NO. 12-03-00358-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
LARRY WAYNE STRICKLAND, § APPEAL FROM THE 173RD
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Larry Wayne Strickland appeals his conviction for transporting chemicals with intent to manufacture a controlled substance, for which he was sentenced to imprisonment for twenty years. Appellant raises two issues on appeal. We affirm.
Background
Appellant was charged by a two-paragraph indictment with possession of chemicals with intent to manufacture a controlled substance and transporting chemicals with intent to manufacture a controlled substance. Appellant waived his right to a trial by jury and pleaded “guilty” to the offense of transporting chemicals with intent to manufacture a controlled substance. Although Appellant had no plea bargain with the State, the State abandoned the enhancement paragraph alleged in the indictment. After it admonished Appellant, both orally and in writing, the trial court accepted Appellant’s plea and considered evidence on punishment. Following a hearing on punishment, the trial court found Appellant guilty of transporting chemicals with intent to manufacture a controlled substance and sentenced Appellant to imprisonment for twenty years.
Appellant filed a motion for new trial. Following a hearing on Appellant’s motion for new trial, the trial court overruled Appellant’s motion. This appeal followed.
Voluntariness of Guilty Plea
In his first issue, Appellant argues that the trial court erred in overruling his motion for new trial because his guilty plea was involuntary. Specifically, Appellant argues that he was unaware that he could not withdraw his guilty plea after his sentence was pronounced.
A guilty plea by a defendant must be made freely and voluntarily. See Ex parte Evans, 690 S.W.2d 274, 276 (Tex. Crim. App. 1985). Before accepting a defendant’s plea of guilty, the trial court must admonish the defendant either orally or in writing concerning the consequences of the entry of such a plea. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2004). The purpose of such admonishments is to ensure that the defendant’s plea is made knowingly and voluntarily. See Carranza v. State, 980 S.W.2d 653, 656 (Tex. Crim. App. 1998). The trial court need only substantially comply with article 26.13(a). See Tex. Code Crim. Proc. art. 26.13(c) (Vernon Supp. 2004).
When the record shows the trial judge properly admonished a defendant, it presents a prima facie showing that the defendant knowingly and voluntarily entered his guilty plea. See Smith v. State, 857 S.W.2d 71, 73 (Tex. App.–Dallas 1993, pet. ref'd). Substantial compliance exists when the record shows the trial judge admonished the defendant either orally or in writing, even if the admonishments are incomplete or incorrect. See Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985). Where substantial compliance is shown, the burden then shifts to the defendant to show he lacked understanding of the consequences of his plea and was harmed as a result. Id.
In the case at hand, the record reflects that Appellant was admonished in writing in accordance with the provisions of article 26.13(a). Appellant’s signature, as well as that of Appellant’s attorney, appears on the written admonishment. The record further reflects that the trial court orally admonished Appellant as follows:
THE COURT: You understand, sir, that if I accept your plea bargain agreement you’re bound by the terms of your plea bargain agreement?
MR. STRICKLAND:Yes, sir.
THE COURT: Now, as I understand it, there are no terms of your plea bargain agreement, you’re going to enter a plea of guilty and then it’s going to be up to me to determine your punishment?
MR. STRICKLAND: Yes, sir.
....
THE COURT: If I accept your plea bargain agreement, then the range of punishment is two to twenty years – probation?
[PROSECUTOR]: He can get probation from the Court, yes, sir.
THE COURT: And you can probate up to ten years or as little [as] two years, do you understand that; so the range of punishment really is two to ten probated or two to twenty hard?
MR. STRICKLAND: Yes, sir.
THE COURT: Do you understand that?
MR. STRICKLAND: Yes, sir.
THE COURT: All right. Having understood that, do you understand that you’re waiving your right to a jury trial, you’re waiving the right to contest your guilt or innocence, you’re waiving your right to put forward any evidence, you’re waiving your right to appeal, you’re waiving any defect in the paperwork, and if there’s any other right that you can think of that would avoid the imposition of the sentence that I will impose, you’re waiving that also?
MR. STRICKLAND: Yes, sir, I do.
THE COURT: All right. Having understood that, Counsel – have you ever been treated for any mental illness?
MR. STRICKLAND: No, sir.
THE COURT: Are you a citizen of the United States?
MR. STRICKLAND: Yes, sir.
THE COURT: Counsel, tell me two things: Number one, has he been able to assist you in the development of a defense of his case; number two, does he understand the nature, extent, and ramifications of his plea bargain agreement?
[DEFENSE COUNSEL]: Yes, to both of those, Your Honor.
We conclude that the record supports that the trial judge properly admonished the defendant; ergo, the defendant knowingly and voluntarily entered his guilty plea.
