No. 05-03-00106-CR
Opinion Filed August 11, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F02-01075-LI. AFFIRMED
Before Chief Justice THOMAS AND Justices FRANCIS and LANG.
Opinion by Chief Justice THOMAS.
Ediberto Jose Tellez, Jr. appeals his conviction for burglary of a habitation. Appellant entered an open guilty plea to the charge. The trial court found appellant guilty and assessed punishment at fifteen years' imprisonment. Appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807 (Tex.Crim.App. [Panel Op.] 1978). Appellant filed a pro se response, presenting two grounds he contends are arguable issues. Appellant asserts his guilty plea was involuntary and he received ineffective assistance of counsel. We have reorganized portions of appellant's arguments for ease of discussion.
Involuntary Guilty Plea
In his first ground, appellant contends his guilty plea was involuntary. Appellant asserts his trial attorney and the judge "improperly" discussed plea negotiations in violation of the United States and Texas Constitutions. Before trial, appellant filed a pro se motion to have his appointed counsel replaced, but the trial court did not rule on the motion. On the day of trial, appellant asked for additional time to retain an attorney. The court denied the request. Appellant said he felt like he was being rushed into a plea. The judge stated the case was going to be tried that day, and the decision to try the case to a jury, try the case to the court, or enter into a plea bargain had to be made. The judge detailed the options available to appellant and had the prosecutor state in open court its plea bargain offer. Appellant indicated he was leaning toward trying the case, but his attorney was advising him to plead. The judge told appellant that appellant had to make a decision and there would be no "extension" of time. Appellant, without asking to confer with his attorney, decided to take his attorney's advice and enter an open guilty plea. The essence of appellant's complaint in this ground is that the trial judge improperly injected himself into the plea negotiations. Appellant asserts he felt rushed and was pressured to enter a guilty plea because had to assuage the judge after rejecting the "judge's" plea bargain offer. The code of criminal procedure requires the trial court to admonish a defendant, either orally or in writing, before accepting a guilty plea in a felony case. Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2003). When a trial court substantially complies with article 26.13(a), it constitutes a prima facie showing the defendant's guilty plea was entered knowingly and voluntarily. Grays v. State, 888 S.W.2d 876, 878 (Tex.App.-Dallas 1994, no pet.). Appellant then has the burden to show he was unaware of the consequences of his plea and that he was misled or otherwise harmed by the admonishments. Id. The appellate record contains a written admonishment form that substantially complies with article 26.13(a). Appellant signed the form, acknowledging he understood the admonishments and that he was entering his plea "freely and voluntarily." The record also reflects appellant twice told the court during the plea proceedings that no one had forced him to sign the admonishment form, told the court no one had forced him to plead guilty, and indicated he understood the proceedings, Therefore, there is a prima facie showing appellant knowingly and voluntarily entered his plea. See, e.g., Kirk v. State, 949 S.W.2d 769, 771 (Tex.App.-Dallas 1997, pet. ref'd). There is no evidence in the record showing the trial judge improperly entered into plea negotiations. Rather, the record reflects the judge explained in detail the options available to appellant and made clear appellant needed to chose one of the options that day. There is also no evidence in the record showing appellant pleaded guilty to soothe the trial judge's feelings. We conclude appellant has not carried his burden to demonstrate his guilty plea was involuntary. Accordingly, appellant does not present an arguable issue in his first ground. Ineffective Assistance of Counsel
In his second ground, appellant complains he received ineffective assistance of counsel. Appellant asserts he and his counsel could not agree on how to handle appellant's case. Appellant contends his motion to have counsel replaced caused a conflict. Appellant also asserts counsel should have objected to the trial judge's participation in the plea bargain process and should have persuaded appellant to take the State's plea bargain agreement. Appellant claims his counsel's ineffective assistance caused him to enter an involuntary guilty plea. We use the Strickland standard in evaluating ineffective assistance of counsel claims. See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770, 771 (Tex.Crim.App. 1999). To prevail, appellant must show counsel's representation fell below an objective standard of reasonableness as well as a reasonable probability that a different outcome would have resulted but for counsel's error. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000). We indulge a strong presumption of counsel's competence. Bone, 77 S.W.3d at 833. If the record does not affirmatively reflect ineffective assistance, we cannot say counsel's performance was deficient. Id. at 835-37. In our discussion of appellant's first ground, we noted that the trial judge did not engage in plea negotiations. Therefore, there was no need for counsel to object to the judge's description of the options available to appellant concerning his case. See Kent v. State, 982 S.W.2d 639, 641 (Tex.App.-Amarillo 1998, pet. ref'd, untimely filed) (counsel not required to undertake frivolous or futile acts). Appellant does not show counsel's ineffectiveness in this regard. Appellant contends there was a conflict between himself and his counsel, pointing to his pro se motion to have his appointed counsel removed from the case. An appellant may show a violation of his right to effective assistance of counsel if he can show (1) that counsel was burdened by an actual conflict of interest and (2) the conflict had an adverse effect on specific instances of counsel's performance. Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App. 1997) (citing Cuyler v. Sullivan, 446 U.S. 335, 348-50 (1980)); Netherly v. State, 29 S.W.3d 178, 188 (Tex.App.-Dallas 2000, pet. ref'd). A showing of a "possibility of a conflict of interest" is insufficient to warrant reversal of a conviction. Thompson v. State, 94 S.W.3d 11, 16 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). In his response, appellant makes only the general assertion that his motion to remove counsel created a conflict; it does not point to specific instances of counsel's conduct affected by the alleged conflict. We conclude appellant does not show counsel's ineffectiveness in this regard. Finally, appellant contends counsel should have persuaded appellant to accept the State's plea bargain offer. Appellant asserts counsel's failure to persuade him resulted in an involuntary guilty plea. When an appellant contends ineffective assistance of counsel caused entry of an involuntary plea, the appellant must demonstrate that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. See Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). The record indicates counsel advised appellant to enter an open guilty plea and ask the trial court to grant appellant probation. Counsel believed "problems" in appellant's life were mitigating and that appellant was a good candidate for probation. During the sentencing, counsel presented evidence that appellant had a drinking problem and was seeking rehabilitation. The record does not reflect what advice, if any, counsel gave appellant regarding the option of accepting the State's plea bargain offer. The fact that appellant received a punishment greater than he hoped for or expected does not render his guilty plea involuntary. See Thomas v. State, 2 S.W.3d 640, 642 (Tex.App.-Dallas 1999, no pet.). We conclude appellant has not shown that, but for counsel's erroneous advice, he would not have pleaded guilty and would have insisted on a jury trial. Therefore, appellant has not carried his burden to show his guilty plea was involuntary or that counsel provided him ineffective assistance. Accordingly, appellant does not present an arguable issue in his second ground. Conclusion
We have reviewed the records, counsel's brief, and appellant's response. We conclude the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. We affirm the trial court's judgment. LINDA THOMAS, Chief Justice.