In Re: Rudolfo Villafuerte--Appeal from 7th District Court of Smith County

SUPREME COURT CASES

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State: Texas

Court: Texas Northern District Court

Docket No: 12-05-00264-CV

Case Date: 09/30/2005

Plaintiff: Jerry Bruce Gordon

Defendant: The State of Texas--Appeal from 266th District Court of Erath County

Preview:Jerry Bruce Gordon v. The State of Texas--Appeal from
266th District Court of Erath County
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11th Court of Appeals
Eastland, Texas
Opinion
Jerry Bruce Gordon
Appellant
Vs. Nos. 11-02-00182-CR, 11-02-00183-CR, 11-02-00184-CR,
& 11-02-00185-CR -- Appeals from Erath County
State of Texas
Appellee
In Cause Nos. 11-02-00182-CR and 11-02-00184-CR, Jerry Bruce Gordon appeals the trial court s orders revoking his
community supervision. In Cause Nos. 11-02-00183-CR and 11-02-00185-CR, appellant appeals the trial court s
orders denying his application for writ of habeas corpus. We affirm.
In Cause No. 11-02-00182-CR, appellant pleaded guilty to the offense of theft of the value of $750 or more, but less
than $20,000. On May 3, 1993, the trial court deferred the adjudication of guilt, placed appellant on community
supervision for 5 years, and assessed a $1,000 fine. On December 15, 1994, the State filed a motion to adjudicate guilt.
On March 9, 1995, the trial court entered an order amending the terms of appellant s deferred adjudication. The order
extended appellant s community supervision an additional 2 years for a total of 7 years. On October 31, 1995, the State
filed its second amended motion to adjudicate guilt. On November 6, 1995, the trial court revoked appellant s
community supervision, adjudicated his guilt, and assessed his punishment at confinement for 10 years and a $1,000
fine. The trial court suspended the imposition of the confinement portion of the sentence and placed appellant on
regular community supervision for 10 years.
In Cause No. 11-02-00184-CR, appellant pleaded guilty to the offense of falsely holding oneself out as a lawyer. On
January 6, 1997, the trial court convicted appellant of falsely holding oneself out as a lawyer and sentenced appellant
to 10 years confinement and a $1,000 fine. The trial court suspended the imposition of the confinement portion of the
sentence and placed appellant on community supervision for 10 years. On that same day, the trial court amended the
terms and conditions of appellant s community supervision in Cause No. 11-02-00182-CR to include 2 new
conditions. On August 13, 1997, the State filed motions to revoke appellant s community supervision in both cause
numbers. The record shows that appellant left the country in 1997. The State tried to have appellant returned to the
United States in late 2001 and early 2002.
On March 7, 2002, the State filed amended motions to revoke in both cause numbers. On March 25, 2002, appellant
filed an application for writ of habeas corpus in both the theft conviction, Cause No. 11-02-00183-CR, and the falsely
holding oneself out as a lawyer conviction, Cause No. 11-02-00185-CR. On May 20, 2002, the trial court held a
hearing on both of appellant s applications for writ of habeas corpus and, that same day, a hearing on the State s
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motions to revoke appellant s community supervision in both cause numbers. The trial court denied appellant s
applications for writ of habeas corpus in both cause numbers. In both cause numbers, the trial court found that
appellant had violated the terms and conditions of his community supervision, revoked his community supervision, and
sentenced him to 10 years confinement. Appellant appeals from the trial court s orders denying his application for writ
of habeas corpus and from the judgments revoking his community supervision.
Appellant brings the same two points of error in each of the four cause numbers. Appellant first argues that he
received ineffective assistance of counsel at the time of his pleas of guilty and the adjudication of his guilt on his theft
probation. In reviewing claims of ineffective assistance of counsel, we employ the standard of review set out in
Strickland v. Washington, 466 U.S. 668 (1984). When a defendant challenges the voluntariness of a plea entered upon
the advice of counsel, contending that his counsel was ineffective, the voluntariness of the plea depends on (1) whether
counsel s advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether
there is a reasonable probability that, but for counsel s errors, he would not have pleaded guilty and would have
insisted on going to trial. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Cr.App.1999). As with other types of
ineffective assistance of counsel claims, appellant has the burden to show, by a preponderance of the evidence, that
