Opinion issued March 13, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-01-01200-CR
JAMARCUS TYRONE POPE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Cause No. 859248
MEMORANDUM OPINION
Appellant, Jamarcus Tyrone Pope, was charged by indictment with the felony offense of aggravated robbery. Appellant initially entered a plea of not guilty and proceeded to trial. During the State’s case in chief, appellant withdrew his plea of not guilty and entered a guilty plea without an agreed recommendation of punishment. The trial court assessed punishment at 20 years’ imprisonment.
We address (1) whether appellant was deprived of effective assistance of counsel, and (2) whether appellant’s plea was voluntary. We affirm.
Background
On Saturday, October 14, 2000, at approximately noon, Dr. Barry Wood, the complainant, was robbed at knife-point in a health food parking lot. After getting into his Lexus and putting the keys in the ignition, Wood reached to close the car door. Appellant was standing in the door, holding a six- to seven-inch folding knife near Wood’s left side. Appellant told Wood to do as he was told and instructed Wood to open his billfold and give appellant all of his money. Wood complied and was told by appellant to leave the keys in the car and get out. After getting out of the car, Wood observed another man standing near the rear bumper of the Lexus. The other man walked up to Wood, grabbed the wallet out of Wood’s hand, and told Wood to start walking toward the store. While walking away, Wood observed appellant drive away in his Lexus, and the second man follow in an Acura. Wood memorized the license plate number of the Acura, walked home, and called the police. Houston Police Officer T. Villareal responded to the call and took down Wood’s information. Villareal discovered that the Acura had been previously stolen in another aggravated robbery.
The next morning, October 15, 2000, Houston Police Officer Joseph Rothman, observed a traffic violation committed by the driver of a Lexus. Rothman ran a license plate check as he followed the Lexus. The result indicated that the vehicle had been stolen in an aggravated robbery. Rothman continued to follow the vehicle as he waited for back up. After back up arrived and Rothman turned on his lights and siren, the vehicle sped up. All three occupants then jumped from the car while it was still moving and took off running. Only the backseat passenger, Billy Ray Williams, was caught. That afternoon, Woods viewed a videotaped police lineup that included Williams, but did not include appellant. Woods did not recognize anyone in the lineup as being the person who had robbed him.
On October 22, 2000, at approximately 1:53 a.m., while running routine license plate checks on vehicles in a parking lot, Officers Benavides and Kahn discovered the stolen Acura that Woods had observed on the day he was robbed. While waiting for a wrecker to arrive, the officers saw appellant get in the vehicle. Appellant was arrested, placed in a lineup, and identified by Woods as the person who had robbed him. School books and homework containing appellant’s name were also recovered from the Acura. Officer Rothman also identified appellant as the person he saw driving the Lexus on October 15, 2000.
Ineffective Assistance of Counsel
In two points of error, appellant claims that his trial counsel rendered ineffective assistance under the state and federal constitutions. Appellant asserts that his trial counsel was deficient in (1) failing to spell out the specifics of the plea bargain and detailing what appellant had to do to receive a maximum of 10 years’ imprisonment, (2) failing to put facts in the record during sentencing regarding appellant’s cooperation with the police, and (3) failing to object to the prosecutor’s argument about parole and its effect on the potential sentence. To determine if a defendant has been denied effective assistance of counsel, we follow the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Strickland has been adopted as the applicable standard under the Texas Constitution. See Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000) (citing Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986)). Therefore, we review appellant’s first two points of error together.
First, appellant must demonstrate that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064; Howland v. State, 966 S.W.2d 98, 104 (Tex. App.—Houston [1st Dist.] 1998), aff’d, 990 S.W.2d 274 (Tex. Crim. App. 1999). Second, appellant must establish that counsel’s performance was so prejudicial that it deprived him of a fair trial. Howland, 966 S.W.2d at 104. Thus, appellant must show that a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Howland, 966 S.W.2d at 104. Appellant has the burden to establish both of these prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998); Davis v. State, 830 S.W.2d 762, 765 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). We cannot speculate beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Appellant must overcome the presumption that trial counsel’s strategy was sound. Gamble, 916 S.W.2d at 93.
An appellant “making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Strickland, 466 U.S. at 690; 104 S. Ct. at 2066. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel’s conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
Appellant complains that trial counsel was deficient in failing to advise him of the details and requirements of the plea bargain agreement, and in failing to object to the prosecutor’s argument about parole and its effect on the potential sentence. No motion for new trial was filed. The record is silent as to what appellant’s counsel’s trial strategy was, as well as any discussions or counseling with appellant regarding the details of the plea bargain. However, the record does reflect details of the agreement with the State and that appellant was fully advised by the court, in the presence of his attorney, of the requirements of the agreement. After appellant changed his plea to guilty, the trial court admonished and questioned appellant regarding the plea. The following are the pertinent sections of the record reflecting discussions regarding the agreement:
The Court: The full range of punishment for aggravated robbery is from five to 99 years or life and a possible fine not to exceed $10,000. This is without an agreement except that both the State and the Defense agree that the defendant shall not be sentenced to less than ten years in prison. Is that your understanding?
