Stephens v. State

15 S.W.3d 278, 2000 Tex. App. LEXIS 1913, 2000 WL 297407

• Court: Court of Appeals of Texas
• Decided: March 23, 2000
• Docket: 14-99-00288-CR
• Status: Published

Opinions

MAJORITY OPINION

CHARLES F. BAIRD, Justice

(Assigned).

Appellant was charged by indictment with the state jail felony offense of tampering with a witness. Appellant pled nolo contendere to the charged offense. The trial court accepted appellant’s plea, but withheld a finding of guilt and ordered the preparation of a pre-sentencing investigation report. At the sentencing hearing, the trial court assessed punishment at nine months confinement in a state jail facility. We affirm.

Appellant’s sole point of error contends his plea was not entered voluntarily or knowingly due to the ineffective assistance of trial counsel. Specifically, appellant argues his plea was induced by counsel’s promise of probation and, but for this promise, appellant would have insisted on going to trial.

The standard by which we review the effectiveness of counsel at all stages of a criminal trial was articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App.1999). The Supreme Court in Strickland outlined a two-step analysis. First, the reviewing court must decide whether trial counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 686, 104 S.Ct. 2052. If counsel’s performance fell below the objective standard, the reviewing court then must determine whether there is a “reasonable probability” the result of the trial would have been different but for counsel’s deficient performance. Strickland, 466 U.S. at 686, 104 S.Ct. 2052. A reasonable probability is a “probability sufficient to undermine the confidence in the outcome.” Strickland, 466 U.S. at 694,104 S.Ct. 2052. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. See id. at 687, 104 S.Ct. 2052. See also Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex.Crim.App.1993); Boyd v. State, 811 S.W.2d 105,109 (Tex.Crim.App.1991).

To be constitutionally valid, a guilty plea must be knowing and voluntary. See Ruffin v. State, 3 S.W.3d 140, 145 (Tex.App.—Houston [14th Dist.] 1999, pet. refused) (citing Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). The Sixth Amendment guarantees the effective assistance of counsel at the time the defendant enters a plea to the charging instrument. See id. (citing McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 1448-49, 25 L.Ed.2d 763 (1970)). The defendant bears the burden of proving an ineffective assistance of counsel claim by a preponderance of the evidence. See Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App.1998); Riascos v. State, 792 S.W.2d 754, 758 (Tex.App.—Houston [14th Dist] 1990, pet. ref d). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the appellate record. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997); Jimenez v. State, 804 S.W.2d 334, (Tex.App.—San Antonio 1991, pet. ref'd).

At the time of his nolo contendere plea, appellant executed a document entitled “Waiver of Constitutional Rights, Agreement to Stipulate, and Plea of Nolo Con-tendere.” In this document, appellant stated: “I am satisfied that the attorney representing me today has properly represented me[.]” In another portion of that document, trial counsel stated: “I represent [appellant] in this case and I believe that the document was executed by him knowingly and voluntarily and after I fully discussed it and its consequences with him.” Following sentencing, appellant did not file a motion for new trial alleging ineffective assistance of counsel. Therefore, that vehicle was not utilized to develop this claim.

Appellant does not direct us to any portion of the appellate record from which we can decide “whether trial counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms.” Additionally, we have reviewed the record and find nothing to support the claim that trial counsel’s representation was deficient in any manner. Accordingly, we find appellant’s allegation of ineffective assistance is neither firmly founded, nor affirmatively demonstrated in the record. See McFarland, 928 S.W.2d at 500; Jimenez, 804 S.W.2d at 338.¹

Finally, we pause to address the State’s contention that because appellant practiced law as a criminal defense attorney for six or seven years prior to his plea, he was fully aware of the consequences of pleading nolo contendere to the charged offense. A similar argument was advanced in Foster v. State, 677 S.W.2d 507 (Tex.Crim.App.1984), where, the defendant was an attorney who confessed to an offense following his illegal arrest. The State argued the defendant’s occupation attenuated the taint of the illegal arrest. The Court of Criminal Appeals rejected the argument. We also reject the argument in the present context. The first prong of Strickland focuses on trial counsel’s representation under prevailing professional norms. And, if that representation is deficient, the second prong focuses on whether the deficiency undermined the appellate court’s confidence in the outcome of the proceeding(s). Strickland, 466 U.S. at 684, 104 S.Ct. 2052. Nothing in Strickland focuses the analysis on the occupation of the defendant. We will not extend Strickland beyond its stated framework. Therefore, appellant’s status as a criminal defense attorney plays no part in our resolution of the instant issue.

For the reasons stated above, appellant’s sole point of error is overruled and the judgment of the trial court is affirmed.

1 . Additionally, we note that a guilty plea is not involuntary simply because the sentence exceeded what the appellant expected, even if that expectation was raised by his attorney. See West v. State, 702 S.W.2d 629, 633 (Tex.Crim.App.1986); Russell v. State, 711 S.W.2d 114, 116 (Tex.App.—Houston [14th Dist.] 1986, pet. ref'd) (counsel’s mere opinion regarding sentencing will not render a plea involuntary).