In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-15-00464-CR ____________________
FREDDIE CROCHETT IV, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 163rd District Court Orange County, Texas Trial Cause No. B-150,326-R
MEMORANDUM OPINION
Freddie Crochett IV (Crochett or Appellant) pleaded guilty to the offense of
aggravated robbery with a deadly weapon. See Tex. Penal Code Ann. § 29.03
(West 2011). The trial court found the evidence sufficient to find Crochett guilty
and, after a hearing on punishment, sentenced Crochett to thirty years’
confinement. Appellant appeals his conviction.
Crochett’s appointed appellate counsel filed a brief that presents counsel’s
professional evaluation of the record and concludes the appeal is without merit and 1 that there are no arguable grounds for reversal. See Anders v. California, 386 U.S.
738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). We granted an
extension of time for Crochett to file a pro se brief, and Crochett filed a pro se
brief. In two appellate issues, Crochett complains he did not receive the effective
assistance of counsel and that his guilty plea was not voluntary. More specifically,
Crochett argues that his plea of guilty was “induced by erroneous and misleading
information that he was eligible for probation.”
The Court of Criminal Appeals has explained the analytical procedure in
Anders appeals as follows:
When faced with an Anders brief and if a later pro se brief is filed, the court of appeals has two choices. It may determine that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error. Or, it may determine that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues.
Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (citing Anders,
386 U.S. at 744; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991)).
Although an appellate court is not required to do so, “when a court of appeals finds
no issues of arguable merit in an Anders brief, it may explain why the issues have
no arguable merit.” Garner v. State, 300 S.W.3d 763, 764 (Tex. Crim. App. 2009);
see Bledsoe, 178 S.W.3d at 827.
2 INEFFECTIVE ASSISTANCE OF COUNSEL
To establish that he received ineffective assistance of counsel, Crochett must
show that (1) counsel’s performance fell below an objective standard of
reasonableness, and (2) there is a reasonable probability that, but for counsel’s
error, the result of the proceeding would have been different. See Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). The party alleging ineffective assistance
has the burden to develop facts and details necessary to support the claim. See
Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (citing Strickland,
466 U.S. at 689). A party asserting an ineffective-assistance claim must overcome
the “strong presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance.” See Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999) (citing Strickland, 466 U.S. at 690). An appellant’s failure
to make either of the required showings of deficient performance or sufficient
prejudice defeats the claim of ineffective assistance. Rylander v. State, 101 S.W.3d
107, 110 (Tex. Crim. App. 2003); see also Williams v. State, 301 S.W.3d 675, 687
(Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of the
Strickland test negates a court’s need to consider the other prong.”).
An ineffective assistance of counsel claim “must be ‘firmly founded in the
record’ and ‘the record must affirmatively demonstrate’ the meritorious nature of
3 the claim.” Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012)
(quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).
Ordinarily, the record on direct appeal is simply undeveloped and does not
adequately reflect trial counsel’s failings, especially when counsel’s reasons for
failing to do something do not appear in the record. Id. at 592-93.
We indulge a strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance, and an appellant must overcome the
presumption that the challenged action constituted “sound trial strategy.”
Strickland, 466 U.S. at 689; Williams, 301 S.W.3d at 687. When the record is
silent, an appellate court may not speculate about why counsel acted as she did.
Jackson, 877 S.W.2d at 771; Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.–
Houston [1st Dist.] 1996, no pet.). Without testimony from trial counsel, the court
must presume counsel had a plausible reason for her actions. Gibbs v. State, 7
S.W.3d 175, 179 (Tex. App.–Houston [1st Dist.] 1999, pet. ref’d).
In this case, Crochett’s motion for new trial made no claim of ineffective
assistance, and, therefore, Crochett’s counsel was not provided an opportunity to
explain the choices she made in representing Crochett. We presume that counsel’s
actions were within the wide range of reasonable and professional assistance, and
we do not speculate on counsel’s actions or strategy. See Scheanette v. State, 144
4 S.W.3d 503, 509-10 (Tex. Crim. App. 2004). The record before us is silent about
the strategy Crochett’s attorney employed. On such a silent record, this Court can
find ineffective assistance of counsel only if the challenged conduct was “‘so
outrageous that no competent attorney would have engaged in it.’” Goodspeed, 187
S.W.3d at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.
2001)). Crochett has failed to overcome the presumption that his counsel’s
performance was within the wide range of reasonable representation. See Salinas v.
State, 163 S.W.3d 734, 740-41 (Tex. Crim. App. 2005). On the record before us,
we cannot conclude that trial counsel’s conduct was so egregious that no
reasonable trial strategy could justify it. See Goodspeed, 187 S.W.3d at 392
(requiring the record to be developed in cases involving ineffective assistance
claims in a manner affirmatively demonstrating that the claim has merit). We
therefore find the first issue raised in Crochett’s pro se brief to be meritless.
