Affirmed and Opinion filed October 31, 2002.
In The
Fourteenth Court of Appeals
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NO. 14-01-00795-CR
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EDILBERTO RIVERA, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 869,606
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O P I N I O N
Appellant Edilberto Rivera appeals his conviction for delivery of at least 400 grams of cocaine. Appellant argues his guilty plea was involuntary because he made it under the mistaken belief that he would be eligible for community supervision if he pleaded guilty. Appellant argues ineffective assistance of counsel because his lawyer was the alleged source of his mistaken belief. We affirm the trial court’s judgment because appellant failed to show his plea was involuntary and also failed to show ineffective assistance of counsel.
I. FACTUAL aND PROCEDURAL BACKGROUND
Appellant, a nightclub employee, had a pre-arranged meeting to sell cocaine to two undercover detectives. Appellant had offered to sell one of the detectives a kilogram of cocaine. When the detectives arrived at the nightclub, appellant assured them the supply would arrive shortly. Soon after, a white car pulled up, and appellant introduced the driver as his supplier. Eventually, the parties agreed to make the exchange at the nightclub. The driver then left the nightclub to pick up the cocaine from a nearby residence. The driver returned in a different car. Upon leaving the car, the driver informed the detectives that the cocaine was on the passenger’s side on the floorboard. The detectives retrieved a brown paper bag from the floorboard. It contained a square-shaped package wrapped in clear cellophane and gray tape. The detectives gave the pre-arranged arrest signal, and officers arrested appellant and the driver. A field test revealed the substance in the package was cocaine weighing 1,147.4 grams.
Appellant was charged with actual delivery of cocaine weighing at least 400 grams. Appellant filed a motion requesting community supervision[1] in the event he was convicted and the assessed punishment was less than ten years’ confinement. Approximately two months later, the trial court admonished appellant as to the charge and the applicable range of punishment. Appellant signed the admonishments and pleaded guilty without an agreement with the State as to the recommended sentence. The trial court sentenced appellant to 30 years in prison and assessed a $10,000 fine. Appellant filed a motion for new trial arguing his plea was involuntary. The motion for new trial was overruled by operation of law without a hearing.
II. ANALYSIS and Discussion
A. Did appellant involuntarily plead guilty?
In his first issue, appellant contends that his guilty plea was involuntary because he allegedly made it under an erroneous belief that he would be eligible for community supervision. Appellant argues that, because he asked for community supervision in accordance with section 3 of article 42.12 of the Texas Code of Criminal Procedure, and because community supervision was not a possible punishment for delivering more than 400 grams of cocaine, he must not have understood the consequences of his guilty plea. Community supervision under section 3 was unavailable to appellant because the minimum prison term for appellant’s offense was fifteen years, and section 3 does not apply when a defendant is sentenced to a prison term that exceeds ten years. See Tex. Health & Safety Code § 481.112(f); Tex. Code Crim. Proc. Ann. Art. 42.12 § 3 (Vernon 2002).
Although appellant was ineligible for judge-ordered community supervision under section 3, he remained eligible for deferred-adjudication community supervision under section 5, even after he pleaded guilty to delivering at least 400 grams of cocaine. See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(a) (Vernon 2002); Cabezas v. State, 848 S.W.2d 693, 693–95 (Tex. Crim. App. 1993) (defendant convicted of delivering more than 400 grams of cocaine was eligible for deferred-adjudication probation even though minimum term for punishment was confinement for 15 years). Regardless of the section under which appellant allegedly believed he was eligible for community supervision, this court must assess the voluntariness of his guilty plea.
To determine the voluntariness of appellant’s guilty plea, we must examine the record as a whole. See Cantu v. State, 988 S.W.2d 481, 484 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). A trial court’s admonishment of a criminal defendant, under article 26.13 of the Texas Code of Criminal Procedure, before accepting a guilty plea, constitutes prima facie evidence that appellant’s plea was knowing and voluntary. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). Accordingly, when the admonishments are given, the burden shifts to the defendant to prove he did not understand the consequences of his plea. Id.
A defendant’s guilty plea has been found to be voluntary despite a record showing that he timely filed a motion for probation for an offense for which judge-ordered probation was not available under section 3 of article 42.12. See Powers v. State, 727 S.W.2d 313, 315–16 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d). In Powers, the defendant had been admonished under article 26.13 of the Code of Criminal Procedure and there was no evidence in the record to support the defendant’s claim that he did not understand the range of punishment for the charged offense (aggravated robbery). Id. The Powers court found the appellant’s showing that his lawyer had asked him on the record whether he had been convicted of a felony and whether he had ever been admitted to probation to be inconsequential. Id. Nothing in the record indicated the advice the defendant received from his lawyer or the assumptions the defendant made, and the court declined to speculate on these matters. Id.
As in Powers, the evidence in the record before us is insufficient to show the advice appellant received from his lawyer or to rebut the presumption that appellant’s plea was voluntary. Appellant signed and initialed written admonishments which comport with the requirements of article 26.13 of the Code of Criminal Procedure. These admonishments state that appellant’s plea was voluntarily and knowingly entered.[2] As in Powers, the filing of an arguably erroneous motion for probation alone does not carry appellant’s burden to prove involuntariness when the record does not show the advice he received from his lawyer or that appellant actually misunderstood the range of punishment at the time he entered his plea. Appellant’s request for probation, approximately two months before he entered his plea, does not establish that he believed he was eligible for probation or that he relied on that belief in entering his guilty plea.
