AFFIRM; Opinion issued January 31. 2013.
i rfll IItiurt tif Apprah Fiffl! 1itrirt cu cxaa at a11a No. 05-1 1-00842-CR No, 05-11-00843-CR
JAMES KEIiEY, Appellant
V.
TIlE STATE OF TEXAS, Appellee
On Appeal from the 282nd Judicial District Court I)allas County. Texas Trial Court Cause Nos. F09-59178-S and F09-72634-S
OPINION Before Justices Lang-Miers, Myers, and Lewis Opinion By Justice Lang-Miers
Appellant James Kelley was charged with one count of possession of less than one gram of
cocaine in a drug free zone and one count of fraudulent possession of between five and nine items
of identifying information. Appellant waived a jury trial and entered an open plea of guilty in both
cases. The trial court assessed punishment in each case at five years in prison and ordered the
sentences to run consecutively. Appellant raises three issues on appeal. In his first issue appellant
argues that he received ineffective assistance of counsel because a court reporter did not record the
open plea proceeding. In his second and third issues appellant argues that thejudgment in both cases
should be reformed to reflect the fact that appellant entered an open plea of guilty and was not sentenced in accordance with the terms of a plea bargain agreement. We modify the judgments and
i lii flll 1S fl 10(1 lied.
FIRST ISSUE
In his first issue appellant argues that he received ineffective assistance of counsel because
he was depri ve(l ol a reporter’s record of the open plea proceeding.
We examine ineffective assistance of counsel claims by the standard set out in Strickland v.
Washington. 466 U.S. 668 (1984). To obtain reversal based on ineffective assistance of counsel, an
appellant must show that (1) counsel’s representation fell below an objective standard of
reasonableness, and (2) a reasonable probability exists that, hut for counsel’s errors, the result of the
proceeding would have been different. See Andrews i’. Slate, 159 S.W.3d 98. 101 (Tex. Crim. App.
2005). An ineffective assistance claim must be “firmly founded in the record,’ and the record must
affirmatively demonstrate that the claim has merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005). Failure to make the required showing of either deficient performance or sufficient
prejudice defeats the ineffectiveness claim. See Williams i. State, 301 S.W.3d 675, 687 (Tex. Crim.
App. 2009); Andrews, 159 S.W.3d at 101.
Appellant argues that his counsel was ineffective for failing to request that a court reporter
transcribe the plea hearing because appellant was entitled to a court reporter under Texas Rule of
Appellate Procedure 1 3.1. Appellant also notes that he made a pretrial written request for a court
reporter and his written pleas do not indicate that he waived his right to a court reporter. Appellant
argues that he was harmed by his counsel’s failure to request a court reporter at the plea hearing
because a transcript of the proceedings would have shown that appellant’s guilty pleas were not
made voluntarily. To support this claim appellant cites to his statement contained in the presentence
report prepared approximately two months before appellant’s plea hearing:
—2— Judge ( ‘hatham. I would like the Opportunity to attempt this lrohalion in order to resubstantiate my lile. Previous to this last arrest I had started a company and it had just acquired the last few pieue.s of equipment needed to hegin. Also, I have relocated my dauihter’s mother and daughter here from Kansas City. in order to he closer to me. These two things conzruent are what I have needed to he happy with lit and a new beginning here in Dallas. l3asically. I am NOT a menace to society and I will he a prominent basketball coach for children ages elementary school to middle school. I believe that I will successfully complete the probation offered and you will not have any further problems (nil of James L. Kelley.
Appellant argues that this statement demonstrates that appellant did not understand the consequences
of his guilty pleas because it shows that he believed he would be given probation.
With respect to the first prong of Strickland, it is not per se ineffective assistance of counsel
to fail to request a court reporter to record a plea hearing. See Rivera r’. Slate, 981 S.W.2d 336, 339
(Tex. App.—Flousron [14th Dist.] 1998, no pet.). Because a silent record provides no explanation
lou counsel’s actions, the record on direct appeal is usually not sufficient to show that counsel’s
representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome
the presumption that counsels conduct was reasonable and professional. Cannon v. Stale, 252
S.W.3d 342, 349 (Tex. Crim. App. 2008); Rvlander v. Slate, 101 S.W.3d 107, 1 10--I 1 (Tex. Crim.
App. 2003). Furthermore, counsel should ordinarily be given an opportunity to explain his actions
before being condemned as unprofessional or incompetent. Rviander, 101 S.W.3d at ill; Bone v.
State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Consequently, the Texas Court of Criminal
Appeals has repeatedly explained that an application for writ of habeas corpus is usually the more
appropriate vehicle to raise claims of ineffective assistance of counsel. See, e.g., Rvlander, 101
S.W.3d at 110.
