Ex Parte Rodney Lamar Fobbs

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-03-00032-CR ______________________________ EX PARTE RODNEY LAMAR FOBBS On Appeal from the 6th Judicial District Court Lamar County, Texas Trial Court No. R02 1067 HC-1 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION Rodney Lamar Fobbs has appealed from an order of the trial court in connection with a pretrial habeas corpus proceeding. He has informed this Court that he has now entered a plea of guilty in the underlying prosecution pursuant to a plea agreement and has been sentenced. The issue of pretrial habeas is therefore moot. When the subject matter of an appeal becomes moot, the proper disposition is dismissal of the appeal. See State v. McCaffrey, 76 S.W.3d 392, 393 (Tex. Crim. App. 2002); Criner v. State, 878 S.W.2d 162, 164 (Tex. Crim. App. 1994); State v. Curl, 28 S.W.3d 838, 841 (Tex. App.-Corpus Christi 2000, no pet.). We dismiss the appeal. Josh R. Morriss, III Chief Justice Date Submitted: May 6, 2003 Date Decided: May 7, 2003 Do Not Publish nt Freeman appeals his conviction for felony driving while intoxicated. Freeman pleaded guilty to the charge and pleaded "true" to having previously and finally been convicted of two felonies. Freeman did not plead guilty pursuant to a plea bargaining agreement. The trial court sentenced Freeman to twenty-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. In two points of error, Freeman claims that he received ineffective assistance of counsel and that his guilty plea was not voluntarily made. Freeman claims he received ineffective assistance based on his counsel's advice that Freeman could receive community supervision from the trial court. Freeman claims harm is evident because he rejected the State's offer of a fifteen-year sentence in exchange for the hope of receiving community supervision. The test for claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). In Strickland, the United States Supreme Court admonished that a claimant must prove counsel's representation so undermined the "proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." 466 U.S. at 686. As applied to a guilty plea in which the defendant rejected a plea bargaining agreement with the hope of receiving a lesser punishment from the trial court, a defendant who claims ineffective assistance must prove (1) that his counsel's representation fell below the objective standard of professional norms and (2) that there is a reasonable probability that, but for counsel's errors, the defendant would have accepted the State's offer of a plea bargaining agreement of a lesser punishment. The review of counsel's representation is highly deferential, and we indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689; Hernandez, 726 S.W.2d at 55. The appellant has the burden to overcome that presumption by identifying the acts or omissions of counsel that are alleged to have constituted the ineffective assistance and then affirmatively prove that such acts or omissions fall below the professional norm for reasonableness. Then the appellant must prove that counsel's errors, judged by the totality of the representation, resulted in the denial of a fair trial. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Merely showing they had some conceivable effect on the proceedings is inadequate. Strickland, 466 U.S. at 693; McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996). In this case, Freeman's allegations revolve around the question of whether his attorney misled him about the availability of community supervision for a third-degree felony when the punishment range was enhanced by Freeman's two prior convictions. Article 42.12, Section 3 of the Texas Code of Criminal Procedure provides (a) A judge, in the best interest of justice, the public, and the defendant, after conviction or a plea of guilty or nolo contendere, may suspend the imposition of the sentence and place the defendant on community supervision or impose a fine applicable to the offense and place the defendant on community supervision. . . . . (e) A defendant is not eligible for community supervision under this section if the defendant: (1) is sentenced to a term of imprisonment that exceeds 10 years; or (2) is sentenced to serve a term of confinement under Section 12.35, Penal Code. Tex. Code Crim. Proc. Ann. art. 42.12, § 3 (Vernon Supp. 2003). Freeman cites our decision in Cardenas v. State, 960 S.W.2d 941 (Tex. App.