OPINION
Opinion by
Justice RODRIGUEZ.
Rolando Castellano, appellant, was charged by a two-count indictment with possession with intent to deliver cocaine, and possession of cocaine, both in an amount of more than 400 grams. Tex. Health & Safety Code Ann. § 481.112(f) (Vernon Supp.2001). The indictment contained an enhancement paragraph alleging appellant had been convicted of a prior felony. Appellant pleaded guilty to count one and pleaded true to the enhancement paragraph. The court found appellant guilty, found the enhancement paragraph true, and sentenced appellant to confinement for life and a fine of $100,000.00.
According to the judgment, there was a plea agreement between the State and the defendant. No such agreement, however, appears in the record. Appellant filed a motion for new trial, alleging his plea was involuntary. The motion was overruled by operation of law. Thereafter, appellant filed a general notice of appeal. By twelve issues, appellant challenges the voluntariness of his plea. We affirm.
We must first address whether we have jurisdiction to consider this appeal from a guilty plea. In
Cooper v. State,
the court of criminal appeals announced that rule 25.2(b) of the Texas Rules of Appellate Procedure does not authorize a defendant who enters a guilty plea pursuant to a plea bargain and who files a general notice of appeal to challenge the voluntariness of his plea on appeal.
See Cooper v. State,
45 S.W.3d 77, 78, 82 (Tex.Crim.App. 2001) (defendant may not appeal voluntariness of his plea in plea-bargained, felony cases; voluntariness may be raised in motion for new trial or habeas corpus). The court ostensibly left open the possibility of such an appeal from an open plea of guilty.
Thus, if appellant pleaded guilty pursuant to a plea agreement, we lack jurisdiction to consider the appeal. At the same time, if he pleaded guilty without an agreement, we may consider his voluntariness challenge.
The State concedes appellant pleaded guilty without a plea agreement. In his brief, appellant states, “[although the judgment in our case states that the sentence received was pursuant to a plea bar
gain, the record shows otherwise, or at least ambiguity governing [the] same.... The pronouncements in the judgment, which are belied by the record, should have no impact on this Court’s ultimate holding.” Giving appellant the benefit of the doubt so that we may consider the appeal, we will presume he pleaded guilty without the benefit of a plea agreement.
In issues one through six, appellant contends his plea was involuntary because the trial court faded to properly admonish him. Specifically, appellant urges his plea was involuntary because the court failed to inquire into the existence of a plea agreement. According to appellant:
Because the trial court failed to so inquire, the trial court did not follow the appropriate safeguards to insure either (1) that [a]ppellant got that for which he bargained, if he in fact had bargained for anything, or (2) that appellant was explicitly informed that the court would not accept his plea bargain, if there was any, granting appellant the opportunity to withdraw his plea. Appellant’s plea was thus involuntary because he thought he could withdraw his plea if not satisfied with the sentence, such that he would not have pled guilty if he had known otherwise, [and if the court had explained] the effect of a plea to the court without the benefit of a plea bargain.
Appellant also complains the court failed to inform him in open court that the recommendation of the prosecuting attorney as well as his own attorney as to punishment was not binding on the court. Appellant submits the omitted admonishments rendered his plea involuntary under the Texas and United States Constitutions and the Texas Code of Criminal Procedure.
Article 26.13(a)(2) of the code of criminal procedure requires that prior to accepting a plea of guilty or nolo contende-re, a trial court ádmonish the defendant of:
The fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court. Provided that the court shall inquire as to the existence of any plea bargaining agreements between the state and the defendant and, in the event that such an agreement exists, the court shall inform the defendant whether it will follow or reject such agreement in open court and before any finding on the plea. Should the court reject any such agreement, the defendant shall be permitted to withdraw his plea of guilty or nolo conten-dere.
Tex.Code Crim. Proc. Ann. art. 26.13(a)(2) (Vernon Supp.2001). Substantial compliance with the admonitions under article 26 .13 is sufficient unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court. Tex.Code Crim. Proc. Ann. art. 26.13(c) (Vernon 1989). Even when the admonishment is not in “substantial compliance” with article 26.13, the er
ror is still subject to a harm analysis under Texas Rule of Appellate Procedure 44.2.
