Donerick Tyrie Jones v. State ( 1999 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-97-00468-CR NO. 03-98-00445-CR

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Donerick Tyrie Jones, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF BEXAR COUNTY, 227TH JUDICIAL DISTRICT NOS. 96-CR-2328 & 96-CR-2327, HONORABLE MIKE M. MACHADO, JUDGE PRESIDING

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Appellant Donerick Tyrie Jones pleaded guilty and judicially confessed to two separate counts of aggravated robbery. See Tex. Penal Code Ann. § 29.03 (West 1994). The district court adjudged appellant guilty and sentenced him to two concurrent terms of twelve years imprisonment and a $1000 fine.

In his sole issue on appeal, appellant contends that his guilty plea was not knowingly and voluntarily made because he was denied effective assistance of counsel. Specifically, appellant argues that his counsel was ineffective in (1) failing to investigate and call potential witnesses, (2) failing to assure that appellant knew and understood the consequences of pleading guilty, and (3) failing to vigorously challenge the in-court identification of appellant through cross-examination.

In Hill v. Lockhart, 474 U.S. 52 (1985), the U.S. Supreme Court held that the two-part test announced in Strickland v. Washington, 466 U.S. 688 (1984), applies to challenges to guilty pleas based on ineffective assistance of counsel. See also Pool, 738 S.W.2d 285, 286 (Tex. Crim. App. 1987); Ex parte Adams, 707 S.W.2d 646 (Tex. Crim. App. 1986). First, the defendant must show that counsel's performance was deficient, falling below an objective standard of reasonableness. See Strickland, 466 U.S. at 687; see also Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Second, the defendant must show that counsel's deficient performance prejudiced the defense. See Strickland, 466 U.S. at 687; Jackson, 877 S.W.2d at 771. To demonstrate prejudice, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see also Jackson, 877 S.W.2d at 771; Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987).

The defendant bears the burden of proof on both prongs of the Strickland test. See Jackson, 877 S.W.2d at 771. To successfully challenge his guilty plea on a claim of ineffective assistance of counsel, appellant is required to show that his counsel's representation was not within the range of competence demanded of attorneys in criminal cases and that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. See Pool, 738 S.W.2d at 286. The reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. "The defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered a sound trial strategy.'" Strickland, 466 U.S. at 689; see also Jackson, 877 S.W.2d at 771. In other words, the record presented to the reviewing court must rebut the presumption of reasonable professional assistance. Jackson, 877 S.W.2d at 771.

First, appellant alleges his counsel was ineffective because he did not interview, subpoena, or call two potential alibi witnesses. "Trial counsel is not necessarily ineffective for failure to call every witness requested by a defendant." Tutt v. State, 940 S.W.2d 114, 121 (Tex. App.--Tyler 1996, pet. ref'd); Lopez v. State, 838 S.W.2d 758, 759 (Tex.App.--Corpus Christi 1992, no pet.). Counsel's failure to call witnesses is irrelevant absent a showing that the witnesses were available and that appellant would have benefitted from their testimony. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Tutt, 940 S.W.2d at 121.

Appellant claims that his trial counsel should have called Cheryl Davis and Andre Trayview as witnesses. He contends that these witnesses would have been able to testify that appellant was at their house when the offenses occurred. Other than appellant's testimony at the hearing on the motion for new trial, however, there is no evidence in the record that either of these witnesses was available or that they would have testified as appellant suggests. Neither possible witness testified a the hearing on the motion for new trial. The district court, sitting as trier of fact at the new trial hearing, was the sole judge of the credibility and weight of the evidence. See Messer, 757 S.W.2d 820, 824 (Tex. App.--Houston [1st Dist.] 1988, pet. ref'd). The court was not required to accept as true appellant's claim that he told his counsel about the two alibi witnesses. See id.

Second, appellant claims his counsel was ineffective because he misled and misinformed appellant about the parole consequences of a conviction for a deadly weapon offense, failed to review the stipulated evidence with appellant before he entered his guilty plea, and failed to explain to appellant the effect of his guilty plea on his right to appeal. Before pleading guilty, appellant was admonished as required by statute. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (West 1989). ⁽¹⁾ The record reflects the trial court properly admonished appellant, and that appellant understood the full range of punishment was left up to the judge:

THE COURT: In each case you're charged with -- as I said, with aggravated robbery, a first degree felony. Should you be convicted of aggravated robbery, punishment will range from not less than five years, nor more than 99 years, or life, and the possibility of a -- possibility of a fine of up to $10,000. That's for each case. Do you understand?

THE DEFENDANT: Yes, sir.

THE COURT: You've applied for deferred adjudication and probation, neither of which of course are guaranteed.

You understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Deferred adjudication is an unusual kind of a proceeding. An individual charged with an offense comes into court, files an application for deferred adjudication, for probation, and enters a plea. And if the Court should grant the application for deferred adjudication, that individual will be placed on probation for a specified period of time.

And if the person completes the probationary period without any difficulty, that ends the matter. No conviction, no finding of guilt.

On the other hand, if the person who has been granted deferred adjudication and placed on probation should violate the terms and conditions of probation, should probation be revoked and the person thereafter adjudicated guilty, at that point the Court could assess whatever punishment the Court wanted within that bracket of offense.

And in these cases you're charged with a first degree felony. Now, I've already told you what the punishment is, so you could get as much as 99 years or life. And then if you have both cases, that could be stacked against you.

Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Finally, I tell you that in the event you should be found guilty, should the State make a recommendation as to punishment based upon a plea bargain between you and your attorney and the State, and should the Court follow the recommendation of the State and assess a punishment suggested, or one less than that recommended, the Court could deny your right to appeal, under and by virtue of Article 44.02 of the Code of Criminal Procedure, which permits the Court to do so under those circumstances.

