal both evidence of the defendant’s phase during punishment cence surfaced In his second Sommer, 574 at 549 of the trial. See S.W.2d by refusing claims that the trial court erred (Roberts, J., concurring part in and dissent guilty pleas to allow him to withdraw his (evidence ing part) in raised issue as judge after the reviewed Dr. Potterf s evalua knowledge had of his en whether defendant indicating tion that Gottson was not sane at Sullivan, case); tering burglary building the time of the crimes. (testimony fairly 573 at 1 and reason S.W.2d pro judgment Before has been ably sexual inter raised issue as to whether nounced or case has been taken consensual). Nevertheless, course was advisement, may a defendant withdraw his Appeals held that the trial Court of Criminal plea right as a matter of without duty judge did not have a to withdraw the State, assigning 590 reason. Jackson guilty plea, reasoning that (Tex.Crim.App.1979); 515 Har S.W.2d ultimate trier of facts remained the State, ling (Tex.App.— 899 S.W.2d trial and was able to decide the defen bench 'd). However, 1995,pet Antonio after ref guilt withdrawing dant’s or innocence without the case has been taken under advisement or Sommer, 549; plea. Sulli judgment pronounced, has been a motion to van, untimely, is considered Gottson, hand, argues that the on the other the trial corut has discretion whether or by Payne v. present situation is controlled pleas. to allow the defendant to withdraw his State, (Tex.Crim.App.1990), a (Tex. DeVary v. the of Criminal ease which Court Jackson, 515; Crim.App.1981); 590 at S.W.2d in the trial court’s found reversible error State, 202, Milligan 324 see v. 168 Tex.Crim. permit to withdraw refusal to the defendant 864, (App.1959). 865 S.W.2d Payne, defendant guilty pleas. his the charges aggravated robbery pled guilty to If the defendant does not seek to State, attorney, the “surprised and then plea withdraw his and evidence of his inno judge” testified that he used and the when adjudication guilt, cence is raised after an of gun in toy gun rather than a real the judge required in a trial is not to sua bench robberies, innocence raising an issue as to his plea. sponte withdraw the defendant’s Payne, robbery charges. aggravated of the (Tex. State, 548, v. 574 549 Sommer S.W.2d The court did not 790 S.W.2d at 650-51. (op. reh’g) (citing Moon v. Crim.App.1978) on testimony oc- exactly when this indicate State, (Tex.Crim.App.1978)); 572 S.W.2d 681 curred, subsequent prior or to whether it was (Tex.Crim. State, 1, v. 573 4 Sullivan S.W.2d judge’s taking the ease under advisement the (op. reh’g). plea is App.1978) When the adjudicating guilt. judge’s the or court, judge the trial acts as the before the ultimately weighs evi trier of facts and the asserts, specifying the ba- without Gottson State, Moon v. 572 S.W.2d dence submitted. contention, Payne defen- that the sis for such reh’g); (op. on (Tex.Crim.App.1978) 682 testimony during punish- the occurred dant’s Sullivan, Sommer, 549; at 574 S.W.2d see possibly trial. phase of the ment judge as the at 4. “The trial 573 S.W.2d summary initial of infers this from the court’s withdrawing may trier of the facts without the facts: finding the plea the decide the issue either refused a Appellant pleaded guilty, but guilty guilty or as he believes defendant not thirty years. In- of plea bargain offer Sommer, require.” 574 at the facts S.W.2d stead, appellant elected to have Sullivan, 549; 573 S.W.2d at 4. accepting a him without judge sentence Appel- from the State. both recommendation The and Sommer decisions Sullivan open to the offenses a trial court lant confessed question the of whether involved

