Affirmed and Memorandum Opinion filed April 13, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-04-01137-CR
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ALEJANDRO CONTRERAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 973,961
M E M O R A N D U M O P I N I O N
Appellant Alejandro Contreras pleaded guilty to one count of aggravated assault. Following a presentence investigation (PSI) hearing, the trial court sentenced him to twenty years imprisonment in the Texas Department of Criminal JusticeCInstitutional Division. In this pro se appeal, we consider (1) whether appellant received ineffective assistance of counsel at the time he pleaded guilty and during the course of his PSI hearing; and (2) whether the trial court properly admonished appellant prior to accepting his guilty plea. We affirm.
I. Factual and Procedural Background
Appellant was charged with one count of aggravated assault. On August 23, 2004, appellant pleaded guilty to the charge without an agreed sentencing recommendation from the State. Before accepting his plea, appellant received several written admonishments from the trial court. Appellant indicated his understanding of these admonishments by initialing the form on which they were printed. The trial court accepted appellant=s guilty plea but deferred a finding of guilt so that a PSI report could be prepared.
On October 15, 2004, the trial court held a hearing at which both the State and appellant had an opportunity to object to or comment on the information contained in the PSI report. Because the section of the PSI report describing appellant=s prior criminal history included some handwritten notations, both sides offered information to clarify the nature of the offenses and the punishments imposed on appellant. Although the PSI report indicated appellant sought probation in lieu of incarceration, appellant=s trial counsel, James Brooks, informed the court that appellant was ineligible for probation. Brooks also reminded the court that one of the offenses for which appellant had been previously convicted was a felony. Aside from these clarifications, however, Brooks raised no objections to the report and did not move to withdraw appellant=s plea. At the conclusion of the hearing, the trial court sentenced appellant to twenty years incarceration.
Appellant filed this direct appeal acting pro se.
II. Issues Presented
Appellant presents three issues for our review. In his first issue, appellant argues he received ineffective assistance of counsel because the sentence imposed by the trial court did not conform with the plea bargain Brooks allegedly promised him. In his second issue, appellant argues the trial court denied him due process of law by failing to properly admonish him on the range of punishment. In his third issue, appellant asserts that his waiver of a jury trial was not entered knowingly or voluntarily. Because appellant=s third issue tacitly alleges ineffective assistance of counsel, we address it in our analysis of appellant=s first issue.
III. Analysis
A. Was Appellant Denied Effective Assistance of Counsel?
Appellant argues in his first issue that Brooks committed multiple acts and omissions that denied him effective assistance of counsel at his PSI hearing.
To prove an ineffective assistance of counsel claim, appellant must show that (1) the trial counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance. Strickland v. Washington, 466 U.S. 668, 688B92 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Although appellant bears the burden of proving his claims by a preponderance of the evidence, we are highly deferential to counsel=s performance and indulge a strong presumption that his or her conduct fell within the range of reasonable representation. Salinas, 163 S.W.3d at 740.
When a claim for ineffective assistance of counsel is presented on direct appeal, Aany allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness.@ Id. at 740. Therefore, we examine the record for evidence of appellant=s claims.
1. Ineffective Assistance in Connection with Appellant=s Plea of Guilty
In his brief, appellant claims Brooks informed him of an arrangement with the State under which appellant would plead guilty to one count of simple assault in exchange for a deferred sentence of fewer than twenty years imprisonment. Allegedly, Brooks asked appellant to Asign all of the admonishment documents, waivers, and the plea of guilty document@ and assured appellant that Brooks would Afill in the rest of the needed information.@ The record reflects these documents were filed with the trial court on August 23, 2004. Appellant contends he did not learn that he pleaded guilty to aggravated assault without an agreed sentencing recommendation until the trial judge began the PSI hearing on October 15, 2004.
In three alternative claims, appellant argues Brooks=s representation was ineffective because (1) Brooks failed to inform the trial judge of the plea agreement when given an opportunity to object; (2) Brooks failed to inform appellant that the State withdrew its offer of a plea agreement; or (3) Brooks improperly induced appellant to plead guilty by assuring him of a plea agreement that did not exist. Appellant also alleges Brooks Aallow[ed] otherwise inadmissible evidence such as the judge=s findings of a deadly weapon.@ Finally, appellant argues he did not knowingly and voluntarily waive his right to a jury trial because Ahe mistakenly believed that he had to waive a jury in order to [receive] a presentence investigation [report] and/or hearing,@ In sum, all five of these alleged errors fault Brooks for allegedly failing to inform appellant that he could potentially receive a twenty-year prison sentence for aggravated assault.
Although the record shows that Brooks did not object to the trial court=s announcement of appellant=s plea, it makes no reference to any plea negotiations. Further, there is no support in the record for appellant=s claim that he signed any incomplete forms Ain advance@ or without knowledge of the potential ramifications. To the contrary, the record indicates that appellant signed a AWaiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession@ before the deputy district clerk, the assistant district attorney, and the trial judge on August 23, 2004. The first three sentences of this document state the following:
In open court and prior to entering my plea, I waive the right of trial by jury. I also waive the appearance, confrontation, and cross-examination of witnesses, and my right against self-incrimination. The charges against me allege that in Harris County, Texas, ALEJANDRO CONTRERAS . . . on or about January 12, 2004, did then and there unlawfully, intentionally, and knowingly cause bodily injury to RICARDO PINEDA by using a deadly weapon, namely, a FIREARM.
