Opinion issued July 18, 2013.
In The
Court of Appeals
For The
First District of Texas
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NOS. 01-12-00757-CR
01-12-00758-CR
01-12-00759-CR
01-12-00760-CR
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MORGAN J. KLIEBERT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Case Nos. 1328870, 1328871, 1328872, & 1328873
MEMORANDUM OPINION
Appellant, Morgan J. Kliebert, pleaded guilty to four charges of possession
of child pornography and, pursuant to a plea agreement with the State, the trial
court assessed punishment at five years’ confinement on each charge. On appeal,
which the trial court granted appellant permission to file, appellant contends that he
received ineffective assistance of counsel. We affirm.
BACKGROUND
Appellant was charged with four counts of possession of child pornography.
Craig Goodhart was appointed to represent appellant in the proceedings and made
several court appearances with appellant.
On May 30, 2012, appellant filed a pro se motion for hybrid representation.
The motion was never ruled on.
On July 9, 2012, appellant began drafting a pro se motion to suppress, in
which he alleged, among other things, that (1) evidence seized exceeded the scope
of the warrant, (2) did not meet the requirements of the plain view doctrine, (3)
violated his First Amendment right to possess and collect “Books,” and (4)
violated his right to engage in private, intimate sexual conduct in his own home.
Appellant completed drafting his pro se motion on July 15, 2012, and the motion is
postmarked July 17, 2012. Attached to the motion to suppress was a letter to the
trial court, dated July 15, 2012, in which appellant stated:
To the Honorable Judge of court 182. Your Honor, I cannot get my
appointed lawyer Craig Goodhart to file this motion to suppress all
evidence. So I have written it as best I know how, and ask Your
Honor to make it part of the record, so I can use in appeal if needed. I
asked Mr. Goodhart to file this several times and he has not. I gave
Mr. Goodhart some leeway in my request, because of his illness and
treatments he was taking. But after 8 months I can [afford] him no
more leeway. I only wanted this filed so it could be part of record so I
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can use in appeal if needed. I plead with Your Honor to please read
and file as part of record. In 8 months, Mr. Goodhart has filed no
motions I know of. Again I plead with Your Honor to please allow
filing of this Motion. I also asked Mr. Goodhart if he had filed motion
for discovery. Apparently he has not. In closing Your Honor, I plead
once more to make it part of the record. Thank you for your
consideration in this matter.
On July 19, 2012, appellant appeared with Goodhart in court, at which time,
appellant, in accordance with a plea bargain agreement with the State, pleaded
guilty, and the trial court assessed punishment at 5 years’ confinement on each
charge, to run concurrently. In connection with his plea, appellant signed a waiver
of constitutional rights, agreement to stipulate, and judicial confession. He also
signed written admonishments, which indicate that appellant did not waive his
right to appeal. The same day, the trial court certified that “this is a plea-bargain
cause, but the trial court has given permission to appeal, and the defendant has the
right of appeal[.]”
From the July 19, 2012, docket sheet entry, it appears that appellant’s pro se
motion to suppress was filed on that same date, even though it is file stamped
August 22, 2012. The docket sheet also shows that the motion to suppress was
overruled on July 19, 2012.
On July 31, 2012, appellant filed a pro se notice of appeal.
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INEFFECTIVE ASSISTANCE OF COUNSEL/INVOLUNTARY PLEA
In two related issues on appeal, appellant contends that his guilty plea was
involuntary because he received ineffective assistance of counsel at trial.
Specifically, appellant contends that trial counsel did not inform him that, because
there had been no evidentiary hearing on his motion to suppress, there could be no
“meaningful appeal” of the motion.
Standard of Review & Applicable Law
The test for determining the validity of a guilty plea is whether the plea
represents a voluntary and intelligent choice among the alternative courses of
action open to the criminal defendant. North Carolina v. Alford, 400 U.S. 25, 31,
91 S. Ct. 160, 164 (1970). The Strickland two-pronged test for
ineffective assistance of counsel applies in the guilty plea context. Hill v.
Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370 (1985) (citing Strickland v.
Washington, 466 U.S. 668, 687–88, 104 S. Ct. 2052, 2065 (1984)). To
establish ineffective assistance of counsel, a criminal defendant must prove by a
preponderance of the evidence that (1) his trial counsel’s representation was
deficient in that it fell below an objective standard of reasonableness and (2) there
is a reasonable probability that, but for counsel’s deficiency, the result of the
proceeding would have been different. See Strickland, 466 U.S. at 688, 694, 104 S.
