Chance Alan Thompson v. State

NO. 12-02-00222-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS CHANCE ALAN THOMPSON, § APPEAL FROM THE 173RD APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § HENDERSON COUNTY, TEXAS MEMORANDUM OPINION Chance Alan Thompson ("Appellant") appeals his conviction for aggravated robbery, for which he was sentenced to imprisonment for ten years and ordered to pay three thousand dollars in restitution jointly and severally with his co-defendants. Appellant raises two issues on appeal. We affirm. Background Appellant was charged by indictment with aggravated robbery. (1) Following an admonishment by the trial court, Appellant waived his right to a trial by jury and pleaded guilty. The trial court found Appellant guilty as charged and, in accordance with Appellant's plea bargain agreement, sentenced Appellant to imprisonment for ten years and ordered Appellant to pay three thousand dollars in restitution jointly and severally with his co-defendants. Appellant filed a motion for new trial arguing that his guilty plea was not entered voluntarily. (2) On July 22, 2002, a hearing was held on Appellant's motion for new trial. At the hearing, Appellant testified that (1) his attorney told him that his best bet was to take the State's plea bargain and not go to trial because he could be sentenced to imprisonment for thirty years, and (2) he felt that he was not going to get a fair trial because he did not believe that his attorney would represent him the way that he should. Further, Appellant acknowledged that he had previously told the trial court that he was pleading guilty both freely and voluntarily and that he understood everything the judge was saying to him with regard to his decision to plead guilty. Further still, during the trial court's admonishments, Appellant stated that he had no complaints with his lawyer and had not been coerced in any way. The trial court overruled Appellant's motion and this appeal followed. Voluntariness of a Guilty Plea In his first issue, Appellant argues that the trial court erred in overruling his motion for new trial. We initially note the court of criminal appeals' recent holding that a defendant in a plea-bargained, felony case may not raise the voluntariness of his plea on appeal. See Cooper v. State , 45 S.W.3d 77, 83 (Tex. Crim. App. 2001). However, unlike the appellant in Cooper, Appellant was granted permission to appeal by the trial court in the instant case. Thus, we conclude that the instant case is distinguishable from Cooper. However, even if the cases were indistinguishable, the result here would not differ. A defendant may withdraw his guilty plea as a matter of right without assigning a reason until judgment is pronounced or until the case has been taken under advisement. See Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979). Whether to permit a defendant to withdraw his guilty plea after the judgment is pronounced or the case has been taken under advisement is within the sound discretion of the trial court. Id. Because Appellant did not seek to withdraw his guilty plea until after the trial judge entered judgment, we review the court's decision under an abuse of discretion standard. See Watson v. State, 974 S.W.2d 763, 765 (Tex. App.- San Antonio 1998, no pet.). To establish an abuse of discretion, the appellant must show that the trial court's ruling lies outside the "zone of reasonable disagreement." See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990); Watson, 974 S.W.2d at 765. The validity of a guilty plea depends upon whether it was entered voluntarily and made intelligently and, if upon advice of an attorney, that counsel was reasonably competent and rendered effective assistance. See Ex parte Evans, 690 S.W.2d 274, 276 (Tex. Crim. App. 1985); Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2003). In determining the voluntariness of the plea, the entire record must be considered. See Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975). When the record demonstrates that the trial court properly admonished the defendant, it presents a prima facie showing that the guilty plea was knowing and voluntary, thereby shifting the burden of proof to the defendant to establish that he did not understand the consequences of his plea. See Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.- Dallas 1993, no pet.). In the instant case, the record reflects that the trial court admonished Appellant fully, both orally and in writing. However, Appellant testified at the hearing on his motion for new trial that (1) his attorney told him that his best bet was to take the State's plea bargain and not go to trial because he could have been sentenced to imprisonment for thirty years, and (2) he believed that he was not going to get a fair trial because he did not believe that his attorney would represent him the way that he should. Yet, Appellant acknowledged that he had previously told the trial court that he was pleading guilty both freely and voluntarily and that he understood everything the judge was saying to him in that regard. Further, during the trial court's admonishments, Appellant stated that he had no complaints with his lawyer and had not been coerced in any way. The fact