However, Appellant contends that his plea was not voluntary because he believed that if the trial court did not grant him community supervision, he could withdraw his guilty plea and proceed to a jury trial. Further, Appellant argues that had he known the nature of his plea, and the consequences thereof, he would have asserted his right to a jury trial. Yet, considering the aforementioned exchange between Appellant and the trial court, it is apparent that Appellant’s belief that he could withdraw his plea was not founded on any representation to Appellant by the trial court. Indeed, Appellant testified at the hearing on his motion for new trial that neither his attorney nor the court told him that he could withdraw his plea. Moreover, the record plainly reflects that the trial court explained to Appellant that he was waiving his right to a jury trial. Furthermore, Appellant’s counsel testified at the hearing on Appellant’s motion for new trial that he advised Appellant that if Appellant made an open plea of guilty, Appellant would not be allowed to later withdraw such a plea.
The rule that a plea must be intelligently made to be valid does not, in order to be violated, require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. See Brady v. United States, 397 U.S.742, 756-57, 90 S. Ct. 1463, 1473, 25 L. Ed. 2d 747 (1970). Here, the record reflects that Appellant’s belief that he could later withdraw his guilty plea was based on Appellant’s experience in a 1989 criminal matter. Such a belief is in direct contrast to the admonishment given to Appellant by the trial court and the express advice of Appellant’s trial counsel. We hold that Appellant’s unfounded belief cannot serve to meet his burden to overcome the prima facie showing that Appellant made his guilty plea both freely and voluntarily. Appellant’s first issue is overruled.
Ineffective Assistance of Counsel
In his second issue, Appellant argues that he received ineffective assistance of counsel. Specifically, Appellant contends that his trial counsel was ineffective because (1) he did not explain the difference in an open plea of guilty and a plea-bargained plea of guilty, and (2) he did not explain to Appellant that he was pleading guilty to all elements of the indicted offense.
The proper standard by which to gauge the adequacy of representation by counsel is articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). See also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). The test set forth in Strickland requires a two-step analysis:
1. Did the attorney’s performance fail to constitute “reasonably effective assistance,” i.e., did the defense attorney’s representation fall below an objective standard of reasonableness under prevailing professional norms?
2. If so, was there a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings could have been different?
See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. The test in Strickland is properly applied to the punishment phase of a non-capital case as well. See Hernandez, 988 S.W.2d at 772.
In any case considering the issue of ineffective assistance of counsel, we begin with the strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We must presume counsel’s actions and decisions were reasonably professional and were motivated by sound trial strategy. See id. Appellant has the burden of rebutting this presumption by presenting evidence illustrating why his trial counsel did what he did. See id. Appellant cannot meet this burden if the record does not affirmatively support the claim. See Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998) (inadequate record on direct appeal to evaluate whether trial counsel provided ineffective assistance); Phetvongkham v. State, 841 S.W.2d 928, 932 (Tex. App.–Corpus Christi 1992, pet. ref'd, untimely filed) (inadequate record to evaluate ineffective assistance claim); see also Beck v. State, 976 S.W.2d 265, 266 (Tex. App. –Amarillo 1998, pet. ref'd) (inadequate record for ineffective assistance claim, citing numerous other cases with inadequate records to support ineffective assistance claim). A record that specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.–Houston [1st Dist.] 1994, pet. ref'd).
After proving error, the appellant must affirmatively prove prejudice. See Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.–Texarkana 2000, pet. ref’d). The appellant must prove that his attorney's errors, judged by the totality of the representation and not by isolated instances of error, denied him a fair trial. Id. It is not enough for the appellant to show that the errors had some conceivable effect on the outcome of the proceedings. Id. He must show that there is a reasonable probability that, but for his attorney’s errors, the jury would have had a reasonable doubt about his guilt. Id.
In the case at hand, assuming arguendo that Appellant could satisfy the first prong of the Strickland test, Appellant must, nonetheless, affirmatively prove prejudice. See Burruss, 20 S.W.3d at 186. It is not enough for the appellant to merely show that the errors had some conceivable effect on the outcome of the proceedings. Id.
In his brief, Appellant argues as follows:
Appellant argues that trial counsel’s failure to fully advise his client of the terms of the plea and consequences thereof was so harmful that the entire plea process was rendered involuntary, and but for such failure of counsel, Appellant would have presented his defense to a jury and the result would h[a]ve been Appellant’s acquittal.
We have concluded that Appellant’s plea was made both freely and voluntarily. Furthermore, Appellant’s conclusory statement that had he presented his defense, a jury would have acquitted him, does not satisfy his burden under Strickland. To satisfy his burden, Appellant must show that there is a reasonable probability that, but for his attorney’s errors, the jury would have had a reasonable doubt about his guilt. See Burruss, 20 S.W.3d at 186. We iterate that the burden of proof as to this issue rests squarely upon Appellant. Id. As such, we will neither surmise nor devise our own conclusions absent some cogent argument on Appellant’s behalf that but for his counsel’s alleged unprofessional errors, there exists a reasonable probability that the result of the proceedings would have been different. Appellant’s general assertion that he would be acquitted does not suffice. As Appellant has failed to satisfy his burden under Strickland, we hold that Appellant has not demonstrated that he received ineffective assistance of counsel. Appellant’s second issue is overruled.
Conclusion
Having overruled Appellant’s issues one and two, we affirm the judgment of the trial court.
SAM GRIFFITH
Justice
Opinion delivered August 18, 2004.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
(DO NOT PUBLISH)