Nos. 05-09-00986-CR, 05-09-00987-CR
Opinion Filed July 1, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 6, Dallas County, Texas, Trial Court Cause Nos. F09-55163-NX, F09-71214-VX.
Before Justices O'NEILL, FRANCIS, and MURPHY.
Opinion By Justice MURPHY.
Erik Garcia appeals his convictions for driving while intoxicated-third offense (felony DWI) and racing on a highway. In three issues, appellant contends his guilty plea in each case was involuntary, he did not receive effective assistance of counsel, and the written judgment in the racing case should be modified to reflect the correct statute under which appellant was convicted. We affirm the trial court's judgment in the DWI case, and we modify and affirm the trial court's judgment in the racing case.
Background
Appellant waived a jury and pleaded guilty to felony DWI (cause no. 05-09-00986-CR) and racing on highway causing bodily injury (cause no. 05-09-00987-CR). See Tex. Penal Code Ann. §§ 49.04(a), 49.09(b)(2) (Vernon 2003 Supp. 2009); Tex. Transp. Code Ann. § 545.420(a), (g) (Vernon Supp. 2009). After hearing testimony from several witnesses and appellant, the trial court found appellant guilty and assessed punishment at five years' imprisonment in each case. Involuntary Pleas
In his first issue, appellant contends his guilty plea in each case was involuntary because he believed he would receive probation and treatment for his alcohol problems. The State responds that appellant's guilty pleas were knowingly and voluntarily made. When considering the voluntariness of a guilty plea, we must examine the entire record. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). If the trial court properly admonished a defendant before a guilty plea was entered, there is a prima facie showing the plea was both knowing and voluntary. See id. Here, the record shows the trial court properly admonished appellant both orally and in writing. See Tex. Code Crim. Proc. Ann. art. 26.13(a), (c) (Vernon Supp. 2009); Kirk v. State, 949 S.W.2d 769, 771 (Tex. App.-Dallas 1997, pet. ref'd). During the plea hearing, appellant testified he understood the punishment ranges for the offense, and he was freely and voluntarily entering guilty pleas to the charges in the indictments. Appellant's signed judicial confessions and stipulations of evidence were admitted into evidence. Appellant said that in November 2008, he was racing another vehicle when he lost control of his car, ran off the road, hit a light pole, and collided with a third vehicle. Appellant admitted he had been drinking prior to racing. Appellant also admitted that in May 2009, he drank six beers at a holiday barbeque and then drove to a nearby store for cigarettes. He was arrested for his third DWI at that time. Appellant asked the trial court for help with his drinking problem, stating he understood that although the probation department recommended a 90-day or 120-day in-house treatment program, the State recommended he go to the penitentiary. Appellant also said he understood that the trial court could either send him to prison or send him to a rehabilitation program, but the only person who could help him was himself. Nothing in the record shows appellant believed he would necessarily receive probation. The fact that he received greater punishment than he hoped for does not render his pleas involuntary. See Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.-Dallas 1993, no pet.). We conclude appellant entered his guilty pleas knowingly and voluntarily. We overrule his first issue. Ineffective Assistance of Counsel
In his second issue, appellant contends his pleas were involuntary because he received ineffective assistance of counsel. Appellant asserts that during closing argument, counsel referred to him as "stupid" rather than as a "sign of someone with an addiction that needed to be treated." Appellant argues that had counsel presented a meaningful closing argument, there is a probability that the trial court would have given him probation and treatment. To prevail on a claim of ineffective assistance of counsel, appellant must show that 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). 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 an ineffectiveness claim. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). An appellate court ordinarily will not declare trial counsel ineffective where there is no record showing counsel had an opportunity to explain himself. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Without evidence of the strategy involved concerning counsel's actions at trial, the reviewing court will presume sound trial strategy. See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). In these cases, nothing in the record supports appellant's claims. During the hearing, appellant said he had been drinking at the time of each offense, he told the probation department that he did not think he should have to go to prison and did not want to be on probation for the maximum time period because "10 years [on probation] was too much" for him. During closing arguments, counsel said the evidence presented showed appellant had a drinking problem, but that it was more a "stupid, young drinking problem than anything else." Counsel acknowledged that the judge would decide whether appellant needed "in-house treatment," and said he believed appellant could be "cured of this." After finding appellant guilty, the trial judge said he understood that appellant was asking for help, but help in appellant's case was "just too risky" because appellant was intoxicated when he raced another vehicle and injured someone, then he continued drinking and driving after he bonded out of jail. There is nothing in the record that shows counsel failed to give a meaningful closing argument. Moreover, counsel did not have an opportunity to explain herself. See Goodspeed, 187 S.W.3d at 392. We conclude appellant has not met his burden of proving by a preponderance of the evidence that counsel was ineffective. See Thompson, 9 S.W.3d at 813; Thomas v. State, 2 S.W.3d 640, 642 (Tex. App.-Dallas 1999, no pet.). We overrule appellant's second issue. Modify Judgment
In his third issue, appellant contends the trial court's judgment in the racing case should be modified to reflect the correct statute under which he was convicted. The State agrees with the proposed modification. Appellant was convicted of racing on a highway, which falls under section 545.420 of the transportation code. The written judgment recites the statute for the offense as "545.42 Penal Code," which does not exist. Thus, the written judgment is incorrect. We sustain appellant's third issue. We modify the trial court's judgment to show the statute for the offense is "545.420 Transportation Code." See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). Conclusion
In cause no. 05-09-00986-CR, we affirm the trial court's judgment. In cause no. 05-09-00987-CR, we affirm the trial court's judgment as modified.