COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
)
WILLIAM CHARLES CRAWFORD, ) No. 08-01-00043-CR
)
Appellant, ) Appeal from
)
v. ) 244th District Court
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THE STATE OF TEXAS, ) of Ector County, Texas
)
Appellee. ) (TC# C-28,104)
O P I N I O N
William Charles Crawford appeals his convictions for indecency with a child. Appellant waived his right to a jury and entered an open plea of guilty to three counts of indecency with a child. The court found Appellant guilty and assessed punishment at imprisonment for a term of thirteen years on each count. On appeal, he asserts that his attorney provided ineffective assistance of counsel by advising him to plead guilty. We affirm.
FACTUAL SUMMARY
A grand jury indicted Appellant for three counts of indecency with a child. Counts 1 and 2 alleged that Appellant engaged in sexual contact with AT,@ a child younger than seventeen years of age, by touching her genitals. See Tex.Pen.Code Ann. ' 21.11(a)(1)(Vernon Supp. 2002). Count 3 alleged that Appellant engaged in sexual contact by causing AT@ to touch his genitals. See Tex.Pen.Code Ann. ' 21.11(a)(1). Appellant filed an application for probation and later entered a non-negotiated guilty plea to each count after waiving his rights to a jury trial and to confront the witnesses against him. The trial court properly admonished Appellant, and before accepting Appellant=s pleas of guilty, determined that he had voluntarily entered them.
Both the State and Appellant offered evidence at the punishment hearing. In support of its argument that Appellant should be sentenced to a term of imprisonment, the State offered the testimony of a deputy sheriff who initially responded to the sexual assault call, the complainant=s mother and stepmother, another investigator who testified to statements by Appellant admitting that he had unintentionally touched the complainant=s genitalia while Atickling@ her, and the case worker who interviewed the complainant. The State also offered the videotaped interview of the complainant and an anatomically correct drawing she made depicting where Appellant touched her. Appellant testified for the sole purpose of establishing his eligibility for community supervision. During closing argument, the State argued for a prison sentence while Appellant=s attorney requested community supervision. Based upon the evidence and the pre-sentence report, the trial court assessed punishment at imprisonment for thirteen years on each count. Appellant filed a motion for new trial but he did not raise his ineffective assistance of counsel claim.
INEFFECTIVE ASSISTANCE
In his sole point of error, Appellant contends that he was denied the effective assistance of counsel because his attorney allowed him to plead guilty with the expectation that he would be placed on community supervision. He also complains that counsel failed to cross-examine any of the witnesses during the punishment phase.
Standard of Review
The proper standard for determining claims of ineffective assistance under the Sixth Amendment is the two‑step analysis adopted by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Hernandez v. State, 988 S.W.2d 770, 771‑72 (Tex.Crim.App. 1999). Under the first prong, the defendant must show that counsel=s performance was deficient, to the extent that counsel failed to function as the Acounsel@ guaranteed by the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). The defendant must demonstrate that his attorney=s representation fell below an objective standard of reasonableness under prevailing professional norms. Vasquez v. State, 830 S.W.2d 948, 949 (Tex.Crim.App. 1992). Under the second prong, the defendant must establish that counsel=s deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L.Ed.2d at 693; Jackson, 877 S.W.2d at 771. Prejudice is established by a showing that there is a reasonable probability 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, 80 L.Ed.2d at 698; Jackson, 877 S.W.2d at 771; Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L.Ed.2d at 698; Jackson, 877 S.W.2d at 771.
When we review a claim of ineffective assistance of trial counsel, we must indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable, professional assistance and the appellant must overcome the presumption that the challenged conduct can be considered sound trial strategy. Jackson, 877 S.W.2d at 771; Calderon v. State, 950 S.W.2d 121, 126 (Tex.App.‑-El Paso 1997, no pet.). An appellant challenging trial counsel=s performance therefore faces a difficult burden and Aa substantial risk of failure.@ See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Allegations of ineffectiveness of counsel must be firmly founded in the record. Hawkins v. State, 660 S.W.2d 65, 75 (Tex.Crim.App. 1983); Calderon, 950 S.W.2d at 126. Under the Strickland test, the appellant bears the burden of proving ineffective assistance by a preponderance of the evidence. Jackson, 877 S.W.2d at 771; Calderon, 950 S.W.2d at 126.
