Craven, Christopher Travis v. State

Affirmed and Opinion filed August 16, 2005 Affirmed and Opinion filed August 16, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00086-CR ____________ CHRISTOPHER TRAVIS CRAVEN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 208th District Court Harris County, Texas Trial Court Cause No. 897,533 O P I N I O N Appellant, Christopher Travis Craven, pled guilty to the offense of murder. See Tex. Pen. Code Ann. ' 19.02 (Vernon 2004). As part of a plea agreement, the trial court ordered a presentence investigation and capped appellant=s punishment at 40 years= confinement. At the conclusion of the PSI hearing, the court entered a finding of guilt and sentenced appellant, in accordance with his agreement, to 35 years= imprisonment in the Texas Department of Criminal Justice, Institutional Division. We affirm. The record reflects that on the morning of December 23, 2001, appellant and his father, Jack Craven, were engaged in a boisterous quarrel. The disturbance began inside Jack Craven=s house but proceeded outdoors where appellant pursued his father with a walking stick. While the verbal exchange continued, appellant followed his father into a nearby garage and started beating him with the stick.[1] After several blows, an unidentified individual came out of the house and persuaded appellant to cease the assault. Appellant complied with the request and returned inside the house. However, shortly thereafter, appellant came back outside carrying a shotgun. He again pursued his father, who was seated on a motorcycle attempting to start it. Appellant walked up to his father and put the shotgun barrel directly against his father=s back. The senior Craven immediately raised his hands in the air, and appellant nudged him once with the gun barrel. Appellant again shoved the shotgun barrel into his father=s back, called him an expletive, and this time pulled the trigger. Appellant then lowered the shotgun and simply walked back inside the house. Appellant=s father was later pronounced dead upon arrival at the hospital. In his sole point of error, appellant complains that he was provided ineffective assistance of counsel and that, as a result, his guilty plea was entered involuntarily. Specifically, he claims that counsel misunderstood the law of sudden passion and as such, provided an erroneous guarantee that appellant could be punished with a sentence consistent with that of manslaughter, i.e., no more than 20 years.[2] Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. See U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 1977). The right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). Claims of ineffective assistance of counsel are evaluated under the two‑step analysis articulated in Strickland v. Washington. First, appellant must demonstrate counsel=s performance was deficient and not reasonably effective. Id. at 688B92. To satisfy this step, appellant must identify the acts or omissions of counsel alleged as ineffective assistance and affirmatively prove they fell below the professional norm of reasonableness. See id.; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Second, appellant must demonstrate the deficient performance prejudiced his defense. Strickland, 466 U.S. at 693. To establish prejudice, an appellant must prove that but for counsel=s deficient performance, the result of the proceeding would have been different. See id. at 694; Lemke v. State, 13 S.W.3d 791, 796 (Tex. Crim. App. 2000). Judicial scrutiny of counsel=s performance must be highly deferential and we are to indulge the strong presumption that counsel was effective. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). We assume counsel=s actions and decisions were reasonably professional, and that they were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc). Appellant has the burden of rebutting this presumption by presenting evidence illustrating why trial counsel did what he did. See id. at 771. A counsel=s ineffectiveness may also render a plea of guilty involuntary. See, e.g., Ex parte Moody, 991 S.W.2d 856, 857B58 (Tex. Crim. App. 1999); Nicholas v. State, 56 S.W.3d 760, 769 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). AWhen a defendant challenges the voluntariness of a plea entered upon the advice of counsel, contending that his counsel was ineffective, >the voluntariness of the plea depends on (1) whether counsel=s advice is 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 at 857B58 (quoting Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App.1997)); see also Nicholas, 56 S.W.3d at 769. Thus, appellant must prove that his counsel=s representation fell below a reasonable standard of competence and that he would have pleaded not guilty had he been properly advised with respect to the law of adequate provocation. See Nichols, 56 S.W.3d at 769. In addressing his contention that counsel=s representation was deficient, appellant timely filed a motion for new trial. In the motion, appellant averred that his trial counsel, Jonathan Munier, Acoerced@ him into pleading guilty based on a guarantee that appellant would be convicted of manslaughter. At the hearing on appellant=s Motion for New Trial, appellant testified AMr. Munier told me, assured me that I would get manslaughter if I took the PSI. He assured me that he knew the Judge and that she would give me manslaughter.@ However, there are ample indications in the record that appellant became dissatisfied only after he received a harsher sentence than anticipated. Thus, appellant fails to sustain the heavy burden of proving he received ineffective assistance of counsel in relation to his plea. See Jack v. State, 871 S.W.2d 741, 743 (Tex. Crim. App. 1994) (explaining that a court is to examine only those acts of counsel which took place prior to entry of the plea); Enard v. State, 764 S.W.2d 574, 575B76 (Tex. App.CHouston [14th Dist.] 1989, no pet.) (holding that a guilty plea is a matter of trial strategy and, by itself, will not support a claim of ineffective assistance despite the fact that the defendant received a greater sentence than expected). The record, for example, reflects that appellant was clearly admonished in writing about his plea and its effects. These written admonishment were signed by both appellant and Munier and confirm that appellant understood the admonitions and was aware of the consequences of his plea. