No. 01-08-00523-CR
Opinion issued November 4, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 339th District Court Harris County, Texas, Trial Court Case No. 1125393.
Panel consists of Justices JENNINGS, ALCALA, and SHARP.
TERRY JENNINGS, Justice.
Appellant, Terrell Kuykendall, without an agreed punishment recommendation from the State, pleaded guilty to the offense of manslaughter, and the trial court assessed his punishment at confinement for seven years. In his sole issue, appellant contends that his trial counsel provided ineffective assistance of counsel. We affirm.
Factual Background
A Harris County grand jury issued a true bill of indictment, accusing appellant of committing the offense of manslaughter by unlawfully and recklessly causing the death of the complainant, Torrick Betties, by discharging a firearm in a public place. Appellant and his trial counsel signed his plea of guilty and the admonishments, and the trial court reset the matter for a pre-sentence investigation ("PSI") hearing. At the PSI hearing, appellant testified that he had acquired a firearm from a person named "James," but it was broken, so he had returned it to James to repair it. After James had attempted to repair the firearm, appellant went to an apartment complex where James lived to retrieve the firearm. After retrieving the firearm, appellant went to the breezeway of the apartment complex "to make sure it worked this time." He tried to shoot the firearm several times, but it did not work. He looked at the firearm, and, "before [he] knew it," "it shot [him] in the hand." Appellant then saw that the same bullet that had injured him also injured the complainant, who had been standing in the area. Appellant "got scared," ran upstairs to tell his girlfriend to call for emergency assistance, and then "ran" from the scene. Appellant explained that he and the complainant were friends and co-workers, there was no ill will between the two, and he did not intend to shoot anyone. Craig Bass, a friend of both appellant and the complainant, testified that he witnessed the shooting. He saw appellant come down the stairs at the apartment complex, raise the firearm to the sky, and try to shoot it three times to see if it worked, but it did not work. Appellant then looked at the gun, and it "went off." Appellant said that a bullet hit him in the hand, and Bass and others in the area checked to see if they had been shot. Then, the complainant, who was standing a few steps away from appellant, said, "you shot me," walked a few more steps, and fell to the ground. Bass explained that, at the time that appellant attempted to shoot the firearm, there had been "a lot of people" standing in the apartment complex breezeway because it was "the most used breezeway that people go in." He stated that appellant had not purposefully aimed the gun at anyone. Ineffective Assistance of Counsel
In his sole issue, appellant argues that his trial counsel rendered ineffective assistance because counsel "presumably" advised him to plead guilty to the offense of manslaughter and, "if [counsel] had researched the manslaughter cases involving the use of a firearm, [counsel] would have certainly realized" that the case against appellant lacked any evidence of recklessness, which is an element of the offense of manslaughter. In order to prove an ineffective assistance of counsel claim, appellant must show that his trial counsel's performance fell below an objective standard of reasonableness and, but for counsel's unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that his performance falls within the wide range of reasonable professional assistance or trial strategy. Robertson v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A failure to make a showing under either prong defeats a claim of ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Allegations of ineffectiveness must be firmly founded in the record. See Bone v. State, 77 S.W.3d 828, 833 n. 13 (Tex. Crim. App. 2002). When the record is silent, we may not speculate to find trial counsel ineffective. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.-Houston [1st Dist.] 1996, no pet.). In the absence of evidence of counsel's reasons for the challenged conduct, an appellate court commonly will assume a strategic motivation if any can possibly be imagined, and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Here, appellant did not file a motion for new trial, and there is nothing in the record to indicate why appellant chose to plead guilty to the offense of manslaughter. Thus, there is no evidence that appellant's trial counsel actually advised appellant to plead guilty. Appellant's counsel on appeal acknowledges that there is no evidentiary record and merely asserts that appellant "plead[ed] guilty to manslaughter presumably on the advice of counsel." (Emphasis added.) Appellant's appellate counsel also agrees that there is no evidentiary record. Even though counsel asserts that appellant, at the time he entered his plea of guilty, was 18, had a tenth grade education, and suffered from severe learning disabilities, appellant's counsel does not directly challenge the plea on these grounds. He concedes that an evidentiary hearing would be required because "[trial] counsel's shortcomings in this regard are admittedly not apparent from an examination of the record." Moreover, appellant, in the admonishments signed by him, agreed that he was mentally competent, understood the nature of the charge and the consequences of his plea, and freely, knowingly, and voluntarily executed his plea. In sum, without any record evidencing that appellant's trial counsel actually advised appellant to plead guilty to the offense of manslaughter, we cannot hold that trial counsel's performance fell below an objective standard of reasonableness. See Hernandez v. State, No. 03-98-00345-CR, 1998 WL 853051, at *1 (Tex. App.-Austin Oct. 22, 1998, no pet.) (mem. op., not designated for publication) (noting that appellant had not filed a motion for new trial and, thus, no record was developed, so court could not determine "why appellant chose to plead guilty," "whether other incriminating facts were disclosed to counsel by the prosecutors," "if there were other considerations that caused counsel to recommend a guilty plea," whether counsel even "advised appellant to plead guilty at all," or whether "appellant's decision to enter his plea was based entirely or in significant part on counsel's advice that he do so"). We overrule appellant's sole issue. Conclusion
We affirm the judgment of the trial court.