TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-98-00567-CR
v.
The State of Texas, Appellee
NO. 0973943, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
The Court of Criminal Appeals has adopted the Supreme Court's test to determine challenges of guilty pleas based on a claim of ineffective assistance of counsel:
In Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), the Supreme Court held that the two-part test announced in Strickland v. Washington, 466 U.S. 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) applies to challenges to guilty pleas based on ineffective assistance of counsel. See also Ex parte Adams, 707 S.W.2d 646 (Tex. Cr. App. 1986). Thus, it is applicant's burden to first prove that counsel's advice was not "within the range of competence demanded of attorneys in criminal cases," McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763 (1970), and secondly, that but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, supra.
Ex parte Pool, 738 S.W.2d 285, 286 (Tex. Crim. App. 1987).
The State alleged that appellant had been convicted previously of three DWI offenses. Proof of only two previous DWI convictions authorizes third degree felony punishment for the primary DWI offense. See Tex. Penal Code Ann. § 49.09(b). The State also alleged that appellant had been convicted of two prior felony offenses to further enhance his punishment; however, the second previous felony conviction was not for an offense that occurred subsequent to the first previous conviction having become final. This would authorize second degree felony punishment. See Tex. Penal Code Ann. § 12.42(a)(3), (d) (West 1999). Appellant entered a non-negotiated plea of guilty and the trial court found him guilty. The State asked the trial court to assess punishment of imprisonment for thirteen years, but the court assessed punishment of imprisonment for ten years.
In his motion for new trial, appellant raised the same issue that he presents on appeal. He alleged that he received ineffective assistance of counsel that resulted in his entering an involuntary guilty plea. Specifically, appellant contends that his trial counsel did not properly investigate and prepare appellant's defense. Appellant alleges that if counsel had properly investigated and prepared to represent him, counsel would have found that the alleged previous
DWI convictions were invalid and not usable for enhancement because appellant had been unrepresented by counsel when those convictions were obtained. Moreover, appellant alleges that if trial counsel had properly prepared appellant's defense, counsel would have learned that when he was arrested, appellant made racial slurs and stated that he was a white supremacist. Further, appellant alleged counsel should have known that the racial slurs would be detrimental when the court assessed punishment.
At the hearing of the motion for new trial, trial counsel's affidavit attached to the motion for new trial was not offered in evidence and it is therefore not before us for our consideration. See Stephenson v. State, 494 S.W.2d 900, 909-10 (Tex. Crim. App. 1973). The trial court stated for the record that trial counsel was "competent counsel" and a "good lawyer." Further, the trial court stated that he had assessed punishment based on "the crime and [appellant's] prior record," and that the racial slurs and appellant's statement that he was a white supremacist had no "impact" on the punishment assessed. The State and appellant offered documentary evidence of appellant's prior convictions. This evidence shows that when appellant was convicted of two of the previous DWI offenses, he was represented by counsel. When appellant was convicted of the earliest misdemeanor DWI, he waived representation by counsel, and there is no evidence he was indigent at that time. The record shows that the previous DWI convictions were usable to raise the primary offense to the felony level.
Appellant has failed to prove counsel's alleged deficiencies in the investigation and preparation of his defense, and he has failed to show that counsel gave any advice not "within the range of competence demanded of attorneys in criminal cases." In addition, appellant has failed to show that he involuntarily entered a guilty plea instead of going to trial. The trial court did not abuse its discretion in denying appellant's motion for new trial. Appellant's point of error is overruled.
The judgment is affirmed.
Carl E. F. Dally, Justice
Before Justices B. A. Smith, Yeakel and Dally*
Affirmed
Filed: October 21, 1999
Do Not Publish
* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
pplicant's burden to first prove that counsel's advice was not "within the range of competence demanded of attorneys in criminal cases," McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763 (1970), and secondly, that but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, supra.
Ex parte Pool, 738 S.W.2d 285, 286 (Tex. Crim. App. 1987).
The State alleged that appellant had been convicted previously of three DWI offenses. Proof of only two previous DWI convictions authorizes third degree felony punishment for the primary DWI offense. See Tex. Penal Code Ann. § 49.09(b). The State also alleged that appellant had been convicted of two prior felony offenses to further enhance his punishment; however, the second previous felony conviction was not for an offense that occurred subsequent to the first previous conviction having become final. This would authorize second degree felony punishment. See Tex. Penal Code Ann. § 12.42(a)(3), (d) (West 1999). Appellant entered a non-negotiated plea of guilty and the trial court found him guilty. The State asked the trial court to assess punishment of imprisonment for thirteen years, but the court assessed punishment of imprisonment for ten years.
In his motion for new trial, appellant raised the same issue that he presents on appeal. He alleged that he received ineffective assistance of counsel that resulted in his entering an involuntary guilty plea. Specifically, appellant contends that his trial counsel did not properly investigate and prepare appellant's defense. Appellant alleges that if counsel had properly investigated and prepared to represent him, counsel would have found that the alleged previous
DWI convictions were invalid and not usable for enhancement because appellant had been unrepresented by counsel when those convictions were obtained. Moreover, appellant alleges that if trial counsel had properly prepared appellant's defense, counsel would have learned that when he was arrested, appellant made racial slurs and stated that he was a white supremacist. Further, appellant alleged counsel should have known that the racial slurs would be detrimental when the court assessed punishment.
At the hearing of the motion for new trial, trial counsel's affidavit attached to the motion for new trial was not offered in evidence and it is therefo