Do you understand that?

THE DEFENDANT: Yes.

The trial court further questioned appellant and his counsel as follows:

THE COURT: Is [appellant] knowingly, willing, intentionally and intelligently waiving a jury and entering a plea of guilty in each case?

DEFENSE COUNSEL: Yes, Your Honor.

THE COURT: Mr. Jones, are you pleading guilty in each case because you are guilty?

THE DEFENDANT: Yes, sir.

THE COURT: Nobody has forced you, threatened you, coerced you, intimidated you, done anything to make you plead guilty in each and both of these cases?

THE DEFENDANT: No, sir.

THE COURT: And you're not doing so because of any promise made by anyone whomsoever? No one has promised you anything, in other words; is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: So you're pleading guilty in each case because you are guilty and for no other reason; is that correct?

THE DEFENDANT: Yes, sir.

In view of the clear admonitions given by the trial court before the plea, which the appellant admitted he understood, we conclude that appellant cannot credibly contend that his plea was involuntary and that he was denied effective assistance of counsel. See Messer v. State, 757 S.W.2d at 826; see also Rodriguez v. State, 933 S.W.2d 702, 705-06 (Tex. App.--San Antonio 1996, pet. ref'd). Further, any erroneous advice of counsel on the subject of parole eligibility, including the effect of a conviction for a deadly weapon offense, will not render appellant's plea involuntary. See Evans, 690 S.W.2d 274, 279 (Tex. Crim. App. 1985).

Finally, appellant claims his counsel was ineffective because he failed to adequately cross-examine the complaining witness and the investigating officer about the in-court identification of appellant during the hearing on appellant's motion to suppress. Cross-examination of witnesses is inherently based on trial strategy. Appellant contends his trial counsel did not question the complaining witness about the accuracy of his description of the robber, the existence of any distractions, and the length of the encounter, among others. Appellant further argues that his trial counsel failed to question the investigating officer about the description of the robber given to police by the complaining witness or the physical descriptions of other suspects. We agree that vigorous cross-examination could have led to some additional information beneficial to appellant. However, vigorous cross-examination could also have led to further damaging testimony. Any error in trial strategy will be deemed inadequate representation only if counsel's actions are without any plausible basis. See Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980); Tutt, 940 S.W.2d at 121; Green v. State, 891 S.W.2d 289, 300 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd); Shepherd v. State, 673 S.W.2d 263, 267 (Tex. App.--Houston [1st Dist] 1984, no pet.). We do not find trial counsel's strategy without any plausible basis.

Appellant's claims of ineffective assistance of counsel fail to meet the Strickland standards. Further, appellant has not demonstrated that, but for his counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. See Ex parte Pool, 738 S.W.2d at 286. Therefore, there is no basis for appellant's contention that his guilty plea was involuntary. Appellant's sole issue on appeal is overruled.

The judgments of conviction are affirmed.

John Powers, Justice

Before Justices Kidd, B. A. Smith and Powers^*  

Affirmed on Both Causes

Filed: January 28, 1999

Do Not Publish

  ^* Before John Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

1. In his brief, appellant concedes that the trial court substantially complied with the requirements of article 26.13 of the Texas Code of Criminal Procedure.

se cases?

THE DEFENDANT: No, sir.

THE COURT: And you're not doing so because of any promise made by anyone whomsoever? No one has promised you anything, in other words; is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: So you're pleading guilty in each case because you are guilty and for no other reason; is that correct?

THE DEFENDANT: Yes, sir.

In view of the clear admonitions given by the trial court before the plea, which the appellant admitted he understood, we conclude that appellant cannot credibly contend that his plea was involuntary and that he was denied effective assistance of counsel. See Messer v. State, 757 S.W.2d at 826; see also Rodriguez v. State, 933 S.W.2d 702, 705-06 (Tex. App.--San Antonio 1996, pet. ref'd). Further, any erroneous advice of counsel on the subject of parole eligibility, including the effect of a conviction for a deadly weapon offense, will not render appellant's plea involuntary. See Evans, 690 S.W.2d 274, 279 (Tex. Crim. App. 1985).

Finally, appellant claims his counsel was ineffective because he failed to adequately cross-examine the complaining witness and the investigating officer about the in-court identification of appellant during the hearing on appellant's motion to suppress. Cross-examination of witnesses is inherently based on trial strategy. Appellant contends his trial counsel did not question the complaining witness about the accuracy of his description of the robber, the existence of any distractions, and the length of the encounter, among others. Appellant further argues that his trial counsel failed to question the investigating officer about the description of the robber given to police by the complaining witness or the physical descriptions of other suspects. We agree that vigorous cross-examination could have led to some additional information beneficial to appellant. However, vigorous cross-examination could also have led to further damaging testimony. Any error in trial strategy will be deemed inadequate representation only if counsel's actions are without any plausible basis. See Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980); Tutt, 940 S.W.2d at 121; Green v. State, 891 S.W.2d 289, 300 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd); Shepherd v. State, 673 S.W.2d 263, 267 (Tex. App.--Houston [1st Dist] 1984, no pet.). We do not find trial counsel's strategy without any plausible basis.

Appellant's claims of ineffective assistance of counsel fail to meet the Strickland standards. Further, appellant has not demonstrated that, but for his counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. See Ex parte Pool, 738 S.W.2d at 286. Therefore, there is no basis for appellant's contention that his guilty plea was involuntary. Appellant's sole issue on appeal is overruled.

The judgments of conviction are affirmed.

John Powers, Justice

Before Justices Kidd, B. A. Smith and Powers^*  

Affirmed on Both Causes

Filed: January 28, 1999

Do Not Publish