No. 14-05-00382-CR
Memorandum Opinion filed June 27, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 212th District Court, Galveston County, Texas, Trial Court Cause No. 03CR0057. Affirmed.
Panel consists of Chief Justice HEDGES and Justices YATES and GUZMAN.
LESLIE BROCK YATES, Justice.
Appellant Alexander Byron Goshorn pleaded guilty to failure to stop and render aid. A jury found an enhancement paragraph true and sentenced appellant to ten years' imprisonment. In three issues, appellant claims he received ineffective assistance of counsel, the trial court reversibly erred by failing to admonish him of the applicable punishment range, and his plea was involuntary. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Around midnight on January 11, 2003, appellant struck another car on a freeway, causing it to veer off the road and overturn. Appellant left the accident scene without stopping. Police traced a hood emblem found at the scene to appellant, and the State charged him with failure to stop and render aid. A prior felony conviction for possession of a controlled substance was alleged in an enhancement paragraph. At a hearing before the trial court, appellant pleaded guilty to failure to stop and render aid and said he wanted to proceed to punishment. The trial court accepted appellant's plea and then asked the parties to fill out a plea admonishment form "because it deals with the punishment range." Appellant's attorney and the trial court advised him that the charged offense (without enhancement) was a third-degree felony with a two-to-ten year punishment range. However, shortly afterward, the prosecutor clarified that the charged offense was not a third-degree felony but a violation of the Transportation Code, which carries a different penalty range. The trial court ensured that appellant understood the correction and asked if he wanted to change his plea. Appellant replied, "No." The parties then selected a jury, which assessed punishment, and this appeal followed. ANALYSIS
A. Propriety of the Admonishments In his second issue, appellant complains that the trial court reversibly erred by accepting his guilty plea before properly admonishing him of its consequences. The Texas Code of Criminal Procedure provides that, prior to accepting a plea of guilty or of nolo contendere, a trial court must admonish the defendant of the range of punishment attached to the offense. TEX. CODE CRIM. PROC. ANN. § 26.13(a)(1) (Vernon Supp. 2005). In admonishing the defendant, substantial compliance by the trial court is sufficient unless the defendant affirmatively shows he was not aware of the consequences of his plea and was misled or harmed by the court's admonishment. Id. § 26.13(c). The trial court may admonish a defendant either orally or in writing. Id. § 26.13(d). Under the Texas Transportation Code, the operator of a vehicle involved in an accident resulting in injury must stop at or near the scene and provide "reasonable assistance" if needed or requested by a person injured in the accident. TEX. TRANSP. CODE ANN. §§ 550.021(a), 550.023(3) (Vernon 1999). A violation of this section is punishable by a fine and/or imprisonment in the county jail for up to a year or up to five years with the Texas Department of Criminal Justice ("TDCJ"). Id. § 550.021(c). Because it carries a possible penitentiary sentence, failure to stop and render aid is classified as a third-degree felony for enhancement purposes under the Penal Code. See TEX. PENAL CODE ANN. § 12.41(1) (Vernon 2003). With a prior felony conviction, it is enhanced to a second-degree felony. See id. § 12.42(a)(3) (Vernon Supp. 2005). The record shows that after accepting appellant's guilty plea, the trial court had the parties complete a written plea admonishment form, which appellant signed. The form correctly recited the applicable punishment ranges as one to five years for the charged offense and two to twenty years with the enhancement. As the form was completed, the trial court advised, "Now, this is a second degree [felony], so check second degree [on the form]." Then, after a brief recess, the prosecutor stated, "We just want to make sure it's on the record that the correct punishment range is read to the defendant," explaining, "This a [sic] third degree felony under the transportation code. The punishment range is no more than one year in the county jail or no more than five years TDCJ. That's without any findings of true on the enhancement paragraph." The trial court advised appellant, "So, earlier when we told you what would happen if they ended up finding the enhancement true, you said it was two and it's more than that. So you understand that?" After appellant replied affirmatively, the trial court asked, "And does the new information change your plea?" Appellant replied, "No." Because appellant had an opportunity to change his plea after the trial court gave him a correct written admonishment and an oral correction of the previous error, and the record shows appellant knew the actual punishment range when he declined to change his plea, we find the trial court substantially complied with the statutory admonishment requirements. See Ramos v. State, 928 S.W.2d 157, 160 (Tex.App.