Eddie Dove v. State ( 2005 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-04-079 CR ____________________

EDDIE DOVE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 159th District Court Angelina County, Texas Trial Cause No. 24,073

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MEMORANDUM OPINION ON REHEARING

In response to a motion for rehearing filed by Appellant Eddie Dove, we withdraw our opinion of December 22, 2004, and substitute the following in its place.

The trial court found Eddie Dove guilty of aggravated robbery and sentenced him to fifteen years confinement in the Texas Department of Criminal Justice, Institutional Division.

In a single issue, Dove maintains he received ineffective assistance of counsel. Dove contends his counsel failed to inform Dove he was not eligible for probation if he pleaded not guilty in a bench trial. Dove asserts his trial counsel's ineffectiveness is a violation of his constitutional right to be heard as provided in Article 1, Section 10 of the Texas Constitution.

As evidence of counsel's ineffective assistance, Dove cites certain testimony from his sentencing hearing and maintains the testimony shows Dove was seeking probation. ⁽¹⁾

Krystal Harper, the mother of Dove's child, testified she could use Dove's assistance in providing for the child's schooling and care. She also testified that her discussions with Dove indicated that he, if probated, would comply with probation conditions and follow the law. Dove testified that if the trial court were to defer his case and place him on probation, he would be willing to participate in a drug treatment program. Dove asked the court to defer punishment so he could take care of his child.

To prevail on his issue, Dove has the burden to prove by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced Dove. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To successfully attack a guilty plea on ineffective assistance grounds, the appellant must show the alleged deficiencies caused his plea to be unknowing and involuntary. See Rodriguez v. State, 899 S.W.2d 658, 666 (Tex. Crim. App. 1995). The same standard applies to consideration of alleged ineffective assistance at punishment as at trial. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).

"Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance." Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Any allegation of ineffective assistance must be firmly founded in the record. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The appellant must establish there is no plausible professional reason for a specific act or omission. See Bone, 77 S.W.3d at 836. "Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional." Bone, 77 S.W.3d at 833. A motion for new trial may be filed and a hearing held thereon to supplement the record to further demonstrate ineffective assistance. See Wallace v. State, 75 S.W.3d 576, 589 (Tex. App.--Texarkana 2002), aff'd, 106 S.W.3d 103 (Tex. Crim. App. 2003).

As no motion for new trial was filed below, we do not have any explanation from trial counsel in the record regarding Dove's not guilty plea. Absent a record to indicate trial counsel's strategy and tactics, we may not speculate as to the reasons for the plea. See Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim. App. 2001); Gone v. State, 54 S.W.3d 27, 33-34 (Tex. App.--Texarkana 2001, pet. ref'd).

We overrule Dove's ineffective assistance issue. We affirm the trial court's judgment and Dove's conviction.

AFFIRMED.

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DON BURGESS

Justice

Submitted on November 11, 2004

Opinion Delivered February 2, 2005

Do not publish

Before McKeithen, C.J., Burgess, and Gaultney, JJ.

1. As further evidence of ineffective assistance of counsel, Dove also cites extensive testimony from the trial court's hearing on his writ of habeas corpus. However, we do not consider this evidence as it was not part of the original reporter's record filed in April, 2004.

See Berry v. State, 995 S.W.2d 699, 700 (Tex. Crim. App. 1999). Instead, the record of the July 23, 2004, habeas hearing was filed with this Court on September 13, 2004. While the appellate record may be supplemented with material omitted from the appellate record, a new appellate record cannot be created. See Hutchinson v. State, 86 S.W.3d 636, 637-38 (Tex. Crim. App. 2002) As the testimony presented at the habeas hearing was not material omitted from the original record, we may not consider it. See Berry, 995 S.W.2d at 702.