-Texarkana 1998, pet. ref'd), in support of his claim of ineffective assistance. The State contends Cardenas is factually distinguishable. In Cardenas, the defendant was convicted of indecency with a child. Id. at 943. Cardenas contended his guilty plea was involuntary because his trial counsel told him he was eligible for judge-ordered community supervision. Id. We reviewed Article 42.12, Section 3(g) of the Texas Code of Criminal Procedure and found the trial court was statutorily prohibited from granting community supervision to a defendant convicted of indecency with a child. Cardenas, 960 S.W.2d at 945-46. Cardenas testified at the hearing on the motion for new trial that his decision to plead guilty was based in large part on his erroneous belief he was eligible for community supervision. Id. The State relied on an affidavit by Cardenas's trial counsel stating he did not promise Cardenas that he would receive community supervision. We pointed out that this affidavit did not address the question of whether counsel told Cardenas that he could receive community supervision. Id. at 945. Accordingly, we reversed Cardenas's conviction and remanded the cause for a new trial due to an involuntary guilty plea based on ineffective assistance of counsel. Id. at 948. In the case at bar, Freeman pleaded guilty to DWI, a third-degree felony. Tex. Pen. Code Ann. § 49.09 (Vernon Supp. 2003). Freeman pleaded "true" to having been twice previously and sequentially convicted for two felonies. Thus, the range of punishment was enhanced to no less than twenty-five years nor more than ninety-nine years, or life. Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2003). Because the minimum punishment available was greater than ten years, the trial court was statutorily prohibited from granting community supervision in this case after it found both enhancement allegations contained in the indictment to be true. Tex. Code Crim. Proc. Ann. art. 42.12, § 3 (Vernon Supp. 2003); Tex. Pen. Code Ann. § 12.42(d). Throughout the proceedings, Freeman's counsel continued to suggest Freeman was eligible for community supervision. During the guilty plea, and despite having been told by the trial court that the minimum potential sentence if both enhancements were found true would be twenty-five years, Freeman's counsel told the trial court that, "Mr. Freeman wants to go open for probation and a possible treatment program." During the punishment hearing, Freeman stated that his decision to proceed with an open plea was based on his hope of receiving community supervision from the trial court. Elsewhere in the reporter's record, Freeman's counsel affirmatively stated that community supervision and treatment was one sentencing option in lieu of twenty-five years to life imprisonment. And Freeman himself expressed his desire to continue counseling outside the confines of TDCJ-ID. Based on the record before us, we believe the record substantiates Freeman's claim that his decision to plead guilty was based, at least in large part, on his attorney's advice that the trial court could grant community supervision. Such advice is clearly erroneous, and no sound trial strategy exists to rationalize such counsel given the particularized facts of this case. Therefore, Freeman has established that his attorney's performance fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. We must next consider whether Freeman has demonstrated the record supports a finding that counsel's deficient performance prejudiced Freeman's defense. Strickland, 466 U.S. at 687; Bone, 77 S.W.3d at 833; Hernandez, 726 S.W.2d at 55. "This means that the appellant must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different." Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002); see also Bone, 77 S.W.3d at 833. In the case at bar, there is evidence the State offered to abandon one of the sentencing-enhancement allegations, thereby reducing the punishment range to that of a second-degree felony, with an agreed sentencing recommendation of fifteen years. See Tex. Pen. Code Ann. § 12.42(a)(3) (Vernon Supp. 2003). The record shows Freeman turned down the State's offer based on counsel's erroneous advice that he was eligible for community supervision. Absent the misinformation, Freeman's sentence would have been reduced by ten years. We believe the record in this case affirmatively demonstrates that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Cardenas, 960 S.W.2d at 948 (the appellate court found harm as a result of deficient performance). Most claims of ineffective assistance of counsel are better left to review in habeas corpus litigation. See Bone, 77 S.W.3d at 833 n.13 (generally, the record on direct appeal is insufficient to show counsel's representation was so deficient). However, based on the facts in the case at bar, we believe the appropriate result is to find Freeman received ineffective assistance of counsel at trial. We sustain Freeman's first point of error. Because our ruling on his first point of error is dispositive, we need not address Freeman's remaining issue. See Cardenas, 960 S.W.2d at 948. We reverse this case and remand the cause to the trial court for a new trial. Ben Z. Grant Justice Date Submitted: October 28, 2002 Date Decided: December 11, 2002 Publish