Audie J. Spicer v. State

• Court: Court of Appeals of Texas
• Decided: July 18, 2002
• Docket: 11-01-00341-CR
• Status: Published

Opinion

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Audie J. Spicer

Appellant

Vs.                   Nos. 11-01-00341-CR & 11-01-00342-CR B Appeals from Dallas County

State of Texas

Appellee

The trial court convicted appellant, upon his open plea of guilty, of the offense of unlawful possession of methamphetamine in Cause No. 11-01-00341-CR.  The trial court sentenced him to confinement for a term of 10 years and imposed a $2,500 fine.  The trial court convicted appellant, upon his open plea of guilty, of the offense of unlawful possession of cocaine with intent to deliver in Cause No. 11-01-00342-CR.  The trial court sentenced him to confinement for a term of 11 years and imposed a $2,500 fine.

Appellant asserts the following two issues on appeal:  (1) his guilty plea was not knowingly and voluntarily made because he believed that he would receive drug treatment and probation; and (2) his guilty plea was not knowingly and voluntarily made because he received ineffective assistance of counsel.  Because we conclude that appellant=s pleas were voluntary and that he was not prejudiced by any deficient performance of his counsel, we affirm.

A guilty plea may be accepted by the trial court only when the defendant is competent and the plea is free and voluntary.  TEX. CODE CRIM. PRO. ANN. art. 26.13 (Vernon 1989 & Supp. 2002). A finding that a defendant was duly admonished creates a prima facie showing that a guilty plea was entered knowingly and voluntarily.  Martinez v. State, 981 S.W.2d 195, 197 (Tex.Cr.App.1998); Ex parte Gibauitch, 688 S.W.2d 868 (Tex.Cr.App.1985).  A defendant may still raise the claim that his plea was not voluntary;  however, the burden then shifts to the defendant to affirmatively show that he did not fully understand the consequences of his plea such that he suffered harm.  Martinez v. State, supra at 197; Gibauitch, supra at 871.    An affirmative showing requires more than a defendant’s subjective assertion that he did not know the punishment range for his offense, that he would not have entered the plea if he had been correctly admonished, or that he was misled or harmed by the trial court=s admonishment.  Grays v. State, 888 S.W.2d 876, 878 (Tex.App. -  Dallas 1994, no pet’n).  In considering the voluntariness of a guilty plea, the trial court should examine the record as a whole.  Martinez v. State, supra at 197; Williams v. State, 522 S.W.2d 483, 485 (Tex.Cr.App.1975).  

In his first issue, appellant asserts that his guilty plea was not knowingly or voluntarily made because he thought he would receive drug treatment and probation as his punishment.  A voluntary guilty plea is a plea made by a person fully aware of the direct consequences, including the actual value of any commitments made to him by the trial court, prosecutor, or his own counsel.  Ex parte Griffin, 679 S.W.2d 15, 17 (Tex.Cr.App.1984).

The testimony revealed that appellant had read both of the indictments and understood the offenses with which he was charged.  Appellant was entering pleas of guilty because he was guilty.  Appellant understood the punishment ranges for each offense^[1] and that he was giving up his right to a jury trial in each case.  Additionally, the following conversation transpired:

THE COURT: And you understand these are open pleas, meaning that there is no deal, promise or understanding that you could infer as to any particular outcome in a case that will be decided at another hearing?

DEFENDANT: Yes, Your Honor.

THE COURT: You understand.  Have you been able to discuss the facts and circumstances of these cases with your lawyer, Mr. Stephens?

THE COURT: You and he had any problems understanding each other?

DEFENDANT: No, Your Honor.

Subsequently, appellant again said he wanted to plead guilty in each case.  Appellant was aware that the State had not offered probation but hoped he could convince the trial court that probation was appropriate because of his drug addiction problem.  Appellant signed both plea agreements which included the court=s admonitions to him.

The record does not indicate that appellant relied on any promise of probation before entering his guilty pleas and his pleas of true.  Appellant could only rebut the presumption that his pleas were voluntarily entered by affirmatively showing that he did not understand the consequences of the pleas and was harmed as a result.  After considering the record as a whole, we find that appellant has not met this burden.  The first issue is overruled.

In his second issue, appellant urges that his guilty pleas were not knowingly and intentionally made because he received ineffective assistance of counsel.  Appellant complains that there was no independent evidence that what he possessed was an illegal controlled substance because his attorney did not request an independent drug test of the seized items.

When confronted with a claim of ineffective assistance of counsel, we apply the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984).  The first prong of the Strickland test requires appellant to show that his counsel=s performance was Adeficient.@ Strickland v. Washington, supra at 687.  A showing that counsel was deficient requires showing that the representation fell below an objective standard of reasonableness.  Tong v. State, 25 S.W.3d. 707, 712 (Tex.Cr.App.2000).

The second prong of the Strickland test requires appellant to show that there is a reasonable probability that, but for trial counsel=s unprofessional errors, the result of the proceeding would have been different.  Tong v. State, supra at 712.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Strickland v. Washington, supra at 694.  There is a strong presumption that counsel=s actions fell within the wide range of reasonably professional assistance.  Appellant has the burden to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.  Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App.1991).

A guilty plea is not involuntary simply because the sentence exceeded what appellant expected, even if that expectation was raised by his attorney.  Stephens v. State, 15 S.W.3d 278, 280 (Tex. App. - Houston[14th Dist.] 2000, pet=n ref=d), cert. den=d, 531 U.S. 1169 (2001).  Appellant testified that he understood the punishment range and that the trial court could sentence him to any term of confinement within the range of punishment.  Additionally, appellant said that he was pleading guilty because he was guilty as charged.  There is no indication in the record that appellant questioned that the items seized were the specific drugs named in the indictment.  The record before us does not demonstrate that appellant=s trial counsel=s performance was deficient and does not support that the outcome would have been different if trial counsel had conducted an independent test of the drugs.  Appellant has not met his burden.  The second issue is overruled. 

The judgments of the trial court are affirmed.

PER CURIAM

July 18, 2002

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

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

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^[1]The trial court admonished appellant that punishment for a first-degree felony was 5 to 99 years of confinement and a fine of up to $10,000 and that punishment for a third-degree felony was 2 to 10 years of confinement and a fine of up to $10,000.