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NUMBER 13-03-00646-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI B EDINBURG
KEVIN DARNELL BROWN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of Jackson County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Hinojosa and Rodriguez
Memorandum Opinion by Justice Hinojosa
Without a plea agreement, appellant, Kevin Darnell Brown, pleaded guilty to the offense of possession with intent to deliver more than four grams but less than 200 grams of cocaine.[1] The trial court found him guilty and assessed his punishment at thirty years= imprisonment and a $5,000 fine. The trial court has certified that this Ais not a plea-bargain case, and [appellant] has the right of appeal.@ See Tex. R. App. P. 25.2(a)(2). In two issues, appellant contends (1) the trial court erred in denying his motion for new trial because his guilty plea was involuntarily made and resulted from ineffective assistance of counsel, and (2) the sentence assessed by the trial court is cruel and unusual punishment. We affirm.
Because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts here except as necessary to advise the parties of our decision and the basic reasons for it. See Tex. R. App. P. 47.4.
A. Motion for New Trial
1. Standard of Review
A trial court=s denial of a defendant=s motion for new trial is reviewed under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). At a motion for new trial hearing, the trial court is the sole judge of the credibility of the testifying witnesses. Id. We do not substitute our judgment for that of the trial court, but rather decide whether the trial court=s decision was arbitrary or unreasonable. State v. Gonzalez, 855 S.W.2d 692, 695 (Tex. Crim. App. 1993). In determining whether the trial court abused its discretion, we consider whether the court acted without reference to any guiding rules and principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993).
2. Applicable Law
No plea of guilty or plea of nolo contendere shall be accepted by a trial court unless it appears that the defendant is mentally competent, and the plea is free and voluntary. Tex. Code Crim. Proc. Ann. _ 26.13(b) (Vernon Supp. 2004-05). When we review the voluntariness of a plea, we examine the record as a whole and determine whether the plea was entered voluntarily based on the totality of the circumstances. Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App. 1986); see Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975).
When the record shows that the trial court gave an admonishment, there is a prima facie showing of a knowing and voluntary plea of guilty. Ex parte Gibauitch, 688 S.W.2d. 868, 871 (Tex. Crim. App.1985); Dorsey v. State, 55 S.W.3d 227, 235 (Tex. App.BCorpus Christi 2001, no pet.). The burden then shifts to the defendant to show that he pleaded guilty without understanding the consequences of his plea and suffered harm as a result. See Tex. Code Crim. Proc. Ann. _ 26.13(c) (Vernon Supp. 2004-05); Dorsey, 55 S.W.3d at 235. A defendant=s election to plead guilty or nolo contendere based on the erroneous advice of counsel is not done voluntarily and knowingly. Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991). Once a defendant has pleaded guilty and attested to the voluntary nature of his plea, he bears a heavy burden at a subsequent hearing to demonstrate a lack of voluntariness. Ybarra v. State, 93 S.W.3d 922, 925 (Tex. App.BCorpus Christi 2002, no pet.).
If a guilty plea is entered upon the advice of counsel, that counsel must be competent and must render effective assistance. Hill v. Lockhart, 474 U.S. 52, 57 (1985); Ex parte Evans, 690 S.W.2d 274, 276 (Tex. Crim. App. 1985). The standard for reviewing claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). When a defendant challenges the voluntariness of a plea entered upon the advice of counsel, contending that his counsel was ineffective, "the voluntariness of the plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether 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." Strickland, 466 U.S. at 687; Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999).
3. Analysis
Appellant was admonished in writing. See Tex. Code Crim. Proc. Ann. _ 26.13(d) (Vernon Supp. 2004-05). The written admonitions were signed by appellant and appellant=s attorney and state that appellant understands the admonitions and is aware of the consequences of his plea. Appellant was admonished that the range of punishment for this offense was imprisonment for "life or for any term of not more than 99 years or less than 5 years, and in addition, a fine not to exceed $10,000." The written admonishments provide prima facie proof that appellant pleaded guilty knowingly and voluntarily. See Ex parte Gibauitch, 688 S.W.2d at 871. Appellant, therefore, has a heavy burden to establish that his plea of guilty was involuntary because he did not understand the consequences of his plea. See Dorsey, 55 S.W.3d at 235; Ybarra, 93 S.W.3d at 925.
At the motion for new trial hearing, appellant testified his trial counsel did not inform him he could have his case heard by a jury and did not pursue a motion to suppress evidence vital to the State=s case. He further testified that trial counsel failed to file an application for community supervision, did not meet with him to discuss the case until the day before the trial, and refused to seek a continuance the day before trial to better prepare for that trial.
Appellant=s trial counsel testified at the hearing and refuted all of appellant=s allegations. Counsel testified that he spoke with appellant on numerous occasions before trial and they decided the best trial strategy was to waive all motions, including the motion to suppress. Counsel also testified he was aware he did not have to file a sworn application for community supervision to receive community supervision from a judge. Further, counsel testified appellant did not ask for a continuance the day before trial and instead stated Awhatever is going to happen is going to happen. It=s up to God now.@
Based on the record as a whole, we conclude appellant has not met his burden of showing that his plea of guilty was involuntarily made. Trial counsel=s advice was within the range of expected competence, and there is not a reasonable probability that, but for the advice of counsel, appellant would have pleaded not guilty and demanded a trial. Accordingly, we hold the trial court did not abuse its discretion in denying appellant=s motion for new trial. Appellant=s first issue is overruled.
B. Cruel and Unusual Punishment
Appellant contends his thirty-year sentence is excessive and disproportionate and violates the prohibition against cruel and unusual punishment in the Eighth Amendment to the United States Constitution and Article I, Section 13, of the Texas Constitution.
To preserve error for appellate review, a complaining party must make a timely, specific objection. Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002); Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991); see Tex. R. App. P. 33.1(a). Even constitutional errors may be waived by failure to object at trial. Curry v. State, 910 S.W.2d 490, 497-98 (Tex. Crim. App. 1995) (failure to raise Eighth Amendment objection at trial waives any such claim on appeal). Because appellant did not object in the trial court that his sentence violated the constitutional prohibition against cruel and unusual punishment, we conclude he waived appellate review on this issue. Appellant=s second issue is overruled.
The judgment of the trial court is affirmed.
FEDERICO G. HINOJOSA
Justice
Do not publish. See Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and filed this
the 21st day of July, 2005.
[1] See Tex. Health & Safety Code Ann. _ 481.112 (Vernon 2003).