Charlie Tatum v. State

• Court: Court of Appeals of Texas
• Decided: April 30, 2009
• Docket: 14-08-00684-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed April 30, 2009

Affirmed and Memorandum Opinion filed April 30, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-08-00684-CR

CHARLIE TATUM, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 1140380

M E M O R A N D U M   O P I N I O N

Appellant Charlie Tatum challenges the effectiveness of his counsel in connection with his guilty plea to a charge of aggravated robbery.  The trial court assessed punishment as confinement for 30 years.  Appellant contends that (1) his guilty plea was involuntary because he received ineffective assistance of counsel; and (2) trial counsel provided ineffective assistance by (i) misleading appellant into believing that he would receive community supervision from the judge, and (ii) abandoning a motion to suppress appellant=s confession.  We affirm.

Background

Appellant was indicted for aggravated robbery on February 1, 2008.  Trial counsel filed a motion to suppress appellant=s confession and a motion to suppress statements allegedly made in violation of Texas Code of Criminal Procedure article 38.22 on March 27, 2008.  The trial court did not sign an order regarding either of these motions.

Appellant entered a guilty plea to the offense of aggravated robbery on May 9, 2008.  No reporter=s record was made of this hearing.  The State made no recommendation for punishment at the hearing.  The trial court issued written admonishments to appellant, which he signed and initialed.  These admonishments specifically stated that appellant (1) could receive a punishment of between five and 99 years or life; (2) was mentally competent; (3) understood the admonishments of the court; (4) fully understood the consequences of his guilty plea; (5) freely, knowingly, and voluntarily executed the admonishments; and (6) received effective and competent representation.  The trial court recessed the hearing so a pre-sentence investigation report could be developed.  The trial court set a sentencing hearing for July 8, 2008.

Trial counsel also filed a motion for community supervision on May 9, 2008, stating that appellant had no prior felony convictions in Texas or any other state and had never received community supervision for a felony offense in Texas or any other state.  Trial counsel did not indicate on this motion whether the judge or a jury should make the determination regarding appellant=s community supervision request.  The trial court did not sign an order regarding this motion.

The State offered five witnesses at the July 8, 2008 sentencing hearing and did not request any changes to the pre-sentence investigation report.  Trial counsel offered only appellant as a witness so that appellant could make any corrections he desired to the pre-sentence investigation report.

Appellant=s trial counsel requested a sentence of 10-15 years for appellant in closing argument; the State requested a 40-year sentence.  The judge accepted appellant=s guilty plea and sentenced him to confinement for 30 years; the judge also announced at that time that the judgment would Areflect an affirmative finding of a deadly weapon.@

The trial court signed a judgment reflecting this oral pronouncement of sentence and deadly weapon finding on July 8, 2008.  Appellant appeals from this judgment.

Analysis

Appellant contends that his guilty plea was involuntary because he received ineffective assistance of counsel.  Appellant further contends that trial counsel provided ineffective assistance by (1) misleading him into believing that he would receive community supervision from the judge; and (2) abandoning the motion to suppress appellant=s confession filed on March 27, 2008.   

I.        Voluntariness of Plea Based on Claim of Ineffective Assistance of Trial Counsel

In his first issue, appellant asserts that his guilty plea was involuntary because he received ineffective assistance of counsel.  Specifically, appellant complains that his trial counsel was ineffective because he (1) allegedly advised appellant that only the trial court could give appellant community supervision with a deadly weapon finding; (2) failed to elect that the jury assess punishment; and (3) allegedly believed that a deadly weapon finding would not preclude judge-ordered community supervision.  See Tex. Code Crim. Proc. Ann. art. 42.12, __ 3g(a)(1)(F), 4 (Vernon 2006) (stating that judge-ordered community supervision is not available to defendants adjudged guilty of aggravated robbery).^[1]  Appellant asserts the following in support of his argument: (1) trial counsel filed a motion for community supervision on May 9, 2008; (2) trial counsel did not note any preference for punishment to be decided by the judge or a jury; (3) trial counsel requested the judge to sentence appellant to confinement for 10-15 years during closing argument; and (4) the Texas Code of Criminal Procedure would have allowed a jury to sentence appellant to community supervision even though the judge could not.  See id. art. 42.12, __ 3g(a)(1)(F), 4.

