Summary
applying Young standard and holding that error waived and judgment rendered was independent of and not supported by alleged ineffective assistance of counsel because no evidence showed that appellant would have pleaded not guilty but for alleged ineffectiveness
Summary of this case from Guidry v. StateOpinion
No. 13-03-00752-CR
Memorandum Opinion delivered and filed August 12, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 94th District Court of Nueces County, Texas.
Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.
MEMORANDUM OPINION
Without a plea agreement, appellant, Eric McDaniel, pleaded nolo contendere to the offense of assault on a public servant. The trial court found him guilty and assessed his punishment at three years imprisonment. In a single issue, appellant claims his trial counsel was ineffective because counsel: (1) failed to discover, subpoena, or call witnesses favorable to appellant; and (2) failed to explain the difference between a plea of nolo contendere and a trial. We affirm. As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. See TEX. R. APP. P. 47.4. Before we can consider the merit of appellant's issue, we must first determine if appellant waived this issue when he pleaded nolo contendere. See Ramirez v. State, 89 S.W.3d 222, 228 (Tex. App.-Corpus Christi 2002, no pet.). Waiver of all non jurisdictional defects that occurred before a guilty plea entered without the benefit of an agreed sentencing recommendation, other than the voluntariness of the plea, occurs when the judgment of guilt was rendered independent of, and is not supported by, the claimed error. Martinez v. State, 109 S.W.3d 800, 801 (Tex. App.-Corpus Christi 2003, pet. ref'd) (citing Young v. State, 8 S.W.3d 656, 666-67 (Tex.Crim.App. 2000)). Thus, we must first address whether the alleged error occurred before appellant entered his plea. Appellant contends he was denied effective assistance of counsel because his lawyer failed to discover, subpoena, or call witnesses favorable to appellant, and failed to explain the difference between a plea of nolo contendere and a trial. The record contains appellant's sworn judicial confession and the court's written admonishments to appellant. In these documents, appellant acknowledged that he understood the charges against him and that trial counsel had explained to him the facts of the case as well as the law applicable to the case. In both the sworn judicial confession and the court's written admonishments, appellant acknowledged that his attorney had discussed the case with him and that he was satisfied with his representation. Trial counsel certified that he read and explained the written admonishments to appellant, as well as the applicable range of punishment and waiver of rights. At the plea hearing, appellant testified he understood that his plea of nolo contendere had the same legal impact as a guilty plea. He also testified he had been able to discuss the case with trial counsel and was fully aware of what was transpiring during the hearing. The record and appellant's brief establish that appellant at all times desired to and did plead nolo contendere to the charged offense. Appellant does not complain on appeal that his plea was involuntary. However, he contends that the ineffective assistance occurred when trial counsel failed to discover, subpoena, or call witnesses favorable to him and failed to explain the difference between a plea of nolo contendere and a trial, events that occurred before he entered his plea of nolo contendere. We conclude that Young applies to our review of appellant's claimed ineffective assistance of counsel. See Martinez, 109 S.W.3d at 803; Ramirez, 89 S.W.3d at 232. Therefore, we must determine if the judgment of guilt was rendered independent of, and is not supported by, the claimed error. Young, 8 S.W.3d at 667; Martinez, 109 S.W.3d at 803; Ramirez, 89 S.W.3d at 232. That is, we analyze whether the alleged ineffective assistance of counsel has a direct nexus with appellant's guilt or innocence. See Martinez, 109 S.W.3d at 803; Ramirez, 89 S.W.3d at 232. Here, the record is devoid of any evidence that appellant would have pleaded not guilty had it not been for his counsel's alleged ineffectiveness. Therefore, we hold that the trial court's judgment was rendered independent of, and is not supported by, the alleged ineffective assistance of counsel. See Young, 8 S.W.3d at 667. Appellant's sole issue is overruled. The judgment of the trial court is affirmed.