Opinion
No. 05-03-00655-CR.
Opinion issued April 13, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-41049-P. Affirmed.
Before Justices MORRIS, FITZGERALD, and FRANCIS.
OPINION
After pleading guilty to aggravated assault, Derrick Andre Dean now complains in two points of error that his plea was involuntary and that he received ineffective assistance of trial counsel. We conclude appellant's complaints are without merit and affirm the trial court's judgment. Without the benefit of a plea bargain, appellant pleaded guilty to aggravated assault. Before he entered the plea, the trial judge extensively questioned him about whether he was entering the plea voluntarily and whether he was aware of the consequences of a guilty plea. Appellant acknowledged to the trial judge that he understood the written admonishments he had signed, understood the charges against him, and understood the punishment range for the offense. The trial judge specifically explained the particular punishment range for the offense and confirmed that appellant wished to proceed with entering his guilty plea without a plea bargain. Appellant then affirmed that he knew the punishment was up to the trial court, that no one had promised him probation or a particular sentence, and that he was aware he could receive a twenty-year sentence with up to a $10,000 fine. Appellant acknowledged he understood everything the court had explained to him and understood all the papers he had signed. The clerk's record in the case contains written admonishments signed by appellant that correctly state the punishment range for the charged offense. Now on appeal, appellant contends his plea was involuntary because he "was told by his attorney that because he was a first time offender he . . . would receive a term of probation as punishment for his plea of guilty." Nothing in the record from appellant's case supports this contention. Article 26.13 of the Texas Code of Criminal Procedure requires a trial court to give certain admonishments before accepting a plea of guilty, and the admonishments may be given either orally or in writing. See Tex. Code Crim. Proc. Ann. art. 26.13(a), (d) (Vernon 1989 Supp. 2004). Proper admonishment by the trial court creates a prima facie showing that the defendant entered a knowing and voluntary plea. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998). Once a prima facie showing of voluntariness is made, the burden shifts to the defendant to show that he entered the plea without knowing its consequences and was thereby harmed. See id. Appellant was properly admonished on the record. He has failed to meet his burden of proving his plea was involuntary. The record before us clearly illustrates that he was aware of the full punishment range for his offense and that he might not receive probation. The fact that appellant received greater punishment than he hoped for does not render his plea involuntary. See Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.-Dallas 1993, no pet.). We overrule his first point of error. In his second, related point of error, appellant complains ineffective assistance of counsel rendered his guilty plea involuntary. He asserts that trial counsel erroneously advised him he would receive probation if he entered a guilty plea. To prevail on his claim of ineffective assistance of counsel, appellant must show that counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability the results of the proceedings would have been different in the absence of counsel's unprofessional errors. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1974). A claim of ineffective assistance of counsel must be firmly founded and affirmatively demonstrated in the record. Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). Nothing in this record shows what advice, if any, counsel gave appellant about the possible punishment he could receive in the case, nor does the record show that counsel in any way influenced appellant's decision to plead guilty. Appellant has failed to meet his burden of demonstrating ineffective assistance of trial counsel. Accordingly, we overrule his second point of error. We affirm the trial court's judgment.