NUMBER 13-97-734-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
___________________________________________________________________
RAYMOND HERNANDEZ ESTRADA
, Appellant,v.
THE STATE OF TEXAS
, Appellee.___________________________________________________________________
___________________________________________________________________
Before Chief Justice Seerden and Justices Dorsey and Yañez
Opinion by Chief Justice SeerdenRaymond Hernandez Estrada pleaded nolo contendere to a third degree felony charge of escape, and pleaded true to two enhancement paragraphs in his indictment. As a result of a plea bargain, Estrada was sentenced to twenty-five years in the Institutional Division of the Texas Department of Criminal Justice as a habitual felony offender. Estrada argues on appeal that he was denied effective assistance of counsel, and the lack of effective assistance rendered his pleas involuntary. We affirm.
JurisdictionAppellant brings this appeal from a plea bargain to a felony offense, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant. Appellant filed only a general notice of appeal, and thus failed to comply with the specific notice requirements of Texas Rule of Appellate Procedure 25.2(b)(3). See Tex. R. App. P. 25.2(b)(3). However, a plea bargaining defendant who has failed to comply with the notice requirements of this rule can nevertheless challenge the voluntariness of his plea. See, e.g., Marshall v. State, No. 13-99-153-CR (Corpus Christi August 10, 2000, n.p.h.)(designated for publication); Davis v. State, 7 S.W.3d 695, 696 (Tex.App.Houston [1st Dist.] 1999, pet. ref'd). Therefore, although we do not have jurisdiction to address appellant's claims insofar as they concern ineffective assistance of counsel, we do have jurisdiction over a claim of involuntariness of the guilty plea, and will proceed accordingly.
Applicable LawAppellant states that he did not receive effective assistance of counsel, and thus his plea bargain was not knowing and voluntary. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), sets forth the proper standard of review for effectiveness of counsel. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).
Strickland requires a two-part inquiry. The defendant must first show that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson, 9 S.W.2d at 812. Second, the defendant must further prove that there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
The determination regarding whether a defendant received effective assistance of counsel must be made according to the facts of each case. Id. An appellate court looks to the totality of the representation and the particular circumstances of the case in evaluating the effectiveness of counsel. Id.
The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. To defeat the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119, 117 S. Ct. 966, 136 L. Ed. 2d 851 (1997).
Before a plea of guilty or plea of nolo contendere may be accepted by the court it must be freely and voluntarily given by a mentally competent defendant. Tex. Crim. Proc. Code Ann. art. 26.13(b) (Vernon Supp. 2000). The constitutional validity of a guilty plea made upon the advice of counsel depends on whether counsel's performance was reasonably competent, rendering a defendant effective representation during the particular proceedings. Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991). A defendant's election to plead guilty or nolo contendere when based upon erroneous advice of counsel is not done voluntarily and knowingly. Id.
AnalysisEstrada specifically complains that trial counsel did not inform him of all of the possible sentencing options available to the trial court, and this failure rendered his plea involuntary. According to Estrada, his counsel did not advise him that the trial court could sentence him to deferred adjudication, and that he therefore had the option of trying at least the punishment phase of his case to the court. Estrada argues that mitigating circumstances existed which might have allowed the court to impose community supervision rather than imprisonment.
The record before this court does not establish whether or not counsel advised Estrada of his sentencing options. Moreover, the record fails to establish that Estrada was in fact eligible for community supervision. Under these circumstances, in light of the record and the presumption that counsel's performance was reasonably professional, we cannot conclude that Estrada received ineffective assistance of counsel rendering his plea involuntary. See Gottson v. State, 940 S.W.2d 181, 185-6 (Tex. App.--San Antonio 1996, pet. ref'd).
ConclusionWe are limited to the record before us on direct appeal. See Thompson, 9 S.W.3d at 814-15 (contrasting direct appeals and habeas proceedings in cases involving ineffective assistance). Given the record before us, we determine that Estrada has not met his burden to prove that trial counsel's representation fell below an objective standard of reasonableness and that this deficient performance caused him to enter a guilty plea.
The judgment of the trial court is affirmed.
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ROBERT J. SEERDEN, Chief
Justice
Do not publish
.Tex. R. App. P. 47.3.
Opinion delivered and filed
this 24th day of August, 2000.