Contrary to appellant=s allegations, Brooks did not Aallow[] inadmissible evidence@ of a deadly weapon; rather, by signing the waiver, appellant acknowledged he used a firearm. Furthermore, appellant also acknowledged a plea of guilty to one count of aggravated assault without an agreed sentencing recommendation and affirmed, AI am satisfied that the attorney representing me today in court has properly represented me and I have fully discussed this case with him.@ Because appellant has provided no evidence that his trial counsel=s representation was not objectively reasonable, he has not met the requirements for the first prong of Strickland. Appellant=s arguments that his trial counsel failed to effectively assist him with his plea are overruled.
2. Ineffective Assistance at the PSI Hearing
Appellant also claims Brooks=s statements at the PSI hearing subjected appellant to a greater punishment and thus, rendered Brooks=s representation ineffective. The record includes a copy of appellant=s PSI report, which indicates a history of three prior theft-related offenses.[1] According to the report, appellant was incarcerated in the Harris County Jail for two of these offenses, once for forty-five days, and once for one year. The third offense, which was handwritten on the report, indicated AUUMVCFelony Theft.@[2] The record also reflects that Brooks provided additional information about one of these convictions at the PSI hearing:
THE COURT: Mr. Brooks, you have any objections or alterations or deletions that need to be made to the PSI written report?
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BROOKS: I believe there was a statement made somewhere in the PSI that [appellant] wanted probation. I=ve explained to him . . . that he=s not probation eligible.[3]
THE COURT: And I hope that he understands I can=t give probation on an aggravated sentence. I could give deferred.
BROOKS: Judge, the 2144A [sic] was a felony conviction.[4]
THE STATE: It was a theft. I need to make that clear on the record.
THE COURT: Okay.
BROOKS: So, that is something that [appellant] understands . . . .
As with appellant=s previous allegations, the record is devoid of any evidence to support his contention that Brooks=s statements were so unreasonable as to render his representation ineffective as a matter of law. Because the record does not provide sufficient evidence to satisfy the first prong of Strickland on any of his claims of ineffective assistance of counsel, we need not address the second prong. Appellant=s first issue is overruled.
B. Did the Trial Court Properly Admonish Appellant Prior to His Guilty Plea?
In appellant=s second and third issues, he contends that the trial court failed to inform him of the potential range of punishment.
Prior to filing his guilty plea, appellant received the following admonishments from the trial court: (1) he was subject to punishment for a second degree felony; (2) any sentencing recommendation by the prosecuting attorney was not binding on the trial court; (3) a guilty plea might result in appellant=s deportation; and (4) if placed on deferred adjudication, he could raise issues in the plea proceeding on appeal. The trial court=s admonishments complied with the statutorily required admonishments for a guilty plea. See Tex. Code Crim. Proc. art. 26.13(a) (West 2005).[5] When the record shows that the trial court substantially complied with article 26.13(a), the burden shifts to appellant to demonstrate that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishments of the court. Miller v. State, 879 S.W.3d 336, 337B38 (Tex. App.CHouston [14th Dist.] 1994, pet ref=d) (citing art. 26.13(c)). Appellant has not met this burden.
Lastly, appellant argues the trial court=s admonishments were insufficient because the court improperly engaged in the plea bargaining procees by agreeing to assess deferred adjudication probation which created an affirmative duty to provide accurate information on the availability of deferred adjudication. We conclude the trial court properly admonished appellant. Furthermore, although the trial court correctly stated that appellant was eligible for deferred adjudication, at no point did the trial court agree to grant such relief.
For the foregoing reasons, the judgment of the trial court is affirmed.
/s/ Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed April 13, 2006.
Panel consists of Justice Fowler, Edelman, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The record also indicates a history of driving with a suspended license, carrying a weapon, possession of marijuana, and a violation of federal immigration laws.
[2] AUUMV@ is an abbreviation for AUnauthorized Use of a Motor Vehicle,@ which is a state jail felony. Tex. Pen. Code ' 31.07 (West 2005). The handwritten notation did not indicate whether appellant was convicted of the charge, but the State acknowledged at the PSI hearing that appellant received probation for the offense.
[3] Appellant affirms the validity of this statement in his brief. See Appellant=s Br. at 15.
[4] Although the record indicates Brooks said A2144A,@ this may be a clerical error in the transcription. We assume Brooks was referring to Section 12.44(a) of the Texas Penal Code, which allows a court to incarcerate a defendant convicted of a state jail felony in a county jail, as if the defendant were convicted of a class A misdemeanor. Tex. Pen. Code ' 12.44(a) (West 2005). In his brief, appellant repeatedly alleges that Brooks was referring to the UUMV when he informed the court of a prior felony conviction and argues that error was committed because appellant only received probation for the UUMV. However, section 12.44 does not apply to an offense for which the defendant was not incarcerated. Moreover, the State clarified that the felony under discussion was a theft.
[5] A fifth admonishment identified in the statute requires a defendant to be informed that he must receive permission from the trial court to appeal if the assessed punishment does not exceed the State=s recommended punishment. Tex. Code Crim. Proc. art. 26.13(c) (West 2005). Because there was no agreed sentencing recommendation, this admonishment was not required in the instant case.