Appeal from the 184th District Court Harris County, Texas
Trial Court Cause No. 1513135.
consists of Chief Justice Frost and Justices Zimmerer and
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
Motion to Adjudicate Evading Arrest or
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.
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
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.
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.
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.
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
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[.]"
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.
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.
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.
Motion for New Trial
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
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
trial court held a hearing on appellant's motion for new
trial at which appellant's trial counsel and appellant
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."
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.
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.
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.
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.
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."
regard to any plea bargain offers, trial counsel testified as
Q. And up to that point had you ever plea bargained with the
State to try ...