No. 05-04-01495-CR
Opinion Filed September 29, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-57282-PU. Affirmed.
Before Justices MORRIS, WHITTINGTON, and LANG.
Opinion By Justice LANG.
Dedrick Lamond Franklin appeals his conviction for aggravated robbery, the offense to which he plead guilty. After being instructed by the trial court to find appellant guilty, the jury assessed his punishment at eighty years' confinement. In three issues, appellant contends that (1) the trial court violated his due process rights by accepting his guilty plea when he denied a portion of the offense during the initial plea hearing; (2) the trial court erred in not withdrawing his guilty plea; and (3) he did not receive effective assistance of counsel. We decide against appellant on all three issues. The judgment of the trial court is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was indicted for aggravated robbery. When his case was called for trial, the trial court asked if both the State and appellant were ready to proceed. Appellant's trial counsel informed the court that appellant had asked him to request a continuance, giving the reason that appellant never had an examining trial. His trial counsel, however, candidly told the trial court that there was no legal basis for this request. Appellant's request for a continuance was denied. The trial court then explained the range of punishment and the differences between deferred adjudication and probation to the appellant. The record shows that the trial court also noted that appellant was probation eligible. Appellant elected for the jury to assess punishment, and his trial counsel stated that an application for probation would be filed before the jury was sworn. Finally, appellant stated before the trial court that he wanted to terminate his trial counsel's representation. The record shows that the trial court explained to appellant that his trial counsel was a "very capable, very good lawyer" and denied appellant's request for a new lawyer. After handling these preliminary matters, the trial court arraigned appellant. Appellant pled guilty, stating on the record that he was pleading guilty freely and voluntarily and that he understood that by pleading guilty, he would be found guilty. When asked by the trial court judge if he was pleading guilty to exactly what was alleged in the indictment, appellant first responded "not the theft part," but after a discussion with his trial counsel off the record, he answered "yes" when asked the same question again. When asked if he was pleading guilty because he was guilty and for no other reason, appellant also answered affirmatively. Prior to the jury being empaneled, Appellant testified to the trial court that he had worked with his counsel for several months, that he asked numerous questions about his options, and that he decided that his best option would be to offer a guilty plea and go to the jury asking for probation. He stated that although he requested new counsel because of "not understanding what's going on," he did, in fact, understand what they were doing in court. Further, he stated that counsel was doing what appellant wanted him to do. He said he was satisfied with counsel's efforts. The trial court then empaneled a jury to assess punishment. Appellant entered a plea of guilty before the jury. During the punishment stage of trial, the victim, two Dallas Police Officers, three reputation witnesses, and one rebuttal witness testified for the State. Appellant's mother and grandmother testified as character witnesses on his behalf. Also, appellant testified about the events in question. After hearing all the testimony, the jury found appellant guilty, as instructed by the trial court, and assessed punishment of eighty years of confinement. This appeal followed. II. ACCEPTANCE OF GUILTY PLEA
Appellant's first two issues deal with the trial court's acceptance of his guilty plea. In his first issue, appellant argues that the trial court violated his due process rights by accepting his guilty plea without conducting a thorough inquiry into the voluntariness of the plea of guilty when he denied the theft element of aggravated robbery during the initial plea hearing. Second, he argues that the trial court should have withdrawn his guilty plea when he raised the issue of self-defense and testified that he was only guilty of aggravated assault, lacked intent to commit theft, and lacked intent to shoot the victim. The State responds that appellant forfeited his first and second issues because he failed to raise them in the trial court. Further, the State asserts that appellant's guilty plea did not violate due process because the record contains a strong factual basis for his guilt and shows that appellant's decision to plead guilty was based on an intelligent conclusion that a plea was in his best interest. A. Standard of Review and Applicable Law
The right to due process of law is not violated by a conviction based on a plea of guilty that is accompanied by a "strong factual basis for the plea demonstrated by the State and [a defendant's] clearly expressed desire to enter it despite his professed belief in his innocence." Mendez v. State, 138 S.W.3d 334, 344 (Tex.Crim.App. 2004) (en banc) (citing North Carolina v. Alford, 400 U.S. 25, 38 (1970)). Thus, although an appellant may continue asserting his innocence, he can be convicted based on his guilty plea if a strong factual basis for the plea exists. Under Alford, "pleas coupled with claims of innocence should not be accepted unless there is a factual basis for the plea . . . and until the judge taking the plea has inquired into and sought to resolve the conflict between the waiver of trial and the claim of innocence." See Alford, 400 U.S. at 38, n. 10. In Mendez, the Court of Criminal Appeals determined that the burden is on a defendant who pled guilty to seek withdrawal of his guilty plea when evidence inconsistent with guilt is introduced. Under this rule, when evidence is introduced that is inconsistent with guilt, the trial court has no duty to change the defendant's guilty plea on its own motion. Mendez, 138 S.W.3d at 350. Instead, "it is reasonable to put on such a defendant the requirement of timely seeking, in one way or another, to withdraw the plea of guilty." Id. "The appellant not having done so, he may not complain for the first time on appeal that the trial court did not do it for him." Id. Mendez not only expressly placed the burden of seeking to withdraw a guilty plea on