Alexander, Frederick v. State

• Court: Court of Appeals of Texas
• Decided: February 12, 2004
• Docket: 14-03-00258-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed February 12, 2004

Affirmed and Memorandum Opinion filed February 12, 2004.

In The

Fourteenth Court of Appeals

_______________

NO. 14-03-00258-CR

FREDERICK ALEXANDER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 861,120

M E M O R A N D U M   O P I N I O N

            Frederick Alexander appeals a conviction for aggravated robbery with a deadly weapon^[1] on the ground that his guilty plea was not entered voluntarily and knowingly in violation of the United States and Texas Constitutions.  We affirm.

            Appellant’s first and second issues argue that his guilty plea was involuntary in that his trial counsel provided ineffective assistance in advising appellant to enter the plea because counsel was unprepared to go to trial after the trial court denied his motion for continuance to locate potentially exculpatory witnesses.

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            A guilty plea may not be accepted by a court unless it appears to be free and voluntary.  Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2004).  An accused is entitled to effective assistance of counsel during the plea bargaining process.  See Hill v. Lockhart, 474 U.S. 52, 58 (1985).  To successfully challenge the voluntariness of a guilty plea based on ineffective assistance of counsel, an appellant must show that his counsel’s performance was: (1) deficient, i.e., it fell below an objective standard of reasonableness; and (2) prejudicial, i.e., there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty, but would have instead insisted on going to trial.  Id. at 58-59; Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999).  Ineffective assistance claims must be affirmatively demonstrated in the record.  Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002).  To overcome the presumption that a challenged action or omission might be considered sound strategy, the record must ordinarily reflect the reasons why counsel took or failed to take the action.  See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).

            In this case, appellant signed a guilty plea document stating, among other things, that “I am satisfied that the attorney representing me today in court has properly represented me and I have fully discussed the case with him.”  Appellant also signed a sworn waiver stating, among other things, that “I consulted with my attorney before entering this plea; . . . . [M]y plea is freely and voluntarily made. . . . I am totally satisfied with the representation provided by my counsel and I received effective and competent representation.”

            By contrast, the record contains no evidence of appellant’s counsel being unprepared, how he advised appellant with regard to the guilty plea, or his reasons for doing so.  Nor does the record support appellant’s claim that his trial counsel stated that he could not go forward without interviewing certain witnesses for whom the State allegedly failed to provide addresses and telephone numbers.  Instead, at the hearing on the motion for continuance and request for Brady^[2] information, counsel requested the addresses and telephone numbers of

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five witnesses he felt were material and necessary and stated that he believed that one witness, Diane Dannon, had received exculpatory statements regarding appellant.  The prosecutor replied that two of the five mentioned witnesses would testify at trial and that he did not know the whereabouts of the remaining witnesses and had never heard of Diane Dannon.  The trial court then denied the motion for continuance, and the record contains no evidence of what testimony any of the foregoing witnesses might have provided.

            Appellant also disputes counsel’s effectiveness with respect to advising him to plead guilty because counsel allegedly discovered Brady evidence relating to witness Erica Parker at the sentencing hearing and thus only after advising appellant to enter the guilty plea.  On the contrary, however, at the sentencing hearing, counsel objected to the presentence investigation report for failing to mention that witness Erica Parker was arrested during the proceedings and might have received preferential treatment in that regard.  Counsel believed that this would discredit her statement by showing a motivation for cooperating with the State.  The record contains no evidence that counsel learned of Parker for the first time at the sentencing hearing, but, if anything, that he was already familiar with her in that he was prepared to lodge the objection.  Because appellant’s two issues thus fail to substantiate any of his claims of involuntariness or ineffective assistance, they are overruled, and the judgment of the trial court is affirmed.

                                                                        /s/        Richard H. Edelman

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed February 12, 2004.

Panel consists of Justices Edelman, Frost, and Guzman.

Do Not Publish — Tex. R. App. P. 47.2(b).

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^[1]           Appellant pled guilty, and the trial court sentenced him to 30 years confinement.

^[2]           See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that the prosecution’s suppression, upon request, of evidence favorable to an accused violates due process where the evidence is material to guilt or punishment).