At a post-conviction abatement hearing on whether appellant intended to pursue this appeal, the following exchange occurred:
The Court: Is there anything you want the court to know about your appeal?
[Appellant:] The previous attorney didn’t do anything. He made me fill out some paperwork promising me that I was going to get probation.
. . .
[Appellant:] . . . We have family here and what I wanted the most was to get probation . . . .
Like the testimony in Powers, this testimony is inconsequential to the determination of voluntariness. A plea of guilty is a matter of trial strategy, and a plea is not rendered involuntary because the resulting sentence is greater than expected. Enard v. State, 764 S.W.2d 574, 575 (Tex. App.—Houston [14th Dist.] 1989, no pet.). Appellant’s self-serving statements made at an ancillary, post-conviction hearing are insufficient to overcome the presumption that his plea was voluntary. There is no other competent evidence in the record to support appellant’s claim regarding his attorney’s advice or his understanding of the significance of pleading guilty. Without his trial attorney’s testimony or affidavit, appellant lacks competent proof to support his claim. See id. at 576. Accordingly, we overrule appellant’s first issue.
B. Was appellant’s trial counsel ineffective?
In his second issue, appellant asserts that he was denied effective assistance of counsel because his trial counsel erroneously advised him he was eligible for community supervision.
Both the United States and the Texas Constitutions guarantee an accused the right to assistance of counsel. U. S. Const. amend. VI; Tex. Const. art. I, §10; Tex. Code Crim. Proc. art. 1.05. This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show (1) that trial counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) that there is a “reasonable probability” the result of the proceeding would have been different but for trial counsel’s unprofessional errors. Strickland, 466 U.S. at 688–94. Appellant must establish both points by a preponderance of the evidence to show ineffective assistance of counsel. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
In assessing appellant’s claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel’s actions and decisions were reasonably professional and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden to rebut this presumption by presenting evidence that shows why trial counsel did what he did. See id. Evidence of counsel’s strategy is necessary to enable us to determine whether counsel’s trial strategy conformed to objective professional standards. An appellant cannot meet this burden if the record does not specifically focus on the reasons for trial counsel’s conduct. Osorio v. State, 994 S.W.2d 249, 253 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). This court will not speculate in the face of a silent record as to the reasons behind trial counsel’s actions. See Jackson, 877 S.W.2d at 771.
The record contains no evidence of the reasoning and strategy underlying appellant’s trial counsel’s actions. The only evidence appellant presents to support his claim is that his lawyer filed the motion for community supervision in accordance with section 3 of article 42.12 of the Texas Code of Criminal Procedure, even though the minimum prison term for delivery of 400 grams or more of cocaine is fifteen years. See Tex. Health & Safety Code § 481.112(f). This fact, standing alone, does not constitute any evidence of strategy from which this court could determine whether trial counsel’s performance fell below an objective standard of reasonableness. See Enard, 764 S.W.2d at 576.
When there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel’s performance was deficient. See Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). Without testimony from a hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim. Howard v. State, 894 S.W.2d 104, 107 (Tex. App.—Beaumont 1995, pet. ref’d). Because there was no hearing on appellant’s motion for new trial, counsel’s alleged ineffectiveness is not firmly established in the record. See Thompson, 9 S.W.3d at 813–14. The record is silent as to the reasoning and strategy behind trial counsel’s actions.
Appellant was not eligible for community supervision under section 3; however, as noted above, he was eligible for community supervision under section 5. See Tex. Code Crim. Proc. Ann. art. 42.12 §§ 3, 5; Cabezas, 848 S.W.2d at 693–95. At a hearing to determine whether he still wanted to pursue this appeal, appellant claimed that his trial counsel had assured him he would get probation. Appellant did not state under which section the assurances were allegedly made. In any event, this statement is not competent proof of trial counsel’s trial strategy. See Enard, 764 S.W.2d at 575–76.
Appellant has failed to satisfy the first prong of the Strickland test because he has not demonstrated in the record that trial counsel rendered ineffective assistance. See Thompson, 9 S.W.3d at 814. Accordingly, we overrule appellant’s second issue.
III. Conclusion
Appellant has failed to prove that his guilty plea was involuntary. He has also failed to show that he received ineffective assistance of counsel. Because the trial court provided appellant with the proper admonishments, appellant had the burden of presenting evidence that showed he did not understand the consequences of his plea. Appellant failed to satisfy this burden and thus has failed to show that his plea was involuntary. Likewise, appellant failed to present competent evidence of trial counsel’s strategy to rebut the presumption that trial counsel acted competently. Therefore, we overrule appellant’s issues and affirm the trial court’s judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Opinion filed October 31, 2002.
Panel consists of Justices Yates, Anderson, and Frost.
Do Not Publish — Tex. R. App. P. 47.3(b).
[1] In this opinion we use the terms “community supervision” and “probation” interchangeably. See Speth v. State, 6 S.W.3d 530, 532 n.3 (Tex. Crim. App. 1999).
[2] Appellant had the opportunity to be orally admonished and to have a court reporter record his plea. Appellant waived these rights in writing.