Jeremy Oneil Fountain v. State ( 2014 )

Affirmed and Memorandum Opinion filed February 13, 2014.
In The
Fourteenth Court of Appeals
NO. 14-12-00938-CR
JEREMY ONEIL FOUNTAIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1339400
MEMORANDUM OPINION
Appellant pleaded guilty without an agreed recommendation on punishment to
possession of a firearm by a felon and entered a plea of true to a single enhancement
paragraph. In a single issue, appellant contends he received ineffective assistance of
counsel. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to entering his guilty plea appellant was admonished as to the consequences
of his plea. See Tex. Code Crim. Proc. art. 26.13. Appellant entered a plea of guilty
without an agreed recommendation on punishment and requested a presentence
investigation report (PSI). After consideration of the PSI, the trial court sentenced
appellant to six years in prison. The range of punishment for felon in possession of a
firearm with one enhancement is two to ten years in prison and a fine not to exceed
$10,000. See Tex. Penal Code §12.34. Appellant filed a timely notice of appeal.
Appellant was represented on appeal by retained counsel. Counsel filed a motion
to withdraw supported by a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that after a conscientious examination of the record, he determined the appeal
to be wholly frivolous. Counsel also forwarded to appellant a copy of the brief and
informed appellant of his right to proceed with the appeal pro se or retain another
attorney to represent him on appeal. On September 27, 2013, appellant filed a pro se
brief.
On November 26, 2013, this court granted counsel’s motion to withdraw and
ordered the Anders brief stricken. See Nguyen v. State, 11 S.W.3d 376, 379 (Tex.
App.—Houston [14th Dist.] 2000, no pet.) (striking Anders brief filed by a retained
attorney because the Anders procedural safeguards are not applicable). In our order
granting counsel’s motion to withdraw, we permitted appellant thirty days to obtain new
counsel. Appellant filed a letter with this court on January 9, 2014, stating his desire to
rely on his pro se brief filed earlier.
ANALYSIS
In his pro se brief, appellant contends that he was denied his right to effective
assistance of counsel under the Sixth Amendment of the United States Constitution
because his attorney assured him he would receive probation if he pleaded guilty and
requested a PSI.
To prevail on a claim of ineffective assistance of counsel, an appellant must show
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by a preponderance of the evidence that (1) counsel’s performance was deficient
because it fell below an objective standard of reasonableness; and (2) the deficient
performance caused appellant prejudice because there is a probability sufficient to
undermine confidence in the outcome that but for counsel’s unprofessional errors, the
result of the proceeding would have been different. See Lopez v. State, 343 S.W.3d 137,
142 (Tex. Crim. App. 2011) (citing Strickland v. Washington, 466 U.S. 668 (1984)).
To satisfy Strickland’s first prong, appellant must identify acts or omissions of
counsel that allegedly were not the result of reasonable judgment. Strickland, 466 U.S.
at 690. A defendant must overcome the presumption that trial counsel’s actions fell
within the wide range of reasonable and professional assistance. Garza v. State, 213
S.W.3d 338, 348 (Tex. Crim. App. 2007). If the reasons for counsel’s conduct at trial do
not appear in the record and it is possible that the conduct could have been grounded in
legitimate trial strategy, an appellate court will defer to counsel’s decisions and deny
relief on an ineffective assistance claim on direct appeal. Id.; see also Menefield v. State,
363 S.W.3d 591, 593 (Tex. Crim. App. 2012). To warrant reversal when trial counsel
has not been afforded an opportunity to explain his reasons, the challenged conduct
must be “so outrageous that no competent attorney would have engaged in it.” Roberts
v. State, 220 S.W.3d 521, 533–34 (Tex. Crim. App. 2007).
To satisfy Strickland’s second prong, the appellant must establish a reasonable
probability that, but for counsel’s errors, the result would have been different.
Strickland, 466 U.S. at 694. Failure to satisfy either prong defeats an ineffective
assistance claim. Id. at 697. In determining whether counsel was ineffective, we
consider the totality of the circumstances of the particular case. Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999).
When a defendant challenges the voluntariness of a guilty plea on the basis of
ineffective assistance of counsel, the voluntariness of his plea depends on (1) whether
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counsel’s advice was within the range of competence demanded and, if not, (2) whether
there is a reasonable probability that, but for the ineffective assistance, the defendant
would not have pleaded guilty and would have insisted on going to trial. See In re
Moody, 991 S.W.2d 856, 857–58 (Tex. Crim. App. 1999). A defendant does not receive
ineffective assistance of counsel simply because trial counsel advises the defendant to
plead guilty under an expectation that the court will probate the sentence or impose a
lighter sentence than is received. See Graves v. State, 803 S.W.2d 342, 345 (Tex.
App.—Houston [14th Dist.] 1990, pet. ref’d).
Appellant was admonished in writing pursuant to article 26.13 of the Texas Code
of Criminal Procedure. Appellant did not file a motion for new trial or otherwise present
evidence that his counsel advised him that he would receive probation, or, if so, that
such advice was not based in reasonable trial strategy. There is no evidence in this
record, other than appellant’s contention in his pro se brief, to support his claim that his
counsel was ineffective and that his guilty plea was involuntarily made. See Reissig v.
State, 929 S.W.2d 109, 112 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d). Without
proof that shows both ineffective assistance and a reasonable probability that appellant
would have insisted on a trial, he cannot overcome the strong presumption of effective
assistance of counsel. See Flores v. State, 18 S.W.3d 796, 800 (Tex. App.—Austin
2000, no pet.).
Appellant has not established that he received ineffective assistance by relying on
his attorney’s professional opinions and unsuccessful trial strategy. See Graves, 803
S.W.2d at 345. Accordingly, we overrule appellant’s issue on appeal and affirm the
judgment of the trial court.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Jamison and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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