Mario A. Alvarado v. State

• Court: Court of Appeals of Texas
• Decided: March 29, 2013
• Docket: 05-12-01363-CR
• Status: Published

Opinion

AFFiRM; and Opinion issued March 29, 2013.

In The Qlourt of Z1ppat Jfiftb titrict of Z1Iexa at Oatta No. O5-12-0l363CR

MARiO ALBERTO ALVARADO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F11-19053-Q

MEMORANDUM OPINION

Before Justices Lang-Miers, Murphy, and Fillmore Opinion by Justice Fillmore

Mario Alberto Alvarado waived a jury and pleaded guilty to felony DWI. See TEx.

PENAL CODE ANN, § 49.04(a), 49.09(b)(2) (West Supp. 2012). The trial court assessed

punishment at ten years’ imprisonment. In two issues, Alvarado contends his guilty plea was

involuntary. We affirm the trial court’s judgment. The background of the case and the evidence

admitted at trial are well known to the parties, and we therefore limit recitation of the facts. We

issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the

law to be applied in the case is well settled. In his Iirst issue, Alvarado contends he entered a guilty plea only because he believed the

trial court would grant him probation Alvarado asserts that because he was remorseful about his .

actions at the time ot the otfense, and pointed out that he had consistent employment and took

care of his family, the trial court should have granted him probation and treatment for his

substance abuse problems.

When considering the voluntariness of a guilty plea, we must examine the entire record.

See Martinez v. State, 981 S.W.2d 195, 197 (Tex, Crim. App. 1998) (per curiam). If the trial

court properly admonished a defendant before a guilty plea was entered, there is a prima facie

showing the plea was both knowing and voluntary. See id.

The trial court properly admonished Alvarado both orally and in writing. See TEx. CoDE

CRIM. PROC. ANN. art. 26.13(a), (c) (West Supp. 2012>; Kirk v. State, 949 S.W.2d 769, 771 (Tex.

App.—Dallas 1997, pet. ret’d). During the plea hearing, Alvarado testified he understood the

punishment range for the offense in light of his two prior DWI convictions. Alvarado testified

no one had promised him that the trial court would place him on probation or give him a certain

amount of prison time. Alvarado testified he had a good job and was the sole support for his

family. He asked the trial court to place him on probation. The trial court sentenced Alvarado to

imprisonment instead.

The fact that Alvarado received greater punishment than he hoped for does not render his

plea involuntary. See Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.—Dallas 1993, no

pet.). Nothing in the record supports his complaint that he pleaded guilty believing he would

receive probation, and we conclude Alvarado has not shown his guilty plea was involuntary for

that reason. We resolve Alvarado’s first issue against him.

-2- In his second issue, Alvarado contends his guilty plea was involuntary due to ineffective

assistance of counsel. Alvarado argues that during closing argument, trial counsel did not refer

to his specific testimony about changes he had made in his life and that he is the sole source of

financial support for his family. Alvarado asserts there is a reasonable probability that but for

counsels error, the results of the proceeding would have been different.

To prevail on a claim of ineffective assistance of counsel, Alvarado must show that

counsel’s representation fell below an objective standard of reasonableness and there is a

reasonable probability the results of the proceedings would have been different in the absence of

counsel’s errors. Strickland v. Washington, 466 U.S. 668, 687-688, 694 (1984); Bone v. State,

77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Alvarado has the burden of proving ineffective

assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813

(Tex, Crim. App. 1999). Failure to make the required showing of either deficient performance or

sufficient prejudice defeats an ineffectiveness claim. See Andrews v. State, 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 the claim has merit. Menefleid v. State, 363 S.W.3d 591, 592

(Tex. Crim. App. 2012); Goodspeed v. State, 187 S.W.3d 391, 392 (Tex. Crim. App. 2005); see

also Exparte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App.), cert denied, 131 S. Ct. 3073

(2011) (“Allegations of ineffectiveness must be based on the record, and the presumption of a

sound trial strategy cannot be overcome absent evidence in the record of the attorney’s reasons

for his conduct.”). In most cases, a silent record that provides no explanation for counsel’s

actions will not overcome the strong presumption of reasonable assistance. See Rylander v.

State, 101 S.W.3d 107, 110—11 (Tex. Crim. App. 2003). Direct appeal is usually an inadequate

-3- vehicle for raising an ineffective assistance claim because the record is generally undeveloped.

Mene/jeld, 363 S.W.3d at 59293. Counsel should ordinarily be altorded an opportunity to

explain his actions before being denounced as ineffective, hi. at 593. “If trial counsel is not

given that opportunity, then the appellate court should not find deficient performance unless the

challenged conduct was ‘so outrageous that no competent attorney would have engaged in it.”

Id. (quoting Goodspeed, 1 87 S.W.3d at 392).

Trial counsel in this case did not have an opportunity to explain herself; therefore, we

cannot determine from this record why she conducted Alvarado’s defense the way she did. See

Mene/leId, 363 S.W.3d at 593; Goodspeed, 187 S.W.3d at 392. Because there is no evidence in

the record concerning trial counsel’s actions, Alvarado has not overcome the strong presumption

of reasonable assistance and has not established trial counsel’s conduct was so outrageous that no

competent attorney would have engaged in it. See Rylander, 101 S.W.3d at 110—il. Further, on

this record, Alvarado has failed to establish he was prejudiced by the alleged error. The trial

court heard Alvarado’s testimony that he was the sole source of financial support for his family

and had made changes in his life since being indicted for the offense. Nothing in the record

supports Alvarado’s position that had counsel restated this testimony during her closing

argument, the trial court would have granted Alvarado probation and treatment rather than

impose a ten-year sentence. We conclude Alvarado has not met his burden of proving by a

preponderance of the evidence that counsel was ineffective. See Freeman v. State, 125 S.W.3d

505, 506—07 (Tex. Crim. App. 2003) (“The record in this case is insufficient to support the

conclusion [that appellant received ineffective assistance of counsel] because appellant did not

develop a record in the trial court for the purpose of establishing this claim.”); Thompson, 9

S.W.3d at 813. We resolve Alvarado’s second issue against him.

-4- We affirm the trial court’s judgment.

ROBERT M, FILLMORE JUSTICE

Do Not Publish TEX.R. App, P.47

121363F.U05

—5- Qiourt of ppeat I ifti itrict of rexa at aUa

JUDGMENT

MARIO ALBERTO ALVARADO, Appeal from the 204th Judicial District Appellant Court of Dallas County, Texas (Tr.Ct.No. Fl 1-19053-Q). No. 05-12-01363-CR V. Opinion delivered by Justice Fillmore, Justices Lang-Miers and Murphy THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.

Judgment entered March 29, 2013.

ROBERT M. FILLMORE JUSTICE