Isiah Norman Mitchell v. State ( 2011 )


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  •                                   NUMBERS
    13-10-00184-CR
    13-10-00185-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI – EDINBURG
    ISIAH NORMAN MITCHELL,                                                 Appellant,
    v.
    THE STATE OF TEXAS,                                                      Appellee.
    On appeal from the Criminal District Court
    of Jefferson County, Texas.
    MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Benavides
    Memorandum Opinion by Justice Benavides
    Appellant, Isiah Norman Mitchell, appeals the revocation of probation resulting
    from underlying offenses of theft and aggravated robbery. See TEX. PENAL CODE ANN.
    § 31.03 (West Supp. 2010), § 29.03 (West 2003).       After Mitchell pleaded true to
    violations of his probation terms, the trial court sentenced him to two years’
    incarceration for theft and ten years’ incarceration for aggravated robbery, with the
    sentences ordered to run concurrently. By two issues on appeal, Mitchell contends that:
    (1) he did not voluntarily plead true; and (2) he received ineffective assistance of
    counsel due to his counsel’s failure to research and advise him properly. We affirm.
    I. BACKGROUND1
    On June 28, 2007, the State indicted Mitchell for the state-jail felony offense of
    theft. 
    Id. § 31.03.
    On July 23, 2007, Mitchell signed a plea agreement, and the trial
    court entered a four-year deferred adjudication order. On September 17, 2007, the
    State indicted Mitchell for the first-degree felony offense of aggravated robbery. 
    Id. § 29.03.
    Mitchell signed a second plea agreement, and the trial court entered a ten-
    year deferred adjudication order.
    On November 5, 2008, the State filed Motions to Revoke Unadjudicated
    Probation for both causes on four alleged violations of probation.                   Mitchell pleaded
    ―true‖ to three violations.      The trial court heard the motions, placed the motions in
    abeyance for twelve months, and ordered Mitchell to complete a day-reporting program.
    On January 26, 2010, the State filed its First Amended Motions to revoke
    Unadjudicated Probation for both causes, alleging two additional violations for failing to
    submit to alcohol and/or drug screening and failing to pay court assessed fees. On
    March 12, 2010, Mitchell pleaded true to failing to submit to alcohol and/or drug
    screening. Mitchell was then adjudicated guilty of the theft and aggravated robbery
    charges and was sentenced to two and ten years’ incarceration in the Institutional
    Division of the Texas Department of Criminal Justice, respectively. This appeal ensued.
    1
    This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
    to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).
    2
    II. STANDARD OF REVIEW
    We review a revocation of probation for an abuse of discretion. Garret v. State,
    
    619 S.W.2d 172
    , 174 (Tex. Crim. App. 1981). A court abuses its discretion when it
    ―applie[s] an erroneous legal standard, or when no reasonable view of the record could
    support [its] conclusion under the correct law and the facts viewed in the light most
    favorable to its legal conclusion.‖ Lanum v. State, 
    952 S.W.2d 36
    , 39 (Tex. App.—San
    Antonio 1997, no writ) (quoting DuBose v. State, 
    915 S.W.2d 493
    , 497-98 (Tex. Crim.
    App. 1996)).
    III. ANALYSIS
    A. Voluntariness of Plea
    By his first issue, Mitchell contends that he did not make his plea of ―true‖
    voluntarily. A plea of ―true,‖ standing alone, is sufficient evidence to revoke probation.
    Moses v. State, 
    590 S.W.2d 469
    , 470 (Tex. Crim. App. 1979). In a probation revocation
    hearing, a plea of true must be made knowingly and voluntarily. Hawkins v. State, 
    112 S.W.3d 340
    , 344 (Tex. App.—Corpus Christi 2003, no pet.). The defendant bears a
    heavy burden to prove that, considering the totality of the circumstances, he entered
    into the plea without understanding the consequences. 
    Pena, 132 S.W.3d at 666
    (citing
    
    Martinez, 981 S.W.2d at 197
    ); Ybarra v. State, 
    93 S.W.3d 922
    , 925 (Tex. App.—Corpus
    Christi 2002, no pet.). No requirement exists that the trial court orally inquire regarding
    the defendant’s voluntariness of plea subsequent to defendant and counsel signing
    written admonishments, waivers, or statements if the trial judge establishes that the
    defendant read and understood the documents. Cantu v. State, 
    993 S.W.2d 712
    , 716–
    3
    17 (Tex. App.—San Antonio 1999, pet. ref'd); Edwards v. State, 
    921 S.W.2d 477
    , 479
    (Tex. App.—Houston [1st Dist.] 1996, no writ).
    In this case, Mitchell knowingly and voluntarily entered his plea. 
    Martinez, 981 S.W.2d at 197
    . Mitchell signed written plea admonishments that stated the following for
    both of his offenses:
    Pursuant to Art. 25.13 C.C.P. and having been duly sworn, you are hereby
    admonished in writing that you are charged with the offense shown . . . if
    convicted, you face confinement in a State Jail for any term of not less
    than 180 days or more than 2 years; [i]f convicted, you face . . . a term of
    not more than 99 years or less than 5 years in the Institutional Division of
    the Texas Department of Criminal Justice.
    Since the trial judge established the defendant read and understood the documents,
    Mitchell showed voluntariness simply through the act of signing the written punishment
    admonishments.      See Cantu v. State, 
    993 S.W.2d 712
    , 716-17 (Tex. App.—San
    Antonio 1999, pet. ref'd). Thus, Mitchell did not meet his heavy burden of proving that
    he entered into the plea without understanding the consequences. 
    Pena, 132 S.W.3d at 666
    (citing 
    Martinez, 981 S.W.2d at 197
    ); Ybarra v. State, 
    93 S.W.3d 922
    , 925 (Tex.
    App.—Corpus Christi 2002, no pet.). We overrule Mitchell’s first issue.
    B. Ineffective Assistance of Counsel
    By his second issue, Mitchell contends that he pleaded ―true‖ due to ineffective
    assistance of counsel. If defendant proves ineffective assistance of counsel led him to
    pleading ―true,‖ such pleas are considered involuntary. Ex parte Burns, 
    601 S.W.2d 370
    , 372 (Tex. Crim. App. 1980). The defendant has the burden to establish ineffective
    assistance of counsel by a preponderance of the evidence.         Thompson v. State, 
    9 S.W.3d 808
    , 813 (Tex. Crim. App. 1999). However, there is a ―strong presumption that
    4
    counsel's conduct falls within the wide range of reasonable professional assistance.‖
    Strickland v. Washington, 
    466 U.S. 668
    , 689 (1984).
    To prove ineffective assistance of counsel, the defendant must meet the heavy
    burden established in the Strickland test. 
    Id. In Strickland,
    assistance of counsel is
    ineffective if, in considering the totality of the circumstances: (1) counsel made such
    serious errors that he was not functioning effectively as counsel; and (2) the deficient
    performance prejudiced the defense to such a degree that the defendant was deprived
    of a fair trial. Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984); Rodriguez v. State,
    
