No. 05-03-00610-CR.
Opinion issued January 13, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-48895-R. Affirmed.
Before Justices WHITTINGTON, JAMES, and O'NEILL.
Opinion By Justice WHITTINGTON.
Terry Lynn Gray waived a jury trial and entered a non-negotiated guilty plea to the offense of burglary of a habitation. See Tex. Pen. Code Ann. § 30.02 (Vernon 2003). The trial judge found appellant guilty and sentenced him to eleven years confinement. In four points of error, appellant contends the judge abused his discretion in failing to sua sponte withdraw appellant's guilty plea, ineffective assistance of counsel rendered his plea involuntary, and the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Ineffective Counsel
In his second point of error, appellant argues his guilty plea was involuntary due to ineffective assistance of counsel. Specifically, appellant argues counsel (1) advised him to plead guilty even though appellant did not commit the charged offense, (2) failed to conduct the most minimal of investigations, (3) failed to discover appellant never entered the residence and thus was only guilty of theft, and (4) advised appellant he could ask the judge for drug treatment only if he pleaded guilty. Appellant argues that but for counsel's failures, the outcome of the proceedings would have been different. The State responds the record fails to show counsel provided ineffective assistance, and appellant's guilty plea was not involuntary. We agree with the State. To prevail on his claim, 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). 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). 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. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). When faced with a silent record as to defense counsel's strategy, the court will not speculate as to counsel's tactics or reasons for taking or not taking certain actions. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Without evidence of the strategy and methods involved concerning counsel's actions at trial, the court will presume sound trial strategy. Thompson, 9 S.W.3d at 814. At the plea hearing, appellant testified he discussed the charges in the indictment with counsel and understood them, understood the punishment range for the charged offense, voluntarily waived a jury trial, and was freely and voluntarily pleading guilty because he was guilty of the offense as charged in the indictment and for no other reason. Appellant further testified he understood the trial judge would decide whether to sentence him to penitentiary time or grant him probation. Appellant asked the trial judge to place him on probation and send him to treatment for his drug addiction. During the punishment hearing, appellant testified he was guilty of the offense although he never entered the complainant's residence. Appellant claimed he only pleaded guilty because counsel told him that was the only way to get drug treatment. Counsel responded by stating to the judge he instructed appellant to tell the truth to the court. Other than his bare statements, appellant has not shown by a preponderance of the evidence that counsel was ineffective or that the results of the proceeding would have been different. See Strickland, 466 U.S. at 687-88; Thompson, 9 S.W.3d at 813. Nothing in the record shows appellant would not have pleaded guilty to the offense, and that counsel's trial strategy was unsound. See Thompson, 9 S.W.3d at 814. Accordingly, we overrule appellant's second point of error. Legal Factual Insufficiency
In his third and fourth points of error, appellant argues the evidence is legally and factually insufficient because he never entered the residence nor did he have an accomplice who entered the residence. The State responds the evidence is legally and factually sufficient to support appellant's conviction. We agree with the State. When a defendant pleads guilty or nolo contendere, the State must introduce sufficient evidence into the record to support the plea and show the defendant is guilty, and said evidence shall be accepted by the court as the basis for its judgment. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2004); see also Ex parte Martin, 747 S.W.2d 789, 792-93 (Tex.Crim.App. 1988). We do not apply the Jackson "rationality" test in reviewing the sufficiency of the evidence when a defendant voluntarily enters a plea of guilty. See Ex parte Martin, 747 S.W.2d at 791. Rather, we affirm the trial court's judgment if the evidence introduced embraces every essential element of the offense charged and is sufficient to establish a defendant's guilt. See Stone v. State, 919 S.W.2d 424, 427 (Tex.Crim.App. 1996). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The reviewing court must be appropriately deferential to avoid substituting its judgment for the fact finder's, and any evaluation should not substantially intrude on the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id. at 7. In this case, appellant judicially confessed to committing the offense as alleged in the indictment. At the plea hearing, the State offered appellant's signed judicial confession into evidence without objection by appellant. A judicial confession admitted into evidence and contained in the transcript is sufficient to prove appellant's guilt. Pitts v. State, 916 S.W.2d 507, 510 (Tex.Crim.App. 1996); Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. 1980) (op. on reh'g). At the plea hearing, appellant testified that each and every allegation in the indictment was true, and that he intentionally entered the habitation of the complainant and committed theft. The trial judge passed the case for a presentence investigation report. During the punishment hearing, appellant testified he never entered the complainant's residence, instead he took items from the back gate of the complainant's residence. Appellant testified that on April 24, 2003, he was driving around in his vehicle while using cocaine at 1:00 a.m. Appellant drove down the alley of a residential street to avoid being seen while he was using drugs. Appellant saw a microwave oven propping open the back gate of one residence. Appellant stopped, loaded the microwave into his vehicle, then went back to get two heaters and other items that were stacked near the gate. Police arrived and detained appellant. The owner came out and told police the property police took from appellant's vehicle had been inside the owner's house. Police arrested appellant and took him to jail. Appellant denied he knew police arrived quickly because an alarm inside the complainant's house alerted them to an intruder. Appellant testified he was alone when he took the complainant's property. The trial court, as fact finder in this case, was the exclusive judge of the weight to be given to appellant's testimony. See Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996). Having reviewed all the evidence under the appropriate standards, we conclude it is legally and factually sufficient to support the burglary of a habitation conviction. See Stone, 919 S.W.2d at 427; Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant's third and fourth points of error. Withdraw Guilty Plea
In his first point of error, appellant argues the trial judge should have withdrawn his guilty plea to burglary of a habitation because appellant testified to facts inconsistent with guilt. Appellant argues that because his testimony at the sentencing hearing established he never entered the residence, the trial court should have withdrawn his guilty plea or found him guilty only of theft. The State responds the trial court was not required to withdraw appellant's guilty plea, and appellant did not present evidence that was inconsistent with his guilty plea. We agree with the State. The trial court is not required to sua sponte withdraw a defendant's guilty plea and enter a plea of not guilty after a defendant waives a jury trial and enters the plea before the trial court, even if evidence is presented that either makes the defendant's innocence evident or reasonably and fairly raises an issue as to his guilt. See Moon v. State, 572 S.W.2d 681, 682 (Tex.Crim.App. 1978) (op. on reh'g); Aldrich v. State, 53 S.W.3d 460, 468 (Tex. App.-Dallas 2001), aff'd, 104 S.W.3d 890 (Tex.Crim.App. 2003). It is the trial court's duty, as fact finder, to consider all the evidence submitted and to find the defendant guilty of the crime charged, guilty of a lesser-included offense, or not guilty as the evidence required. See Moon, 572 S.W.2d at 682; Aldrich, 53. S.W.3d at 468. We have already concluded the evidence is legally and factually sufficient to support the conviction. Because the evidence supports the finding of guilt, there is no valid purpose to be served in requiring a trial court to withdraw the guilty plea. See Moon, 572 S.W.2d at 682; Aldrich, 53. S.W.3d at 468. Accordingly, we overrule appellant's first point of error. We affirm the trial court's judgment.