NUMBER 13-99-607-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
___________________________________________________________________
CALISTRO HERRERA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
___________________________________________________________________
___________________________________________________________________
Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Chavez
Calistro Herrera pleaded guilty to aggravated assault and was sentenced, in accordance with a plea agreement, to fifteen years in prison. On appeal, he contends that his plea was involuntary because his attorney failed to advise him of various matters. Appellant argues that the shortcomings of his trial attorney left him inadequately informed to evaluate the plea offer and also made him feel pressured to plead guilty because he knew his attorney was not prepared for a contested trial. However, because there is no record of any post-trial hearing regarding ineffective assistance or the voluntariness of appellant's plea, the record does not support appellant's claims on appeal and we must affirm the judgment of the trial court.
The State argues that we are without jurisdiction to consider this appeal because appellant was sentenced in accordance with a plea agreement and failed to specify in his notice of appeal that the trial court had granted permission to appeal or that the appeal concerned either a jurisdictional defect or a matter that was raised by a written motion and ruled on before trial. See Tex. R. App. P. 25.2(b)(3). However, this Court has held that a plea-bargaining defendant who has failed to comply with this rule may nevertheless challenge the voluntariness of his plea. See, e.g., Marshall v. State, No. 13-99-153-CR, 2000 Tex. App. LEXIS 5427, at *6 (Tex. App.--Corpus Christi August 10, 2000, no pet.). Therefore, while we do not have jurisdiction to consider appellant's claims as ineffective assistance counsel, we do have jurisdiction to consider appellant's claim that his plea was involuntary. Id.
To succeed on his claim that his plea was involuntary due to ineffective assistance of counsel, appellant must demonstrate from the record that (1) counsel's assistance was outside the range of competence demanded of attorneys in criminal cases, and (2) there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997); (citing Hill v. Lockhart, 474 U.S. 52 (1985)).
Appellant filed an unverified pro se motion for new trial wherein he asserts that his trial counsel failed to comply with requests that he show appellant "a copy of any and all reports and statements" from his case. No hearing was held on this motion. On appeal, appellant presents a long list of things appellant's counsel failed to do to prepare for trial and assist appellant in making an informed decision about the plea offer. However, as appellant candidly admits, no record exists to substantiate these claims. Without such a record, appellant cannot demonstrate that counsel's assistance was outside the range of competence demanded of attorneys in criminal cases or that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.
Appellant also faults his trial counsel for failing to request a hearing on the motion for new trial. However, appellant had already entered his plea when counsel failed to request a hearing, so this alleged error by counsel could not have been a factor in the voluntariness of appellant's plea. Therefore, we do not have jurisdiction to consider this complaint.
The judgment of the trial court is affirmed.
MELCHOR CHAVEZ
Justice
Do not publish.
TEX. R. APP. P. 47.3.
Opinion delivered and filed this
the 5th day of October, 2000.