Gonzalez, Jose Luis v. State

Opinion of August 16, 2005, Withdrawn and Affirmed Substitute Memorandum Opinion filed August 25, 2005 Opinion of August 16, 2005, Withdrawn and Affirmed Substitute Memorandum Opinion filed August 25, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-03-01073-CR ____________ JOSE LUIS GONZALEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 180th District Court Harris County, Texas Trial Court Cause No. 914,091 S U B S T I T U T E   M E M O R A N D U M    O P I N I O N This court withdraws its opinion of August 16, 2005, because of an incorrect trial court number and issues this substitute opinion in its place. Appellant, Jose Luis Gonzalez, was indicted for possession with intent to deliver more than 400 grams of cocaine. Appellant entered a plea of guilty without an agreed recommendation as to sentencing, and the trial court, after a pre-sentence investigation hearing, assessed punishment at thirty years= confinement in the Texas Department of Criminal Justice, Institutional Division, and a $1,000 fine. After he was sentenced by the trial court, appellant retained new counsel and filed a motion for new trial arguing his guilty plea was involuntary due to his trial counsel=s alleged ineffective assistance. Appellant=s trial counsel testified at the new trial hearing and contradicted the majority of appellant=s claims. After the hearing, the trial court denied appellant=s motion for new trial. Appellant contends his trial counsel rendered ineffective assistance. We affirm. INEFFECTIVE  ASSISTANCE In two points of error, appellant argues the trial court erred when it failed to grant a new trial based on ineffective assistance of counsel because: (1) his guilty plea was involuntary due to trial counsel=s incorrect legal advice; and (2) trial counsel failed to adequately investigate the facts and circumstances of the case. A. Standard of Review In reviewing claims of ineffective assistance of counsel, we employ the standard of review set out in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Goodspeed v. State, No. PD-1882-03, 2005 WL 766996, at *2 (Tex. Crim. App. Apr. 6, 2005) (citing Strickland). Under Strickland, appellant must prove (1) his trial counsel=s representation was deficient, and (2) his trial counsel=s deficient performance was so serious that it prejudiced his defense. 466 U.S. at 687; Goodspeed, 2005 WL 766996, at *2. To establish both prongs, appellant must prove by a preponderance of the evidence that counsel=s representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Appellant must identify specific acts or omissions of counsel that constitute the alleged ineffective assistance and affirmatively prove that they fell below the professional norm for reasonableness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds, Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998). If appellant fails to satisfy either prong of the test, we need not consider the remaining prong. Strickland, 466 U.S. at 697. When evaluating an allegation of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case. Thompson, 9 S.W.3d at 813. Judicial scrutiny of counsel=s performance must be highly deferential, and we indulge a strong presumption that counsel was effective. See Goodspeed, 2005 WL 766996, at *2; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We presume counsel=s actions were reasonably professional and motivated by sound trial strategy. Strickland, 466 U.S. at 689. Appellant must overcome this presumption by illustrating why trial counsel did what he did. Belcher v. State, 93 S.W.3d 593, 595 (Tex. App.CHouston [14th Dist.] 2002, pet. dism=d). The alleged ineffectiveness must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). A reviewing court should not second guess trial counsel=s strategy in hindsight; thus, an affidavit supporting a motion for new trial can be critical to the success of a claim for ineffective assistance. Storr v. State, 126 S.W.3d 647, 651 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). In the absence of a record explaining trial counsel=s actions, a reviewing court will not conclude trial counsel=s performance fell below an objective standard of reasonableness unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). B. Voluntariness of Confession In his first point of error, appellant contends the trial court abused its discretion in failing to grant a new trial based on his assertion he received erroneous legal advice which rendered his guilty plea involuntary. When a defendant challenges the voluntariness of a plea entered upon the advice of counsel, contending his counsel was ineffective, Athe voluntariness of the plea depends on (1) whether counsel=s advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel=s errors, he would not have pleaded guilty and would have insisted on going to trial.@ Ex parte Moody, 991 S.W.2d 856, 857B58 (Tex. Crim. App.1999); see Nicholas v. State, 56 S.W.3d 760, 769 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Appellant contends his trial counsel=s advice was not within the range of competence demanded of an attorney in a criminal case because: (1) his attorney advised him of an incorrect burden of proof; (2) his attorney incorrectly informed him that a videotaped statement of his co-defendant would be admitted against him at trial; (3) his attorney failed to advise him as to the elements of the accomplice-witness rule and how it applied to the instant case; (4) his attorney never informed him that a jury could have convicted him of a lesser-included offense of possession only; and (5) his attorney should have instructed him to withdraw his guilty plea.