Opinion
No. 06-16-00104-CR
03-17-2017
ORLANDOS LUGENE JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 115th District Court Upshur County, Texas
Trial Court No. 17061 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
Hoping to receive deferred adjudication, judge-ordered community supervision, Orlandos Lugene Johnson entered an open plea of guilty to two counts of aggravated sexual assault of a child. After a bench trial on the issue of punishment, Johnson was sentenced to fifty years' imprisonment on each count. On appeal, Johnson argues (1) that his counsel rendered ineffective assistance when he failed to communicate a plea bargain offer allegedly made by the State, and (2) that, consequently, his resulting plea of guilty was not knowingly and voluntarily entered. Because we conclude that nothing in the record demonstrates either that the State made a plea bargain offer or that Johnson was unaware of any alleged plea bargain offer, we affirm the trial court's judgment.
Johnson also argues that counsel rendered ineffective assistance in failing to protect his right to appeal. However, the clerk's record clearly establishes that Johnson's notice of appeal was timely filed. Because Johnson's appeal is properly before us, we overrule this point of error as moot.
I. Standard of Review
"The applicant has the burden to prove ineffective assistance of counsel by a preponderance of the evidence." Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (citing Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). As many cases have noted, the right to counsel does not mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). In order to prevail on a claim of ineffective assistance of counsel, the defendant must satisfy the two-pronged test set forth in Strickland v. Washington. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); see Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009) (orig. proceeding). The first prong requires a showing that counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. This requirement can be difficult to meet since there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.
The second Strickland prong, sometimes referred to as "the prejudice prong," requires a showing that, but for counsel's unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Id. at 694. "A reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Id.; see Martinez, 330 S.W.3d at 901.
A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). The Strickland test "of necessity requires a case-by-case examination of the evidence." Williams v. Taylor, 529 U.S. 362, 382 (2000) (quoting Wright v. West, 505 U.S. 277, 308 (1992) (Kennedy, J., concurring in judgment)).
Critically, allegations of ineffectiveness "must 'be firmly founded in the record.'" Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). Thus, "the presumption of a sound trial strategy cannot be overcome absent evidence in the record of the attorney's reasons for his conduct." Martinez, 330 S.W.3d at 901 (citing Busby v. State, 990 S.W.2d 263, 269 (Tex. Crim. App. 1999)). The Texas Court of Criminal Appeals has said that "[t]rial counsel 'should ordinarily be afforded an opportunity to explain his actions' before being denounced as ineffective." Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).
Where an appellate record is silent as to why trial counsel failed to take certain actions, the appellant has "failed to rebut the presumption that trial counsel's decision was in some way—be it conceivable or not—reasonable." Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); see Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). When, as here, a claim of ineffective assistance of counsel is raised for the first time on direct appeal, the record "is in almost all cases inadequate to show that counsel's conduct fell below an objectively reasonable standard of performance." Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).
II. The Appellate Record Fails to Support Johnson's Claim of Ineffective Assistance
The record demonstrates that Johnson waived trial by jury and decided to plead guilty in the hopes of receiving judge-ordered, deferred adjudication community supervision. Compare TEX. CODE CRIM. PROC. ANN. art. 42A.056(4) (West Supp. 2016) with TEX. CODE CRIM. PROC. ANN. art. 42A.102(a). Johnson signed a written stipulation of evidence and averred that all matters set forth in the two-count indictment were true and correct. These documents, along with the trial court's written admonishments, were admitted into evidence at Johnson's plea hearing.
At the plea hearing, Johnson's counsel informed the trial court that Johnson was entering an open plea of guilt since the State had offered no recommendation on punishment. In harmony with his counsel's statements, Johnson entered a plea of guilty to both counts in the State's indictment. Following proper admonishments administered by the trial court, and Johnson's confirmed understanding of those admonishments, including the range of punishment, the trial court found Johnson's pleas knowingly, intelligently, and voluntarily entered.
For the first time on direct appeal, Johnson argues that his counsel rendered ineffective assistance in failing to inform him of a prior plea offer made by the State, and, thus, that his pleas were unintelligent, unknowing, and involuntary. However, the appellate record contains no suggestion that the State made any plea bargain offer to Johnson.
To support his ineffective assistance claim, Johnson relies on documents attached as an appendix to his brief, which were never made part of the appellate record. "An appellate court may not consider factual assertions that are outside the record, and a party cannot circumvent this prohibition by submitting evidence for the first time on appeal." White v. State, 441 S.W.3d 803, 806 n.4 (Tex. App.—Texarkana 2014, no pet.) (citing McFatridge v. State, 309 S.W.3d 1, 6 (Tex. Crim. App. 2010); Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004)). When a party attaches documents to "its appellate brief which were not submitted to the trial court and are not included in the appellate record[,] [t]hey [a]re disregarded." Id.
The evidence outside of the record includes what appears to be a plea bargain offer by the State for forty years' imprisonment. The document states, "The offer will remain open until the calling of the Trial Docket. Please note that if this offer is not accepted, it will lapse and any further offers will be greater than that now proffered."
Simply put, the appellate record does not support Johnson's position that the State made a plea bargain offer to him. Additionally, even Johnson acknowledges that "the record is completely silent as to whether [counsel] conveyed the State's previous plea bargain offer to Johnson." Based on the silent record before us, we cannot (1) assume that the State actually made a plea offer, (2) assume that counsel failed to inform Johnson of any previous plea bargain, or (3) conclude that Johnson's plea was rendered involuntary for these reasons. Accordingly, we overrule Johnson's points of error.
III. Conclusion
We affirm the trial court's judgment.
Ralph K. Burgess
Justice Date Submitted: January 12, 2017
Date Decided: March 17, 2017 Do Not Publish