Larry Green v. State ( 2000 )

NUMBER 13-99-117-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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LARRY GREEN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 28th District Court

of Nueces County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Yañez

Opinion by Chief Justice Seerden

Appellant Larry Green pleaded guilty to two counts of aggravated assault and pleaded true to a deadly weapon allegation. At the punishment hearing, the trial court found Green guilty of aggravated assault and sentenced him to ten years imprisonment. Green argues on appeal that he was denied effective assistance of counsel, and the lack of effective assistance rendered Green's pleas involuntary.

We affirm.

Jurisdiction

As an initial matter, the State contends that this Court lacks jurisdiction to consider this appeal because the notice of appeal was not timely filed. If an appeal has not been timely perfected, the court of appeals will not have jurisdiction over the merits of the appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).

The State argues that appellant was sentenced on February 2, 1999, and therefore the notice of appeal should have been filed on or before March 4, 1999. Texas Rule of Appellate Procedure 26.2 provides that a defendant must file its notice of appeal within 30 days after the day sentence is imposed in open court, or within 90 days after the sentence is imposed if the defendant timely files a motion for new trial. Tex. R. App. P. 26.2(a). The appellate court may extend the deadline to file the notice of appeal if, within 15 days after the deadline for filing the notice of appeal, the party files the notice of appeal in the trial court. Tex. R. App. P. 26.2(b).

Sentence in this matter was pronounced on February 2, 1999. The supplemental clerk's record indicates that Green's notice of appeal was received by the trial court on March 2, 1999. The notice of appeal was timely filed, and this Court has jurisdiction to consider the merits of the appeal.

Facts

Appellant Larry Green pleaded guilty without the benefit of a plea bargain to two counts of aggravated assault and pleaded true to a deadly weapon charge. At the same time, the trial court conducted two probation revocation proceedings. Green also pleaded true to all allegations contained in both motions to revoke probation. The record reflects that Green expressly waived the right to bring an insanity defense.

The trial court found Green guilty of both counts of aggravated assault and found that Green exhibited a deadly weapon. The trial court further found that Green had violated the conditions of probation on both motions to revoke. The trial court thus sentenced Green to ten years imprisonment in the Institutional Division of the Texas Department of Criminal Justice--Skyview Unit. The judgment entered by the trial court does not contain an affirmative finding on the deadly weapon charge.Applicable Law

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), sets forth the proper standard of review for effectiveness of counsel. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).

Strickland requires a two-part inquiry. The defendant must first show that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson, 9 S.W.2d at 812. Second, the defendant must further prove that there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

The determination regarding whether a defendant received effective assistance of counsel must be made according to the facts of each case. Id. An appellate court looks to the totality of the representation and the particular circumstances of the case in evaluating the effectiveness of counsel. Id.

The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. To defeat the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119, 117 S. Ct. 966, 136 L. Ed. 2d 851 (1997).

By pleading guilty without the benefit of a plea bargain, a defendant waives all nonjurisdictional defects occurring prior to entry of the plea. Lewis v. State, 911 S.W.2d 1, 4-5 (Tex. Crim. App.1995). Before a plea of guilty or plea of nolo contendere may be accepted by the court it must be freely and voluntarily given by a mentally competent defendant. Tex. Crim. Proc. Code Ann. art. 26.13(b) (Vernon Supp. 2000). The constitutional validity of a guilty plea made upon the advice of counsel depends on whether counsel's performance was reasonably competent, rendering a defendant effective representation during the particular proceedings. Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991). A defendant's election to plead guilty or nolo contendere when based upon erroneous advice of counsel is not done voluntarily and knowingly. Id.

Analysis

Green cites several acts or omissions by counsel to support his claim of ineffective assistance of counsel.

Green first alleges that counsel did not advise him that if he pleaded true to the deadly weapon allegation, he would be ineligible for community supervision. Cf. Ex parte Battle, 817 S.W.2d at 83-84 (finding ineffective assistance of counsel where counsel failed to advise defendant he was ineligible for probation). This allegation is neither established by the record, nor supported by the applicable law.

Article 44.12, section 3g of the Texas Code of Criminal Procedure provides that probation may not be imposed upon a defendant when it is shown that a deadly weapon was used or exhibited during the commission of a felony offense. Tex. Crim. Proc. Code Ann. art 44.12 3g (Vernon Supp. 2000). On an affirmative finding under this subdivision, the trial court shall enter the finding in the judgment of the court. Id.

When the trial judge is the trier of fact on punishment, the trial judge has the authority to make an affirmative finding on the use of a deadly weapon. Campos v. State, 927 S.W.2d 232, 235 (Tex.App.--Waco 1996, no pet.). The trial judge must make "a separate and specific affirmative finding" of the use of a deadly weapon. Hooks v. State, 860 S.W.2d 110, 112 (Tex. Crim. App. 1993).

Appellant contends that he was automatically precluded from eligibility for probation upon pleading true to the deadly weapon charge. The State argues that the trial court had discretion to omit such a finding and thus render appellant eligible for probation.

The record in this matter reflects that the trial court orally found that the appellant was guilty of the deadly weapon charge. However, the judgment lacks any such finding.