[1] 1. Alleged Incorrect Burden of Proof Appellant contends his trial counsel advised him he could not take the case to trial without any defensive evidence because the jury would not believe appellant=s testimony. At the new trial hearing, counsel testified he told appellant he would need to present some affirmative evidence that appellant lacked knowledge of the presence of the cocaine in the automobile in order to persuade the jury appellant was not guilty. Counsel said he discussed the facts of the case with appellant numerous times and informed him of the strength of possible evidence the State might introduce. Counsel testified he thought appellant=s version of events would not be believed by a jury unless appellant had evidence besides his own testimony tending to show appellant did not know the car contained cocaine when he drove it. The trial judge heard all the evidence at the hearing on appellant=s motion for a new trial, and was able to, in her exclusive role as the fact-finder, evaluate the credibility of the witnesses. Reissig v. State, 929 S.W.2d 109, 113 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d). In denying appellant=s motion for new trial, the trial judge implicitly found counsel did not advise appellant of an incorrect burden of proof. Cf. Dusenberry v. State, 915 S.W.2d 947, 950B51 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d) (holding trial court implicitly believed trial counsel=s testimony over the defendant=s contradictory testimony when the trial court denied the defendant=s motion for new trial). Moreover, appellant has not shown a reasonable probability that, but for his confusion on the burden of proof, he would have insisted on going to trial considering the strength of the State=s case and his counsel=s belief that his version of the events was not credible absent corroborating evidence. Appellant has failed to satisfy both prongs under Strickland. 2. Advice Concerning Co-Defendant=s Videotaped Statement Appellant claims counsel gave incorrect legal advice that an incriminating videotaped confession by his co-defendant would be admitted at trial. Appellant argues Texas Rule of Evidence 801(a) prohibits the admission of a videotaped statement at trial without the co-defendant being present because it is hearsay. See Tex. R. Evid. 801(a); Gannaway v. State, 823 S.W.2d 675, 678 Tex. App.CDallas 1991, pet. ref=d) (reversing a murder conviction because the trial court allowed the prosecution to read an out-of-court statement by a witness who was not fully subjected to cross-examination). The Supreme Court recently set a out a new test for challenges to out-of-court statements based on the Confrontation Clause. See Crawford v. Washington, 541 U.S. 36 (2004). The Crawford Court noted that the Confrontation Clause Adoes not bar admission of a statement so long as the declarant is present at trial to defend or explain it.@ Id. at 59 n.9. Thus, there is no violation of the Confrontation Clause under Crawford when a witness actually testifies at trial. Carter v. State, 150 S.W.3d 230, 231 n.13 (Tex. App.CTexarkana 2004, no pet.); Crawford v. State, 139 S.W.3d 462, 464 (Tex. App.CDallas 2004, pet. ref=d). The testimony at the new trial hearing shows appellant=s co-defendant was expected to testify against him in court. Specifically, appellant=s co-defendant already had pled guilty to his charge and both the district attorney and the co-defendant=s attorney told counsel the co-defendant would testify against appellant at trial. Counsel believed the co-defendant would provide damaging testimony at trial and his videotaped confession would Aprobably be presented.@ Because the record indicates the co-defendant was going to testify at trial, admission of the videotape confession would not have violated the Confrontation Clause. We cannot say counsel=s belief that the videotaped statement would probably be presented lacked any plausible basis. Even if counsel had been wrong about the videotaped confession of the co-defendant, he was absolutely correct as to the State=s ability to use the co-defendant as a witness because the State could have subpoenaed appellant=s co-defendant and compelled him to testify without violating the co-defendant=s constitutional right against self-incrimination since the co-defendant already had pled guilty to his charge. See Franco v. Smith, 491 S.W.2d 890, 890B91 (Tex. Crim. App. 1973); Bratton v. State, 156 S.W.3d 689, 693B94 (Tex. App.CDallas 2005, no pet.). Appellant has failed to satisfy both prongs under Strickland. 3. Failure to Instruct Appellant on the Accomplice-Witness Rule Appellant next contends counsel=s failure to instruct him on the accomplice-witness rule and its ramifications prevented him from making a reasoned decision about whether to plead guilty. It is clear from the record on the motion for new trial hearing that counsel did not instruct appellant about the accomplice-witness rule and was unable to define the rule on the stand. Article 38.14 of the Code of Criminal Procedure provides: AA conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.@ See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). To corroborate accomplice-witness testimony, A[a]ll the law requires is that there be some non-accomplice evidence which tends to connect the accused to the commission of the offense. While individually these circumstances might not be sufficient to corroborate the accomplice testimony, taken together, rational jurors could conclude that this evidence sufficiently tended to connect appellant to the offense.