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Sykes v. State

Court of Appeals of Texas, Fourteenth District

September 19, 2019

ANTHONY WAYNE SYKES, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 1513135.

          Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan

          MAJORITY OPINION

          Jerry Zimmerer Justice.

         Appellant Anthony Wayne Sykes appeals his conviction for evading arrest or detention with a motor vehicle. See Tex. Penal Code Ann. § 38.04. Appellant initially entered into a plea bargain agreement with the State in which he pleaded guilty to evading arrest or detention with a motor vehicle. In exchange for appellant's guilty plea an adjudication of guilt was deferred, and appellant was placed on deferred adjudication community supervision for four years. Before appellant completed the four-year community supervision, the State moved to adjudicate appellant's guilt on the ground that he violated his community supervision by committing another offense. In response to the State's motion to adjudicate, appellant entered a plea of true to the offense of unlawfully carrying a weapon, and the trial court signed a judgment adjudicating his guilt assessing punishment at nine years in prison. In three issues, appellant argues that he received ineffective assistance from his trial counsel. Concluding that appellant has not shown his counsel rendered ineffective assistance, we affirm the trial court's judgment.

         Background

         I. Motion to Adjudicate Evading Arrest or Detention

         Appellant pleaded guilty to the offense of evading arrest or detention in a motor vehicle in exchange for four years' deferred adjudication community supervision. One of the conditions of appellant's community supervision was that he commit no offense against the laws of Texas or any other state or of the United States.

         Less than one month after receiving deferred adjudication appellant was arrested for unlawfully carrying a weapon and the State filed a motion to adjudicate the evading-arrest charge. Appellant entered a plea of true to the allegation that he unlawfully carried a weapon and the trial court proceeded to a hearing on the State's motion to adjudicate.

         At the hearing the trial court asked appellant if he "freely, knowingly, and voluntarily" entered a plea of true to the offense of unlawfully carrying a weapon. Appellant answered yes that his plea was made freely, knowingly, and voluntarily. In response to further questions by the trial court appellant answered that he had sufficient time to discuss his plea with his attorney. Appellant acknowledged that he understood that the punishment range for evading arrest in a motor vehicle is two to ten years in prison and a fine up to $10,000. Appellant further acknowledged the deportation consequences of his plea if he was not a United States citizen. Appellant denied any mental health diagnoses and stated that he understood the consequences of his plea of true. Appellant testified that he was satisfied with his attorney's performance. The trial court asked whether there was a plea bargain agreement, and appellant's trial counsel answered, "There was not, Your Honor." Appellant averred that he understood that by pleading true he was confessing that he violated his community supervision. Appellant voluntarily waived his Fifth Amendment right to remain silent and his Sixth Amendment right to confront witnesses against him.

         Officer Alexander Farmer of the Houston Police Department testified that he was dispatched to an Aldi grocery store in response to a 911 call. The 911 caller was a manager at Aldi who reported there was an African-American male wearing all black clothing and motorcycle equipment in the store. The manager called 911 because the man matched the description of a man who had recently robbed two other Aldi locations. When Farmer arrived in the store the store manager flagged him down and pointed toward appellant who was in the back of the store. Appellant was walking around the back of the store wearing a ski mask obstructing his face with a motorcycle helmet over the ski mask.

         Farmer and his partner approached appellant and told him that they needed to detain him because they suspected he had robbed other Aldi stores and was armed. Farmer placed handcuffs on appellant because appellant began to back away from the officers. Farmer asked appellant what he was doing in the store and appellant replied that he was buying groceries on his way home from his sister's house. Farmer searched appellant's backpack and found a firearm. Farmer reviewed video from the earlier robberies and believed appellant was the person who had robbed the other Aldi stores. Farmer testified that the clothing appellant wore was identical to that of the robber and appellant's body size, mannerisms, and motorcycle helmet also matched that of the robber. The State introduced the surveillance video from the night appellant was arrested. The video was played, and Farmer identified appellant in the video.

         Appellant testified that he understood the proceedings and that he pleaded true to the unlawful carrying of a weapon offense because it was true that he was carrying a weapon in the store. Appellant explained that his sister had bought the gun two days earlier and asked him to temporarily hold the weapon because she would be traveling with her husband who was a convicted felon. When appellant's sister moved into her new apartment appellant planned to give the weapon back to her.

         Appellant explained that he was wearing a ski mask because it was cold outside. Appellant explained that he was wearing a motorcycle helmet while in the grocery store because he was using the Bluetooth speakers in the helmet to communicate with his sister on the phone. Appellant did not explain why he was wearing a ski mask in the store. On cross-examination appellant admitted that he knew it was against the law to carry the weapon in a grocery store, but testified, "I wasn't intending on getting arrested[.]"