-Houston [14th Dist.] 1996, no pet.) ("The trial court substantially complies if it undertakes to admonish the defendant as to the range of punishment, assesses a sentence within the range prescribed by law, and the defendant fails to affirmatively show harm."). Moreover, appellant's ten-year sentence was within the punishment range for a second-degree felony, and the record clearly shows the trial court admonished him that he faced two to twenty years with the enhancement. Appellant indicated several times that he wanted to plead guilty and proceed to punishment, and he fails to affirmatively show he was misled or harmed by the trial court's admonishment error. See id. Thus, we overrule appellant's second issue. B. Ineffective Assistance of Counsel In his first issue, appellant claims he received ineffective assistance of counsel at trial. Specifically, he complains counsel failed to advise him of the correct punishment range for the charged offense or the correct burden of proof for an enhancement paragraph. He also claims counsel objected on the wrong basis to prejudicial evidence. Ineffective assistance claims are governed by the two-pronged test announced in Strickland v. Washington, 466 U.S. 668 (1984). To prove ineffective assistance, appellant must show (1) that counsel's representation was deficient, falling below the standard of prevailing professional norms, and (2) a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Id. at 687-96; Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005). A court need not determine whether an appellant has met either prong in a particular order; rather, it may begin with the prejudice prong if that course would make disposal of an ineffectiveness claim easier. Strickland, 466 U.S. at 697. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Salinas, 163 S.W.3d at 740. To defeat this presumption, "`any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.'" Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999) (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996)). Without specific explanations for counsel's decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim. See Bone v. State, 77 S.W.3d 828, 830, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813-14. Further, without such explanation, we do not find deficient performance unless the challenged conduct was "`so outrageous that no competent attorney would have engaged in it.'" See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)). Appellant claims counsel was deficient because she erroneously believed the State had to prove the enhancement paragraph beyond a reasonable doubt. However, counsel was correct in her belief. See Williams v. State, 980 S.W.2d 222, 226 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd) ("Under Texas law, the State must prove beyond a reasonable doubt its enhancement case as alleged in the charging instrument."). Thus, appellant fails to show counsel was deficient, and we reject this basis of his ineffective assistance claim. Appellant also complains that counsel failed to correctly advise him of the applicable punishment range. The record shows that counsel erroneously believed that failure to stop and render aid is a third-degree felony that carries a two-to-ten year punishment range. See TEX. PENAL CODE ANN. § 12.34(a) (Vernon 1994). It is actually classified under the Transportation Code and carries a one-to-five year punishment range. See Tex. Transp. Code Ann. § 550.021(c)(1). However, even if counsel erred in advising appellant of the correct punishment range, appellant fails to show that he was prejudiced by the error. See Strickland, 466 U.S. at 687. Nothing in the record suggests that, but for counsel's error, appellant would have pleaded differently. Rather, the record shows appellant understood the correct punishment range despite counsel's mistake. See Rodriguez v. State, 899 S.W.2d 658, 666 (Tex.Crim.App. 1995) ("An essential requisite to successfully attacking a guilty plea on ineffective assistance grounds is that appellant must show the alleged deficiencies caused his plea to be unknowing and involuntary."). Thus, we reject this basis for appellant's ineffective assistance claim. Finally, appellant claims counsel objected on the wrong basis to prejudicial evidence. Specifically, he complains counsel objected to State's exhibits of three modifications of his community supervision based on relevance under Rule 401 of the Texas Rules of Evidence rather than on unfair prejudice under Rule 403. However, an objection under Rule 401 is not beyond the scope of reasonable trial strategy, and even if counsel could have also objected under Rule 403, that alone is insufficient to establish ineffective assistance. See McFarland, 845 S.W.2d at 843 (noting that isolated instances of omission or commission in the record do not render counsel's performance ineffective). We reject this final basis for appellant's ineffective assistance claim and accordingly overrule his first issue. C. Voluntariness of the Plea In appellant's third issue, he claims the trial court's improper admonishments and his counsel's deficient performance rendered his guilty plea involuntary. However, we have already overruled his complaints on these issues. Moreover, appellant signed a plea admonishment form, creating a presumption that his plea was voluntary. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998) (noting that written admonishments signed by a defendant create a presumption that the plea was voluntary). Appellant fails to rebut this presumption or demonstrate that counsel's errors rendered his plea involuntary. See Rodriguez, 899 S.W.2d at 666. Thus, we overrule his third issue. Having overruled appellant's three issues, we affirm the trial court's judgment.