Opinion
No. 05-04-01421-CR
Opinion Issued June 28, 2005. DO NOT PUBLISH. Tex.R.App.P.47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-57423-KN. Affirmed as modified.
Before Justices MORRIS, WHITTINGTON, and MAZZANT.
OPINION
At trial, Michael John Macaluso pleaded guilty to unauthorized use of a motor vehicle. Following his conviction, he now complains on appeal that he received ineffective assistance of counsel and that such ineffective assistance rendered his guilty plea involuntary. He further complains the judgment in his case incorrectly reflects that he was found guilty of a second degree felony. We modify the trial court's judgment to reflect that appellant was actually convicted of a third degree felony and affirm the judgment as modified. Appellant stated at trial that he was pleading guilty freely and voluntarily. He was questioned by his attorney about the plea as follows:
Q. Mr. Macaluso, I want you to explain to Judge Nelms how you got involved and what happened on this case. How you got involved.
You were, you know you're accused of unauthorized use of a motor vehicle. When I explained to you that in regards if you operate a vehicle and you thought you had consent but it wasn't the true owner, you are technically in violation of the laws of the State of Texas. Do you understand that?
A. Yes.
Q. So you were moving a vehicle for somebody that you were working for, but you were operating it and you did talk to the police about it. You tried to be helpful to them; is that correct?
A. Yes, I did.
Q. But you acknowledge and you enter your plea of guilty to the allegations before the Court freely and voluntarily as we mentioned before; is that correct?
A. Yes.Appellant then testified about his difficulties with substance abuse. He testified about his participation in Alcoholics Anonymous and how it was turning his life around. His mother, his AA sponsor, and another AA member also testified about how appellant was changing his life by ending his substance abuse problem. The State introduced into evidence proof of multiple previous offenses committed by appellant, including the two state jail felony offenses alleged as enhancement offenses in the indictment and a previous conviction for UUMV. In his first four issues on appeal, appellant contends that ineffective assistance of counsel rendered his guilty plea involuntary. He first complains his trial counsel failed to recognize and instruct him about the mental state required for UUMV and about how the defense of mistake of fact applied to his case. Appellant next complains counsel erroneously advised him that UUMV, enhanced by the two previous state jail felonies alleged in the indictment, was a second degree felony. Finally, appellant complains the cumulative effect of counsel's ineffective assistance rendered his plea involuntary. To prevail on an ineffective assistance claim in a guilty plea case, an appellant must show that counsel's advice was not within the range of competence demanded of attorneys in criminal cases and, but for counsel's errors, the appellant would not have pleaded guilty and would have insisted on going to trial. See Aldrich v. State, 53 S.W.3d 460, 470 (Tex.App.-Dallas 2001), aff'd, 104 S.W.3d 890 (Tex.Crim.App. 2003). Our scrutiny of counsel's performance must be highly deferential. Every effort must be made "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 469. Any allegation of ineffectiveness must be firmly founded in the record. Castaneda v. State, 135 S.W.3d 719, 721 (Tex.App.-Dallas 2003, no pet.). Here, appellant first argues that the record shows trial counsel was misinformed about the law in his case. Appellant points to the exchange at trial where his attorney stated that a person still "technically" commits UUMV if he uses a motor vehicle even if he thinks he has consent but the true owner has not consented to the use. Appellant argues that his attorney misstated the law "by admonishing [appellant] in open court that it did not matter that he believed he had consent to use the vehicle from the owner." Appellant contends that the attorney's statement conflicts with the law of UUMV, which requires that the defendant operate the vehicle knowing he did not have consent of the owner. See Tex. Pen. Code Ann. § 31.07 (Vernon 2003). Appellant further contends the statement shows trial counsel failed to recognize that the mistake of fact defense was available to him because he "had a reasonable belief that his employer had the authority to give him consent to move the vehicle." Appellant argues that this belief raises the mistake of fact defense and negates the culpable mental state required for a UUMV conviction. Appellant points to a holding by the court of criminal appeals that the mistake of fact defense was available in a UUMV case when the defendant believed he borrowed the car he was driving from the rightful owner. See Lynch v. State, 643 S.W.2d 737, 738 (Tex.Crim.App. 1983). We do not agree with appellant that his exchange with the trial attorney shows the attorney was ineffective. Appellant and his attorney were discussing a hypothetical situation where an operator of a vehicle thought he had consent (from someone), but the true owner had not consented to the vehicle's operation. They discussed appellant's situation as operating a vehicle for someone who employed