In this case, appellant did not file a motion for new trial or introduce any evidence relating
to his counsel’s reasoning or rationale for not requesting a court reporter at the plea hearing. As a
result, we cannot conclude that the record firmly demonstrates that counsel’s performance fell below
an objective standard of reasonableness. See generally Goodspeed, 187 S.W.3d at 392 (noting appellate couits otdinarily vil I nut declare trial counsel ineffective without a record showing counsel
had an oppoitun itv to explain hiiuscllj. We resolve appellant’s ii ist issue against him
SECOND ANt) ‘I’HJRI) ISSUES
In his second and third issues appellant argues that the judgments erroneously state that
appellant was sentenced in accordance with the terms of a plea bargain, and that the judgments
should he modified to reflect that appellant entered an open plea of guilty. The State agrees with
appellant.
This Court has the power to modify an incorrect judgment to make the record speak the truth
when we have the necessary inlormation to do so .5cc TEx. R. App. P. 43.2(b); BigIe’ v. State, 865
S.W.2d 26, 27—28 (Tex. Crirn. App. 1993); Asherry v. State, 813 S.W.2d 526, 529—30 (Tex.
App.—Dallas 1 991, pet. ref d). The record demonstrates that appellant entered an open plea of
guilty. We modify the judgments to delete the notation “5 YEARS TDCJ” under the heading “Terms
of Plea Bargain.”
CON CI USION
We resolve appellant’s first issue against him. We resolve appellant’s second and third
issues in his favor. We modify the trial court’s judgments and affirm the trial court’s judgments as
modified /
I /
ELIZABETH LANG-MIERS JUSTICE
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AFFIRM; Opinion issued January 31. 2013.
i rfll IItiurt tif Apprah Fiffl! 1itrirt cu cxaa at a11a No. 05-1 1-00842-CR No, 05-11-00843-CR
JAMES KEIiEY, Appellant
V.
TIlE STATE OF TEXAS, Appellee
On Appeal from the 282nd Judicial District Court I)allas County. Texas Trial Court Cause Nos. F09-59178-S and F09-72634-S
OPINION Before Justices Lang-Miers, Myers, and Lewis Opinion By Justice Lang-Miers
Appellant James Kelley was charged with one count of possession of less than one gram of
cocaine in a drug free zone and one count of fraudulent possession of between five and nine items
of identifying information. Appellant waived a jury trial and entered an open plea of guilty in both
cases. The trial court assessed punishment in each case at five years in prison and ordered the
sentences to run consecutively. Appellant raises three issues on appeal. In his first issue appellant
argues that he received ineffective assistance of counsel because a court reporter did not record the
open plea proceeding. In his second and third issues appellant argues that thejudgment in both cases
should be reformed to reflect the fact that appellant entered an open plea of guilty and was not sentenced in accordance with the terms of a plea bargain agreement. We modify the judgments and
i lii flll 1S fl 10(1 lied.
FIRST ISSUE
In his first issue appellant argues that he received ineffective assistance of counsel because
he was depri ve(l ol a reporter’s record of the open plea proceeding.
We examine ineffective assistance of counsel claims by the standard set out in Strickland v.
Washington. 466 U.S. 668 (1984). To obtain reversal based on ineffective assistance of counsel, an
appellant must show that (1) counsel’s representation fell below an objective standard of
reasonableness, and (2) a reasonable probability exists that, hut for counsel’s errors, the result of the
proceeding would have been different. See Andrews i’. Slate, 159 S.W.3d 98. 101 (Tex. Crim. App.
2005). An ineffective assistance claim must be “firmly founded in the record,’ and the record must
affirmatively demonstrate that the claim has merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005). Failure to make the required showing of either deficient performance or sufficient
prejudice defeats the ineffectiveness claim. See Williams i. State, 301 S.W.3d 675, 687 (Tex. Crim.
App. 2009); Andrews, 159 S.W.3d at 101.
Appellant argues that his counsel was ineffective for failing to request that a court reporter
transcribe the plea hearing because appellant was entitled to a court reporter under Texas Rule of
Appellate Procedure 1 3.1. Appellant also notes that he made a pretrial written request for a court
reporter and his written pleas do not indicate that he waived his right to a court reporter. Appellant
argues that he was harmed by his counsel’s failure to request a court reporter at the plea hearing
because a transcript of the proceedings would have shown that appellant’s guilty pleas were not
made voluntarily. To support this claim appellant cites to his statement contained in the presentence
report prepared approximately two months before appellant’s plea hearing:
—2— Judge ( ‘hatham. I would like the Opportunity to attempt this lrohalion in order to resubstantiate my lile. Previous to this last arrest I had started a company and it had just acquired the last few pieue.s of equipment needed to hegin. Also, I have relocated my dauihter’s mother and daughter here from Kansas City. in order to he closer to me. These two things conzruent are what I have needed to he happy with lit and a new beginning here in Dallas. l3asically. I am NOT a menace to society and I will he a prominent basketball coach for children ages elementary school to middle school. I believe that I will successfully complete the probation offered and you will not have any further problems (nil of James L. Kelley.