High v. State,
964 S.W.2d 637, 638 (Tex.Crim.App.1998);
Cain v. State,
947 S.W.2d 262, 264 (Tex.Crim.App.1997). In this case, a plea memorandum appears in the record and contains an exhibit which reflects that appellant was admonished in wilting in accordance with article 26.13 of the Texas Code of Criminal Procedure. The exhibit attached to the memorandum contains two admonishments that were crossed out. They provided:
3. The recommendation of the prosecuting attorney as to punishment is not binding on the Court. The Court will inquire as to the existence of any plea bargain agreements between the State and the defendant and, in the event that such an agreement exists, then the Court will inform the defendant whether the Court will follow or reject such agreement in open court and before any finding on the plea. Should the Court reject any such agreement, then the defendant shall be permitted to withdraw the defendant’s plea of nolo contendere.
4. If the punishment assessed by the Court does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and the defendant’s attorney, then the Trial Court must give its permission to the defendant before the defendant may prosecute an appeal on any matter in the case except for those matters raised by written motions filed prior to trial.
Appellant essentially complains that by crossing out this language, the court failed to give the necessary admonishments under article 26.13. Paradoxically, appellant complains of omitted admonishments pertinent to guilty pleas entered under plea agreements, when the record tends to show, and we have presumed in order to assume jurisdiction, that appellant entered his plea without the benefit of a plea bargain. The court of criminal appeals has held that it is harmless error for a court to fail to give an admonishment required under article 26.13(a)(4) that is legally inapplicable to the defendant.
See Cain,
947 S.W.2d at 263-64;
Matchett v. State,
941 S.W.2d 922, 929 (Tex.Crim.App.1996). Without deciding whether article 26.13(a)(2) is legally applicable to a defendant who pleaded guilty without a plea agreement, we conclude appellant has failed to show harm.
The rules of appellate procedure distinguish between constitutional and non-constitutional errors for purposes of harm review. For constitutional errors, “the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” Tex.R.App. P. 44 .2(a). For other errors, any error “that does not affect substantial rights must be disregarded.” TexR.App. P. 44.2(b).
Appellant contends that the trial court’s failure to give the aforementioned admonishments rendered his plea involuntary under the United States and Texas Constitutions. It is well recognized that a challenge to the voluntariness of a guilty plea is one of constitutional dimension.
Meyers v. State,
623 S.W.2d 397, 402 (Tex.Crim.App. [Panel Op.] 1981). A guilty plea passes constitutional muster only when it is both voluntarily and intelligently made.
Brady v. United States,
397 U.S. 742, 747, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970);
Fontenot v. State,
932 S.W.2d 185, 192 (Tex.App.—Fort Worth 1996, no pet.). The court of criminal appeals has held that the admonishments in article 26.13(a) are not constitutionally required because their purpose is to aid the trial court in deter
mining whether a guilty plea is knowingly and voluntarily entered.
Carranza v. State,
980 S.W.2d 653, 656 (Tex.Crim.App.1998) (citation omitted). Consequently, we review the trial court’s actions under rule 44.2(b) and will not reverse unless they affected appellant’s substantial rights.
Aguirre-Mata v. State,
992 S.W.2d 495, 499 (Tex.Crim.App.1999).
Based on the exhibit attached to the plea memorandum, which strikes out the admonishments pertinent to plea bargains, it appears the court and appellant were aware that there was no plea agreement. Indeed, appellant signed and swore under oath that he read and understood everything in the plea memorandum, including the exhibit, and the memorandum is signed by the judge. Accordingly, the trial court’s failure to inquire into the existence of any plea agreement did not affect appellant’s substantial rights, as both he and the court were aware that no such agreement existed.
In
Vera v. State,
821 S.W.2d 725, 726 (Tex.App.-Corpus Christi 1991, no pet.), this Court reversed and remanded a judgment in which the trial court failed to inquire into the existence of a plea agreement. In
Vera,
the record reflected the parties had arrived at a plea agreement.
Id.
Nonetheless, the parties disagreed as to whether probation was a part of the agreement. Because an explicit inquiry into the existence of an agreement would have resolved the conflicting accounts about the terms of the plea agreement, we concluded the trial court’s failure to so inquire was reversible error.
Id.
In this case, the record reflects there was no plea agreement; consequently, there is no dispute over the terms of any plea agreement.
Appellant complains that the court’s failure to inquire into the existence of a plea agreement caused him harm because, had he known the court was not obligated to allow him to withdraw his plea in the event he was not satisfied with the sentence assessed, he would not have entered the plea. Appellant’s assertion is unsubstantiated by the record, however, as he did not attempt to withdraw his plea at any point during the proceedings. We conclude the trial court’s failure to inquire into the existence of any plea agreement did not affect appellant’s substantial rights.
Appellant further maintains his plea was involuntary based on the trial court’s failure to instruct him that the recommendation of the prosecutor or of his own attorney as to punishment was not binding on the court. We are unable to say that this omission amounted to reversible error. Where there is no plea agreement, an instruction that the prosecutor’s recommendation is not binding on the court is immaterial.