@ Hernandez v. State, 939 S.W.2d 173, 178B79 (Tex. Crim. App. 1997); see also Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993) (stating that even apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration). If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirements of Article 38.14 has been fulfilled. Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991). The record from appellant=s pre-sentence investigation and new trial hearings establish that before appellant was apprehended, the police had stopped a man driving a blue Volkswagen. Inside the car, police found 22 kilograms of cocaine in a hidden compartment. The driver of the car told police he was delivering the car to unidentified men, appellant and the co-defendant, at a restaurant in Houston. The police removed all of the cocaine except one kilogram and convinced the driver to cooperate and continue with the delivery. The driver then met with appellant and the co-defendant at a restaurant, and after the meeting, appellant got into the car containing the cocaine and drove out of the parking lot. Appellant then drove the car to a house in a residential neighborhood and pulled it directly into the garage. Another man immediately shut the garage door, and two men removed the car=s dashboard and removed the cocaine from the car. Appellant testified he had learned of the cocaine only after he saw the men remove it from the car and after he touched it. Shortly thereafter, officers, who had followed appellant from the restaurant, looked through a garage window and saw the cocaine lying on a trash can lid beside the car. When the officers entered the house, they found appellant hiding in a bathroom, where he had changed shirts. Based on the facts in the record linking appellant to the cocaine, such as his pulling the car directly into the garage, touching the cocaine, and avoiding the police, we cannot say counsel=s failure to inform appellant about the accomplice-witness rule fell below the standard of competence of an attorney in a criminal case because the combined weight of the non-accomplice evidence tends to connect appellant to the offense. Here, because there was sufficient corroborating evidence tending to connect appellant to the charged offense, the accomplice witness rule would not have presented a bar to finding appellant guilty. Appellant has failed to demonstrate how counsel=s failure to instruct him as to the rule prevented him from making a reasoned decision about whether to plead guilty. Appellant has failed to satisfy both prongs under Strickland. 4. Alleged Failure to Instruct Appellant that a Jury Could Convict Him of a Lesser-Included Offense Appellant argues counsel was ineffective in failing to explain to him that a jury could convict him of a lesser-included offense. Appellant concedes counsel discussed the possibility of a lesser-included offense with him, but appellant thought he could only be convicted of a lesser-included offense if the prosecution agreed. In support of this argument, appellant relies on counsel=s testimony at the new trial hearing that he told appellant if appellant went to trial under the current charge, the minimum punishment a jury could assess was 15 years in prison.[2] At the hearing on the motion for new trial, counsel testified he knew appellant would be legally entitled to a lesser-included offense instruction if the issue were raised during trial. Counsel testified that he tried to explain this to appellant. The trial judge heard both counsel=s and appellant=s testimony, and was able to, in her exclusive role as the fact-finder, evaluate the credibility of the witnesses. See Reissig, 929 S.W.2d at 113. In denying appellant=s motion for new trial, the trial judge implicitly found that counsel did not fail to adequately instruct appellant that a jury could have convicted him of a lesser-included offense without the prosecution=s approval. Cf. Dusenberry, 915 S.W.2d at 951. Appellant has failed to satisfy the first prong under Strickland. 5. Failure to Instruct Appellant to Withdraw his Guilty Plea Appellant=s final contention is that counsel failed to instruct him to withdraw his guilty plea. At appellant=s sentencing hearing, appellant told the court he did not know drugs were in the car he was driving until after he parked the car in the garage and saw another man remove the drugs from the car. Appellant testified at the new trial hearing that he pled guilty because he drove the car and he thought his lawyer would get him probation.[3] Once a court takes a case under advisement, the defendant=s absolute right to withdraw his plea expires. Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979); Stone v. State, 951 S.W.2d 205, 207 (Tex. App.CHouston [14th Dist.] 1997, no pet.). Passage of a case for pre-sentence investigation constitutes Ataking the case under advisement.@ Stone, 951 S.W.2d at 207; Thompson v. State, 852 S.W.2d 268, 270 (Tex. App.CDallas 1993, no writ). After judgment has been pronounced, the decision to allow a defendant to withdraw his guilty plea is within the sound discretion of the court. Jackson, 590 S.W.2d at 515. In the instant case, appellant pled guilty, and the judge, finding sufficient evidence to substantiate appellant=s guilt, reset the case for a punishment hearing. Appellant contends his testimony at the punishment hearing, after judgment was pronounced, was sufficient to require counsel to instruct him to withdraw his guilty plea. The record shows counsel informed appellant of all his options, and appellant chose to plead guilty in an attempt to receive deferred adjudication. Counsel believed appellant=s best chance to achieve this objective was to plead guilty. A plea of guilty is a matter of trial