Curtis Wayne Smith v. State

Opinion issued October 21, 2004 In The Court of Appeals For The First District of Texas NO. 01-03-01137-CR CURTIS WAYNE SMITH, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 950676 MEMORANDUM OPINION Curtis Wayne Smith, appellant, entered a plea of nolo contendere to a felony charge of aggravated assault without an agreed recommendation for punishment. The trial court found appellant guilty and assessed punishment at three years in prison. In three issues, appellant argues that (1) the trial court abused its discretion in accepting appellant’s plea after appellant stated he did not believe he was guilty; (2) appellant’s trial counsel was ineffective for allowing appellant to plead nolo contendere after appellant stated he did not believe he was guilty; and (3) appellant’s trial counsel was ineffective because he failed to zealously urge appellant’s innocence. We affirm. Factual and Procedural Background This is a case of road rage. Appellant pulled out of a parking lot and onto the feeder road of a highway. In doing so, appellant entered the flow of traffic directly in front of a Harris County constable, who was driving his personal car. The constable changed lanes, passed appellant’s van, then cut in front of appellant. Appellant passed the constable and slammed on his brakes in front of the constable’s car. According to appellant’s statement, the constable made a rude gesture, and, when appellant started driving again, the constable followed him, riding his bumper and switching lanes, scaring appellant. At some point, appellant stopped in a parking lot, got out of his van holding a crowbar, and came up to the constable’s car. Appellant struck the constable’s car with his hand several times and yelled to the constable, “Get out, I’m going to kick your a** for following me.” The constable called for police assistance; appellant got back into his van and drove away; and the constable followed. Appellant again stopped his van and told the constable he would “kick a** if you don’t stop following me.” The constable rolled down his window, identified himself as a police officer, and told appellant to wait in the van, but produced no identification. Instead of complying, appellant insulted the constable and got into his van and sped away. The constable again followed. Appellant stopped his van and told the constable to go away. As he was placed in handcuffs, appellant struggled with the officers. In his written statement contained in the pre-sentence investigation report, appellant acknowledged walking up to the constable’s car carrying a crowbar, but denied threatening the constable with it. Appellant stated that he thought he was being followed and was frightened; he did not believe the constable was a police officer until another police officer arrived. Appellant entered a plea of nolo contendere before a visiting judge. At the time he entered the plea, appellant stated that he understood that the trial court could find him guilty of aggravated assault with a deadly weapon. The judge questioned appellant extensively, and ascertained that appellant understood his rights and the consequences of his nolo contendere plea. Appellant testified that his plea was voluntary; he also signed and initialed written admonishments, including a statement that his plea was both knowing and voluntary. The next month, the presiding judge returned to the trial court and conducted a punishment hearing. The following exchange then took place: THE COURT: I don’t take no contest pleas. How do you plead, guilty or not guilty? THE DEFENDANT: I don’t believe I’m guilty. THE COURT: All right. Set it down. He can go to trial. (At this time a recess was taken[.]) THE COURT: Okay. This is a continuation of the hearing. Are you ready to do this? THE DEFENDANT: Yes, sir. I’m sorry. I was just scared. I am just scared. THE COURT: Based on your plea of no contest—is that what you wish to plead, no contest? THE DEFENDANT: Yes, sir. THE COURT: Based on that plea of no contest, you understand that may result in my making a finding of guilt, and my making a finding there is substantial evidence to find you guilty. You understand that? THE DEFENDANT: Yes, sir. THE COURT: Do you persist in that? THE DEFENDANT: Sir? THE COURT: Do you persist in that plea of no contest? Listen up. THE DEFENDANT: I just want to cooperate, sir. THE COURT: I just want you to answer my questions. Do you persist in that plea of no contest, yes or no? THE DEFENDANT: Yes, sir. THE COURT: Okay. Based on that plea and the evidence introduced, I find you guilty as charged. The evidence before the judge included a copy of the pre-sentence investigation report that contained appellant’s statement; an extensive prior record, including convictions for driving while intoxicated and possession of a controlled substance/ and several letters of recommendation. In addition, appellant’s trial counsel summarized appellant’s statement as contained in the pre-sentence investigation report. The State argued that appellant had an anger management problem, that he had several convictions, and that he should serve five years in prison. The trial court assessed punishment at three years’ confinement. Appellant did not file a motion for new trial. Discussion Duty of Trial Court to Accept Appellant’s Plea In his first issue, appellant