Opinion
No. 05-02-00525-CR.
Opinion Issued January 7, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-47143-RM. AFFIRMED.
Before Justices WHITTINGTON, RICHTER, and FRANCIS.
OPINION
Jeannine Jo Swank appeals her conviction for theft of property valued at less than $1500, with two prior theft convictions. See Tex. Pen. Code Ann. § 31.03(a), (e)(4)(D) (Vernon Supp. 2003). Appellant waived a jury trial and entered a non-negotiated guilty plea to the court. The trial court sentenced appellant to 730 days in a state jail facility. In three points of error, appellant contends the trial court erred by (1) not allowing her to withdraw her guilty plea after rejecting the plea bargain agreement, (2) not adopting the magistrate's recommendations before sentencing, and (3) not entering a finding of guilt prior to sentencing. Appellant also claims she did not receive effective assistance of counsel. We affirm the trial court's judgment. In her first point of error, appellant argues the trial court violated article 26.13 by not informing appellant it would not follow the plea agreement. Appellant argues the trial court sentenced her in excess of the plea agreement that provided 180 days in a state jail facility, a $1500 fine, and was open only as to community supervision. The State argues the trial court was not required to allow appellant to withdraw her guilty plea because the sentence was within the statutory punishment range and there was no plea agreement as to punishment. We agree with the State. A defendant may withdraw her plea any time before judgment is pronounced or the case is taken under advisement by the court. See Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App. [Panel Op.] 1979); Scott v. State, 860 S.W.2d 645, 646 (Tex.App.-Dallas 1993, no pet.). When a plea agreement exists, the trial court must either follow the prosecutor's punishment recommendation or allow the defendant to withdraw her plea. Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2003). However, when a defendant pleads guilty without a plea agreement and judgment has been pronounced, or the case has been taken under advisement, the trial court's decision whether to allow a defendant to withdraw her plea is discretionary. See Jackson, 590 S.W.2d at 515; Thompson v. State, 852 S.W.2d 268, 270 (Tex.App.-Dallas 1993, no pet.). The record contains a "Plea Agreement" form that states "180 days state jail, $1500 fine, and open plea." However, appellant acknowledged there was no plea bargain agreement prior to sentencing when she testified she had rejected the State's offer because she wanted to ask the judge to grant her probation. The trial judge sentenced appellant to 730 days in a state jail facility, which is within the statutory range of punishment for her offense. See Tex. Pen. Code Ann. §§ 12.35, 31.03(e)(4)(D) (Vernon 1994 Supp. 2003). We conclude the trial court did not violate article 26.13 because it was not required to allow appellant to withdraw her guilty plea since there was no plea bargain agreement, and appellant's sentence is within the statutory range. Accordingly, we overrule appellant's first point of error. In her second and third points of error, appellant argues her guilty plea was never legally accepted because the district judge never signed the order adopting the magistrate's actions. Appellant further argues her sentence was unlawful because the trial court never entered a finding of guilt prior to sentencing. The State argues the record supports a presumption that the trial court reviewed and adopted the actions of the magistrate, and the sentence was properly entered because the trial court found appellant guilty before pronouncing sentence. We agree with the State. The judgment recites the trial court accepted appellant's guilty plea and found appellant guilty. We must presume that statement is correct in the absence of direct proof of its falsity, and there is no such proof in the record before us. See Johnson v. State, 72 S.W.3d 346, 349 (Tex.Crim.App. 2002). Likewise, we presume the regularity of the trial court's proceedings. Absent evidence of impropriety, we indulge every presumption in favor of the regularity of the proceedings and documents in the lower court. See Light v. State, 15 S.W.3d 104, 107 (Tex.Crim.App. 2000). It is appellant's burden to overcome this presumption of regularity. See Breazeale v. State, 683 S.W.2d 446, 451 (Tex.Crim.App. 1985) (op. on reh'g); Christian v. State, 865 S.W.2d 198, 202 (Tex.App.-Dallas 1993, pet. ref'd). We conclude appellant has not overcome the presumption of regularity of the trial court's proceedings. Accordingly, we overrule appellant's second and third points of error. In her fourth point of error, appellant argues she was denied effective assistance of counsel because counsel failed to object when (1) the trial court sentenced appellant in excess of the plea bargain agreement, (2) the district court did not adopt the findings of the magistrate, (3) the trial court did not enter a finding of guilt before sentencing, and (4) counsel failed to withdraw appellant's guilty plea when the sentence exceeded the plea bargain agreement. Appellant further argues the result of the proceedings would have been different had counsel provided effective assistance. The State argues the record is silent as to counsel's actions and trial strategy, and does not show counsel provided ineffective assistance. We agree with the State. To prevail on her claim of ineffective assistance of counsel, appellant must show 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). In the context of a guilty plea, appellant must show that but for counsel's deficient performance, he would not have pleaded guilty and would have insisted upon going to trial. See Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). As noted above, there was no plea agreement between appellant and the State at the time of sentencing. Thus, appellant was not sentenced in excess of any agreement, nor was she prevented from withdrawing her guilty plea. Moreover, as noted above, the trial court accepted appellant's guilty plea and found her guilty. The record does not show appellant would not have entered a guilty plea had counsel made the aforementioned objections. We conclude appellant has not met her burden of showing counsel was ineffective, or that the result of the proceeding would have been different. See Strickland, 466 U.S. at 687-88; Thompson, 9 S.W.3d at 813. Accordingly, we overrule appellant's fourth point of error. We affirm the trial court's judgment.