him, and they discussed appellant's willing participation with the police in investigating the situation. This exchange does not show that appellant thought he had the owner's consent to operate the vehicle he operated. The exchange could just as easily be read as showing appellant moved a vehicle for his employer, knowing he had the employer's consent for what he was doing, but also knowing he did not have the true owner's consent. Without further evidence of the facts of appellant's case, what counsel actually believed, and what counsel told his client about the applicable law in his case and the appropriate defenses raised, appellant simply cannot meet his burden of showing his trial attorney's performance fell outside the range of competent representation. For this reason, we resolve appellant's first two issues against him. In his third issue, appellant complains his trial counsel was ineffective for erroneously advising him that UUMV, enhanced by two previous state jail felonies, is a second degree felony. Appellant signed a plea agreement form that stated the punishment range for his offense was that of a second degree felony. At trial, appellant acknowledged that he had read the form and discussed it with his attorney. Appellant contends this evidence shows that trial counsel mistakenly believed appellant's offense, enhanced by two state jail felonies, was a second degree felony and that counsel wrongly advised appellant about the applicable punishment range. UUMV is a state jail felony. See Tex. Pen. Code Ann. § 31.07(b). Enhanced by two previous state jail felonies, it is a third degree felony. See id. § 12.42(a)(1) (Vernon Supp. 2004-05). The judgment in the case states that appellant was convicted of a second degree felony, and he was sentenced to five year's confinement. This sentence was within the punishment range for a second degree felony, as well as for a third degree felony. See id. §§ 12.33, 12.34 (Vernon 2003). In its brief, the State acknowledges that "it appears all of the parties mistakenly believed that appellant was subject to a second-degree felony range of punishment." Nevertheless, nothing in the record shows appellant would have changed his plea if he had been informed his enhanced offense was actually a third degree felony. Appellant's strategy at trial seemed to be to show his willingness to help police, to acknowledge previous mistakes due to substance abuse, and to beg for the court's mercy. Appellant has failed to show in this record that he would not have pleaded guilty if he had known his offense actually had a lower punishment range. Without such a showing, we cannot conclude appellant received ineffective assistance of counsel. See Tabora v. State, 14 S.W.3d 332, 335 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (holding that, despite admonishment of deferred-adjudication eligibility when appellant was actually not eligible for that form of probation, appellant failed to show erroneous admonishment adversely affected his decision to plead guilty). We resolve appellant's third issue against him. Appellant complains in his fourth issue that his plea was involuntary based on his attorney's cumulative ineffective assistance. He argues that counsel's failure to understand the law of UUMV and the defense of mistake of fact as they applied to his case and his failure to determine the correct punishment range for the offense effectively rendered his plea involuntary. When an appellant challenges the voluntariness of his plea based on a claim of ineffective assistance, the voluntariness of the plea depends on the familiar ineffective assistance of counsel test: "(1) whether counsel's advice was within the range of competence demanded of attorneys in a criminal case and if not, (2) whether 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." See Guillory v. State, 99 S.W.3d 735, 739 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (quoting Ex parte Moody, 991 S.W.2d 856 (Tex.Crim.App. 1999)). We have already determined that appellant has failed to show his attorney erroneously advised him about the law of UUMV and the defense of mistake of fact. To the extent trial counsel may have erred in admonishing appellant about the punishment range for his offense, we have determined that the record fails to show appellant would have changed his plea if he had known his offense was actually a third degree felony, rather than a second degree felony. Thus, appellant's claim of cumulative ineffective assistance is without merit. We resolve his fourth issue against him. In his fifth issue, appellant complains the judgment in his case incorrectly reflects that he was convicted of a second degree felony. The State concedes error on this issue and joins appellant's request that the judgment be modified to show appellant was convicted of a third degree felony. As discussed above, UUMV, enhanced by two previous state jail felonies, is a third degree felony. This Court has the power to modify trial court judgments to make the record reflect the truth. See Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd). We therefore resolve appellant's fifth issue in his favor. We modify the judgment to reflect that appellant was convicted of a third degree felony, rather than a second degree felony. We affirm the trial court's judgment as modified.