VOLUNTARY PLEA
In his second issue, Crochett contends his guilty plea was not voluntary. “No
plea of guilty or plea of nolo contendere shall be accepted by the court unless it
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In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-15-00464-CR ____________________
FREDDIE CROCHETT IV, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 163rd District Court Orange County, Texas Trial Cause No. B-150,326-R
MEMORANDUM OPINION
Freddie Crochett IV (Crochett or Appellant) pleaded guilty to the offense of
aggravated robbery with a deadly weapon. See Tex. Penal Code Ann. § 29.03
(West 2011). The trial court found the evidence sufficient to find Crochett guilty
and, after a hearing on punishment, sentenced Crochett to thirty years’
confinement. Appellant appeals his conviction.
Crochett’s appointed appellate counsel filed a brief that presents counsel’s
professional evaluation of the record and concludes the appeal is without merit and 1 that there are no arguable grounds for reversal. See Anders v. California, 386 U.S.
738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). We granted an
extension of time for Crochett to file a pro se brief, and Crochett filed a pro se
brief. In two appellate issues, Crochett complains he did not receive the effective
assistance of counsel and that his guilty plea was not voluntary. More specifically,
Crochett argues that his plea of guilty was “induced by erroneous and misleading
information that he was eligible for probation.”
The Court of Criminal Appeals has explained the analytical procedure in
Anders appeals as follows:
When faced with an Anders brief and if a later pro se brief is filed, the court of appeals has two choices. It may determine that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error. Or, it may determine that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues.
Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (citing Anders,
386 U.S. at 744; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991)).
Although an appellate court is not required to do so, “when a court of appeals finds
no issues of arguable merit in an Anders brief, it may explain why the issues have
no arguable merit.” Garner v. State, 300 S.W.3d 763, 764 (Tex. Crim. App. 2009);
see Bledsoe, 178 S.W.3d at 827.
2 INEFFECTIVE ASSISTANCE OF COUNSEL
To establish that he received ineffective assistance of counsel, Crochett must
show that (1) counsel’s performance fell below an objective standard of
reasonableness, and (2) there is a reasonable probability that, but for counsel’s
error, the result of the proceeding would have been different. See Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). The party alleging ineffective assistance
has the burden to develop facts and details necessary to support the claim. See
Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (citing Strickland,
466 U.S. at 689). A party asserting an ineffective-assistance claim must overcome
the “strong presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance.” See Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999) (citing Strickland, 466 U.S. at 690). An appellant’s failure
to make either of the required showings of deficient performance or sufficient
prejudice defeats the claim of ineffective assistance. Rylander v. State, 101 S.W.3d
107, 110 (Tex. Crim. App. 2003); see also Williams v. State, 301 S.W.3d 675, 687
(Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of the
Strickland test negates a court’s need to consider the other prong.”).
An ineffective assistance of counsel claim “must be ‘firmly founded in the
record’ and ‘the record must affirmatively demonstrate’ the meritorious nature of
3 the claim.” Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012)
(quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).
Ordinarily, the record on direct appeal is simply undeveloped and does not
adequately reflect trial counsel’s failings, especially when counsel’s reasons for
failing to do something do not appear in the record. Id. at 592-93.
We indulge a strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance, and an appellant must overcome the
presumption that the challenged action constituted “sound trial strategy.”
Strickland, 466 U.S. at 689; Williams, 301 S.W.3d at 687. When the record is
silent, an appellate court may not speculate about why counsel acted as she did.
Jackson, 877 S.W.2d at 771; Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.–
Houston [1st Dist.] 1996, no pet.). Without testimony from trial counsel, the court
must presume counsel had a plausible reason for her actions. Gibbs v. State, 7
S.W.3d 175, 179 (Tex. App.–Houston [1st Dist.] 1999, pet. ref’d).
In this case, Crochett’s motion for new trial made no claim of ineffective
assistance, and, therefore, Crochett’s counsel was not provided an opportunity to
explain the choices she made in representing Crochett. We presume that counsel’s
actions were within the wide range of reasonable and professional assistance, and
we do not speculate on counsel’s actions or strategy. See Scheanette v. State, 144
4 S.W.3d 503, 509-10 (Tex. Crim. App. 2004). The record before us is silent about
the strategy Crochett’s attorney employed. On such a silent record, this Court can
find ineffective assistance of counsel only if the challenged conduct was “‘so
outrageous that no competent attorney would have engaged in it.’” Goodspeed, 187
S.W.3d at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.
2001)). Crochett has failed to overcome the presumption that his counsel’s
performance was within the wide range of reasonable representation. See Salinas v.
State, 163 S.W.3d 734, 740-41 (Tex. Crim. App. 2005). On the record before us,
we cannot conclude that trial counsel’s conduct was so egregious that no
reasonable trial strategy could justify it. See Goodspeed, 187 S.W.3d at 392
(requiring the record to be developed in cases involving ineffective assistance
claims in a manner affirmatively demonstrating that the claim has merit). We
therefore find the first issue raised in Crochett’s pro se brief to be meritless.
