No. 01-05-00260-CR
Opinion issued December 1, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from 228th District Court, Harris County, Texas, Trial Court Cause No. 993171.
Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.
LAURA CARTER HIGLEY, Justice.
Appellant, Thomas J. Robinson, pleaded guilty to aggravated assault without an agreed recommendation as to punishment. Following a pre-sentence investigation (PSI) hearing, the trial court sentenced appellant to 12 years in prison. On appeal, appellant's appointed counsel filed an Anders brief stating that she had not found any arguable grounds for appeal. Appellant filed a pro se response asserting two issues that he believed constituted arguable grounds for appeal. Appellant contends that his plea of guilty was unknowing and involuntary and that he was denied effective assistance of counsel. Because we conclude that appellant has raised no arguable grounds for appeal, we affirm and grant appellant's counsel's motion to withdraw.
Anders Procedure
Under Anders, after this Court receives a brief from the defendant's court-appointed attorney claiming that there are no arguable grounds for appeal, we must review the record to make an independent determination. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We consider any pro se response that the defendant may file to the Anders brief, but we do not rule on the ultimate merits of the defendant's pro se response. Downs v. State, 137 S.W.3d 837, 839 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd). If we determine that there are arguable grounds for appeal, we must abate the appeal, remand the case to the trial court, and allow the court-appointed attorney to withdraw. Stafford, 813 S.W.2d at 511; Downs, 137 S.W.3d at 839. The trial court must then either (1) appoint another attorney to present all arguable grounds for appeal or (2) allow the defendant to proceed pro se if the defendant so desires. Stafford, 813 S.W.2d at 511; Downs, 137 S.W.3d at 839. Voluntariness of Plea
Appellant's first issue concerns the voluntariness of his guilty plea. He contends that he was "coerced in the plea by his lawyer," explaining that, "2 minutes before [the] jury was to be picked," appellant's counsel told him,"We have a deal." Appellant asserts that his counsel told him that the "deal" was for "2 to 10 years with no weapons charge and most likely probation if Appellant didn't go to trial and sign [sic] for P.S.I." Appellant explains that he "relented because counsel was completely unprepared to go to trial, and because D.A. didn't have a weapon." According to appellant, he "signed paperwork after being told he would receive new sentencing guidelines and new paperwork to sign at [the] P.S.I. hearing." Appellant avers that he "wanted the case to come to a close under clemency" and understood that, pursuant to "new sentencing guidelines," he would receive probation and a fine. The record reflects that appellant waived his right to a court reporter at the plea hearing. The written admonishments in the record indicate that appellant understood the consequences of his plea, that he freely, knowingly, and voluntarily entered the plea, that he committed the crime alleged in the indictment, and that he understood the court could assess punishment within the full range of punishment for the offense of aggravated assault. Proper admonishment by the trial court creates a prima facie showing that the defendant entered a knowing and voluntary plea. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998). Here, appellant does not contest that he was properly admonished, and the record reflects that he was. Once a prima facie showing of voluntariness is made, the burden shifts to the defendant to show that he entered the plea without knowing its consequences and was thereby harmed. See id. At the PSI hearing, appellant testified that he believed at the time that he pleaded guilty that he would receive four years probation. However, appellant's uncorroborated testimony does not overcome the prima facie showing that he understood his plea or the presumption that he was properly admonished. See Fimberg v. State, 922 S.W.2d 205, 208 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd) (holding that defendant's uncorroborated claim he was misinformed by counsel was not sufficient to show that guilty plea was involuntary). Nothing in the record supports appellant's claim that he was induced to plead guilty by promises of probation or by coercion. We conclude that appellant's first issue raises no arguable grounds for appeal. Ineffective Assistance of Counsel
In his second issue, appellant contends that he did not receive effective assistance of counsel. Appellant alleges that his trial counsel was ineffective in that he (1) was not prepared to go to trial because counsel had failed to conduct an independent investigation and met with appellant only five minutes before trial to review appellant's defense; (2) told appellant that it was not necessary to introduce into evidence the knife used by appellant to commit the aggravated-assault offense because, without the knife, the "D.A. would drop the deadly weapon charge"; (3) made a "false promise of 2 to 10 years with no weapons charge and most likely probation"; (4) did not "look into more than 1 plausible defense"; and (5) did not "attack the medical records or events that happened" on the date of the offense. In reviewing claims of ineffective assistance of counsel, we employ the standard of review set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). If a defendant challenges the voluntariness of a plea entered upon the advice of counsel, contending that his counsel was ineffective, then "the 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, 857-58 (Tex.Crim.App. 1999). As with other types of ineffective assistance of counsel claims, appellant has the burden to show that counsel's performance fell below a reasonable standard of competence; appellant must also show a reasonable probability that he would have pleaded not guilty and insisted on going to trial had he been properly advised. Id. at 858. In addition, appellant also has the burden to prove that his trial counsel's actions were not the result of "sound trial strategy." Saldano v. State, 70 S.W.3d 873, 885 (Tex.Crim.App. 2002). Appellant did not file a motion for new trial. There is no evidence in the record indicating what advice counsel gave appellant regarding evidentiary matters or appellant's defense. Similarly, there is no evidence showing what investigation, if any, counsel conducted before appellant pleaded guilty. "Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v. State, 845 S.W.2d 824, 842 (Tex.Crim.App. 1992). We conclude that the record fails to support appellant's contentions concerning trial counsel's actions. See Downs, 137 S.W.3d at 842. In the absence of a record of counsel's reasoning, we must generally presume that appellant's trial counsel had a plausible reason for his actions. See Thompson, 9 S.W.3d at 814. To find that appellant's counsel was ineffective based on the stated grounds would call for speculation, in which we will not engage. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994); Lumpkin v. State, 129 S.W.3d 659, 665 (Tex.App.-Houston [1st Dist.] 2004, no pet.). There is also no evidence in the record, other than appellant's statement at the PSI hearing, indicating that defense counsel made a "false promise" to appellant that he would receive probation if he pleaded guilty. To the contrary, the admonishments contained in the record indicate that appellant was fully aware of the range of punishment for aggravated assault, a second-degree felony with a punishment range of two to twenty years in prison. We have previously declined to find ineffective assistance of counsel based solely on a defendant's uncorroborated claim that his plea was involuntary due to his counsel's misinformation. See Fimberg, 922 S.W.2d at 208. Neither appellant nor the record shows that defense counsel's advice to enter a plea of guilty without an agreed recommendation from the State was not within the range of competence required of an attorney in criminal cases. See Moody, 991 S.W.2d at 858. In sum, appellant does not point to anything in the record, nor do we find anything, to overcome the presumption that his trial counsel's conduct was reasonable and professional. See Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002); Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). We conclude that appellant's second issue raises no arguable grounds for appeal. Conclusion
After reviewing appellant's pro se response and conducting an independent examination of the appellate record, we conclude that there are no arguable grounds for appeal. Accordingly, we affirm the judgment of the trial court and grant appellant's counsel's motion to withdraw.