Richard Garza v. State

Affirmed and Memorandum Opinion filed March 6, 2008 Affirmed and Memorandum Opinion filed March 6, 2008. In The Fourteenth Court of Appeals _______________ NO. 14-06-00747-CR _______________ RICHARD GARZA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause No. 1050460 M E M O R AN D U M   O P I N I O N Appellant, Richard Garza, pleaded guilty to one charge of aggravated robbery, and the trial court sentenced him to life imprisonment. In two issues, appellant contends (1) his plea was not voluntarily, knowingly, and intelligently given; and (2) he received ineffective assistance of counsel. Our disposition is based on settled law. Accordingly, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. I. Background On December 15, 2005, Stephen Kwiatkowski and Kelly Berg, undercover officers in the Narcotics Division of the Houston Police Department, were conducting Abuy and bust@ operations in the Montrose area of Houston, Texas. At approximately 12:25 a.m., appellant, accompanied by three companionsBRudolfo Villalta, Michael Martinez, and Aurelio Chavez, approached the officers and offered to sell them cocaine. During the consummation of the drug deal, appellant and Martinez attempted to rob the officers. A gun battle ensued in which appellant fired his handgun six times. Officer Kwiatkowski was seriously wounded, suffering three bullet wounds to the stomach and one to the hip. Further, Chavez was killed, and Martinez and Villalta were wounded. Appellant and Martinez fled and hid underneath a nearby house until they were discovered and arrested. II. Analysis In two issues, appellant contends his plea of guilty was involuntarily and unknowingly made, and he received ineffective assistance of counsel. We disagree. A. Guilty Plea In his first issue, appellant contends his guilty plea was not freely, knowingly, and voluntarily made as required by the Fourteenth Amendment of the United States Constitution. See U.S. Const. amend. XIV, ' 1. Specifically, he argues he did not know the consequences of his plea, and he was misled into giving his plea, by the trial court=s allegedly incorrect admonishment regarding the range of punishment for the offense of aggravated robbery. The waiver of the right to a plea of not guilty is surrounded by constitutional and statutory procedural protections. Mendez v. State, 138 S.W.3d 334, 344 (Tex. Crim. App. 2004). Due process of law requires that waivers of constitutional rights be voluntarily, knowingly, and intelligently done with sufficient awareness of the relevant circumstances and likely consequences. Brady v. U.S., 397 U.S. 742, 748 (1970); Mendez, 138 S.W.3d at 344. A trial court is required to admonish the accused regarding the range of punishment attached to an offense before it may accept a guilty plea. See Tex. Code Crim. Proc. art. 26.13(a) (Vernon 1989 & Supp. 2007). Substantial compliance with article 26.13 is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishments. See Tex. Code Crim. Proc. art. 26.13(c) (Vernon 1989 & Supp. 2007). Before accepting appellant=s guilty plea, the trial court admonished him, both orally and in writing, of the range of punishment for the offense of aggravated robbery.[1] In its oral admonishment, the trial court stated, AI could give you a punishment anywhere from five to ninety-nine years or life and up to a $10,000 fine, and/or I could give you probation or deferred adjudication.@ Appellant argues the trial court=s admonishment rendered his plea involuntary because he was ineligible for court ordered community supervision, and the trial court=s finding of guilt following his plea hearing divested the court of its power to grant deferred adjudication. See Tex. Code Crim. Proc. art. 42.12 '' 3g(a)(1)(F), 5 (Vernon 2006 & Supp. 2007). A trial court is authorized to place a defendant on one of various forms of probation if the accused meets the requirements of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. art 42.12 (Vernon 2006 & Supp. 2007). Community supervision probation and deferred adjudication probation are independent of each other in the sense that a defendant may be eligible for one form of probation but not the other. See id. West v. State, 702 S.W.2d 629, 634 (Tex. Crim. App. 1986). We disagree with appellant=s claim that the trial court improperly led him to believe he was eligible for probation. Appellant correctly notes he was not eligible for court-ordered community supervision. See Tex. Code Crim. Proc. art. 42.12 ' 3. However, deferred adjudication is a type of probation, and appellant was eligible for deferred adjudication until the point the trial court adjudged him guilty. See id. ' 5(a). Consequently, the trial court=s admonishment that it Acould give [appellant] probation or deferred adjudication@ was not misleading. See Hudson v. State, 772 S.W.2d 180, 181B82 (Tex. App.CHouston [14th Dist.] 1989, pet. ref=d) (holding that trial court did not mislead defendant by admonishing him regarding his eligibility for probation where defendant was not entitled to Aregular@ court ordered probation but was eligible for deferred adjudication probation). We further disagree with appellant=s claim that the trial court=s oral finding of guilt precluded it from granting deferred adjudication. After accepting appellant=s guilty plea, the trial court stated, AI=m going to make a finding of guilt with regard to the offense of aggravated robbery.@ Appellant contends this statement operated to adjudicate his guilt, rendering him ineligible for deferred adjudication. However, an oral finding of guilt does not divest the trial court of its power to grant deferred adjudication. See West, 702 S.W.2d at 634B35. Article 42.12, Section 5(a) of the Code of Criminal Procedure states, in pertinent part: Except as provided by Subsection (d) of this section, when in the judge=s opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant=s guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision. Tex. Code Crim. Proc. art. 42.12 ' 5(a). Further, the Code of Criminal Procedure defines Ajudgment@ as: Athe written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant.@ Tex. Code Crim. Proc. art. 42.01 ' 1 (Vernon 2006) (emphasis added). The trial court accepted appellant=s guilty plea at a plea hearing conducted June 7, 2006. However, the trial court entered no written declaration regarding appellant=s guilt until the court signed its written judgment following the completion of the sentencing hearing on August 17, 2006. Consequently, the trial court=s oral finding at appellant=s plea hearing did not divest the court of its power to grant deferred adjudication. See West, 702 S.W.2d at 634B35. We conclude the trial court=s admonishment that it could consider granting deferred adjudication was a correct statement of law and did not mislead appellant. Appellant=s first issue is overruled. B. Ineffective Assistance of Counsel In his second issue, appellant contends he received ineffective assistance of counsel. To prevail on an ineffective-assistance claim, an appellant must prove, by a preponderance of the evidence, that: (1) counsel=s performance was so deficient as to fall below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Appellate review of counsel=s representation is highly deferential and presumes that counsel=s actions fell within the wide range of reasonable and professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). The record must contain evidence showing the reasons for counsel=s decisions or actions regarding the claimed error or omission. Id. In the absence of such evidence, we will not find the performance was deficient unless the challenged conduct was Aso outrageous that no competent attorney would have engaged in it.@ Goodspeed v. State, 180 S.W.3d 793, 797 (Tex. Crim. App. 2005). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel=s representation was so deficient as to overcome the presumption that counsel=s conduct was reasonable and professional. Bone, 77 S.W.3d at 833. Appellant argues there was no plausible professional reason for counsel=s failure to advise him that he was ineligible for either probation or deferred adjudication or in failing to object to the trial court=s admonishments. However, as stated above, appellant was eligible for deferred adjudication probation until the trial court entered its signed written declaration adjudging him guilty of aggravated robbery. Furthermore, the record before us is silent regarding counsel=s reasoning behind any of his actions taken during appellant=s trial. Consequently, appellant has failed to overcome the presumption of reasonable assistance. We overrule appellant=s second issue. Accordingly, the judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Memorandum Opinion filed March 6, 2008. Panel consists of Justices Fowler, Frost, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Appellant=s complaint centers on the trial court=s oral admonishment. He does not contend the trial court=s written admonishments were incorrect or misleading.