counsel s performance fell below a reasonable standard of competence and that appellant would, with reasonable
probability, have pleaded not guilty and insisted on going to trial had he been properly advised. Ex parte Moody,
supra. In addition, appellant also has the burden to prove that his trial counsel s actions were not the result of sound
trial strategy. Stafford v. State, 813 S.W.2d 503, 508-09 (Tex.Cr.App.1991).
Cause Nos. 11-02-00182-CR & 11-02-00183-CR
Appellant contends that he received ineffective assistance of counsel because he agreed to have his guilt adjudicated
based upon the new offense of falsely holding oneself out to be a lawyer. Appellant argues that, in its motion to
adjudicate, the State alleged that appellant violated the terms and conditions of his community supervision by
committing the offense of falsely holding oneself out to be a lawyer. However, the record indicates that appellant s
guilt had already been adjudicated prior to the allegations of the offense of falsely holding oneself out to be a lawyer.
Appellant s adjudication of guilt was not based upon that offense. The record shows that, at the time appellant pleaded
guilty to the offense of falsely holding oneself out to be a lawyer, the terms and conditions of his regular community
supervision were amended. Appellant has not shown that he received ineffective assistance of counsel at the time his
guilt was adjudicated. The trial court did not abuse its discretion in overruling appellant s application for writ of habeas
corpus on the ground that he received ineffective assistance of counsel. See Ex parte Okere, 56 S.W.3d 846 (Tex.App.
- Fort Worth 2001, pet n ref d).
Cause Nos. 11-02-00184-CR & 11-02-00185-CR
Appellant contends that he received ineffective assistance of counsel because his trial counsel allowed him to plead
guilty when his conduct did not meet the elements of falsely holding oneself out to be a lawyer. A defendant placed on
regular community supervision may raise issues relating to the conviction only in appeals taken when community
supervision is originally imposed. Manuel v. State, 994 S.W.2d 658, 661 (Tex.Cr.App.1999); Whetstone v. State, 786
S.W.2d 361, 363 (Tex.Cr.App.1990). Because appellant is challenging his original plea of guilty upon revocation of his
community supervision, we do not consider his argument on appeal in Cause No. 11-02-00184-CR that he received
ineffective assistance of counsel. See Jordan v. State, 54 S.W.3d 783 (Tex.Cr.App.2001).
In Cause No. 11-02-00185-CR, appellant appeals from the trial court s order denying his application for writ of habeas
corpus. In his application for writ of habeas corpus filed pursuant to TEX. CODE CRIM. PRO. ANN. art. 11.08
(Vernon 1977), appellant challenged the voluntariness of his guilty plea stating that he received ineffective assistance
of counsel. Nothing prevents the probationer from filing an Article 11.08 writ application after the State has filed a
motion to revoke, and nothing prevents the trial court from considering the application along with the State s motion to
revoke probation. Jordan v. State, supra. We therefore, consider appellant s complaint in Cause No. 11-02-00185-CR
that he received ineffective assistance of counsel at the time he pleaded guilty to the offense of falsely holding oneself
out as a lawyer.
A person commits the offense of falsely holding oneself out as a lawyer if, with intent to obtain an economic benefit
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for himself or herself, the person holds himself or herself out as a lawyer. TEX. PENAL CODE ANN. 38.122(a)
(Vernon 2003). The record shows that appellant wrote a letter to one of his creditors and signed the name of the
attorney representing him at that time. The letter indicated that appellant had a strong case in his suit against an electric
cooperative. The trial court heard testimony that appellant wrote the letter in an effort to persuade the creditor to delay
its collection attempts. Appellant argues that his conduct did not meet the elements of falsely holding oneself out to be
a lawyer but, rather, that he forged his attorney s signature.
In its response to appellant s application for writ of habeas corpus, the State included an affidavit of the counsel who
represented appellant at the time of his plea. In the affidavit, appellant s counsel stated that he carefully discussed
defense strategies with appellant. The affidavit stated that appellant was emphatic in his instructions to negotiate a plea
agreement which would ensure that he remained on probation in [Cause No. 11-02-00182-CR] and receive probation
in [Cause No. 11-02-00184-CR]. In the affidavit, appellant s counsel stated that appellant did not want any defense
strategy that involved a risk of going to prison. Appellant s counsel felt he could only guarantee that appellant would
avoid prison by entering into a package deal. Appellant s counsel stated that appellant confessed to facts which counsel
