Opinion
No. 05-11-00427-CR
02-08-2012
NATHANIEL CLARK, Appellant v. THE STATE OF TEXAS, Appelle
AFFIRM; Opinion issued February 8, 2012
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F10-59694-U
MEMORANDUM OPINION
Before Justices Morris, Francis, and Lang-Miers
Opinion By Justice Francis
Nathaniel Clark waived a jury and pleaded guilty to aggravated assault with a deadly weapon- family violence. The trial court assessed punishment at eight years in prison and a $2,000 fine. In three issues, appellant contends his guilty plea was involuntary, the trial court erred by failing to pronounce sentence and to afford appellant the right of allocution, and counsel was ineffective in not objecting to the denial of the right to allocution. We affirm the trial court's judgment.
Katie Sanford told the court she and appellant lived together during the year before the offense and fought “on and off” during this time. They drank alcohol regularly when together. One time the police were called after appellant “stomped” on her stomach and the police took her to jail for public intoxication. On the night in question, Sanford and appellant were drinking outside on the patio when she went across the street to speak with a friend. When she came back and sat down, appellant pulled a knife and slit her throat. Sanford lost a lot of blood, underwent surgery and was hospitalized four days. She was still in physical therapy at the time of the plea hearing. Sanford believed appellant slit her throat because he was jealous when she went across the street to talk to a friend.
Appellant testified they both were “drunk” at the time and he was just playing around pretending to rob Sanford with his knife. He admitted a prior prison trip, more recent arrests, and a weekly crack cocaine habit paid for by his social security checks.
In his first issue, appellant contends his guilty plea was involuntary because he entered the plea believing the trial court would grant him deferred community supervision. Appellant asserts that when he took responsibility for his actions and disclosed his alcohol and cocaine addictions, he believed the trial court would grant him deferred community supervision and treatment.
When considering the voluntariness of a guilty plea, we must examine the entire record. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). If the trial court properly admonished a defendant before a guilty plea was entered, there is a prima facie showing the plea was both knowing and voluntary. See id.
The record shows the trial court properly admonished appellant both orally and in writing. See Tex. Code Crim. Proc. Ann. art. 26.13(a), (c) (West Supp. 2010); Kirk v. State, 949 S.W.2d 769, 771 (Tex. App. -Dallas 1997, pet. ref'd). The trial judge specifically warned appellant that a guilty plea could result in the judge finding appellant guilty and sentencing him to “anywhere from 5 to 99 years or life in the penitentiary.” Appellant said he understood the punishment range for the offense, took responsibility for his actions and asked the trial court for community supervision. The fact that appellant received greater punishment than he hoped for does not render his plea involuntary. See Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.-Dallas 1993, no pet.). We conclude appellant has not shown his guilty plea was involuntary. We resolve appellant's first issue against him.
In his second issue, appellant contends the trial court erred in failing to pronounce the sentence and to afford him the right of allocution under code of criminal procedure article 42.07. See Tex. Code Crim. Proc. Ann. art. 42.07 (West 2006). The State responds that appellant did not preserve this issue for appellate review and alternatively, none of the statutory reasons that would have prevented the trial court's imposition of the sentence apply to appellant.
After evidence was presented by both parties, including the appellant's testimony, and argument presented by both sides, the trial court asked if either side had anything further. Both sides said no and the trial court stated that based on the evidence, she would then, “set punishment at 8 years confinement in the penitentiary and a $2,000 fine.” The court did not ask if any reason under law existed as to whether or not appellant should be sentenced at that time.
Appellant was required to make a timely, specific objection to preserve error for appellate review. Tex. R. App. P. 33.1. Here, appellant failed to object, either at the end of the proceeding or in his motion for new trial, that he was denied his right to the pronouncement of sentence or his right to allocution. Therefore, he has failed to preserve error for our review. See Tenon v. State, 563 S.W.2d 622, 623- 24 (Tex. Crim. App. [Panel Op.] 1978) (holding appellant failed to preserve his argument regarding allocution by failing to object in trial court). We resolve appellant's second issue against him.
In his third issue, appellant contends trial counsel was ineffective by not objecting to the denial of his statutory right of allocution.
To prevail on a claim of ineffective assistance of counsel, appellant must show that counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability the results of the proceedings would have been different in the absence of counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence and the failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Appellant does not claim he did not understand the punishment assessed by the trial court or that any of the statutory reasons that could prevent the pronouncement of sentence apply to him. See Tex. Code Crim. Proc. Ann. art. 42.07. Moreover, the record does not show what appellant would have said had he been given the right to allocution. See Bone, 77 S.W.3d at 833. Therefore, he has not met his burden to show trial counsel was ineffective. We resolve appellant's third issue against him.
We affirm the trial court's judgment.
MOLLY FRANCIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
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