Durelle L. Blackwell v. State ( 2000 )

NUMBERS 13-99-240-CR & 13-99-241-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

DURELLE L. BLACKWELL

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 232nd District Court of Harris County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Rodriguez

Appellant Durelle Blackwell was convicted of felony theft of cash money⁽¹⁾ after entering a plea of guilty pursuant to a plea bargain agreement. Appellant contends (1) he was denied effective assistance of counsel at trial, (2) his plea was involuntary, (3) the trial court abused its discretion in failing to grant the appellant's motion for new trial. We affirm.

On January 7, 1998, appellant was first indicted with the state jail felony offense of theft of cash valued at over one thousand five-hundred dollars and under twenty thousand dollars. Appellant entered a plea of guilty to the court with an agreed recommendation of four years deferred adjudication. The trial court sentenced Blackwell in accordance with the recommendations. The State later filed a motion to adjudicate guilt, alleging failure to perform community service hours. The following day, the State indicted Blackwell with a new violation of theft of cash money. Blackwell entered a plea of guilty to the second indictment with an agreed recommendation of nine months confinement. Thereafter, the trial court granted Blackwell's request for a substitution of attorneys. Immediately prior to sentencing, appellant filed a "motion to withdraw plea of true to motion to adjudicate and plea of guilty to felony theft" which alleged involuntary pleas and ineffective assistance of counsel as to the plea from the second offense. The motion was denied and appellant was sentenced. Appellant immediately filed a motion for a new trial which was also denied. Appellant was granted permission to appeal by the trial court as required by Tex. R. App. P. 25.2(b)(3)(C).

In his first point of error, appellant contends he was denied effective assistance of counsel. To reverse a conviction based on ineffective assistance of counsel, the appellate court must find: (1) counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 695 (1984). The Strickland test was adopted in Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). This standard applies to challenges to guilty pleas and requires that the defendant show that counsel's representation fell below objective standards of reasonableness, and that there is a reasonable probability that, but for counsel's unprofessional errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Hayden v. State, 818 S.W.2d 194 (Tex. App.--Corpus Christi 1991, no pet.). The appellant has the burden of proving ineffective counsel by a preponderance of the evidence. Cannon v. State, 660 S.W.2d 401, 403 (Tex. Crim. App. 1984). There is a strong presumption that the trial counsel's conduct was reasonable and constitutes sound trial strategy. Strickland, 466 U.S. at 689. An allegation of ineffective counsel will be sustained only if it is firmly founded in the record and the record affirmatively demonstrates the alleged ineffectiveness. McFarland v. State 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

Appellant's complaint regarding ineffective counsel is based upon assertions that his trial counsel (1) failed to fully investigate the case to prepare a defense, (2) failed to interview witnesses, (3) failed to prepare the appellant for trial and did not inform appellant he could present any evidence of his compliance with the probation conditions, (4) failed to prepare for trial and did not intend to offer the appellant a choice to go to trial, and (5) improperly promised appellant that he could renegotiate an agreed plea and that the plea was temporary, which led appellant to believe he would be reinstated on probation and not go to jail.

Beyond the bare allegations in his brief, appellant's contentions are not supported by the record. There is nothing to show that counsel failed to investigate in preparation of a defense; on the contrary, he was prepared to introduce a receipt showing that appellant had paid restitution. Moreover, counsel had appellant's probation officer on hand to testify regarding appellant's compliance with the terms of his probation. As for his failure to interview potential witnesses, the record does not show what the content of the absent witnesses's testimony would be except to say that they would testify about "how everything came down, the deal on the four wheelers." It does not indicate that such testimony would serve as any defense. Contrary to appellant's testimony, counsel testified that he was prepared to go to trial and that he "never, never, never, never" told appellant it was a temporary plea.

