Opinion
No. 05-01-01380-CR.
Opinion Filed June 4, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-01437-KN. AFFIRMED.
Before Chief Justice THOMAS AND Justices WHITTINGTON and RICHTER.
OPINION
Roy Torrez, Jr. appeals his conviction for aggravated robbery. Appellant entered an open guilty plea to the charge and pleaded true to two enhancement paragraphs. The trial court found appellant guilty, the enhancement paragraphs true, and assessed punishment at life imprisonment. Appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807 (Tex.Crim.App. [Panel Op.] 1978). Appellant filed a pro se response in which he complains he received ineffective assistance of counsel. Specifically, appellant contends trial counsel should have persuaded appellant to try the case to a jury because counsel "should have been aware" that, given appellant's criminal history, he would receive a harsher sentence from the judge than the State was offering in a plea bargain. Appellant also complains counsel failed to investigate, describe to appellant the evidence against him, offer an assessment of the strength of the State's evidence, or keep out evidence of a prior crime. Appellant asserts that if he had known the strength of the State's evidence, he would not have opted to enter an open guilty plea. Appellant speculates he might have been placed in some type of drug treatment program if he had not entered his open guilty plea. Finally, appellant complains of a statement counsel made during his summation. We use the Strickland standard to evaluate ineffective assistance of counsel claims. See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770, 771 (Tex.Crim.App. 1999). To prevail, appellant must show counsel's representation fell below an objective standard of reasonableness as well as a reasonable probability that a different outcome would have resulted but for counsel's error. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. See Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000). We indulge a strong presumption of counsel's competence. See Tapia v. State, 933 S.W.2d 631, 634 (Tex.App.-Dallas 1996, pet. ref'd). When an appellant contends his plea was involuntary due to ineffective assistance of counsel, the appellant must demonstrate that, but for counsel's errors, he would not have pleaded guilty and would have insisted on trial. See Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). If the record does not affirmatively reflect ineffective assistance, we cannot say counsel's performance was defective. See Tapia, 933 S.W.2d at 634. There is no evidence in the record indicating what advice counsel gave appellant regarding the character or strength of the State's evidence or whether to enter an open guilty plea. Similarly, there is no evidence showing what investigation, if any, counsel conducted before trial. Therefore, appellant does not show counsel's ineffectiveness in these regards. See Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 2002). Appellant complains his counsel "supported the State's prosecutors [sic] credibility" during his summation by agreeing with one of the prosecutor's statements. Assuming, without deciding, that counsel's summation fell below an objective standard of reasonableness, appellant does not show that, but for counsel's summation, he would have received a lighter sentence or some type of drug treatment. The evidence in this case showed that appellant robbed a convenience store clerk and then stabbed the clerk with a "long knife." The robbery was captured on videotape, and the tape was introduced into evidence. Appellant also admitted he had previous felony convictions for aggravated robbery and burglary of a habitation. One of the victims of appellant's previous aggravated robbery testified and described how appellant used a gun to rob workers at a pizza restaurant. Because appellant has not shown the results of his proceedings would have been different, he does not demonstrate counsel's ineffectiveness in this regard. See id. Finally, appellant complains he would not have entered an open guilty plea but for counsel's ineffective assistance. The record does not support appellant's complaint. The code of criminal procedure requires the trial court to admonish a defendant, either orally or in writing, before accepting a guilty plea in a felony case. Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2003). When a trial court substantially complies with article 26.13(a), it constitutes a prima facie showing the defendant's guilty plea was entered knowingly and voluntarily. Grays v. State, 888 S.W.2d 876, 878 (Tex.App.-Dallas 1994, no pet.). Appellant then has the burden to show he was unaware of the consequences of his plea and that he was misled or otherwise harmed by the admonishments. Id. The appellate record contains a written admonishment form that substantially complies with article 26.13(a). Appellant signed the form, acknowledging he understood the admonishments and that he was entering his plea "freely" and "voluntarily." At trial, the court gave appellant additional admonishments, and appellant indicated he was pleading guilty "freely and voluntarily." Therefore, there is a prima facie showing appellant knowingly and voluntarily entered his plea. See, e.g., Kirk v. State, 949 S.W.2d 769, 771 (Tex.App.-Dallas 1997, pet. ref'd). As stated above, there is no evidence in the record showing what advice, if any, counsel gave appellant regarding his chances at trial or whether to enter an open guilty plea. Likewise, nothing supports appellant's assertions he would have gone to trial had he been more aware of the State's evidence. The record does reflect the trial judge reviewed with appellant the sentencing range open to the court as a consequence of appellant's guilty and true pleas. The fact that appellant received a punishment greater than he hoped or expected does not render his guilty plea involuntary. See Thomas v. State, 2 S.W.3d 640, 642 (Tex.App.-Dallas 1999, no pet.). We conclude appellant has not shown he did not know the consequences of his plea, that he was misled or harmed by the trial court's admonishments, or that, but for counsel's erroneous advice, he would not have pleaded guilty and would have insisted on a jury trial. Therefore, appellant has not carried his burden to show his guilty plea was involuntary or that counsel provided him ineffective assistance. Accordingly, appellant does not present an arguable point of error in his lone ground. We have reviewed the record, counsel's brief, and appellant's response. We conclude the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. We affirm the trial court's judgment.