Lazenby, Henry Thomas v. State

Affirmed and Memorandum Opinion filed November 20, 2003 Affirmed and Memorandum Opinion filed November 20, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-03-00160-CR ____________ HENRY THOMAS LAZENBY, Appellant V. THE STATE OF TEXAS, Appellee ______________________________________________ On Appeal from the 179th District Court Harris County, Texas Trial Court Cause No. 933,595 ______________________________________________ M E M O R A N D U M   O P I N I O N Appellant pleaded guilty to the offense of evading arrest and the trial court assessed punishment at three years’ confinement. On appeal, appellant contends he was denied effective assistance of counsel which caused him to involuntarily plead guilty. We affirm. Factual Background On December 16, 2002, appellant fled in an automobile as a Houston Police Officer attempted to detain him. Appellant was charged with evading arrest and the trial court appointed counsel to represent him. Appellant pleaded guilty to evading arrest without an agreed recommendation on punishment. According to the record, appellant signed an “Admonishments, Statements, and Waivers” form, stating he understood the charges against him and the consequences of his plea after fully discussing the situation with his trial counsel. Appellant further acknowledged in this form that he was completely satisfied with the representation provided by his counsel. Appellant did not file a motion for new trial. Discussion In his sole issue for review, appellant contends he was denied effective assistance of counsel because his trial counsel coerced him to plead guilty. Appellant contends he was forced to make a hasty decision after being deprived of sleep for several days. He claims that he realized several days later that he entered a plea of guilty and was sentenced to three years in prison. In order to invalidate a plea of guilty based upon ineffective assistance of counsel, the appellant must be able to satisfy the Strickland test by a preponderance of the evidence. Flakes v. State, 802 S.W.2d 844, 852 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d) (citing to Strickland v. Washington, 466 U.S. 668 (1984)); see Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Appellant must first demonstrate that his counsel’s representation fell below the objective standard of reasonableness. Flakes, 802 S.W.2d at 852. Second, appellant must prove that there is a reasonable probability that but for counsel’s errors, he would not have pleaded guilty but would have instead insisted on proceeding to trial. Id. An 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). When the record is silent as to trial counsel’s strategy, we will not speculate as to counsel’s tactics or reasons for taking or not taking certain actions. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Without any evidence of counsel’s strategy and methods employed at trial, we presume sound trial strategy. Thompson, 9 S.W.3d at 814. Here, appellant fails to satisfy the first prong of the Strickland test because he does not provide any proof that counsel forced him to enter a guilty plea. Appellant does not cite to any portion of the record, and we could not find any evidence, that indicated appellant was coerced in any manner. We find the record firmly establishes that appellant knowingly and voluntarily pleaded guilty and that trial counsel’s representation was effective. Because appellant waived the presence of a court reporter and failed to file a motion for a new trial, the appellate record consists solely of the written assertions and waivers signed by appellant. In these documents, appellant stated that he understood (1) the charges against him; (2) the punishment range for the offense; and (3) his right to a jury trial. The documents further show that appellant entered his plea voluntarily and knowingly and was satisfied with the representation he had received. In the “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession” signed by appellant and his trial counsel, appellant’s counsel stated appellant entered his plea voluntarily and knowingly after they discussed the plea and its consequences. Counsel also stated, “I believe that he is competent to stand trial.” Additionally, the trial court found appellant entered his guilty plea knowingly and voluntarily and that appellant’s attorney was competent. Finally, the record does not contain any evidence that appellant had not slept for three days, impairing his mental faculties.[1] In fact, appellant specifically stated that he understood the consequences of his plea and he was “mentally competent to stand trial . . . .” Assertions made in appellant’s brief which are unsupported by the record are not to be accepted as fact. See Gelabert v. State, 712 S.W.2d 813, 816 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d). Therefore, because appellant’s claim is not firmly founded in the record, appellant has failed to overcome the presumption that counsel’s actions were consistent with sound trial strategy. See Thompson, 9 S.W.3d at 814; McFarland, 928 S.W.2d at 500. Accordingly, appellant failed to satisfy the first prong of the Strickland test because he did not prove by a preponderance of the evidence that his trial counsel’s actions fell below the objective standard of reasonableness. Having failed to satisfy the first prong of the Strickland test, we need not address the second prong.[2] See Flakes, 802 S.W.2d at 853. Appellant’s sole issue on appeal is overruled. Therefore, we affirm the judgment of the trial court. /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed November 20, 2003. Panel consists of Justices Edelman, Hudson, and Guzman. Do Not Publish — Tex. R. App. P. 47.2(b). [1] Appellant asserts in his brief that he was “unknowingly forced to plead guilty” by his trial counsel because he had been sleep deprived for three days. This contention is irrelevant because lack of sleep through the fault of appellant will not render a confession or plea of guilty involuntary. See Chambers v. State, 866 S.W.2d 9, 20 (Tex. Crim. App. 1993; Rodriquez v. State, 934 S.W.2d 881, 890 (Tex. App.—Waco 1996, no writ); Charles v. State, No. 14-01-01247-CR, 2003 WL 21511268, at *5 (Tex. App.—Houston [14th Dist.] July 3, 2003) (not designated for publication). [2] We note, however, there is no evidence in the record that but for the claimed errors of trial counsel, appellant would not have entered a guilty plea.