Opinion
No. 05-03-00789-CR.
Opinion issued March 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F97-77043-WT. Affirmed.
Before Justices WHITTINGTON, LANG and LANG-MIERS.
MEMORANDUM OPINION
Charles Maurice Conley appeals his conviction for murder. See Tex. Pen. Code Ann. § 19.02 (Vernon 2003). After appellant waived a jury trial and entered a non-negotiated guilty plea, the trial judge sentenced him to life imprisonment. In a single issue, appellant contends his guilty plea was involuntary because his trial counsel incorrectly advised him regarding "the applicable sentence in this case." We affirm the trial court's judgment. Initially, we note the trial judge properly admonished appellant, both in writing and in open court, of the applicable punishment range for the offense of murder. The judge questioned appellant extensively in open court. Appellant stated he understood he was charged with the first-degree felony offense of murder and had a right to have a jury hear the case but had waived the same. When the judge asked if he was "pleading guilty freely and voluntarily," appellant responded he was. The judge then informed appellant that if he persisted in pleading guilty, she would set his punishment "somewhere within the range allowed by law, which for this type of offense is not less than five years nor more than 99 years or life and in addition a fine of up to $10,000 may be assessed." He stated he understood. According to appellant's testimony, he understood that there was no plea bargain agreement in this case, no recommendation or agreement on punishment, and that the judge had the full range of punishment available when sentencing appellant. Appellant admitted he had signed a number of documents giving up certain rights, that he had gone over that paperwork with his attorney, and that his attorney had explained the legal significance of each and every one of those documents. One of the documents appellant signed is entitled "Court's Admonition of Statutory and Constitutional Rights and Defendant's Acknowledgment" in which appellant acknowledged he was charged with murder and the range of punishment was five to ninety-nine years or life and a $10,000 fine. In addition, appellant testified his counsel explained "the full range of options with respect to [his] particular case," including that the judge could assess punishment against him "anywhere within that range." He also testified counsel told him to "expect the worst." Nevertheless, on appeal, appellant claims counsel was ineffective because he failed to properly admonish appellant on the amount of time he would be required to serve before being eligible for parole. Appellant contends this purported failure to receive effective assistance of counsel at trial rendered his guilty plea involuntary. We disagree. We examine ineffective assistance of counsel claims under well-known standards. See Strickland v. Washington, 466 U.S. 668 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim. App. 1999). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim. App. 1986). In brief, it is appellant's burden to show by a preponderance of the evidence (i) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (ii) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson, 9 S.W.3d at 812. We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Thompson, 9 S.W.3d at 812. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 812. The court of criminal appeals has made clear that, in most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813-14. Further, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. Consequently, an application for writ of habeas corpus is the more appropriate vehicle to raise ineffective assistance of counsel claims. Rylander, 101 S.W.3d at 110. Although appellant filed a motion for new trial, the complaint raised in his motion was that the "verdict is contrary to the law and evidence." His motion did not allege he received ineffective assistance of counsel at trial. In his appellate brief, appellant does not cite any authority for his claim that trial counsel should have instructed him on parole law or that counsel's purported failure to do so rendered his assistance ineffective. Nor does he cite any authority for the related argument that his guilty plea was involuntary because he did not understand how much of his sentence he would have to serve before being eligible for parole. There is no record of a motion for new trial hearing to establish whether counsel informed appellant of this State's parole law. Furthermore, even assuming counsel should have informed appellant of the applicable parole law, there is nothing in the record establishing that this purported "deficiency" prejudiced appellant such that, without this error, there is a reasonable probability that the result of the proceeding would have been different. In other words, appellant does not claim, and the record does not support any allegation that he would not have pleaded guilty had he understood the "minimum periods for purposes of parole eligibility." Because there is no record to support appellant's claims, we conclude he has not met his burden to overcome the strong presumption of reasonable assistance. See Freeman v. State, 125 S.W.3d 505, 506 (Tex.Crim.App. 2003) ("The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim."). We overrule appellant's sole point of error. We affirm the trial court's judgment.
On January 22, 2003, the Texas Court of Criminal Appeals granted appellant an out-of-time appeal.