argues that the trial court abused its discretion in accepting his plea of nolo contendere because he had made statements in the pre-sentence investigation report and during the punishment hearing indicating that he did not believe he was guilty. In support of his argument, appellant relies solely on Payne v. State, 790 S.W.2d 649 (Tex. Crim. App. 1990). Payne holds that, when a trial court is made aware of facts that raise an issue as to the guilt of the accused, it may be an abuse of the trial court’s discretion to refuse to allow a defendant to withdraw a guilty plea. Id. at 652. However, the issue in Payne and the issue before this Court are distinguishable. In Payne, the appellant attempted to withdraw his guilty plea. Id. at 651. In this case, appellant merely stated, “I don’t believe I’m guilty.” The trial court apparently understood this to mean that appellant was pleading not guilty and told him the case would go to trial. However, after a recess, appellant was again before the trial court and persisted in entering a nolo contendere plea. Since appellant did not again attempt to withdraw this plea, Payne does not apply to this case. It is well established that a trial court has no duty to withdraw a defendant’s plea of guilty sua sponte after the defendant has waived a jury. See Thomas v. State, 599 S.W.2d 823, 824 (Tex. Crim. App. 1983); Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App. 1978); Edwards v. State, 921 S.W.2d 477, 480 (Tex. App.—Houston [1st Dist.] 1996, no pet.). “It is the duty of the trial court to consider the evidence submitted and as the trier of the facts the court may find the appellant guilty of a lesser offense and assess the appropriate punishment or it may find the defendant not guilty.” Moon, 572 S.W.2d at 682. While appellant entered a nolo contendere plea, not a guilty plea, a nolo contendere plea has the same legal effect as a guilty plea. Sowell v. State, 503 S.W.2d 793, 795 (Tex. Crim. App. 1974). Here, the trial court considered the facts and found the defendant guilty; it had no duty here to withdraw appellant’s plea of nolo contendere. We overrule appellant’s first issue. Ineffective Assistance of Counsel In his second and third issues, appellant complains he was denied effective assistance of counsel because his trial counsel (1) allowed him to plead nolo contendere, a plea made involuntary because appellant hesitated during the plea hearing, stated he did not believe he was guilty, and made statements in the pre-sentence investigation report that could raise an issue of “apparent danger,” and (2) failed to zealously urge appellant’s innocence. In reviewing an ineffective assistance of counsel claim, we evaluate the effectiveness of counsel under the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). See also Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). First, the defendant must show that his counsel’s representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. To prove this deficiency in representation, the defendant must demonstrate that his counsel’s performance deviated from prevailing professional norms. Id.; McFarland v. State, 845 S.W.2d 824, 842-43 (Tex. Crim. App. 1992). Second, the defendant must show prejudice. Strickland, 466 U.S. at 693, 104 S. Ct. At 2067. This requires the defendant to show that there is a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The failure to satisfy one prong of the Strickland test negates a court’s need to consider the other. See Id. at 697. “Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A reviewing court must presume that counsel’s actions were taken as part of a strategic plan for representing the client. See Young v. State, 991 S.W.2d 835, 837 (Tex. Crim. App. 1999). Appellant must overcome the presumption that trial counsel’s strategy was sound and affirmatively demonstrate the alleged ineffective assistance of counsel. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813. We cannot speculate beyond the record provided. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). It is rare that a record on direct appeal will be sufficient either to establish that counsel’s representation was so deficient, so unreasonable or, so lacking in strategic decision-making to overcome the presumption that counsel was reasonable and professional. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002); Bone v. State, 77 S.W.3d 828, 834 (Tex. Crim. App. 2000); Thompson, 9 S.W.3d at 813-14. Appellant had the burden of demonstrating from the record that his nolo contendere plea was a result of his counsel’s ineffectiveness. The record before this Court contains appellant’s signed and initialed statement that his plea was knowing and voluntary. The trial court also heard evidence from both the State and appellant’s counsel and had a copy of the pre-sentence investigation report before him when he ruled. Appellant did not file a motion for new trial challenging his trial counsel’s actions. There is nothing in the record that supports appellant’s contentions of ineffective assistance. Therefore, appellant did not satisfy his burden of proving the first prong of Strickland. Issues two and three are overruled. We affirm the trial court’s judgment. Evelyn V. Keyes Justice Panel consists of Chief Justice Radack and Justices Keyes and Alcala. Do not publish. Tex. R. App. P. 47.4.