No. 05-03-01777-CR
Opinion Issued July 8, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F03-73402. Affirmed.
Before Chief Justice THOMAS and Justices MORRIS and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice LAGARDE.
Following appellant William Charles Downs' open plea of guilty to the felony charge of burglary of a habitation and plea of true to two enhancement paragraphs, the trial judge ordered a presentence report and heard evidence on punishment before assessing appellant's punishment at sixty (60) years' confinement in the Texas Department of Corrections, Institutional Division. Appellant now appeals that sixty-year sentence, raising two points of error: a federal due process claim and denial of his Sixth Amendment right to effective assistance of counsel. By indictment appellant was charged with intentionally and knowingly entering a habitation without the effective consent of the owner with the intent to commit, attempt to commit and commission of theft. Tex. Pen. Code Ann. § 30.02 (Vernon 2003). Two prior convictions were alleged as enhancement. Following appellant's plea of guilty, the trial court heard punishment evidence. The complaining witness, Richard Wilson, who lived with his mother and brother, testified his house was burglarized. During Wilson's absence from his home to attend appellant's parole hearing, his home was again burglarized, at which time it caught fire and eventually burned down. During the parole hearing, appellant did not deny breaking into and burglarizing Wilson's home. Wilson's house was burglarized three times in four years. Wilson's mother, Marqunez Sharmane Wilson, testified she was not home during the burglary and could not identify appellant. However, she testified she was still bothered by the thought of her room having been violated. Appellant testified during the punishment phase that he wanted to take responsibility for the offense. He also stated that he suffered from a longstanding drug problem with crack cocaine. He admitted that he needed help, which he had never before received, although he had been previously incarcerated in 1983 and 1988. Appellant testified he was under the influence of crack cocaine at the time of this burglary and he stole to support his drug habit, which had cost him both his marriage and his job. We first address appellant's ineffective assistance of counsel claim. Appellant claims his trial counsel was ineffective because he misinformed him that he was eligible for community supervision, when he was not. Appellant contends his trial attorney ignored or failed to understand unambiguous law relevant to his case; therefore, his counsel's assistance fell outside the wide range of competence required. See Hill v. Lockhart, 474 U.S. 52, 60 (1985). Appellant further contends that the mandatory nature of section 12.42 of the penal code rendered him ineligible for probation and automatically subject to an enhanced prison sentence. Because his trial counsel was unaware of those mandatory conditions, his representation was ineffective and prejudiced appellant. Recognizing he must also show that, but for counsel's errors, the result of the proceeding would have been different, appellant contends that if trial counsel had informed him of the mandatory 25 to 99 year sentence, appellant would have elected to exercise his constitutional right to a jury trial by his peers. In support of those contentions, appellant's counsel in his brief on appeal argues the evidence against appellant was weak at best. He contends "[t]his is evident by the fact that Appellant's attorney himself pointed out that the State evidence of fingerprints and presence in the neighborhood was weak." Counsel further points to the trial record wherein appellant's trial attorney stated that this is a "triable" case because appellant's fingerprints found on the window sill "could be easily explained by the fact that Appellant had cut Mr. Wilson's grass just a week before and helped his neighbor move in two weeks prior to the incident in question." The State contends appellant was eligible for deferred adjudication community supervision and, therefore, appellant's claim is without merit.
Ineffective Assistance of Counsel
Any allegation of ineffectiveness of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). There is a strong presumption that counsel's actions fell within a "wide range of reasonable representation." McFarland, 928 S.W.2d at 500. Inasmuch as appellant pleaded guilty, to overcome that presumption, appellant must prove that (1) his attorney's advice was not within the range of competence required of attorneys in criminal cases, and (2) but for his attorney's errors, he would, with reasonable probability, not have pleaded guilty, but, rather, would have insisted upon going to trial. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). We initially note we do not have a post-trial evidentiary record concerning ineffective assistance; therefore, we must look to the trial record alone in resolving this issue. There is no evidence before us showing what advice trial counsel gave appellant. At the punishment hearing appellant's trial counsel requested the trial court to place appellant on deferred adjudication community supervision with mandatory drug treatment. The State contends that neither the offense with which appellant was charged, burglary of a habitation, nor the enhancement allegations rendered appellant ineligible for deferred adjudication community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(d) (Vernon Supp. 2003) (excluding intoxication and, in some circumstances, indecency with a child and sexual assaults, from deferred adjudication eligibility). We agree with the State. In Cabezas v. State, 848 S.W.2d 693, 695 (Tex.Crim.App. 1993), the court of criminal appeals held that the only offenses for which one may not receive deferred adjudication are those listed in article 42.12 § 5(d). When one is eligible for deferred adjudication, the decision whether to grant or deny deferred adjudication is within the trial court's discretion. Reed v. State, 644 S.W.2d 479, 483 (Tex.Crim.App. 1983). The exercise of the trial court's discretion against appellant does not render his trial counsel's actions deficient. See Valle v. State, 963 S.W.2d 904, 909-10 (Tex.App.-Texarkana 1998, pet. ref'd). Moreover, because of the limited record before us, there is no evidence showing that appellant would not have pleaded guilty except for the alleged deficiencies of his counsel. Appellant's reliance on trial counsel's questions or argument during trial as evidence proving a different result would have occurred is misplaced. Neither questions nor argument constitutes evidence. Moreover, neither at trial nor on appeal does appellant explain a connection between cutting one's grass and leaving fingerprints on a window sill. Furthermore, the complaining witness denied that he had ever seen appellant before. Appellant has simply failed in his burden to show his trial counsel's performance was deficient or that, even if it were deficient, the result of his trial would have been different. We, therefore, resolve the issue of ineffective assistance of counsel against appellant. Involuntariness of Plea