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Ct. 2064, 2068. Failure to show either deficient performance or sufficient prejudice
defeats the claim of ineffectiveness. Strickland, 466 U.S. at 697, 104 S. Ct. 2069.
In the context of guilty pleas, the first half of the Strickland test is applied in
the same manner as in other contexts. See Hill, 474 U.S. at 58–59, 106 S. Ct. at 370.
In other words, the applicant must show that counsel’s advice “fell below an
objective standard of reasonableness.” Strickland, 466 U.S. at 687–88, 104 S. Ct. at
2064. The “prejudice” requirement, on the other hand, is applied somewhat
differently. The focus of the prejudice inquiry is “on whether counsel’s
constitutionally ineffective performance affected the outcome of the plea process.”
Hill, 474 U.S. at 59, 106 S. Ct. at 370. In other words, in order to satisfy the
“prejudice” requirement, the applicant must show 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. Id.
Analysis
Appellant contends that his trial counsel failed to tell him that simply filing
the motion to suppress was insufficient to preserve error so that its denial could be
meaningfully challenged on appeal. In support of his argument, appellant points to
the letter accompanying his pro se motion to suppress, in which he claimed that he
wanted to file the motion “so [he] can use in appeal if needed.” Appellant also
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points out that the plea paperwork indicates that he did not waive his right to
appeal and the trial court granted him permission to appeal.
However, nothing in the record supports appellant’s contention that his trial
counsel led him to think that simply filing the motion to suppress was sufficient to
preserve error. In fact, nothing in the record shows that trial counsel was even
aware that a pro se motion to suppress had been filed or that appellant claimed that
he needed to file the motion himself in case he needed it for an appeal.
Also, appellant’s letter to the court and pro se motion was completed and
mailed two days prior to date he decided to plead guilty. The record is silent about
any discussions that appellant may have had with trial counsel during the interim
between appellant’s drafting of the letter and his decision to plead guilty. It is
entirely conceivable the appellant and his trial counsel decided not to pursue the
motion to suppress and to plead guilty instead. It is also possible that trial counsel
actually told appellant that the filing of the motion alone would not preserve error,
but appellant decided to file it anyway.
Finally, the fact that the trial court granted permission to appeal does not
necessary imply that appellant had been informed that he could bring a meaningful
appeal of his motion to suppress. In fact, the trial court did not limit appellant’s
appeal to “matters . . . raised by written motion filed and ruled on before trial.”
Instead, the trial court gave appellant permission to appeal, which does not limit
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the issues that might be raised on appeal to pretrial motions. Any notion that
appellant desired to appeal only his motion to suppress is mere speculation.
When, as in this case, there is no proper evidentiary record developed at a
postconviction hearing, it is extremely difficult to show trial counsel’s performance
was deficient. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). The
record on direct appeal will normally be insufficient to demonstrate by a
preponderance of the evidence that an attorney’s representation was so deficient
that an appellant will succeed in overcoming the presumption that representation
was reasonably professional. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.
App. 2002). When the record is silent as to counsel’s actions, we may
not speculate to find trial counsel ineffective. Gamble v. State, 916 S.W.2d 92, 93
(Tex. App.—Houston [1st Dist.] 1996, no pet.). To conclude that counsel misled
appellant into believing that he could “meaningfully appeal” his motion to suppress
would require speculation, which we will not do. As such, appellant has not met
the first prong of Strickland by showing that his trial counsel’s representation was
deficient.
Furthermore, appellant presented no evidence, either by testimony or
affidavit, that, but for counsel’s alleged deficiency, he would not have pleaded
guilty, but would have insisted on proceeding to trial. Absent evidence in the
record that appellant would have insisted on proceeding to trial, appellant fails to
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meet the second prong of Strickland. Jackson v. State, 139 S.W.3d 7, 20–21 (Tex.
App.—Fort Worth 2004, pet. ref’d) (“[W]e hold that Appellant has failed to show
prejudice . . . because she did not offer any evidence that there existed a reasonable
probability that, but for trial counsel’s failure to advise her of the consequences her guilty
plea would have on her pending capital cases, she would not have pleaded guilty and
would have insisted on going to trial.”); Munoz v. State, 840 S.W.2d 69, 75 (Tex.
App.—Corpus Christi 1992, pet. ref’d) (“The record does not show any claim by
appellant that, but for inept advice from counsel, he would not have pleaded guilty.”).
Accordingly, we overrule issues one and two.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Sharp and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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