William Vangerald Gordwin v. State ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-15-00066-CR
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WILLIAM VANGERALD GORDWIN, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 75th District Court
Liberty County, Texas
Trial Cause No. CR31271
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MEMORANDUM OPINION
A jury convicted William Vangerald Gordwin of felony possession of a
controlled substance and, pursuant to a plea bargain agreement, the trial court
sentenced Gordwin to twenty years in prison. In a single appellate issue, Gordwin
contends that his trial counsel provided ineffective assistance by failing to
communicate a plea bargain agreement offered by the State. We affirm the trial
court’s judgment.
To establish ineffective assistance, Gordwin must satisfy the following test:
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First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see Perez v. State, 310
S.W.3d 890, 892-93 (Tex. Crim. App. 2010). Allegations of ineffectiveness “must
be firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813 (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). “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.” Id.
Gordwin argues that his trial counsel rendered ineffective assistance at trial
by failing to communicate a plea offer to him, in which the State offered him five
years in prison. During trial, the State made an offer to Gordwin of twenty years in
prison. The State explained that Gordwin had turned down previous offers of five
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and fifteen years. Trial counsel told the trial court that he communicated the five-
year offer to Gordwin and it was rejected. When the trial court asked Gordwin to
confirm, Gordwin stated, “I don’t remember, sir.” Gordwin confirmed that the
fifteen-year offer had been communicated and rejected. Gordwin proceeded to
reject the twenty-year offer, but later agreed to the twenty years after the jury
found him guilty of possession of a controlled substance. On appeal, Gordwin
maintains that he was unaware of the five-year offer until the trial court mentioned
the offer at trial.
The record does not indicate that Gordwin’s motion for new trial alleged
ineffective assistance. Moreover, Gordwin’s stated inability to recall being
apprised of the offer is insufficient to affirmatively demonstrate that trial counsel
failed to communicate the five-year offer to Gordwin. See Thompson, 9 S.W.3d at
813. That trial counsel failed to communicate the offer is an allegation that must be
firmly founded in the record before we may find that counsel provided ineffective
assistance. See id. Accordingly, Gordwin cannot defeat the strong presumption that
trial counsel’s assistance was reasonable and professional. See Bone, 77 S.W.3d at
833; see also Thompson, 9 S.W.3d at 814. We overrule Gordwin’s sole issue and
affirm the trial court’s judgment.
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AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on November 30, 2015
Opinion Delivered December 9, 2015
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
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