In his second "point of error" appellant contends his plea of guilty was not voluntarily and intelligently made due to his history of drug abuse, mental incompetence, and a complex plea agreement form. Thus, appellant argues his fourteenth amendment federal due process right was violated when the trial court did not allow him to withdraw his guilty plea. U.S. Const. amend. XIV. Appellant is correct that a plea of guilty is more than an admission of conduct; it is a conviction. Boykin v. Alabama, 395 U.S. 238, 242 (1969). Appellant is further correct that a trial judge has an affirmative duty to ensure that a defendant's plea is both intelligent and voluntary, and the failure to so ensure is constitutional error. Brady v. United States, 397 U.S. 742, 747 (1970); Boykin, 395 U.S. at 242. Additionally, the code of criminal procedure sets out certain admonishments that are required before a trial judge can accept a guilty plea. Tex. Code Crim. Proc. Ann. § 26.13(a) (Vernon Supp. 2003); Whitten v. State, 587 S.W.2d 156, 158 (Tex.Crim.App. [Panel Op.] 1979). The State responds, first, that appellant did not ask to withdraw his guilty plea, and second, the record before us reflects that appellant voluntarily and intelligently entered a guilty plea; consequently, the trial court was not required to withdraw the plea sua sponte. At any time before judgment has been pronounced, a defendant may withdraw his guilty plea as a matter of right without assigning a reason. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App. [Panel Op.] 1979). After judgment has been pronounced, however, whether a trial court grants a defendant's request to withdraw his plea is within the sound discretion of the trial court. Id. Whether a guilty plea is voluntary is determined from the totality of the circumstances viewed in light of the entire record. Ducker v. State, 45 S.W.3d 791, 796 (Tex.App.-Dallas 2001, no pet.). When a trial judge substantially complies with the required admonishments of article 26.13 of the code of criminal procedure, the burden shifts to the defendant to show he was not aware of the consequences of his guilty plea and that he was misled or harmed. Tex. Code Crim. Proc. Ann. § 26.13 (Vernon Supp. 2003). Substantial compliance with the required admonishments presents a prima facie showing that a defendant entered a knowing and voluntary plea. Soto v. State, 960 S.W.2d 401, 405 (Tex.App.-Dallas 1992, no pet.). Here, appellant does not contend the trial court's admonishments were deficient. Appellant contends he was incompetent to enter a plea of guilty because of his longstanding drug abuse. He further asserts he only signed the judicial confession under the "duress" of misinformation from his trial counsel that led him to believe he would receive drug treatment rather than a prison sentence. A defendant is presumed competent and shall be found competent unless proved incompetent by a preponderance of the evidence. See Tex. Code Crim. Proc. Ann. art. 46.02 § 1A(b) (Vernon Supp. 2003). To establish incompetence, a defendant must show he does not have (1) sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding, or (2) a rational as well as factual understanding of the proceedings against the defendant. Tex. Code Crim. Proc. Ann. art. 46.02 § 1A (a)(1), (2) (Vernon Supp. 2003). The record on appeal reflects the following statements made by appellant within the plea agreement, with approval of his counsel. Appellant was competent. He understood the nature of the accusation against him, the range of punishment, and the consequences of his plea of guilty. Appellant judicially confessed to the offense as charged in the indictment and affirmed that his plea and judicial confession were freely and voluntarily made. Appellant also stated he understood the admonitions regarding unadjudicated community supervision. Appellant had discussed the plea agreement with his attorney before he signed it and he understood the court would hear evidence on punishment before determining his sentence, which could be a prison sentence of 25 years to life. Appellant testified he was under the influence of drugs at the time of the offense and that he had never received treatment for his drug addiction. The record on appeal contains no evidence that appellant was unable to understand the proceedings or consult with his attorney at the time of trial. Appellant responded in the negative when the trial judge specifically asked appellant if anyone forced him to sign the plea agreement or to plead guilty. The fact that appellant got a greater punishment than he expected does not render his guilty plea involuntary. Thomas v. State, 2 S.W.3d 640, 642 (Tex.App.-Dallas 1999, no pet.). Appellant's testimony alone, unsupported by record evidence, is insufficient to show that his plea was involuntary. See Franklin v. State, 693 S.W.2d 430, 431 (Tex.Crim.App. 1985), cert. denied 475 U.S. 1031 (1986). Appellant's notice of appeal contains the following language: "withdraw [sic] from his or her plea of guilty guilty [sic] or nolo contendered [sic] in cause no. F-0373402." The State contends this is not a request to withdraw his plea, but, rather, a notice of appeal. Even interpreting it as a motion to withdraw his plea, however, the State contends the trial court did not abuse its discretion by refusing to withdraw the guilty plea. Because the record contradicts appellant's appellate claims, appellant has not shown the trial court abused its discretion in not allowing appellant to withdraw his plea of guilty, even if we consider the above language as a request by appellant to withdraw his guilty plea. See Taplin v. State, 78 S.W.3d 459, 461 (Tex.App.-Austin 2001, no pet.). For all the reasons set out above, we affirm appellant's conviction.