    899 S.W.2d 658
    , 665 (Tex. Crim. App. 1995).              The record must affirmatively
    demonstrate the alleged ineffectiveness. Thompson v. State, 
    9 S.W.3d 808
    , 813 (Tex.
    Crim. App. 1999). Where the record does not do so, counsel is presumed effective. 
    Id. A defendant’s
    uncorroborated testimony to such deficiencies is not sufficient to establish
    ineffective assistance of counsel. Arreola v. State, 
    207 S.W.3d 387
    , 391 (Tex. App.—
    Houston [1st Dist.] 2006, no pet.).     Also, a defendant does not have a claim of
    involuntary plea or ineffective assistance of counsel simply because counsel gave his
    professional opinion, defendant relied on that opinion, and the opinion proved to be
    incorrect. Kirven v. State, 
    492 S.W.2d 468
    , 470 (Tex. Crim. App. 1973); see Medford v.
    State, 
    766 S.W.2d 398
    , 401 (Tex. App.—Austin 1989, no writ).
    In this case, Mitchell does not satisfy the strict Strickland test. Mitchell argues
    that his attorney was ineffective because he did not advise him of Texas Code of
    Criminal Procedure article 42.12 section 23(a) and (b), which provides that if community
    supervision is revoked after a hearing, the judge can dispose of the case as if no
    community supervision was ever fulfilled. See TEX. CODE CRIM. PROC. art. 42.12 §
    5
    23(a), (b) (West 2009). Except for Mitchell’s uncorroborated testimony, nothing exists in
    the record indicating that his counsel did not do this research or advise him of this; thus,
    we assume that counsel’s actions were within the broad range of acceptable
    assistance. See 
    Arreola, 207 S.W.3d at 391
    ; see also Flores v. State, 
    18 S.W.3d 796
    ,
    799-800 (Tex. App.—Austin 2000, no pet.) (holding that a claim of ineffective counsel
    does not stand where the record was silent with regard to counsel’s strategies).
    Regardless, Mitchell cannot prove ineffective assistance of counsel because he
    fails the second part of the Strickland test. Mitchell was not prejudiced by the actions of
    his counsel to the point of being deprived of a fair trial. See 
    Strickland, 446 U.S. at 687
    .
    Mitchell made an informed decision because he was admonished that he could be
    found guilty and sentenced to the entire range of punishment if he pleaded ―true.‖
    
    Martinez, 981 S.W.2d at 197
    . Thus, whether or not his counsel performed adequate
    research or advised him about article 42.12 section 23, the proceedings would have
    resulted in the same conviction. See Ex parte White, 
    160 S.W.3d 46
    , 53 (Tex. Crim.
    App. 2004) (holding appellant failed to prove the second part of the Strickland analysis
    when he could not show prejudice caused by counsel’s ineffectiveness). Furthermore,
    the fact that Mitchell simply relied on his attorney’s incorrect professional opinion does
    not constitute ineffective assistance of counsel. See Kirven v. State, 
    492 S.W.2d 468
    ,
    470 (Tex. Crim. App. 1973) (holding appellant’s plea was voluntary even though she
    relied on counsel’s professional opinion). Thus, this Court concludes that Mitchell failed
    to overcome the strong presumption that counsel’s actions were within the wide range
    of reasonable professional assistance. We conclude that Mitchell’s claim of ineffective
    assistance of counsel fails.      Therefore, his claim that he pleaded ―true‖ due to
    6
    ineffective assistance of counsel fails, and on this basis, we conclude that his plea of
    ―true‖ was not involuntary. See Ex parte 
    Burns, 601 S.W.2d at 372
    .            We overrule
    Mitchell’s second issue.
    IV. CONCLUSION
    Having overruled both of Mitchell’s issues, we affirm the trial court's judgments.
    ________________________
    GINA M. BENAVIDES,
    Justice
    Do not publish.
    TEX. R. APP. P. 47.2(b).
    Delivered and filed the
    7th day of July, 2011.
    7