James, Michael Wayne v. State

Affirmed and Memorandum Opinion filed January 20, 2005 Affirmed and Memorandum Opinion filed January 20, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00153-CR ____________ MICHAEL WAYNE JAMES, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 179th District Court Harris County, Texas Trial Court Cause No. 957,367 M E M O R A N D U M   O P I N I O N Appellant entered a guilty plea to aggravated robbery. On February 18, 2004, the trial court sentenced appellant to confinement for thirty-eight years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a written notice of appeal. Appellant=s appointed counsel filed a brief in which she concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). A copy of counsel=s brief was delivered to appellant. Appellant was advised of the right to examine the appellate record and appellant filed a pro se response. In his brief, appellant contends (1) his guilty plea was not knowingly and voluntarily given, (2) his trial counsel was ineffective, and (3) his appellate counsel was ineffective. We examine appellant=s first issue. In considering the voluntariness of a guilty plea, a court considers the record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). A finding that an appellant was duly admonished creates a prima facie showing that a guilty plea was entered knowingly and voluntarily. Id. An appellant may still raise the claim that his plea was not voluntary. However, the burden shifts to the appellant to demonstrate that he did not fully understand the consequences of his plea such that he suffered harm. Id. Accordingly, the appellant had a heavy burden to prove on appeal that his plea was involuntary. See id. In this case, the court admonished appellant that, as a AHabitual Offender,@ he could be imprisoned Afor life, or for any term of not more than 99 years or less than 25 years.@ The record reflects that appellant pleaded guilty without an agreed recommendation as to punishment. Appellant argues that he was told he would receive a twenty-five year sentence and that he would not have signed the AHabitual Offender@ admonishment otherwise. However, there is no evidence in the record to support this argument. Appellant has not met his burden of showing he did not understand the consequences of his plea. See. id. We overrule appellant=s first issue. Second, appellant argues that trial counsel was ineffective for (1) coercing him to plead guilty and (2) not filing any motions. To show ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that his counsel=s representation fell below the objective standard of professional norms, and that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Our review of counsel=s performance is highly deferential, and we presume that counsel=s actions were reasonable and professional. Bone, 77 S.W.3d at 833. Rarely is the record on direct appeal sufficient to overcome this presumption. Id. The record is devoid of evidence of coercion by appellant=s trial counsel. Nor does the record contain evidence about what motions, if any, trial counsel should have filed or his reasons for not filing them. In the absence of evidence, appellant has not met his burden to prove counsel was ineffective. We overrule issue two. Third, appellant similarly contends that his appellate counsel was ineffective for failing to file a motion for new trial. We apply the same standards to a review of appellate counsel=s performance as we do to a review of trial counsel=s performance. See Ex parte Lozada-Mendoza, 45 S.W.3d 107, 109 (Tex. Crim. App. 2001). Appellant argues that appellate counsel contacted him after the deadline for a motion for new trial. The record indicates that appellate counsel was appointed two days after the court sentenced appellant and within the deadline to file a motion for new trial. See Tex. R. App. P. 21.4. The record is silent, however, about whether counsel had a valid reason for not filing a motion for new trial. See Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998) (AWhen a motion for new trial is not filed in a case, the rebuttable presumption is that it was considered by the appellant and rejected.@). There is no evidence about when counsel first contacted appellant. Appellant has not met his burden of showing that appellate counsel=s assistance was ineffective. See Bone, 77 S.W.3d at 833. We overrule appellant=s third issue. Accordingly, the trial court=s judgment is affirmed. PER CURIAM Judgment rendered and Memorandum Opinion filed January 20 , 2005. Panel consists of Justices Yates, Edelman, and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b).