strategy, and a plea is not rendered involuntary because the resulting sentence is greater than expected. Enard v. State, 764 S.W.2d 574, 575 (Tex. App.CHouston [14th Dist.] 1989, no pet.). We presume counsel=s actions were reasonably professional and motivated by sound trial strategy. See Strickland v. Washington, 466 U.S. 668, 689 (1984) (stating that a fair assessment of attorney performance requires every effort to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel=s perspective at the time of trial). Appellant has failed to show he would have withdrawn his guilty plea had counsel instructed him to do so. Furthermore, the record supports appellant=s conviction[4] and appellant is unable to prove the trial court would have permitted him to withdraw his guilty plea had it been requested since the decision was within the trial court=s discretion. Appellant has failed to satisfy both prongs under Strickland. After reviewing the record and considering all of appellant=s claims of ineffective assistance, we conclude appellant has not met his burden under Strickland. Appellant=s assertions that trial counsel gave incorrect legal advice were contradicted by his trial counsel at the new trial hearing. Appellant has failed to demonstrate trial counsel rendered ineffective assistance making his guilty plea involuntary. We hold the trial court did not abuse its discretion in denying appellant=s motion for new trial. We overrule appellant=s first point of error. C. Alleged Failure to Adequately Investigate In his second point of error, appellant claims he was denied effective assistance of counsel because counsel failed to adequately investigate the facts and circumstances surrounding his reason for driving the automobile which contained the cocaine. Specifically, appellant claims: (1) counsel never obtained appellant=s wallet containing auction permits and business cards which would have shown he was in the business of buying and selling cars; and (2) counsel never called Bingo Auto Sales to verify appellant=s story that he was hired to replace a flood-damaged computer in the vehicle and drive it from Laredo to Houston. Appellant contends counsel=s failure to make any kind of investigation into his story clearly caused him prejudice. ACounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.@ Strickland, 466 U.S. at 691. A decision not to investigate Amust be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel=s judgments.@ Id. In any event, we will not reverse a conviction unless the consequence of the failure to investigate is that the only viable defense available to the accused is not advanced and but for counsel=s failure to advance the defense, the result of the proceeding would have been different. McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996) (citing Strickland, 466 U.S. at 694). Counsel testified he asked appellant and his family to see the license that allowed appellant to attend auto auctions. However, counsel was never shown the license. According to counsel, appellant said his wallet contained business cards. Counsel told appellant the business cards might be beneficial but admits he never picked up the wallet. Counsel testified he did call Bingo Auto Sales to find out who owned the dealership, but he did not ask about the car appellant was hired to drive. Without determining whether counsel was deficient, we hold that appellant has failed to satisfy the prejudice prong of Strickland. The record in this case contains no evidence of what information Bingo Auto Sales would have provided and the record is devoid of any proof that appellant actually had an auction permit or business cards that a reasonable investigation would have uncovered. Moreover, there is no showing here such evidence, even if discovered, would have benefitted appellant. See Melancon v. State, 66 S.W.3d 375, 380B81 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (holding record containing no evidence reflecting what facts or testimony would have been provided had counsel been effective fails to show any harm). Appellant has failed to satisfy the second prong under the Strickland test to demonstrate prejudice. Accordingly, appellant=s second point of error is overruled. CONCLUSION We affirm the judgment of the trial court. /s/ John S. Anderson Justice Judgment rendered and Substitute Memorandum Opinion filed August 25, 2005. Panel consists of Justices Anderson, Hudson, and Frost. Do Not Publish C Tex. R. App. P. 47.2(b). [1] On appeal, appellant=s only argument concerning the Strickland prejudice prong is that Ait is very likely@ he would have insisted on pleading not guilty had his trial counsel discussed all of these issues. [2] If appellant had been convicted by a jury as charged, the minimum punishment would be 15 years confinement and a fine not to exceed $250,000. Tex. Health & Safety Code Ann. ' 481.112(a), (f) (Vernon 2003). [3] Counsel testified he told appellant he could possibly get deferred adjudication from the judge if he pled guilty to the charge. We note that because appellant pled guilty, the trial judge could have deferred adjudication of appellant's guilt and placed appellant on community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12 ' 5(a) (Vernon Supp. 2004); Cabezas v. State, 848 S.W.2d 693, 695 (Tex. Crim. App. 1993). Thus, counsel=s advice that probation was a possibility was not incorrect. [4] When appellant enetered his guilty plea, he stipulated that the allegations in the indictment were true. This judicial confession is sufficient to establish appellant=s guilt. Watson v. State, 974 S.W.2d 763, 764 (Tex. App.CSan Antonio 1998, pet. ref=d).