Erroneous Advice Regarding Eligibility for Probation
We understand Appellant to argue that counsel erroneously led Appellant to believe he would be given community supervision if he entered a plea of guilty. As part of this argument, Appellant suggests that he was not eligible for community supervision. When a defendant who has pleaded guilty to the charged offense challenges the effectiveness of his counsel, we must determine (1) whether counsel=s advice was within the range of competence demanded, and if not, (2) whether there is a reasonable probability that, but for the ineffective assistance, the defendant would not have pleaded guilty and would have insisted on going to trial. Ex parte Moody, 991 S.W.2d 856, 857‑58 (Tex.Crim.App. 1999); Flores v. State, 18 S.W.3d 796, 799 (Tex.App.‑-Austin 2000, no pet.).
Because Appellant did not file a motion for new trial raising this claim, the record has not been developed with respect to the reasons for Appellant=s entry of this plea, the advice provided to Appellant, or counsel=s trial strategy. Without a record having been developed on these issues, we are unable to determine whether Appellant entered a plea of guilty on the advice of counsel, whether counsel=s advice was legally correct, or whether counsel=s advice was made pursuant to sound trial strategy.
Furthermore, Appellant is only partially correct in his suggestion that he was ineligible for community supervision. Because Appellant entered a plea of guilty to indecency with a child by sexual contact, he was not eligible for judge-ordered community supervision under Section 3. See Tex.Code Crim.Proc.Ann. art. 42.12, ' 3g (Vernon Supp. 2002)(providing that Section 3 does not apply to a defendant found guilty of an offense under Section 21.11(a)(1), namely, indecency with a child by sexual contact). The trial judge had the authority, however, to defer an adjudication of guilt and place Appellant on deferred adjudication community supervision for this offense. See Tex.Code Crim.Proc.Ann. art. 42.12, ' 3g (providing that a judge may grant deferred adjudication community supervision for a defendant charged with an offense under Sections 21.11, 22.011, or 22.021, but only if the judge makes a finding in open court that placing the defendant on community supervision is in the best interest of the victim). We decline to assume that counsel erroneously advised Appellant that he was eligible for both regular community supervision under Section 3 and deferred adjudication community supervision under Section 5. Further, the record fails to disclose that had Appellant known he was eligible only for deferred adjudication and ineligible for regular community supervision, he would not have entered a plea of guilty. See Tabora v. State, 14 S.W.3d 332, 337 (Tex.App.--Houston [14th Dist.] 2000, no pet.). Given the absence of evidence, Appellant has failed to establish ineffective assistance by a preponderance of the evidence.
Failure to Cross-Examine Witnesses
Appellant additionally argues that counsel=s performance was deficient because he failed to cross-examine any of the State=s witnesses during the punishment hearing. Once again, we are compelled to note that Appellant has not provided a sufficient record to permit review of this argument. It is Appellant=s burden to not only show that the witnesses would have provided some evidence beneficial to Appellant,[1] but he must also rebut the presumption that counsel declined to cross-examine the witnesses as the result of a reasonable trial strategy. Because Appellant has failed to establish ineffective assistance of counsel by a preponderance of the evidence, we overrule his sole point of error. The judgment of the trial court is affirmed.
October 24, 2002
ANN CRAWFORD McCLURE, Justice
Before Panel No. 2
Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)
[1] See generally Wilkerson v. State, 726 S.W.2d 542, 550‑51 (Tex.Crim.App. 1986)(stating that counsel=s failure to call a witness is irrelevant absent a showing that the witness was available and the defendant would benefit from the testimony).