Scott Andrew Perry v. State

Opinion issued November 17, 2005 In The Court of Appeals For The First District of Texas NO. 01-04-00950-CR NO. 01-04-00951-CR SCOTT ANDREW PERRY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause Nos. 974008 and 974192 MEMORANDUM OPINION Appellant, Scott Andrew Perry, pleaded guilty to two felony offenses of aggravated robbery without an agreed recommendation from the State, and the trial court sentenced him to two concurrent 40-year terms in prison. See Tex. Pen. Code Ann. § 29.03 (Vernon 2004). Appellant contends that the trial court abused its discretion by refusing to allow him to withdraw his guilty pleas. We affirm. Procedural Background Appellant was charged by separate indictments with two felony offenses of aggravated robbery with a deadly weapon. Appellant appeared before the trial court on May 12, 2004, and pleaded guilty to both offenses without an agreed recommendation from the State. The trial court accepted appellant’s pleas but deferred assessing punishment until a presentence investigation (PSI) and report could be completed. Before appellant’s punishment hearing, appellant’s attorney, Bob Heath, died. Id. On August 12, 2004, the trial court appointed J.D. Smith to represent appellant. On September 2, 2004, Smith filed a motion to withdraw appellant’s pleas of guilty on the grounds that appellant’s guilty pleas were not freely and knowingly given but entered involuntarily. The motion further stated that appellant would have pleaded not guilty had his counsel informed him of the defense of duress, which the motion asserted was raised by appellant’s statements in the PSI, in which he stated that he was coerced into committing the offense. The trial court heard appellant’s motion to withdraw his guilty pleas immediately before the sentencing hearing, and appellant was the only witness who testified on the motion. Appellant testified that he told Heath the same facts of the offenses that were in the PSI report but that Heath advised him to plead guilty. The trial court denied the motion, conducted the sentencing hearing, and assessed punishment at 40 years in prison. Withdrawal of Guilty Pleas In his sole issue, appellant contends that the trial court abused its discretion by denying his motion to withdraw his guilty pleas because appellant’s trial counsel, who represented him when his guilty pleas were made, did not advise him that the affirmative defense of duress could be available and that as a result, his guilty pleas were not voluntarily, intentionally, or knowingly entered. We examine the record as a whole to determine the voluntariness of a guilty plea. Richards v. State, 562 S.W.2d 456, 457 (Tex. Crim. App. 1977); Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d). To be knowing and voluntary, a guilty plea must be made with full understanding of the relevant circumstances and likely consequences. McMann v. Richardson, 397 U.S. 759, 766, 90 S. Ct. 1441, 1446 (1970). Generally, a defendant does not have a right to withdraw his guilty plea while waiting for the results of a presentence investigation. Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979). Specifically, when a trial court has found the defendant guilty and resets the case to await the results of the presentence investigation, the court has taken the matter under advisement, and withdrawal of the guilty plea is within the sound discretion of the trial court. DeVary v. State, 615 S.W.2d 739, 740 (Tex. Crim. App. 1981); Russell v. State, 711 S.W.2d 114, 117 (Tex. App.—Houston [14th Dist.] 1986, pet. ref’d). A guilty plea is not knowing or voluntary if made as a result of ineffective assistance of counsel. Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980). Further, evidence that would negate an essential element of an offense can render a guilty plea involuntary. See Payne v. State, 790 S.W.2d 649, 651–52 (Tex. Crim. App. 1990) (holding appellant’s testimony that crime committed with toy gun raised issue of voluntariness of guilty plea for aggravated robbery). A defendant who pleads guilty on advice of counsel must demonstrate on appeal that the advice was not within the range of competence demanded of counsel in criminal cases. McMann, 397 U.S. at 771, 90 S. Ct. at 1449. To prevail on a claim of ineffective assistance of counsel, the defendant must show both that trial counsel’s performance was deficient and that a reasonable probability exists that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The first prong of the Strickland test requires that the defendant show that counsel’s performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Thus, the defendant must prove objectively, by a preponderance of the evidence, that trial counsel’s representation fell below professional standards. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). The second prong requires that the defendant show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 693–94, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. Because the reviewing court must, however, indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Any allegation of ineffectiveness must be firmly founded in the record, and the record must demonstrate affirmatively the alleged ineffectiveness. Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). We will not speculate to find trial counsel ineffective when the record is silent on counsel’s reasoning or strategy. Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000). In rare cases, however, the record can be sufficient to prove that counsel’s performance was deficient, despite the absence of affirmative evidence of counsel’s reasoning or strategy. Id. Assuming that appellant’s testimony would have raised the affirmative defense of duress if appellant had elected to go to trial, the record does not show that Heath neglected to discuss the possibility of the defense with appellant before appellant entered his pleas of guilty. Appellant never testified that he was unaware of the affirmative defense of duress before he pleaded guilty. The record is therefore silent on whether Heath discussed with appellant the availability of the duress defense before he pleaded guilty. The record is replete, however, with evidence that appellant’s pleas of guilty were knowingly and intelligently entered after consulting with Heath about his options concerning the offenses. Appellant testified that he told Heath all of the same facts that appellant related to the PSI investigator. Appellant’s pleas of guilty were taken before the trial-court judge in the presence of a court reporter. Additionally, written documents advised appellant of his rights concerning his pleas of guilty. Further, this is not a case like Payne in which evidence negating an essential element of aggravated robbery was discovered at the punishment hearing, thus rendering appellant’s guilty plea involuntary, because the record shows that appellant fully discussed the offense with Heath before trial and nothing in the record shows that appellant was unaware of any possible defenses. 790 S.W.2d at 651–52 (rejecting robbery offenses as aggravated because committed with toy gun and guilty plea therefore not voluntary). Appellant’s written pleas of guilty appear on written documents signed by appellant and his attorney. In those documents, appellant waived the following rights: trial by jury; the appearance, confrontation, and cross-examination of witnesses; and his right against self incrimination. Further, the same documents show that appellant admitted committing the aggravated robberies. Appellant not only confessed to the crimes in writing when he pleaded guilty but also affirmatively stated that he was satisfied with his attorney’s representation and waived any additional time to prepare for trial. Appellant’s plea documents, which reflect his signature, state that he was “satisfied that the attorney representing me today in court has properly represented me and I have fully discussed this case with him.” Further, Heath indicated his approval of the pleas of guilty by signing his name on appellant’s plea documents. Heath’s signature appears below the following statement: “I represent the defendant in this case and I believe that this document was executed by him knowingly and voluntarily and after I fully discussed it and its consequences with him . . . . I waive any further time to prepare for trial to which I or the defendant may be entitled.” The trial-court judge signed appellant’s plea of guilty papers, which state that the defendant entered a plea of guilty; that she admonished him of the consequences of his plea; that she ascertained that he entered it knowingly and voluntarily after discussing the case with his attorney; that the defendant was mentally competent; and that the defendant’s plea was free and voluntary. The trial court also found that Heath was competent and “effectively represented the defendant in this case.” In addition, the appellant signed written admonishments when he pleaded guilty that stated as follows: “I am fully satisfied with the representation by my counsel and I received effective and competent representation.” The admonishments further stated, “I understand the offenses I am charged with and my attorney has discussed with me all the defenses, if any, I might have to these charges and I am entering this plea freely and voluntarily in the exercise of my own good judgment.” At the hearing concerning appellant’s motion to withdraw his pleas of guilty, the trial court reasonably could have rejected appellant’s attorney’s assertion that appellant was unaware about the defense of duress when he pleaded guilty to the offense because appellant’s testimony did not address that issue. Given that the record is silent on whether the duress defense was discussed prior to appellant’s entry of his pleas and that the record affirmatively shows that Heath was not only familiar with all of the facts concerning appellant’s charges but that he also fully discussed those charges with appellant, we cannot conclude that the record establishes that Heath rendered ineffective assistance of counsel by failing to advise appellant of the availability of a defense. See Spencer v. State, 666 S.W.2d 578, 580 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d) (holding record did not show guilty plea involuntary when no evidence in record indicated that counsel misstated range of punishment to appellant and that appellant relied on counsel’s advice). We hold that the trial court did not abuse its discretion by declining appellant’s motion to withdraw his pleas of guilty. We overrule appellant’s sole issue. Conclusion We affirm the judgment of the trial court. Elsa Alcala Justice Panel consists of Chief Justice Radack and Justices Alcala and Bland. Do not publish. Tex. R. App. P. 47.2(b).