Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Adrian Dwayne Eleby pleaded guilty to aggravated robbery and was sentenced by the jury to 80 years of confinement. He appealed his conviction. HOLDING:Affirmed. Eleby claims the trial court erred in depriving him of a hearing on the issue of his competency to stand trial. The record reflects that the trial court signed an order for the examination of Eleby but does not demonstrate a hearing was conducted or that evidence was otherwise submitted to the court. The court holds that, because the record fails to show that any evidence of incompetency was brought to the attention of the trial court, the mere fact that the trial court ordered an examination but none was ever conducted does not violate Texas Code of Criminal Procedure Article 46.02. The court agrees, however, with Eleby’s contention that the trial court erred in failing to show on the record that it admonished Eleby on the range of punishment when he pleaded guilty. But the court notes that the Court of Criminal Appeals has held the error to be nonconstitutional and therefore subject to a harm analysis under Texas Rule of Appellate Procedure 44.2(b). The court finds that the record reflects no objection or protest by Eleby or defense counsel when either the state or the trial court stated the range of punishment. At no time did Eleby ask to withdraw his guilty plea. Defense counsel did not file a motion for new trial on the grounds the plea was not knowing and voluntary. The court points out that, to warrant a reversal on direct appeal, the record must support an inference that appellant did not know the consequences of his plea. The court finds the record does not establish such an inference and, consequently, finds the error harmless. Eleby’s final issue asserts the trial court’s denial of his motion to disqualify the prosecutor deprived him of a fair trial. The prosecutor was employed as defense counsel in two prior cases that were being used to enhance the current conviction. Eleby argues the prosecutor’s prior representation and the knowledge he gained from that representation created a conflict of interest. The court states that, because the representation did not occur in the same case and the offenses in which the prosecutor had represented Eleby were being used for enhancement, the conflict is not apparent and prejudice must be shown. The court finds that Eleby has not established that the prosecutor’s failure to recuse himself prejudiced Eleby’s rights or deprived him of due process. OPINION:Kreger, J.; McKeithen, C.J., Kreger, and Horton, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.