A trial court, in a trial to the bench, has complete discretion to refuse to make an affirmative deadly weapon finding. Shute v. State, 945 S.W.2d 230, 232 (Tex.App.--Houston [1^st Dist.] 1997, pet. ref'd); Campos v. State, 927 S.W.2d 232, 236 (Tex.App.--Waco 1996, no pet.); Ex parte Lucke, 742 S.W.2d 818, 820 (Tex.App.--Houston [1^st Dist.] 1987, no pet.). Regardless of how the judgment may describe the offense of which defendant was convicted, to preclude probation the judgment must reflect a separate and specific entry of an affirmative finding that defendant used or exhibited a deadly weapon during the commission of the felony offense or during immediate flight therefrom. Hooks, 860 S.W.2d at 115 n.7. Given the foregoing, we conclude that appellant remained eligible for probation despite his plea of guilty. Because it is not raised on appeal, we do not reach the issue of whether Green was otherwise eligible for probation.

Although counsel did not file an application for probation, trial was before the court without a jury. In this situation, a defendant is not required to file an application to be eligible for probation. Torres v. State, 788 S.W.2d 709, 712 (Tex.App.--Corpus Christi 1990, no pet.).

Second, Green's counsel did not object to the trial court's handling motions to revoke on two other felony cases pending against Green together with the instant felony indictment while asking the same court to again grant community supervision. The record further shows that Green pleaded true to all allegations contained in both motions to revoke his community supervision.

Appellant is statutorily prohibited from complaining on appeal of errors occurring at the hearing on the determination of whether the trial court should revoke his probation. See Tex. Crim. Proc. Code Ann. art. 42.125(b) (Vernon Supp. 2000); Griffin v. State, 936 S.W.2d 706, 707 (Tex.App.--Fort Worth 1996, no pet.). Moreover, the defendant does not have the right to determine the order in which the trial and revocation hearing will be held. Bradshaw v. State, 518 S.W.2d 548, 549 (Tex. Crim. App. 1975).

Third, Green alleges that counsel failed to investigate the case to determine what the probation officer would recommend to the trial court concerning punishment. While the probation officer had previously recommended either probation or the Skyview facility, the probation officer recommended revocation at the sentencing hearing. The record reflects that trial counsel did not call the probation officer as a witness. We disagree with appellant that the record reflects that counsel was unaware of the probation officer's recommendation. Moreover, appellant has not proffered any facts showing that trial counsel failed to thoroughly investigate the officer's recommendation. Admittedly this is often a difficult thing to do on direct appeal. We cannot, however, assume that because a record is silent as to the depth of an attorney's investigation, he made no such investigation.

Finally, Green brings forth several issues relating to the issue of insanity. Green contends that counsel advised him to waive his affirmative defense of insanity where competent psychiatric evidence from the State's expert supported the defense. Counsel allowed Green to plead guilty to two felony counts of aggravated assault despite the affirmative defense of insanity and evidence thereof. Further, Green complains that counsel failed to adduce expert evidence at the punishment phase of the bench trial concerning Green's insanity at the time of the offense.

Significantly, Green's desire to waive the insanity defense was the subject of question at the trial court. The State specifically requested the trial court to inquire about Green's failure to pursue an insanity defense. The court and counsel held an off the record conference immediately following this request. The record then shows that Green took the stand, although it is unclear whether or not he was sworn. Under questioning, Green admitted that he had discussed with counsel the possibility that he could have a viable insanity defense. Green conceded that he was giving up the right to plead insanity as a defense in this case. On further questioning, Green reiterated his choice to waive the defense. Counsel told Green that he would utilize the issue of insanity in connection with punishment. During sentencing, counsel introduced evidence regarding Green's mental condition and history through testimony from Green's relatives.

The record before this Court does not establish whether or not counsel advised Green to waive the insanity defense, and further provides no explanation of counsel's motivations concerning his failure to utilize the insanity defense. Moreover, we cannot second-guess trial counsel's decision to use Green's mental condition in mitigation of punishment instead of as a defense without the benefit of evidence indicating the extent of counsel's research and investigation on the insanity issue. Further, we cannot speculate regarding whether counsel's failure to utilize an expert witness or expert report concerning Green's insanity constituted sound trial strategy or negligence. In light of the record and the presumption that counsel's performance was reasonably professional, we cannot conclude that he provided ineffective assistance of counsel. See Gottson v. State, 940 S.W.2d 181, 185-86 (Tex. App.--San Antonio 1996, pet. ref'd).

Conclusion

We are limited to the record before us on direct appeal. See Thompson, 9 S.W.3d at 814-15 (contrasting direct appeals with habeas proceedings in cases involving ineffective assistance). Given the record before us, we determine that Green has not met his burden to prove that trial counsel's representation fell below an objective standard of reasonableness and that this deficient performance prejudiced his defense. Appellant is free to pursue his ineffectiveness claim on collateral review where the facts surrounding trial counsel's representation may be developed at an

evidentiary hearing. See Hernandez v. State, 726 S.W.2d 53, 56 (Tex. Crim. App. 1986). We thus affirm the trial court's ruling.

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ROBERT J. SEERDEN, Chief Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 28th day of April, 2000.