Even assuming, arguendo, that counsel's representation was below the objective standard of reasonableness, there is not a reasonable probability that but for counsel's unprofessional errors, appellant would not have pleaded guilty and would have insisted on going to trial. The evidence available to the trial court includes the self-serving statements made by the defendant that he would not have accepted the plea if counsel had not made the misrepresentation that it was temporary and that there would be no jail time. Also included as evidence were a waiver of constitutional rights, stipulation of evidence, judicial confession, written admonishments by the trial court, and the plea of guilty, all signed by the appellant, which acknowledge that appellant understood the waiver of his rights and the consequences of his plea. Appellant signed the written admonishments by the trial court stating, "I have read and I understand this document, the Waiver of Constitutional Rights, Agreement to Stipulate, Judicial Confession and Plea of Guilty filed in this case." The admonishment also states, "I understand the consequences of my plea." Despite appellant's claim that he was unaware of the recommendation for jail time, the recommendation was clearly stated in the stipulation of evidence. The plea of guilty, signed by appellant's counsel, acknowledged he fully discussed the consequences of the plea with appellant. The plea is also signed by the judge stating she admonished the defendant of the consequences of his plea. Furthermore, appellant has not demonstrated that, but for counsel's unprofessional errors, he would not have pleaded guilty and would have insisted on going to trial. Appellant's first point of error is overruled.

In his second point of error, appellant claims his plea was involuntary due to misrepresentations made by counsel. An involuntary guilty plea must be set aside. Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975). When the record reflects the trial court properly admonished the defendant, there is a prima facie showing that the guilty plea was entered knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (en banc). The defendant may still claim that his plea was not voluntary; however, the burden shifts to the defendant to demonstrate that he did not fully understand the consequences of his plea such that he suffered harm. Id.

The record in the case at bar reflects the appellant was properly admonished by the trial court. First, the record contains written admonishments by the trial court which the appellant signed acknowledging, inter alia, "I understand the charge against me, and I understand the nature of these proceedings. I am entering my guilty plea freely and voluntarily. . . . I have read and I understand the admonishments set out above. I understand the consequences of my plea." Second, the waiver of constitutional rights, agreement to stipulate, and judicial confession signed by appellant recites, "I am satisfied that the attorney representing me today in court has properly represented me and I have fully discussed this case with him." Third, the same three documents are signed by the trial court judge, stating, "After I admonished the defendant of the consequences of his plea, I ascertained that he entered it knowingly and voluntarily after discussing the case with his attorney. It appears the that defendant is mentally competent and the plea is free and voluntary." Fourth, the same documents are signed by appellant's counsel, asserting counsel's belief the plea was executed voluntarily after he discussed the consequences with the appellant.

There is a prima facie showing that the appellant's plea was entered knowingly and voluntarily. The only support for the appellant's contention that his plea was involuntary is his own testimony. However exceptional the circumstances, a defendant's claim he was misinformed by counsel, standing alone, is not enough for us to hold his plea was involuntary. Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd). In cases in which a guilty plea has been held to be involuntary, the record must contain confirmation of the misinformation by counsel, or documents augmenting the defendant's testimony that reveal the misinformation and show its conveyance to defendant. Id.; Ex parte Griffin, 679 S.W.2d 15, 17 (Tex. Crim. App. 1984). Given the prima facia showing that the plea was voluntary, and the absence of independent corroborating evidence in the record indicating appellant was misinformed, we hold appellant's plea of guilty was voluntary. Appellant's second point of error is overruled.

In his third point of error, appellant contends the trial court committed an abuse of discretion in overruling his motion for new trial. The granting of denying of a motion for new trial lies within the discretion of the trial court. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). An appellate court does not substitute its judgment for that of the trial court, but rather decides whether the trial court's decision was arbitrary or unreasonable. Id. The trial judge is the sole judge of the credibility of the witnesses at a motion for new trial hearing. See id. Because the evidence before the trial judge supports his findings that counsel was not ineffective and that the plea was voluntary, we find no abuse of discretion in the denial of appellant's motion for new trial.

We AFFIRM the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this the 13th day of July, 2000.

1. Tex. Pen. Code § 31.03(a) (Vernon 1994).