that Appellant may have entered a plea of guilty as a result of plea bargaining in the hope of escaping the possibility of a higher sentence does not invalidate a guilty plea. See Galvan v. State, 525 S.W.2d 24, 26 (Tex. Crim. App. 1975). As Appellant was properly admonished, he had the burden to prove that he did not understand the consequences of his plea. Appellant's own testimony at the hearing on Appellant's motion for new trial establishes that Appellant did understand such consequences. Such a fact is not contradicted by the record as a whole. Thus, we conclude that the trial court's ruling does not lie outside the zone of reasonable disagreement and hold that the trial court did not abuse its discretion in overruling Appellant's motion for new trial. Appellant's first issue is overruled. Ineffective Assistance of Counsel In his second issue, Appellant contends that his trial counsel was ineffective because he caused Appellant to plead guilty by coercing him. The proper standard by which to gauge the adequacy of representation by counsel is articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). See also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). The test set forth in Strickland requires a two-step analysis: Did the attorney's performance fail to constitute "reasonably effective assistance," i.e., did the defense attorney's representation fall below an objective standard of reasonableness under prevailing professional norms? If so, was there a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings could have been different? See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. The test in Strickland is properly applied to the punishment phase of a non-capital case as well. See Hernandez, 988 S.W.2d at 772. A "reasonable probability" was defined by the Supreme Court as a "probability sufficient to undermine confidence in the outcome." Id. Counsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. See Hernandez, 726 S.W.2d at 55. The burden is on the appellant to overcome that presumption. See Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.- Texarkana 2000, pet. ref'd). The appellant must show specific acts or omissions that constitute ineffective assistance and affirmatively prove that those acts fall below the professional norm for reasonableness. Id. After proving error, the appellant must affirmatively prove prejudice. Id. The appellant must prove that his attorney's errors, judged by the totality of the representation and not by isolated instances of error, denied him a fair trial. Id. It is not enough for the appellant to show that the errors had some conceivable effect on the outcome of the proceedings. Id. He must show that there is a reasonable probability that, but for his attorney's errors, the jury would have had a reasonable doubt about his guilt. Id. In the case at hand, Appellant argues at length as to why his trial counsel's telling him to plead guilty to avoid a lengthy sentence fell below the professional norm. However, even assuming arguendo that Appellant's trial counsel's actions, as noted in Appellant's brief, satisfied the first prong of the Strickland test, Appellant must still affirmatively prove prejudice. See Burruss, 20 S.W.3d at 186. It is not enough for the appellant to merely show that the errors had some conceivable effect on the outcome of the proceedings. Id. In his brief, after noting his burden under the second prong of the Strickland test, Appellant states, "Appellant asserts that if issues had been asserted at the guilt or innocence phase, he could have been acquitted of the charge alleged in the indictment." Such a conclusory statement is not an adequate means by which Appellant can satisfy his burden of proof. Despite repeated readings of Appellant's brief, we can uncover no argument addressing the second prong of the Strickland test. We iterate that the burden of proof as to this issue rests squarely upon Appellant. See Burruss, 20 S.W.3d at 186. As such, we will neither surmise nor devise our own conclusions absent some cogent argument on Appellant's behalf that but for his counsel's alleged unprofessional errors, there exists a reasonable probability that the result of the proceedings would have been different. Appellant's second issue is overruled. Conclusion Having held that the trial court did not abuse its discretion in overruling Appellant's motion for new trial and that Appellant failed to meet his burden of proof under Strickland, we have overruled Appellant's issues one and two. Accordingly, we affirm the judgment of the trial court. JAMES T. WORTHEN Chief Justice Opinion delivered April 16, 2003. Panel consisted of Worthen, C.J. and Griffith, J. (DO NOT PUBLISH) 1. Tex. Pen. Code Ann. § 29.03(a) (Vernon 2003). 2. Following the withdrawal of his trial counsel, Appellant was appointed new trial counsel, who filed an amended motion for new trial on Appellant's behalf. However, in accordance with Texas Rule of Appellate Procedure 21.4(b), the trial court refused to hear evidence related to Appellant's amended motion for new trial stating that it was not timely filed. Appellant's counsel proceeded under the original motion for new trial on the issue of whether Appellant's guilty plea was voluntary.