the defendant, it also emphasized that a defendant's failure to bring the voluntariness of a guilty plea into question by a specific motion, request, or objection in the trial court results in waiver of the issue on appeal. Id. at 338. In Ibarra v. State, 11 S.W.3d 189 (Tex.Crim.App. 1999), the Court of Criminal Appeals held that "[e]xcept for complaints involving fundamental constitutional systemic requirements which are not applicable here, all other complaints based on a violation of both constitutional and statutory rights are waived by failure to comply with Tex.R.App.P. 33.1." See Mendez, 138 S.W.3d at 338 (quoting Ibarra, 11 S.W.3d at 197). Texas Rule of Appellate Procedure 33.1 requires that as a prerequisite to preserving a complaint for appellate review, the record must show that the party made a timely complaint to the trial court by a specific request, objection, or motion stating the grounds for the complaint with sufficient specificity. See Tex.R.App.P. 33.1. The party must also obtain a ruling on the complaint and comply with the rules of evidence or procedure. See id. Questions regarding the voluntariness of a plea do not involve fundamental constitutional systemic requirements. Mendez, 138 S.W.3d at 338; Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997). Accordingly, since a question concerning the voluntariness of a guilty plea does not involve a fundamental constitutional systemic requirement, a defendant challenging the voluntariness of a guilty plea must comply with the requirements of Rule 33.1 to properly preserve such a complaint for appellate review. Mendez, 138 S.W.3d at 339. B. Application
The decisions in Mendez and Ibarra require us to dispose of appellant's first two issues against him. The record shows that appellant denied the "theft part" of his indictment for aggravated robbery. However, after a discussion with his trial counsel, he responded that he was pleading guilty to exactly what was charged in the indictment and that he was doing so because he was guilty and for no other reason. Without properly complaining at trial by means of a timely objection, motion, or request that an inquiry should be made into the voluntariness of his plea, appellant failed to preserve this issue for appeal. See Mendez, 138 S.W.3d at 338. Accordingly, we decide appellant's first issue against him. In his second issue, appellant argues that the trial court erred in failing to withdraw his guilty plea, sua sponte. We disagree. The trial court is not required to withdraw a defendant's guilty plea on its own motion. Mendez, 138 S.W.3d at 350. A defendant must seek to withdraw a guilty plea in one way or another when evidence inconsistent with guilt is presented. Id. Since appellant did not seek to withdraw his guilty plea at any time, he cannot complain for the first time on appeal that the trial court did not do it for him. Id. We decide against appellant on his second issue. III. INEFFECTIVE ASSISTANCE OF COUNSEL
In his third issue, appellant contends that his trial counsel rendered ineffective assistance of counsel by failing to request the trial court withdraw his guilty plea. The State responds that this claim should be rejected based on an insufficient record. Specifically, the State asserts that the record fails to show the reasons behind counsel's failure to request withdrawal of the plea and that the record supports the conclusion that both appellant and his trial counsel felt that pleading guilty was the best strategic option for appellant to pursue. A. Standard of Review and Applicable Law
Effectiveness of counsel is evaluated under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984) and adopted in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). See also, e.g., Jackson v. State, 877 S.W.2d 768, 770-71 (Tex.Crim.App. 1994) (en banc). To prevail on a claim of ineffective assistance of counsel, 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. In conducting this evaluation, trial counsel's performance is reviewed under a highly deferential standard. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); see also Gomez v. State, 921 S.W.2d 329, 333 (Tex.App.-Corpus Christi 1996, no pet.). There is a strong presumption that counsel provided reasonable assistance. Id. An appellate court does not inquire into trial strategy unless there exists no possible basis, in strategy or tactics, for counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim.App. [Panel Op.] 1981). "In applying this test, an appellate court should not try to second guess trial counsel's tactical decisions which do not fall below the objective standard of reasonableness." Young v. State, 991 S.W.2d 835, 838 (Tex.Crim.App. 1999); see also Solis v. State, 792 S.W.2d 95, 100 (Tex.Crim.App. 1990). 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). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. Furthermore, ineffective assistance of counsel claims must be firmly rooted in the record. Bone, 77 S.W.3d at 835; see also Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). Under normal circumstances, the record on direct appeal is not sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision to defeat the presumption that counsel's conduct was reasonable and professional. Bone, 77 S.W.3d at 833. When the record is silent as to why trial counsel failed to object, it is difficult for an appellant to overcome the first prong of the Strickland test. Mallet v. State, 65 S.W.3d 59, 66 (Tex.Crim.App. 2001); see also Thompson, 9 S.W.3d at 814. Ordinarily, trial counsel should be afforded an opportunity to explain his actions before being denounced as ineffective. Rylander, 101 S.W.3d at 111. B. Application
We are not advised by appellant of, nor does the record reflect, any explanation or reason why appellant's trial counsel did not request withdrawal of the guilty plea. On direct appeal, we have only the record for review. See Bone, 77 S.W.3d at 833. Based on the record in this case, we do not have sufficient information to evaluate the reasons behind counsel's decisions. We cannot conclude, based on the cold record, that there exists no possible basis in strategy or tactic for counsel's actions. See Johnson, 614 S.W.2d at 152. Appellant has failed to demonstrate by a preponderance of the evidence that trial counsel's performance was deficient. Accordingly, we decide against appellant on his third issue. IV. CONCLUSION
Appellant's three issues on appeal are decided against him. The judgment of the trial court is affirmed.