Cf. Cain,
947 S.W.2d at 263-64. In conclusion, the court’s crossing out of the admonishments relating to pleas entered with a plea agreement did not render appellant’s open plea of guilty involuntary. Issues one through six are overruled.
In issues seven through twelve, appellant maintains his plea was involuntary because his trial counsel provided ineffective assistance in failing to investigate the case adequately and in failing to interview witnesses sufficiently. According to appellant, trial counsel was deficient in that he relied exclusively on the State’s offense report, and failed to conduct his own investigation of the case. Appellant further urges his trial counsel was ineffective in failing to pursue a motion to suppress the cocaine.
Both the United States and Texas constitutions afford the criminally accused the right to the assistance of counsel. U.S. Const. amend VI; Tex. Const.
art I, § 10. In Texas, the same standard applies to challenges made under both the United States constitution and the Texas constitution.
Hernandez v. State,
726 S.W.2d 53, 56-57 (Tex.Crim.App.1986). The criminal defendant’s right is not merely to the assistance of counsel, but rather to the reasonably effective assistance of counsel.
Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
Ex parte Morrow,
952 S.W.2d 530, 536 (Tex.Crim.App.1997);
Cantu v. State,
993 S.W.2d 712, 717 (Tex.App.—San Antonio 1999, pet. ref'd).
We apply the two-pronged
Strickland
test to determine whether representation was so inadequate as to violate appellant’s right to reasonably effective counsel.
See Thompson v. State,
9 S.W.3d 808, 812 (Tex.Crim.App.1999). To prevail on a claim of ineffective assistance of counsel, an appellant must show: (1) counsel’s performance was deficient; and (2) the deficient performance prejudiced the defense.
See Strickland,
466 U.S. at 687, 104 S.Ct. 2052;
Thompson,
9 S.W.3d at 812. The burden of proving ineffective assistance of counsel is on the appellant and is one which requires proof by a preponderance of the evidence.
See Stafford v. State,
813 S.W.2d 503, 506 (Tex.Crim.App.1991).
The showing of deficiency, which must affirmatively appear in the record, requires that counsel’s performance fell below an objective standard of reasonableness.
See Thompson,
9 S.W.3d at 812-13. We indulge a strong presumption that counsel’s performance fell within the wide range of reasonable professional assistance.
See id.; Tijerina v. State,
921 S.W.2d 287, 289 (Tex.App.-Corpus Christi 1996, no pet.).
An appellant must affirmatively prove prejudice with a showing that there is a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.
See Thompson,
9 S.W.3d at 812. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Id.
We conduct the aforementioned review by looking to the totality of the representation and the particular circumstances of each case.
See id.
at 813.
Appellant presented a single witness during the hearing on the motion for new trial. The witness did not testify as to the performance of appellant’s trial counsel. The only evidence advanced by appellant in support of his allegation of deficient representation was his sworn motion for new trial. Appellant signed an affidavit, attached to the motion, swearing that all of the allegations of fact contained in the motion were true and correct. In his motion, appellant stated,
inter alia,
that his trial counsel failed to investigate the facts of the case, failed to interview him and critical witnesses (without naming any), and failed to examine all physical evidence, including a videotape. According to appellant, “[a] more thorough investigation would have revealed that either the basis for the traffic stop was not valid, and/or that the officer did not discover the contraband at issue prior to placing the Defendant under arrest and requiring him- to take a trip to the police station, where the police actually discovered the contraband giving rise to the instant prosecution.... Said failure adversely affected the Defendant because counsel then failed to appropriately file and litigate a motion to suppress evidence challenging the validity of the aforementioned stop and/or resulting custodial arrest, which lacked the requisite reasonable suspicion and/or probable cause.... ” Appellant also stated in his motion that trial counsel placed him in the position of having to choose between going
to trial with an unprepared lawyer or entering a plea of guilty. Trial counsel “told him that he had better plead guilty right then and there ... or the jury would give him 99 years, but that the Court would probably give him either the minimum sentence or a sentence close to the minimum .... ”
Appellant’s trial counsel testified that he went through the State’s files and made copies of the contents. Counsel reviewed the DPS trooper’s written report prior to trial. He did not believe he provided appellant with a copy of the report. He did not need to file a motion for discovery. He did not request the assistance of a court-appointed investigator; the extent of his investigation was reading the documents provided by the district attorney’s office.