187 court, Compare surprised Payne, 790 apparently but he his at- discretion review. State, Wilson, torney, judge and the with the and 515 at 275 S.W.2d at 652 S.W.2d testimony.... following DeVary, at 740 Jack- 615 S.W.2d son, 590 S.W.2d however, (1) court, at 650. The later request referred the defendant’s with bar, sought with at the case “timely” pleas draw his as noted had pleas after court draw his procedurally the case was identical to the Thus, adjudicated guilty. appropri him State, facts in 515 S.W.2d 274 Wilson is abuse of discretion. ate standard review at (Tex.Crim.App.1974). See id. 651-52. discretion, ap To establish abuse opin Both of these statements in the court’s must that the court’s pealing party show significant. ion are ruling lies outside the “zone reasonable calling court’s The the defendant’s State, disagreement.” DuBose v. 915 S.W.2d suggests request “timely” request Montgom (Tex.Crim.App.1996); 496-97 prior adjudication guilt. occurred to an State, (Tex.Crim. ery v. Requests generally pleas to withdraw are Here, App.1990) (op. reh’g). we cannot untimely as late or characterized when the say judge’s mo that the denial Gottson’s requests made after the case are has been pleas was tion to withdraw his outside guilt taken advisement or has been disagreement. judge zone of reasonable See, adjudicated. e.g., DeVary, 615 S.W.2d may request have refused to with Gottson’s 740; Jackson, 515; at Milli S.W.2d pleas judge, draw the because the as State, 865; gan, 324 Scott facts, trier felt he could determine Gott- (Tex.App. no — Dallas having guilt son’s or innocence without pet.); McWherter v. cf. withdrawn, as in Sullivan and Sommer. (Tex.Crim.App.1978) (labelling de Additionally, judge may decided request timely fendant’s as when was filed rely upon Dr. insan Potterf s conclusion of retirement). jury’s Payne’s If re ity only page report since doctor’s six quest to his plea occurred in the regarding contained one sentence trial, punishment phase of sanity at the time of the and since offenses request would not have referred to the as Dr. nine Potterf did not discuss of the timely. We overrule Gottson’s second offenses. important Payne Also is the Court’s con point of error. sidering procedurally identical Wilson to the Wilson, facts before the court. In the defen judgment Accordingly, we the of the affirm requested plea prior dant to withdraw his to trial court. during the close of evidence thus the guilt/innocence phase of the trial. See Wil C.J., CHAPA, dissents. son, 515 This tends to indi surprising testimony that cate the arose be Justice, dissenting. Chief CHAPA adjudication guilt. fore an of Because, appellant at the time entered his Payne the Based on Court’s refer possess pleas, his trial counsel did not sub- Payne’s request timely ence to as and the appellant insane stantial evidence that was procedural court’s notation of the similarities offenses, I charged when he committed the Wilson, Payne to we believe that is distin agree majority that with the trial counsel present guishable from the case the since choosing appel- to was not ineffective for use Payne sought apparently defendant to with mitigating lant’s mental condition as evidence prior adjudication his pleas draw to an of punishment of as a defense. during instead guilt. important a This distinction is since However, the because I believe trial court ruling request trial on court’s a defendant’s denying appellant’s its discretion in timely subject abused plea to his a is to guilty once motion to withdraw harmless error standard of review while a complete of ruling request presented on after was with evidence a court’s a made adjudication guilt subject defense, respectfully an of to an I dissent. is abuse recognize I that the standard of to that he was not at the commit- review sane time he applied charged be when a moves with defendant to ted the offenses. This evidence guilty depends plea draw a the appointed expert, when from a came therefore, motion is made. a motion When to withdraw in unlike the evidence offered guilty plea is the made after ease has been Payne, objective prone it was and not to advisement, Further, taken under as in present un- fabrication. the evidence went case, ruling the trial court’s is un reviewed unchallenged by contradieted and the State. der an of Jack abuse discretion standard. Certainly, of uncontroverted evidence insani- State, (Tex.Crim. son v. appel- ty a factual as to raises issue whether hand, App.1979). On the a simi other where offense, of guilty charged lant could be prior accept lar is made to motion the court or, matter, any that offense. See Tex. ing plea, the defendant’s the trial court’s 1994) (es- (Vernon § 8.01 Penal Code Ann. actions are reviewed for harmful error. Id. tablishing insanity as an defense affirmative prosecution). to such, recognize I Payne

As also that (Tex.Crim.App.1990), 790 S.W.2d 649 majority that The focuses on the fact Dr. distinguishable present is in from case opinion regarding appellant’s sanity Potterfs appears that it that motion to withdraw non-respon- time of the offenses was plea guilty Payne in was made sive to trial court’s order to determine adjudication Payne was, guilt. there- majority trial. competence to stand The also fore, decided under a harmless error stan- important fact that Potterfs finds Dr. dard of review. We are bound an here in “a conclusion was made one sentence event, any abuse of discretion standard. I do not see the statement.” relevance Payne in the facts are instructive. After Regardless distinctions. of whether these pleading guilty aggravated robbery, Payne regarding Dr. Potterfs conclusion toy gun that he testified used a rather than presented independently upon request, in or gun robbery. real Id. at The report sentence, it or in one consti- entire Payne, attempting State cross-examined impartial and uncontroverted evidence tuted testimony allegations discredit his appellant that was not sane when commit- Id. fabrication. charged ted the offenses. appeals that The court criminal held implied appel- finding trial court’s that Payne’s plea guilty motion to withdraw his when he committed the lant was insane testimony granted should have been as his charged is con- crimes with which he was clearly raised a factual as to whether he issue trary only pre- evidence this issue guilty aggravated robbery. could Id. at be such, hearing. at the As sented 652. The court such reasoned denying appel- court abused its discretion circumstances, it could not find that harm pleas in guilty motion to withdraw his lant’s Payne, occurred. had not the new a com- indicating the face clear evidence defensive could exonerated plete arising offense from the defense Payne aggravated charge from the rob- clearly this case. The evidence war- facts of However, bery. nothing to there is indicate development of issue of further ranted Payne could been not have found appellant’s at the time of the offense. spite of a included offense in lesser Appellant unquestionably harmed Yet, still new evidence he offered. the court opportunity completely estab- denial case, by present harm. In the estab- found newly defense that could lish a discovered lishing he was when he commit- insane completely him of the have exonerated offense, appellant been ted the would have charges he faced. charge from could exonerated State judgment remand I reverse the would brought against facts. him under these pro- court for this case to the trial further case, present facts in when Therefore the ceedings. compared Payne, to those in indicate an even greater resulting likelihood of harm from appellant’s to withdraw.

denial of motion withdraw, hearing on motion to At the presented independent appellant

Case Details

Case Name: Gottson v. State

Court Name: Court of Appeals of Texas

Date Published: Feb 5, 1997

Citation: 940 S.W.2d 181

Docket Number: 04-95-00869-CR to 04-95-00876-CR and 04-95-00892-CR

Court Abbreviation: Tex. App.