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2004B05). Appellant specifically initialed that he understood he was Acharged with the felony of murder@ and that the range of punishment for the offense was Aimprisonment for life or any term of not more than 99 years or less than five years. . . .@ He further acknowledged that he Afreely, knowingly, and voluntarily executed this statement in open court with the consent and approval of my attorney@ and that he Aunderstood the foregoing admonishments and [was] aware of the consequences of [his] plea. . . .@ More importantly, he agreed that he was Atotally satisfied with the representation provided by [his] counsel and [he] received effective and competent representation.@ (emphasis added). Such written admonishments are prima facie evidence of a knowing and voluntary plea and of effective representation. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). In addition, appellant testified at the PSI hearing that he understood he pled guilty to murder and that, based on his plea, the court could adjudicate him guilty of murder. He also explained on cross-examination at the hearing for new trial that while Munier Aassured@ him of the lesser conviction, he never Apromised@ that appellant would not be convicted of murder. Moreover, appellant explicitly admitted that he was Ahappy with [Munier=s] representation until the end of the PSI. . . .@ Logically, then, appellant=s ultimate complaint is that he received a harsher sentence than anticipated and only then did he become displeased with Munier=s performance. Of equal importance is Munier=s own testimony regarding his representation of appellant. Munier testified that he fully investigated appellant=s case. He explained that this consisted of the following actions: (1) reading the offense report, (2) reading the autopsy report, (3) looking at all of the photographs, (4) reviewing all of the State=s documentary evidence, (5) obtaining a court-appointed private investigator, (6) personally going to the scene of the offense on three separate occasions, (7) contacting and canvassing witnesses, (8) interviewing appellant=s family members, and (9) interviewing and discussing the case with appellant several times. Munier further explained why he did not develop any defensive theories other than sudden passion/adequate provocation, specifically discounting the ideas of self-defense, defense of others, defense of property, diminished capacity, and accidental dischargeCeven going as far as having the shotgun tested for ballistics and trigger sensitivity. Munier explained that, based on the facts of the case, he believed appellant=s best defense was sudden passion/adequate provocation.[3] Based on this theory, Munier explained that he suggested that appellant plead guilty in return for a PSI and a cap on punishment with the hope that the judge would find sudden passion. Finally, contrary to appellant=s contention, Munier stated that he Abelieved [a manslaughter punishment] was a realistic possibility under the law and the facts@ but explained that he made no promises or guarantees to appellant. The trial court heard all the evidence regarding Munier=s representation and, as the exclusive trier-of-fact, was entitled to weigh the credibility of the witnesses and believe Munier=s testimony over appellant=s. See Reissig v. State, 929 S.W.2d 109, 113 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d); see also Dusenberry v. State, 915 S.W.2d 947, 951 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d). It impliedly did so when it denied appellant=s motion for new trial. Because we find that there is ample evidence in the record to support a finding that appellant received representation within the bounds of professional reasonableness, we refuse to overturn the trial court=s ruling. We also find that there is insufficient indicia that appellant was harmed by counsel=s representation despite receiving a higher than expected sentence. See Enard, 764 S.W.2d at 575 (AA guilty plea is a matter of trial strategy. Defense counsel=s unsuccessful strategy in advising a client to plead guilty will not render the plea unknowing or involuntary even though the defendant is sentenced to a greater sentence than expected.@). Accordingly, we overrule appellant=s sole point of error. The judgment of the trial court is affirmed. _____________________________ J. Harvey Hudson Justice Judgment rendered and Opinion filed August 16, 2005. Panel consists of Justices Yates, Anderson, and Hudson. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The trial court heard somewhat conflicting testimony regarding the beating. Appellant testified that he also became a victim when his father used a garden hoe to strike him several times. [2] Adequate provocation reduces a murder conviction from a first degree to a second degree felony. Tex. Pen. Code Ann. ' 19.02(d) (Vernon 2003). Likewise, manslaughter is considered a second degree felony. Id. ' 19.04. As such, a murder conviction with sufficient proof of an adequate cause, like a manslaughter conviction, would have required that appellant be sentenced to imprisonment for not less than 2 and not more than 20 years. See id. ' 12.33. [3] Counsel based this theory on several factors, some of which include a known history of abuse against appellant by his father and the fact that appellant testified that he was again a victim during the incident. Counsel also suggested to the trial court that the case was not a typical murder case because there was no question that appellant shot and killed his father. Therefore, counsel explained he was utilizing the most plausible defensive theory he believed was supported by the facts. We will not find error in this strategy simply because it was not as successful as either appellant or his attorney desired. See Dickerson v. State, 87 S.W.3d 632, 637 (Tex. App.CSan Antonio 2002, no pet.) (AThe fact that another attorney might have pursued a different course of action or tried the case differently will not support a finding of ineffective assistance of counsel. . . . Any error in trial strategy will be deemed inadequate representation only if counsel=s actions lack any plausible basis.@) (citations omitted) (emphasis added).