Ladraciare Demond Jones v. State ( 2007 )

                                                NO. 12-06-00173-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LADRACIARE DEMOND JONES,            §                      APPEAL FROM THE 241ST

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      SMITH COUNTY, TEXAS

MEMORANDUM OPINION

            Appellant Ladraciare Demond Jones appeals his conviction for the offense of aggravated sexual assault of a child.  In two issues, Appellant challenges the voluntariness of his guilty plea and asserts that trial counsel was ineffective.  We affirm.

Background

            Appellant was a member of the West Side Crips, a criminal street gang operating in Tyler, Texas.  Appellant was also an habitual user of marijuana.  On May 5, 2004, shortly after smoking marijuana, Appellant intentionally engaged in sexual intercourse with a child in the backyard of a home owned by Shirley Wassom.  The child was thirteen years old.  Appellant was caught in the act by Wassom’s son and subsequently charged with aggravated sexual assault.¹

            While on bond, Appellant continued his membership in the West Side Crips and also continued to use marijuana.  During this period, a fellow gang member was arrested for possession of illegal drugs on campus at a Tyler high school.  This gang member had been arrested based on information supplied by an informant. Appellant, and other members of his gang, hunted down the person whom they believed to be the informant and assaulted him, causing severe injury to his eyes.  Appellant was subsequently charged with engaging in organized criminal activity and retaliation against an informant.²

            Appellant initially maintained that he was innocent of the sexual assault charge, claiming to have been out of town at the time.  His counsel suggested that he undergo a polygraph examination on this issue.  Before the polygraph examination began, Appellant confessed to the examiner that he had, in fact, engaged in sexual intercourse with the child.  The examiner reported Appellant’s confession to the prosecutor’s office.

            Appellant pleaded guilty to the aggravated assault and retaliation charges.³  The trial court found Appellant guilty of both offenses and sentenced him to thirty years of imprisonment for the aggravated sexual assault charge and ten years of imprisonment for the retaliation charge.  Appellant filed a motion for new trial, which was overruled by operation of law.  Appellant appeals his conviction for aggravated sexual assault.  He has not appealed his conviction for retaliation.

Failure to Admonish

            In his first issue, Appellant argues that his guilty plea was involuntary because the trial court did not admonish him that a conviction for the aggravated sexual assault of a child carried with it a lifetime requirement that he register as a sex offender.  Appellant does not appeal the omission itself, but, instead, appeals based upon the constitutional requirements that a guilty plea be voluntary.

            Article 26.13 of the Texas Code of Criminal Procedure provides as follows:

Prior to accepting a plea of guilty or a plea of nolo contendere, the [trial] court shall admonish the defendant of:   . . . the fact that the defendant will be required to meet the registration requirements of Chapter 62, if the defendant is convicted or placed on deferred adjudication for an offense for which a person is subject to registration under that chapter.   . . .

Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2006).

            Several federal constitutional rights are involved in a waiver that takes place when a guilty plea is entered in a state criminal trial. Anderson v. State, 182 S.W.3d 914, 917 (Tex. Crim. App. 2006).  They include the Fifth Amendment right against compulsory self-incrimination and the Sixth Amendment rights to be tried by a jury and confront one’s accusers. Id.  The Due Process Clause of the Fourteenth Amendment sets the standard of voluntariness for a waiver of these important federal rights. Id. (citing Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)).  This constitutional standard does not require a court to admonish a pleading defendant “about every possible consequence of his plea, direct or collateral, only about those direct consequences that are punitive in nature.” Id. at 918 (quoting Mitschke v. State, 129 S.W.3d 130, 136 (Tex. Crim. App. 2004)).  The failure to admonish a defendant as to the non-punitive consequence of mandatory sex offender registration does not violate the due process clause or render his plea involuntary. Id. (quoting Mitschke, 129 S.W.3d at 136). We overrule Appellant’s first issue.

Ineffective Assistance of Counsel

            In his second issue, Appellant claims that his trial counsel was ineffective. According to Appellant, trial counsel represented to him that an oral agreement had been reached with the prosecutor and that Appellant should plead guilty based upon this agreement.  He contends that counsel provided ineffective assistance by advising him to rely upon this alleged oral agreement. Appellant also contends that counsel was ineffective because he made no attempt to withdraw Appellant’s guilty plea once it became obvious that no such plea agreement existed or would be honored.

Standard of Review

            Claims of ineffective assistance of counsel are evaluated under the two step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984).  See Hernandez v. State, 988 S.W.2d 770, 772-74 (Tex. Crim. App. 1999).  The first step requires the appellant to demonstrate that trial counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms.  See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065.  At this step, the appellant must identify the acts or omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell below the professional norm for reasonableness.  See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).  Any allegation 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).  In this regard, an appellant is required to establish his claims by a preponderance of the evidence.  Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).  Further, a reviewing court will not find ineffectiveness by isolating any portion of trial counsel’s representation, but will judge the claim based on the totality of the representation.  See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.

            Under the second step of the Strickland analysis, the appellant must show prejudice from the deficient performance of his attorney. See Hernandez, 988 S.W.2d at 772.  To establish prejudice, an appellant must prove that but for counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different.  See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.  A “reasonable probability” was defined by the Supreme Court as a “probability sufficient to undermine confidence in the outcome.” Id.

Discussion

            An appellant is required to establish his ineffective assistance claims by a preponderance of the evidence.  Tong, 25 S.W.3d at 712.  To establish the facts he relies upon to prove ineffectiveness, Appellant points to three affidavits, two of which were attached to Appellant’s motion for new trial and one that was attached to the State’s response to the motion. Because no hearing was held on the motion for new trial, these affidavits were never admitted as evidence and, therefore, we cannot consider them as evidence of the events surrounding the alleged plea agreement.  See Rios v. State, 510 S.W.2d 326, 328-29 (Tex. Crim. App. 1974) (op. on reh’g); Adams v. State, 765 S.W.2d 479, 481-82 (Tex. App.–Texarkana 1988, pet. ref’d) (applying Rios and thus refusing to consider as evidence affidavits attached to a response to a motion for new trial because the affidavits had not been entered into evidence at a proper hearing).  The record does not include any evidence of the acts or omissions Appellant relies upon to establish his claims and, thus, he has not met his burden under the first step of the Strickland analysis.  See id.  We overrule Appellant’s second issue.

Disposition

            We affirm the trial court’s judgment.

                                                                                                    SAM GRIFFITH   

                                                                                                               Justice

Opinion delivered March 7, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

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¹ See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2006).

² See Act of May 22, 2003, 78th Leg., R.S., ch. 641, 2003 Tex. Gen. Laws 2046 (amended 2005) (current version at Tex. Pen. Code Ann. § 71.02 (Vernon Supp. 2006)); Tex. Pen. Code Ann. § 36.06 (Vernon Supp. 2006).

³ The organized criminal activity charge was left unadjudicated, but was considered by the trial court when determining the sentence for the other charges. See Tex. Pen. Code Ann. § 12.45 (Vernon 2003).