Mr. Pope: Yes, ma’am.
. . . .
The Court: . . . It is my understanding from the State and the Defense that there is some cooperation that is being discussed with you and the Police Department; is that correct?
Mr. Pope: Yes, ma’am.
The Court: Those matters will be taken into consideration at punishment on the sentencing. Do you understand that?
Mr. Pope: Yes, ma’am.
The Court: Do you have any questions of me?
Mr. Pope: No, ma’am.
. . . .
Ms. Escobedo: Our agreement at this time is that we’ll be setting the case for sentencing. The defendant and apparently some of his friends are going to be cooperating with Sgt. Defee with the City of Houston Police Department Robbery Division.
The defendant, through his attorney, advises that he has some information as to who the co-defendants were with them in each of the robberies as well as who some other people are out there committing these types of violent aggravated robberies. The defendant is supposed to turn over information to the Houston Police Department. If that information turns out to be credible and reliable and useful to the Police Department, then the agreement would be that this defendant receive ten years in prison on this aggravated sentence. I would dismiss the pending robbery case.
If the defendant does not give information that is usable to the Houston Police Department, then his punishment will be open to the Court. Sgt. Defee will determine the level of cooperation and Judge Collins, based on what Sgt. Defee has to say, will sentence the defendant. I’m going to be asking for more than ten years in prison if the information the defendant gives is not helpful and does not lead to anything.
Clearly, appellant was advised in open court as to the details and requirements of the agreement. However, there is nothing on the record detailing conversations between appellant and his trial counsel, or trial counsel’s trial strategy regarding objections. To find that trial counsel was ineffective based on either of the asserted grounds would call for us to speculate, which we will not do. Gamble, 916 S.W.2d at 93.
Appellant also claims that his trial counsel was deficient in failing to put facts in the record during sentencing regarding appellant’s cooperation with the police. Appellant changed his plea to guilty on September 20, 2001. Sentencing was held on November 15, 2001. Because a court reporter was waived, there is no record for the sentencing phase. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Because appellant’s claim for ineffective assistance of counsel is not demonstrated in the record, we hold that he has not met his burden of proving that his trial counsel was ineffective.
We overrule appellant’s first two points of error.
Validity of Guilty Plea
In his third point of error, appellant argues that his plea was not knowingly and voluntarily made because the plea bargain was vague.
The trial court cannot accept a guilty plea unless the court determines that the plea is freely and voluntarily given. Burke v. State, 80 S.W.3d 82, 93 (Tex. App.—Fort Worth 2002, no pet.). Due process requires that each defendant who pleads guilty do so with a full understanding of the charges against him and the consequences of his plea. Id. A trial court’s admonishing a criminal defendant pursuant to article 26.13 of the Texas Code of Criminal Procedure before accepting the plea constitutes prima facie evidence that the plea was knowing and voluntary. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2003); Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). Accordingly, when the trial court admonishes the defendant, the burden shifts to the defendant to prove that he did not fully understand the consequences of his plea and that he suffered harm. Martinez, 981 S.W.2d at 197. In considering the voluntariness of a guilty plea, we examine the record as a whole. Id.
Appellant received both oral admonishments and written admonishments. Appellant indicated on the record that he understood the court’s detailed oral admonishment. Appellant also signed a waiver of constitutional rights, agreement to stipulate, and judicial confession, which included a stipulation of evidence that he committed the offense with which he was charged. Appellant also signed and swore to article 26.13 admonishments acknowledging that he understood the possible range of punishment and that any punishment recommendation by the prosecuting attorney was not binding on the trial court. In the “Statements and Waivers of Defendant” section of these admonishments, appellant initialed the following statements: (1) he was mentally competent and understood the nature of the charge against him, (2) he understood the admonishments of the trial court, and (3) he understood the consequences should the trial court accept or refuse to accept the plea bargain or plea without an agreed recommendation. Because the sentencing portion of the trial was not recorded, there is nothing in the record to determine the level of cooperation provided by appellant to the police. Because appellant signed the plea of guilty and the article 26.13 admonishments, and because nothing in the record indicates that appellant’s plea was involuntary, appellant has failed to defeat the prima facie showing of voluntariness.
We overrule appellant’s third point of error.
Conclusion
We affirm the judgment of the trial court.
/s/ Laura C. Higley
Justice
Panel consists of Justices Taft, Keyes, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).