Bryant Lamont Shoffner v. State of Texas

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Bryant Lamont Shoffner

Appellant

Vs.                   No. 11-01-00070-CR  B Appeal from Taylor County

State of Texas

Appellee

Appellant pleaded guilty to aggravated robbery. The trial court assessed his punishment at 15 years confinement.  We affirm.

In his sole point of error, appellant asserts that his trial counsel was ineffective because his trial counsel failed to communicate a plea offer from the prosecutor prior to the entry of his plea in open court.  In order to show that trial counsel was ineffective, appellant must identify the acts or omissions which were not the result of reasonable, professional judgment. Strickland v. Washington, 466 U.S. 668, 696 (1984).  The appellate court must apply an objective standard of reasonableness in reviewing an ineffective assistance of counsel claim.  Strickland v. Washington, supra at 690; Price v. State, 923 S.W.2d 214, 217 (Tex.App. - Eastland 1996, pet=n ref=d).  An appellant making an ineffective assistance of counsel claim must show that (1) counsel was deficient in that his performance fell below an objective standard of reasonableness and (2) there is a prejudice in that there is a reasonable probability a different decision would have been reached in the absence of counsel=s unprofessional errors .  Strickland v. Washington, supra at 690, 696; McFarland v. State, 928 S.W.2d 482, 500 (Tex.Cr.App.1996), cert. den=d, 519 U.S. 1119 (1997).

AAny 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.Cr.App.1999); McFarland v. State, supra at 500.  When an appellant fails to meet his burden, when he cannot make the requisite showing of either deficient performance or prejudice, his ineffectiveness claim is defeated.  Strickland v. Washington, supra at 687; McFarland v. State, supra at 500.

The following exchange took place at the hearing on appellant=s plea:

THE COURT: [H]ow do you wish to plead?

THE DEFENDANT: Guilty.

                                                           *    * *

THE COURT: Do you have a plea bargain here this morning?

[DEFENSE COUNSEL]: No, sir.

[PROSECUTOR]: No plea bargain. 

Despite this exchange, appellant still claims that he was not informed by his trial counsel of a plea offer.  Appellant did not file a motion for new trial or raise this issue before the trial court  A motion for new trial is required to present a point of error on appeal when the pertinent facts are not contained in the record.  TEX.R.APP.P. 21.2.  Instead, appellant attached an affidavit from his trial counsel to his appellate brief.   Trial counsel=s affidavit states that he and the prosecutor met in regard to a plea offer, that the prosecutor made a plea offer, and that he did not communicate this offer to appellant prior to him pleading guilty in court.  Trial counsel=s affidavit is not a part of the appellate record and cannot be considered by the court in this appeal. TEX.R.APP.P. 34.1.  Because the record before this court does not affirmatively demonstrate trial counsel=s ineffectiveness, appellant has not met his burden of showing deficient performance or prejudice by his trial counsel.

Moreover, the failure to comply with TEX.R.APP.P. 33.1 waives all complaints on appeal except for those of a fundamental, constitutional nature.  Ibarra v. State, 11 S.W.3d 189 (Tex.Cr.App.1999).  Ineffective assistance of counsel complaints, unlike complaints involving the denial of counsel, are such that can be waived by the failure to comply with Rule 33.1.  Foster v. State, 8 S.W.3d 445, 446-47 (Tex.App. B Waco 1999, no pet=n). Because he did not raise the issue of ineffectiveness of counsel by Arequest, objection, or motion@ to the trial court, appellant has waived this complaint on appeal.  Rule 33.1.  Appellant=s sole point of error is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE                                                                                

May 23, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.