Counsel testified that the State made several plea offers, which he related to appellant. Appellant rejected the offers. Counsel did not tell appellant that if he pleaded guilty to the court without a plea agreement, he could expect a sentence towards the minimum range of punishment. He did tell appellant that if he went before a jury, he would probably get ninety-nine years. His opinion was based on statistics, which the State introduced into evidence, showing that juries in Jackson County had a much greater tendency to assess maximum sentences than did judges. Counsel told appellant that his only real hope for something lenient was to go before the judge. Counsel encouraged appellant to plead guilty. Counsel testified that he did not see any viable grounds for a motion to suppress to keep the evidence out; he believed it would be a “slam-dunk” case on guilt and innocence for the prosecutor. Counsel was not afraid to try the case, but felt the best chance to get less than the maximum punishment was to plead guilty to the court. Appellant had told counsel repeatedly that he did not want a jury. Counsel was aware that there was a videotape that dealt with extraneous offenses, but the State agreed not to introduce it with appellant’s stipulation of his record.
According to counsel, appellant’s allegation that the cocaine was not discovered before he was taken to the police station was inconsistent with the DPS trooper’s report. Moreover, appellant never told counsel anything with respect to the contraband other than what was in the trooper’s report. He never told counsel that the contraband was found at the police station. However, counsel testified that the field testing of the cocaine would probably not have been conducted until after arrival at the police station, after appellant had been arrested.
The trooper’s report indicated appellant was stopped for a head lamp violation and speeding, though he was only one mile over the speed limit. There was also an allegation in the report that appellant did not signal his lane change after the trooper signaled him to pull over. When asked if appellant ever told him anything that would dispute the facts as related in the police report, counsel responded, “[h]e may have said he didn’t think he was speeding. I’m not real sure.” He did not remember appellant discussing the head lamp. With respect to the propriety of the stop, counsel testified, “[i]t may appear a little feather legged, but I did not see a way that we could refute either the speeding or the head light violation or the failure to signal the lane change.” When asked if appellant indicated that he did not believe he was properly stopped, counsel testified, “[i]n some respect, yes. I don’t recall exactly ..., but I think he said he wasn’t speeding.”
Counsel testified that according to the report, the trooper activated his emergency lights after he observed the speeding
and the head light violation. The failure to signal before making a lane change occurred after the emergency lights were activated. The report revealed that the trooper told appellant he was going to issue a warning ticket, though the report did not indicate if, in fact, a warning ticket was issued. Thereafter, the trooper allegedly requested consent to search. According to the report, the search was conducted pursuant to appellant’s consent. Counsel did not believe appellant ever said that the trooper’s report was untrue with respect to his consent.
Counsel was aware of a statement allegedly made by appellant on the side of the road. A deputy sheriff testified that as a trooper was field testing the cocaine they had removed from the car, appellant told the deputy, “I don’t know why it is not heroine.” In counsel’s opinion there was some evidence of guilt or knowledge of the cocaine, which, in turn, had an impact on his recommendations to his client.
Counsel is not ineffective per se for failing to file a motion to suppress.
Ochoa v. State,
717 S.W.2d 174, 175 (Tex.App.—Houston [1st Dist.] 1986, pet. ref'd). An assertion of ineffective assistance of counsel will be sustained only if the record affirmatively supports such a claim.
Ex parte Ewing,
570 S.W.2d 941, 943 (Tex.Crim.App.1978);
Rivera v. State,
981 S.W.2d 386, 339 (Tex.App.—Houston [14th Dist.] 1998, no pet.).
Appellant maintains trial counsel should have filed a motion to suppress on the ground that the cocaine was seized pursuant to an illegal search. Appellant directs the Court to sections 543.003-.005 of the Texas Transportation Code, which requires an arresting officer who arrests a person for a traffic violation but does not take them before a magistrate to issue the person a written notice to appear in court. Tex. TRANSP. Code Ann. § 543.003 (Vernon Supp.2001). After delivery of the notice, the officer must promptly release the person from custody. Tex. TRAnsp. Code Ann. § 543.005 (Vernon Supp.2001). Because appellant was not released from custody after the officer informed him that he was going to issue him a warning ticket, appellant contends the cocaine should have been suppressed under the exclusionary rule in article 38.23 of the Texas Code of Criminal Procedure.
In
Sedani v. State,
848 S.W.2d 314, 317-18 (Tex.App.—Houston [1st Dist.] 1993, pet. ref'd), our sister court examined the predecessor to these sections of the transportation code and held that evidence seized in connection with an illegal detention should have been suppressed where an officer arrested an individual for a traffic violation, issued a traffic citation, but thereafter failed to release him promptly.
