Opinion
Nos. 05-04-00653-CR, 05-04-00654-CR
Opinion Filed May 11, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F04-71108-KV, F04-19532-IV. Affirm.
Before Justices WRIGHT, MOSELEY, and LANG.
OPINION
Lamorris Hudspeth appeals his convictions for attempted aggravated sexual assault of a child and assault of a public servant. After appellant pleaded guilty without the benefit of a plea agreement, the trial court assessed punishment, enhanced with a prior felony conviction, at 40 years' confinement in the aggravated sexual assault case, and 10 years' confinement in the assault of a public servant case. In two issues, appellant contends his pleas were not voluntary, and he did not receive the effective assistance of counsel at trial. We overrule appellant's issues and affirm the trial court's judgment. In his first issue, appellant contends that his pleas were not knowingly and voluntarily entered because he entered his pleas while "laboring under the false impression the trial court would defer the adjudication of guilt in each case." After reviewing the record, we cannot agree. To determine the voluntariness of a plea, we examine the record as a whole. Cantu v. State, 988 S.W.2d 481, 484 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). Proper admonishment by the trial court constitutes a prima facie showing the defendant entered a knowing and voluntary plea. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998). Once a defendant has pled guilty and attested to the voluntary nature of his plea, he bears a heavy burden at a subsequent hearing to demonstrate a lack of voluntariness. Garcia v. State, 877 S.W.2d 809, 812 (Tex.App.-Corpus Christi 1994, pet. ref'd). On a motion for new trial, the trial court is the sole judge of the credibility of the witnesses, and we may not substitute our judgment for that of the trial court. See Keeter v. State, 74 S.W.3d 31, 37 (Tex.Crim.App. 2002) (newly discovered evidence); Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001) (juror misconduct). We will not overturn a trial court's decision on a motion for new trial unless there is an abuse of discretion. Salazar, 38 S.W.3d at 148. The record in each case contains a document signed by appellant showing that he agreed to enter an "open plea" with the State recommending "shock probation with a leg monitor," and the section entitled "Agreed Sentence" left blank and marked through with a single diagonal line. Each document also contains a section entitled "Court's Admonitions to Defendant" listing the admonitions required by article 26.13(a) of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2004-05). These written admonitions constitute a prima facie showing that appellant entered knowing and voluntary pleas. See Gonzales v. State, 963 S.W.2d 844, 846-47 (Tex.App.-San Antonio 1998, no pet.). Thus, the burden shifts to appellant to show he entered the plea without knowing its consequences and that he was harmed. To meet this burden, appellant relies on evidence from the hearing on his motions for new trial. At that hearing, appellant testified that his trial counsel told him to fill out some paperwork because the State had offered appellant a plea agreement for "five years' probation, followed with a leg monitor." According to appellant, he would not have pleaded guilty if he had known it was "an open plea and the judge could send him to jail." Appellant also explained that he is "slow" and has difficulty understanding things. Appellant's mother testified appellant's trial counsel said appellant was "going for probation" and that meant "he was going to get probation." Paul Blocker testified he was appointed to represent appellant in these cases. He met with appellant "more than three times, less than ten." In Blocker's opinion, appellant was competent and understood what he was told. Blocker testified that the State offered appellant a plea bargain agreement for five years' confinement. Appellant informed Blocker that he wanted to be home with his mother, who was ill. Blocker explained to appellant that the State was not offering probation and the only way he could get probation would be to enter an open plea. According to Blocker, he was aware of appellant's criminal history and he went over "in detail the ramifications and consequences of pleading guilty and then going open to the Court for punishment" with appellant. He told appellant that he was not a good candidate for probation and appellant responded, "Well, it's not up to you, Mr. Blocker, and the probation officer it's not up to her. I prayed about this and, you know, I think Judge Wade is going to go my way." Appellant then went against Blocker's advice and agreed to enter the open plea. As the fact finder in this case, the trial court was free to believe Blocker's version of events and disbelieve appellant's and his mother's version. See Salazar, 38 S.W.3d at 148. In light of the entire record, we cannot conclude appellant met his burden to demonstrate that his plea was involuntary or that the trial court abused its discretion in denying appellant's motion for new trial. We overrule appellant's first issue. In his second issue, appellant contends he did not receive the effective assistance of counsel at trial because counsel waived the presence of the court reporter at the initial plea hearing. Again, we disagree. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. In the context of a guilty plea, appellant satisfies the second prong of the Strickland test if he shows there is a reasonable probability that but for counsel's errors, he would not have pleaded guilty but rather would have insisted on going to trial. See Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). At the hearing on appellant's motion for new trial, Blocker explained that he waived the court reporter for the initial plea hearing because there was no evidence introduced, no witnesses called, and the hearing lasted "sixty seconds or less." Appellant contends the court reporter's absence harmed him because it deprived him of the testimony that would have established that the guilty pleas were not voluntary. Appellant does not, however, explain how the court reporter's absence at the initial plea hearing caused him to plead guilty. It is not per se ineffective assistance of counsel to fail to request a court reporter to record the plea hearing. See Rivera v. State, 981 S.W.2d 336, 339 (Tex.App.-Houston [14th Dist.] 1998, no pet.). We fail to see how there is a reasonable probability that but for counsel's failure to have a court reporter present, appellant would not have pleaded guilty and would have insisted on going to trial. We overrule appellant's second issue. Accordingly, we affirm the trial court's judgments.