When a defendant challenges the voluntariness of a plea entered upon trial counsel=s advice, voluntariness depends, among other things, on whether counsel=s advice was within the range of competence demanded of attorneys in criminal cases.  Ex Parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668 (1984)).  In assessing appellant=s claims, we apply a strong presumption that trial counsel was competent.  See id.; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  We presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel=s performance was deficient.  See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective assistance claim.  Stults v. State, 23 S.W.3d 198, 208-09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  The Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel=s trial strategy.  See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005).  On such a silent record, this court can find ineffective assistance of counsel only if the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).  No affidavit from trial counsel or motion for new trial was filed in this case.

Appellant asserts in his appellate brief that his trial counsel gave him erroneous advice and held erroneous views of relevant law; however, there is no evidence in the record supporting these allegations.  Indeed, there is no evidence at all regarding the trial strategy of appellant=s counsel.  The record does not rebut the presumption that trial counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy.  The record does not reflect that trial counsel=s actions were Aso outrageous that no competent attorney would have engaged in [them].@  See id.  Appellant has not shown by a preponderance of the evidence that his trial counsel=s advice was not within the range of competence demanded of attorneys in criminal cases.  See Mallett v. State, 65 S.W.3d 59, 63-65 (Tex. Crim. App. 2001); see also Hernandez v. State, Nos. 14-03-01043-CR, 14-03-01044-CR, 2005 WL 81633, at *3-*4 (Tex. App.CHouston [14th Dist.] Jan. 6, 2005, pet. ref=d).  

We overrule appellant=s issue regarding the voluntariness of his guilty plea based on asserted ineffective assistance of counsel.

II.       Other Ineffective Assistance Claims

In his second issue, appellant asserts that his trial counsel provided ineffective assistance by misleading him into believing that he would receive community supervision from the judge.  In his third issue, appellant asserts that his trial counsel provided ineffective assistance by abandoning the motion to suppress appellant=s confession filed on March 27, 2008.

With regard to both of these issues, appellant concedes in his brief that he cannot prove the first prong of Strickland by showing by a preponderance of the evidence that trial counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms.  Rivera-Reyes v. State, 252 S.W.3d 781, 788-89 (Tex. App._Houston [14th Dist.] 2008, no pet.).  The record contains no evidence that appellant=s trial counsel misled appellant into believing that appellant would receive community supervision from the judge.  There is no evidence in the record regarding the trial strategy of appellant=s counsel.  The record does not rebut the presumption that trial counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy.  The record does not reflect that trial counsel=s actions were Aso outrageous that no competent attorney would have engaged in [them].@  See Goodspeed, 187 S.W.3d at 392.  Appellant has not shown by a preponderance of the evidence that trial counsel=s representation fell below an objective standard of reasonableness on the record in this case.  See Rivera-Reyes, 252 S.W.3d at 788-90.

We overrule appellant=s issues regarding ineffective assistance of counsel for (1) allegedly misleading appellant into believing that he would receive community supervision from the judge; and (2) abandoning the motion to suppress appellant=s confession.

Conclusion

The trial court=s judgment is affirmed.

/s/      William J. Boyce

Justice

Panel consists of Justices Frost, Brown, and Boyce.

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

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¹           Appellant asserts that the trial judge was barred from sentencing him to community supervision because of the affirmative finding that a deadly weapon was used during commission of the robbery; this is not entirely accurate.  While an affirmative finding of use of a deadly weapon during commission of a felony offense bars a judge from imposing regular community supervision, it does not bar a judge from imposing deferred adjudication community supervision.  See Tex. Code Crim. Proc. Ann. art. 42.12, __ 3g(a)(2), (b), 5(a) (Vernon 2006).  Regular community supervision is unavailable to all defendants adjudged guilty of aggravated robbery.  See id. art. 42.12, _ 3g(a)(1)(F).