These sections of the transportation code and
Sedani
are inapplicable to the case at bar. In this case, there was no testimony that the officer who effected the traffic stop issued appellant a citation or attempted to arrest appellant for a traffic violation. Rather, the only evidence indicates that the officer advised appellant that he was issuing him a warning ticket. Sections 543.001-.005 do not address warning tickets. A warning ticket would likely not have included a notice for the defendant to appear in court. The delivery of the notice to appear in court to the individual is the statutory trigger for prompt release from custody.
See
Tex. Transp. Code Ann. § 543.005 (Vernon Supp.2001). Accordingly, the record does not affirmatively support this ground for suppression of the cocaine.
After informing appellant that he was issuing him a warning ticket, the officer obtained appellant’s consent to search. Though appellant cites case law for the
proposition that consent must be voluntary, he does not assert his consent was involuntary or that the officer exceeded the scope of the search. Consent to search is one of the well-established exceptions to the constitutional requirements of both a warrant and probable cause.
Schneckloth v. Bustamonte,
412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973);
Carmouche v. State,
10 S.W.3d 323, 327-28 (Tex.Crim.App.2000).
Though there is some question whether appellant believed he was speeding, trial counsel did not indicate appellant disputed that his head lamp was not functioning. Thus, a motion to suppress would not have been properly granted on the basis that the trooper lacked reasonable suspicion to make the stop.
Given the facts of the case, and the lack of evidence regarding the impropriety of the stop or the search, we cannot say that appellant’s trial counsel fell below an objective standard of reasonableness by not moving to suppress the cocaine. Accordingly, appellant has failed to satisfy the first prong of the
Strickland
test.
We next examine appellant’s complaint that his trial counsel inadequately investigated the facts of the case. An attorney representing a criminal defendant is charged with making an independent investigation of the facts of the case.
McFarland, v. State,
928 S.W.2d 482, 501 (Tex.Crim.App.1996);
Rangel v. State,
972 S.W.2d 827, 837 (Tex.App.—Corpus Christi 1998, pet. ref'd). As part of this duty, counsel has a responsibility to seek out and interview potential witnesses.
Ex parte Welborn,
785 S.W.2d 391, 393 (Tex.Crim.App.1990);
Rangel,
972 S.W.2d at 838. Defense counsel should not, as a matter of course, rely on the veracity either of his client’s version of the facts or witness statements in the State’s file.
McFarland,
928 S.W.2d at 501. However, the duty to conduct an investigation, in the wake of
Strickland,
is not absolute.
McFarland,
928 S.W.2d at 501. Under
Strickland,
an attorney has the duty “to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”
Id.
(citing
Strickland,
466 U.S. at 691, 104 S.Ct. 2052). We consider an attorney’s decision not to investigate, or to limit the scope of investigation, with a great deal of deference to the attorney’s judgment, looking to the reasonableness of the decision in light of the totality of the circumstances.
Id.
We will sustain the defendant’s challenge only if the consequence of the failure to investigate is that the only viable defense available to the accused is not advanced, and there is a reasonable probability that, but for counsel’s failure to advance the defense, the result of the proceeding would have been different.
Strickland,
466 U.S. at 694, 104 S.Ct. 2052;
McFarland,
928 S.W.2d at 501.
Where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error prejudiced the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led the attorney to change his recommendation as to the plea.
Hill v. Lockhart,
474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). This assessment, in turn, will depend in large part on a prediction that the evidence likely would have changed the outcome of a trial.
Id.
Here, we conclude appellant has failed to show that there is a reasonable-probability that, but for counsel’s alleged deficient performance, the outcome of the proceeding would have been different. Appellant’s claim of inadequate investigation relates principally to the facts underlying
the search and seizure. We have concluded that the record does not affirmatively support a claim that the cocaine should have been suppressed on the grounds that either the search or the seizure was improper. Appellant fails to make a showing that the uncovering of additional evidence would have led counsel to make a different recommendation as to appellant’s plea. Therefore, even if we were to say counsel’s investigation of the case was inadequate, we could not conclude that had counsel conducted further investigation, it would have produced a different result. Trial counsel testified that appellant did not want to go before a jury and that based on the facts of the case, a guilty plea to the court provided the best possibility for receiving less than the maximum punishment.
With respect to appellant’s complaint that counsel failed to interview witnesses, appellant has failed to show which, if any, witnesses counsel should have interviewed or how their testimony would have benefitted his case. Finally, trial counsel’s alleged failure to investigate the videotape did not produce any harm, as the State agreed not to introduce the tape. We hold appellant failed to establish his claim that his plea was involuntary due to ineffective assistance of counsel. Issues six through twelve are overruled.
The judgment of the trial court is AFFIRMED.