believed satisfied the elements of falsely holding oneself out as a lawyer.
The record shows that appellant wrote a letter in which he claimed to be an attorney in an effort to delay his creditor s
collection attempts. Appellant instructed his attorney to negotiate a plea agreement so that he would not have to go to
prison. Appellant s attorney believed that appellant s actions met the elements of the offense, and he negotiated a plea
pursuant to appellant s instructions. Appellant has not shown that he received ineffective assistance of counsel. The
trial court did not abuse its discretion in overruling appellant s writ of habeas corpus. Ex parte Okere, supra.
Appellant next argues that he was not competent to enter his plea of guilty (and true), nor to effectively assist his trial
counsel. TEX. CODE CRIM. PRO. ANN. art. 46.02, 1A(a) (Vernon Pamph. Supp. 2003) provides that a person is
incompetent to stand trial if he does not have:
(1) sufficient present ability to consult with the person s lawyer with a reasonable degree of rational understanding; or
(2) a rational as well as factual understanding of the proceedings against the person.
The record shows that appellant was examined by a psychologist, Dr. Swen Helge, on June 21, 1996, and July 12,
1996. At that time, appellant was charged with the offense of falsely holding oneself out as a lawyer. Appellant s
counsel at that time referred appellant to Dr. Helge in an attempt to obtain evidence that would allow appellant to
receive community supervision rather than incarceration. Prior to the hearings on the State s motions to revoke
appellant s community supervision and appellant s application for writ of habeas corpus on May 20, 2002, appellant
had two different psychologists, Dr. William Eull and Dr. Robert Lovitt, review Dr. Helge s findings. Appellant argues
on appeal that he was not competent to enter his plea of guilty in Cause No. 11-02-00184-CR and his plea of true in
Cause No. 11-02-00182-CR based upon the findings of Dr. Eull and Dr. Lovitt.
Cause Nos. 11-02-00182-CR & 11-02-00183-CR
Dr. Helge conducted his psychological examination of appellant prior to appellant pleading guilty to the offense of
falsely holding oneself out as a lawyer on January 6, 1997. At the time appellant pleaded guilty to falsely holding
oneself out as a lawyer, the terms and conditions of his community supervision in Cause. No. 11-02-00182-CR were
amended. Appellant did not enter a plea of true in relation to Cause No. 11-02-00182-CR at the time he pleaded guilty
to the offense of falsely holding oneself out to be a lawyer. Therefore, the record does not support appellant s
argument that he was incompetent to enter a plea of true at that time. Moreover, there is nothing in the record to show
that appellant was incompetent to stand trial at the time he entered his original plea of guilty to the offense of theft in
Cause No. 11-02-00182-CR. Appellant has not shown that the trial court erred in revoking his community supervision
or in denying his application for writ of habeas corpus.
Cause Nos. 11-02-00184-CR & 11-02-00185-CR
Dr. Helge stated in his 1996 report that appellant was competent to stand trial. Dr. Lovitt testified at the hearing on
appellant s application for writ of habeas corpus that he reviewed Dr. Helge s report and also the tests Dr. Helge
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conducted. Dr. Lovitt did not personally examine appellant. Dr. Lovitt stated that, at the time appellant pleaded guilty,
appellant was under a series of stressors. Dr. Lovitt said that appellant s judgment was clearly compromised at the
time. Dr. Lovitt testified that appellant needed intensive, personal therapy. Dr. Lovitt stated that he did not know if
appellant was competent at the time he entered his plea. Dr. Eull s report does not provide any evidence that appellant
was incompetent at the time he entered his plea.
The trial court noted that it did not order Dr. Helge to evaluate appellant to determine his competency to stand trial.
The trial court found that appellant s attorney at that time had appellant examined for mitigation purposes. In its
findings, the trial court noted that appellant had appeared before the court on several occasions and that each time
appellant was oriented as to time and place, was able to answer questions, and was able to assist his counsel. Appellant
has not shown that he was incompetent to stand trial at the time he entered his plea of guilty. The trial court did not err
in revoking appellant s community supervision or in denying his application for writ of habeas corpus. We have
considered all of appellant s contentions on appeal and all are overruled.
The judgments of the trial court are affirmed.
PER CURIAM
November 26, 2003
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
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