Appellant argues that this statement demonstrates that appellant did not understand the consequences
of his guilty pleas because it shows that he believed he would be given probation.
With respect to the first prong of Strickland, it is not per se ineffective assistance of counsel
to fail to request a court reporter to record a plea hearing. See Rivera r’. Slate, 981 S.W.2d 336, 339
(Tex. App.—Flousron [14th Dist.] 1998, no pet.). Because a silent record provides no explanation
lou counsel’s actions, the record on direct appeal is usually not sufficient to show that counsel’s
representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome
the presumption that counsels conduct was reasonable and professional. Cannon v. Stale, 252
S.W.3d 342, 349 (Tex. Crim. App. 2008); Rvlander v. Slate, 101 S.W.3d 107, 1 10--I 1 (Tex. Crim.
App. 2003). Furthermore, counsel should ordinarily be given an opportunity to explain his actions
before being condemned as unprofessional or incompetent. Rviander, 101 S.W.3d at ill; Bone v.
State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Consequently, the Texas Court of Criminal
Appeals has repeatedly explained that an application for writ of habeas corpus is usually the more
appropriate vehicle to raise claims of ineffective assistance of counsel. See, e.g., Rvlander, 101
S.W.3d at 110.
In this case, appellant did not file a motion for new trial or introduce any evidence relating
to his counsel’s reasoning or rationale for not requesting a court reporter at the plea hearing. As a
result, we cannot conclude that the record firmly demonstrates that counsel’s performance fell below
an objective standard of reasonableness. See generally Goodspeed, 187 S.W.3d at 392 (noting appellate couits otdinarily vil I nut declare trial counsel ineffective without a record showing counsel
had an oppoitun itv to explain hiiuscllj. We resolve appellant’s ii ist issue against him
SECOND ANt) ‘I’HJRI) ISSUES
In his second and third issues appellant argues that the judgments erroneously state that
appellant was sentenced in accordance with the terms of a plea bargain, and that the judgments
should he modified to reflect that appellant entered an open plea of guilty. The State agrees with
appellant.
This Court has the power to modify an incorrect judgment to make the record speak the truth
when we have the necessary inlormation to do so .5cc TEx. R. App. P. 43.2(b); BigIe’ v. State, 865
S.W.2d 26, 27—28 (Tex. Crirn. App. 1993); Asherry v. State, 813 S.W.2d 526, 529—30 (Tex.
App.—Dallas 1 991, pet. ref d). The record demonstrates that appellant entered an open plea of
guilty. We modify the judgments to delete the notation “5 YEARS TDCJ” under the heading “Terms
of Plea Bargain.”
CON CI USION
We resolve appellant’s first issue against him. We resolve appellant’s second and third
issues in his favor. We modify the trial court’s judgments and affirm the trial court’s judgments as
modified /
I /
ELIZABETH LANG-MIERS JUSTICE
Do Not Publish TEx. R. ApP. P.47
1 10842F.U05
-4- Qnairi uf Aipra1i Fif1I! JiIrirt of i’xa it Ja1Iw JUDGMENT JAMES KELLEY. Appellant Appeal from the 282nd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. No. 051 l00$4-CR V. F09-59l78S). Opinion delivered hy Justice Lang-Miers, THE STATE OF TEXAS, Appellee Justices Myers and Lewis participating.
Based on the Court’s opinion of this date, the trial court’s judgment is modified to delete “5 YEARS TDCi’ under the heading “Terms of Plea Bargain.’ the notaflon
As modified the trial court’s judgment is AFFIRMED.
Judgment entered January 3 1, 2013.
ELIZABETH LANG-MIERS JUSTICE (!nitrt tf \pirihi 3Fiftt! Ji3trirt uf cxa at Ja11a JUDGMENT JAMES KELLEY. Appellant Appeal from the 282nd Judicial District Court of Dallas County, Texas. (Tr.CtNo, No. 051 l00843CR V. F0972634S). Opinion delivered by Justice Lang-Miers, THE STATE OF TEXAS. Appellee Justices Myers and Lewis participating.
Based on the Court’s opinion of this date, the trial court’s judgment is modified to delete the notation “5 YEARS TDCJ’’ under the heading “Terms of Plea I3argain.”
Judgment entered January 31, 201 3.
ELIZABETIl LANG-MIERS* JUSTICE