VOLUNTARY PLEA
In his second issue, Crochett contends his guilty plea was not voluntary. “No
plea of guilty or plea of nolo contendere shall be accepted by the court unless it
appears that the defendant is mentally competent and the plea is free and
voluntary.” Tex. Code Crim. Proc. Ann. art. 26.13(b) (West Supp. 2016). When we
review the voluntariness of a plea, we examine the record as a whole. Martinez v.
5 State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (en banc) (per curiam);
Doubout v. State, 388 S.W.3d 863, 865 (Tex. App.—Houston [14th Dist.] 2012, no
pet.).
When the record shows that the trial court gave a proper admonishment,
there is a prima facie showing of a knowing and voluntary plea of guilty. Ex parte
Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985); Ex parte Arjona, 402
S.W.3d 312, 318 (Tex. App.—Beaumont 2013, no pet.) (“The admonishment is a
prima facie showing that the guilty plea was knowing and voluntary.”); Doubout,
388 S.W.3d at 865. The burden then shifts to the defendant to show that he pleaded
guilty without understanding the consequences of his plea and thereby suffered
harm. See Martinez, 981 S.W.2d at 197 (“A finding that a defendant was duly
admonished creates a prima facie showing that a guilty plea was entered
knowingly and voluntarily[]” and “the burden shifts to the defendant to
demonstrate that he did not fully understand the consequences of his plea such that
he suffered harm.”); see also Tex. Code Crim. Proc. Ann. art. 26.13(c) (West Supp.
2016). A defendant’s election to plead guilty is not made voluntarily and
knowingly when such plea is based upon erroneous advice of counsel. Ex parte
Moussazadeh, 361 S.W.3d 684, 689 (Tex. Crim. App. 2012) (citing Ex parte
Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991)). Once a defendant has pleaded
6 guilty and attested to the voluntary nature of his plea, he bears a heavy burden at a
subsequent hearing to demonstrate a lack of voluntariness. Ybarra v. State, 93
S.W.3d 922, 925 (Tex. App.—Corpus Christi 2002, no pet.).
In this case, the trial court held a plea hearing on October 1, 2015. The
reporter’s record from the plea hearing reflects that the court informed Crochett of
his options regarding entering a plea and the consequences. Crochett testified that
he did not want a jury trial, he pleaded guilty to the crime charged, he pleaded
guilty of his own free choice, and he pleaded guilty because he was guilty. He
further testified that he understood the range of punishment for the crime to which
he pleaded guilty:
THE COURT: Do you understand you’re giving up -- do you understand the range of punishment for the crime you’re pleading guilty to, Mr. Crochett?
THE DEFENDANT: Yes, sir, I do.
THE COURT: And what is that?
THE DEFENDANT: Five to 99 years.
THE COURT: Or?
THE DEFENDANT: Life.
THE COURT: And up to a $10,000 fine.
THE DEFENDANT: Yes.
7 THE COURT: You understand it’s a 3g offense because of the deadly weapon?
THE DEFENDANT: Yes, sir.
Crochett pleaded guilty to the allegations in the indictment. His plea is also
reflected in a written and sworn Defendant’s Stipulations, Waivers and Judicial
Confession filed with the court, which includes the court’s plea admonishments.
The record reflects no evidence to substantiate Appellant’s claim that he was
misled by his attorney or that his plea was not voluntary. We do not consider
allegations that are unsupported and unfounded in the record. Aguero v. State, 476
S.W.2d 672, 673 (Tex. Crim. App. 1972) (where appellant alleged he was made
promises of probation, the Court declined to consider the allegations because they
were “unsupported and unfounded in the record[]”); see also Tex. R. App. P.
38.1(i) (requiring appellate briefs to cite to the record). We thus find that Appellant
has not met his burden to show that his guilty plea was not voluntary. Therefore,
Appellant’s second issue is also without merit.
Upon receiving an Anders brief, this Court must conduct a full examination
of all the proceedings to determine whether the appeal is wholly frivolous. Penson
v. Ohio, 488 U.S. 75, 80 (1988) (citing Anders, 386 U.S. at 744). We have
reviewed the entire record, counsel’s brief, and Appellant’s pro se brief, and we
have found nothing that would arguably support an appeal. See Bledsoe, 178 8 S.W.3d at 827-28 (“Due to the nature of Anders briefs, by indicating in the opinion
that it considered the issues raised in the briefs and reviewed the record for
reversible error but found none, the court of appeals met the requirements of Texas
Rule of Appellate Procedure 47.1.”). Therefore, we find it unnecessary to order
appointment of new counsel to re-brief the appeal. Compare Stafford, 813 S.W.2d
at 511. We affirm the trial court’s judgment.1
AFFIRMED.
_________________________ LEANNE JOHNSON Justice
Submitted on October 24, 2016 Opinion Delivered October 26, 2016 Do Not Publish
Before McKeithen, C.J., Horton and Johnson, J.J.
1 Crochett may challenge our decision in this case by filing a petition for discretionary review. See Tex. R. App. P. 68. 9