Alfredo Gonzalez Lll v. State

Opinion issued January 17, 2008 In The Court of Appeals For The First District of Texas NOS. 01-06-00837-CR 01-06-00838-CR 01-06-00839-CR ALFRED GONZALEZ III, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 263rd District Court Harris County, Texas Trial Court Cause Nos. 1048167, 1048168, & 1048872 MEMORANDUM OPINION Appellant, Alfred Gonzalez III, pleaded guilty without an agreed recommendation to aggravated robbery in cause number 1048872, (1) possession of a controlled substance in cause number 1048168, (2) and evading arrest in cause number 1048167. (3) The trial court sentenced him to 17 years in prison for aggravated robbery and two years each for the possession and evading arrest causes. In two points of error, appellant argues that he was (1) denied effective assistance of counsel because his counsel did not file a written motion for community supervision and (2) improperly admonished as to the punishment range for the offense of aggravated robbery. We affirm. Background At the pre-sentence investigation (PSI) hearing, Rosanne Sicola testified that while walking into a Lowe's store she saw appellant driving toward her. At first, she thought she recognized him, but as appellant got closer she realized that she did not know him. Appellant reached out and grabbed Sicola's purse and drove away. Sicola ran after the car and jumped on the window. Appellant put the car in reverse, which threw Sicola off the car. Appellant testified that he committed all of the crimes testified to at the hearing. Ineffective Assistance of Counsel--Motion for Community Supervision In his first point of error in appellate cause numbers 01-06-00837-CR, 01-06-00838-CR, and 01-06-00839-CR, appellant argues that his counsel was deficient for not filing a written motion for community supervision. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 1977). This right includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 688-92, 104 S. Ct. at 2064-67; see also Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Appellant has the burden of proving his claim by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). We apply a strong presumption that trial counsel was competent. Thompson, 9 S.W.3d at 813. We presume counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). At the PSI hearing, defense counsel asked the trial court to give appellant probation, but the record does not show that defense counsel filed a written motion for community supervision. The State responds that appellant was eligible for deferred adjudication community supervision, but that the Texas Code of Criminal Procedure does not require the filing of a motion for the trial court to sentence a defendant to community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12 § 5 (Vernon 2006); see also Diaz v. State, 905 S.W.2d 302, 309 n.6 (Tex. App.--Corpus Christi 1995, no pet.) ("Appellant's plea of guilty to a felony was before the trial court. There is no statutory requirement of a sworn motion for probation nor required proof that appellant has never been convicted of a felony as there is when the issue of punishment is decided by a jury."). (4) Accordingly, appellant has not shown that appellant's defense counsel acted deficiently by not filing a sworn motion for community supervision. Having found that appellant failed to establish the first prong of Strickland, we hold that appellant's counsel was not ineffective. See Strickland, 466 U.S. at 688-92, 104 S. Ct. at 2064-67. We overrule appellant's first point of error in cause numbers 01-06-00837-CR, 01-06-00838-CR, and 01-06-00839-CR. Range of Punishment In his second point of error in appellate cause number 01-06-00837-CR only, appellant contends that the trial court admonished him incorrectly on the range of punishment for aggravated robbery. Appellant argues that because he was told that he would not receive any more than 10 years in prison, his punishment of 17 years exceeded the maximum admonished sentence. The Texas Code of Criminal Procedure provides that, prior to accepting a plea of guilty or of nolo contendere, a trial court must admonish a defendant of the range of punishment attached to the offense. Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (Vernon Supp. 2007). In admonishing the defendant, substantial compliance by the trial court is sufficient unless the defendant affirmatively shows he was not aware of the consequences of his plea and was misled or harmed by the court's admonishment. Id. art. 26.13(c). The trial court may admonish a defendant either orally or in writing. Id. art. 26.13(d). Here, the admonishment form includes admonishments regarding state jail felony offenses with a punishment of not more than 10 years and not less than 2 years with a fine not to exceed $10,000. The admonishment form also includes the correct range of punishment for a first-degree felony--a term of life or any term of not more than 99 years or less than 5 years imprisonment with a fine not to exceed $10,000. See Tex. Pen. Code Ann. § 12.32(a) (Vernon 2003). Appellant initialed the state jail felony admonishments, but not the first-degree felony admonishment. Appellant implicitly argues that the trial court improperly admonished him because he did not initial the first-degree felony admonishment that contained the correct range of punishment. However, there is no requirement in article 26.13 that the defendant initial each written admonishment paragraph. Lopez v. State, 25 S.W.3d 926, 929 (Tex. App.--Houston [1st Dist.] 2000, no pet.) (citing Tex. Code Crim. Proc. Ann. art. 26.13). At the end of the admonishment form, appellant initialed the statement that he understood the foregoing admonishments and that he was aware of the consequences of his plea. Appellant also initialed the statement that his plea was freely and voluntarily given. Appellant waived the right to have a court reporter record his plea, and he waived the right to have the trial court orally admonish him. Because the trial court admonished appellant in writing about the proper range of punishment for aggravated robbery, we conclude that appellant's plea was knowing and voluntary. See Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon Supp. 2007); Williams v. State, 960 S.W.2d 758, 759 (Tex. App.--Houston [1st Dist.] 1997, pet. dism'd) ("When the record shows the trial court properly admonished the defendant, there is a prima facie showing that the plea was knowing and voluntary."). Even if we were to conclude that the trial court erred in failing to admonish appellant or that it admonished appellant improperly, such error is subject to non-constitutional error review. See Aguirre-Mata v. State, 125 S.W.3d 473, 476-77 (Tex. Crim. App. 2003). To perform that analysis, "a reviewing court must independently examine the record for indications that a defendant was or was not aware of the consequences of his plea and whether he was misled or harmed by the trial court's failure to admonish him of the punishment range." Burnett v. State, 88 S.W.3d 633, 638 (Tex. Crim. App. 2002). In the context of a guilty plea, an error affects substantial rights when, considering the record as a whole, we do not have a fair assurance that the defendant's decision to plead guilty would not have changed had the court admonished him. See Anderson v. State, 182 S.W.3d 914, 919 (Tex. Crim. App. 2006). During the PSI hearing, the State mentioned three times that the range of punishment was 5 to 99 years or life for aggravated robbery. During closing arguments, the State argued to the trial court for a 30-year sentence. Although he was present in the courtroom during the PSI hearing and the State's closing arguments, appellant never objected to the State's comments or arguments, questioned the validity of the range of punishment asserted, or filed a motion for new trial arguing that his plea was not knowing and voluntary. "[T]o warrant a reversal on direct appeal, the record must support an inference that appellant did not know the consequences of his plea." Burnett, 88 S.W.3d at 638. We cannot conclude that the record supports an inference that appellant did not know the consequences of his plea. See Aguirre-Mata, 125 S.W.3d at 476-77 (record did not show that defendant was unaware of range of punishment); Burnett, 88 S.W.3d at 641 (record did not show that defendant was unaware of the punishment range). We overrule appellant's second point of error in cause number 01-06-00837-CR. Conclusion We affirm the judgments of the trial court. Evelyn V. Keyes Justice Panel consists of Justices Nuchia, Jennings, and Keyes. Do not publish. Tex. R. App. P. 47.2(b). 1. Appellate cause number 01-06-00837-CR; trial court cause number 1048872. 2. Appellate cause number 01-06-00838-CR; trial court cause number 1048168. 3. Appellate cause number 01-06-00839-CR; trial court cause number 1048167. 4. For jury-recommended community supervision, appellant had to file a sworn motion to be eligible. See Tex. Code Crim. Proc. Ann. art. 42.12 § 4(e) (Vernon 2006).