         During appellant's testimony the State sought to introduce the video of a previous aggravated robbery at another Aldi store. Appellant's counsel told the trial court he had not seen the video and expressed a desire to view it. The trial court recessed to permit appellant's counsel to review the video of the previous robbery. After the recess the video was played for the court. Appellant admitted the person who robbed the other Aldi store was wearing an identical motorcycle helmet and was wearing all black clothing. Appellant agreed that the robber's jacket had a logo that was very similar to the logo on appellant's jacket. Appellant denied that he was the person in the video who robbed the Aldi store.

         Appellant's sister, Anechia Green, testified on his behalf. Green testified that appellant was not the person in the video from the previous Aldi robbery. Green testified that she purchased the gun appellant was carrying because she was moving into an area that was known for drugs and violence. Green wanted the weapon for protection. Green planned to get a license for the gun after purchasing it. Green gave the weapon to appellant because she was moving and did not want to be carrying the gun around while moving to a new apartment.

         At the conclusion of the hearing the trial court found that appellant freely and voluntarily entered a plea of true and adjudicated appellant's guilt on the evading arrest in a motor vehicle charge. The trial court assessed punishment at nine years in prison.

         II. Motion for New Trial

         Appellant was appointed new counsel who filed a motion for new trial based on ineffective assistance of counsel. Appellant attached an affidavit to his motion for new trial, which stated:

I was placed on a 4 year [deferred] probation January 6, 2017. I violated my probation by committing an offense [against] the law in the state of Texas. The offense was an UCW on Jan. 27, 2017. In March I hired an attorney by the name of Lott J. Brooks, III who initially approached me with a goal of a dismissal of this misdemeanor on a[n] early termination of my current probation. The following months Mr. Brooks would rarely appear to court to let me know about my case. In early May he finally approached me truthfully and advised me that the state of Texas did not want to dismiss the case and the current offer was a [deferred] probation that would run concurrent with my felony probation. After seeing no other option would be effective we agreed that pleading "no contest" would be the best option in hopes that not pleading guilty would help our chances for getting reinstated. Mr. Brooks then told me we would be doing a MAJ hearing but I asked him if we could avoid the hearing and just sign for 2 years TDC. After sitting for several month[s] awaiting the next answer from Brooks my family paid $9,000 to bond me out. We then were told that my court date would be Nov. 2, 2017 and it would not be a hearing. So we appeared to court ready for a regular court session but then were told to be ready for a hearing mere minutes in advance. I wasn't prepared and neither was Brooks. Judge Krocker sentenced me to 9 years TDC because I plead no contest to the misdemeanor and was advised to plead "true" at MAJ hearing.

         The trial court held a hearing on appellant's motion for new trial at which appellant's trial counsel and appellant testified.

         Appellant's trial counsel began his representation of appellant after the State filed the motion to adjudicate guilt. Appellant told trial counsel that the weapon he was carrying belonged to his sister and he was carrying it because she did not want the weapon in her home. Trial counsel thought he might be able to convince the State to dismiss the case because appellant was "simply traveling from one spot to another" with the weapon. Trial counsel later learned that the State would not dismiss the weapon charge because, in counsel's estimation, the felony prosecutor thought that appellant had "gotten away with an aggravated robbery."

         Trial counsel tried to negotiate deferred adjudication community supervision in exchange for a no-contest plea on the weapon charge. Counsel recognized that even if appellant had an excuse for carrying a weapon, appellant's excuse was not a defense to the offense. Counsel thought he could negotiate an extension of the deferred adjudication community supervision on the evading-arrest charge if appellant admitted his guilt on the weapon charge.

         Trial counsel testified that he advised appellant to plead no contest to the weapon charge because he hoped a no-contest plea would not result in an "automatic" revocation of community supervision. Trial counsel believed that the trial court would perhaps be more lenient with appellant after a no-contest plea rather than a conviction by a jury.

         Trial counsel spoke with prosecutors for the State and tried to negotiate a continuation of deferred adjudication community supervision rather than an adjudication on the evading arrest charge. Trial counsel recommended that appellant plead true to the weapon charge in an attempt to mitigate punishment.

         With regard to the Aldi robbery video and the video of appellant, trial counsel reviewed both videos and testified that the videos were "linked." Elaborating, trial counsel testified that the alleged robber was dressed "in exactly the same outfit," including a motorcycle helmet, that appellant was wearing the day he was arrested for carrying a weapon. Appellant was never charged with robbing the Aldi stores.

         Trial counsel testified that before the adjudication hearing the State appeared to be unaware of the video. The trial court ordered the State to produce the clothing that appellant had worn. According to trial counsel, "along with the clothing, there was a video."

         With regard to any plea bargain offers, trial counsel testified as follows:

Q. And up to that point had you ever plea bargained with the State to try ...

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