No. 05-07-01624-CR
Opinion Filed March 11, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-66023-WP.
Before Justices BRIDGES, RICHTER, and MAZZANT.
Opinion By Justice RICHTER.
Melquiades Junior Mendez was convicted of possession with intent to deliver cocaine in an amount of four grams or more but less than 200 grams and the court assessed punishment at five years' imprisonment and a $1,000 fine. On appeal appellant argues (1) his plea was not voluntary, (2) he received ineffective assistance of counsel, (3) the trial court abused its discretion in denying his motion for new trial, (4) the trial court erred in failing to afford the right of allocution, and (5) the judgment should be reformed to reflect the correct amount of the fine assessed and the correct name of the prosecutor. We modify the trial court's judgment and affirm the judgment as modified.
Background
Appellant was charged by indictment with the offense of possession with the intent to deliver cocaine in an amount of 4 grams or more but less than 200 grams. The State gave notice of its intent to seek a deadly weapon finding. Appellant waived his right to a jury trial and entered an open plea of guilty. Appellant also plead "true" to the deadly weapon allegation. Appellant was the only witness to testify at the punishment hearing. Appellant stated he was sorry for what he had done and that he was not a high level drug dealer. Instead, he claimed to be holding the drugs for a friend who was a drug dealer. Appellant acknowledged having a gun, but claimed he thought it was necessary for protection. Appellant first stated the gun wasn't loaded, but was reminded that the officers removed twelve cartridges from the gun. Appellant then stated he did not know the gun was loaded. When the prosecutor suggested it was not likely that appellant would be carrying an unloaded gun for protection, appellant admitted that he "probably knew it was loaded." The trial court found appellant guilty and assessed punishment at five years' imprisonment and a $1,000 fine. The court also made an affirmative deadly weapon finding. Appellant filed a motion for new trial and the court conducted a hearing. Several of appellant's family members testified on his behalf. Appellant's wife, Raquel Jimenez, testified that the family had planned to be present at the sentencing proceeding but there had been a miscommunication with appellant's attorney about the date. Jiminez also testified that appellant had a substance abuse problem but was getting his life back together. He was attending barber school, had a construction job waiting, and was a good father. Jiminez presented the court with several reference letters from family and friends. On cross-examination, Jiminez testified appellant had been selling drugs for about a year. He was also using drugs, associating with the wrong people, and sometimes did not come home. Appellant's mother also testified, and asked the court to give her son a second chance. Appellant's mother stated she knew appellant had committed an offense, but she believed him to be a good son. Appellant's sister-in-law gave similar testimony. At the conclusion of the hearing, the trial court denied the motion for new trial. This appeal followed. Discussion
Voluntariness of Plea
In his first issue, appellant asserts his guilty plea was involuntary because he believed he would receive deferred adjudication probation. A guilty plea will be accepted as constitutionally valid only with an affirmative showing that such a plea was entered knowingly, intelligently, and voluntarily. See Brady v. U.S., 397 U.S. 742, 748 (1970); Mitschke v. State, 129 S.W.3d 130, 132 (Tex.Crim.App. 2004). The record must affirmatively demonstrate that a defendant who pleaded guilty did so understandingly and voluntarily. Boykin v. Alabama, 395 U.S. 238, 242 (1969). We determine the voluntariness of a plea of guilty from the totality of the circumstances viewed in light of the entire record. Drucker v. State, 45 S.W.3d 791, 796 (Tex.App.-Dallas 2001, no pet.). Under article 26.13 of the Texas Code of Criminal Procedure, the trial court is required to give a defendant certain admonishments before accepting his guilty plea. Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2008); Kirk v. State, 949 S.W.2d 769, 771 (Tex.App.-Dallas 1999, pet ref'd). These admonishments may be oral or in writing. Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon Supp. 2008). The trial court's substantial compliance with article 26.13 establishes a prima facie showing that a defendant entered a knowing and voluntary plea. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998) (per curium). Once we determine the trial court's substantial compliance, the burden shifts to the defendant to show that he entered a plea without knowing its consequences and was thereby harmed. Id. When appellant entered his plea, he told the court he understood the charge and the range of punishment. He further affirmed that he understood his rights and wished to give up those rights. Appellant told the court he was pleading guilty freely and voluntarily and no one had promised him anything. Appellant assured the court he was pleading guilty because he was guilty and for no other reason. Although the court did not orally advise appellant of the range of punishment, the plea agreement form appellant signed reflected the range of punishment. The form also reflected appellant's plea of "true" to the deadly weapon allegation. Therefore, we conclude the trial court substantially complied with article 26.13. With this prima facie showing, the question becomes whether appellant met his burden to show the plea was not voluntary. Nothing in the record shows appellant believed he would receive deferred adjudication. The fact that appellant received greater punishment than he hoped for does not render the plea involuntary. See Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex.App.-Dallas 1993, no pet.). We conclude appellant's plea was voluntary. Appellant's first issue is overruled. Ineffective Assistance of Counsel
In his second issue, appellant argues he was denied the effective assistance of counsel because counsel failed to call his family members to testify at the sentencing proceeding. Effectiveness of counsel is evaluated under the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App. 1986) (en banc). The evaluation of an ineffective assistance claim begins with a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (en banc). To prevail on an ineffective assistance claim, an appellant must establish both prongs of a two prong test, showing: 1) counsel's performance fell below an objective standard of reasonableness; and 2) a reasonable probability exists that, but for counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88. Any allegation of ineffectiveness must be firmly rooted in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. 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 ineffective assistance claim. See Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005). Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). Under normal circumstances, the record on direct appeal is not sufficient to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Appellant claims counsel's performance fell below an objective standard of reasonableness because counsel failed to present witnesses who were prepared to testify that appellant is a good father, was needed by his family, had a potential job, and would receive extensive guidance and support if granted probation. But the record contains no explanation of trial counsel's motivation or strategy. Consequently, appellant has failed to rebut the presumption of effective assistance and we must presume counsel acted pursuant to a reasonable trial strategy. Appellant's second issue is overruled. Motion for New Trial
In his third issue, appellant asserts the trial court erred in denying his motion for new trial because several witnesses testified and evidence was offered that appellant was a good candidate for probation. We review a trial court's decision in denying a motion for new trial for an abuse of discretion. Webb v. State, 232 S.W.3d 109, 112 (Tex.Crim.App. 2007). We view the evidence in the light most favorable to the trial court's ruling and uphold the ruling if it is within the zone of reasonable disagreement. Id. at 112. A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004). At the sentencing proceeding, the trial court acknowledged that the sentence report was favorable to appellant. But the trial judge explained that he did not believe deferred adjudication probation was appropriate in light of the fact that appellant possessed 60 grams of cocaine and a loaded gun and had not been entirely truthful when he testified. Despite the favorable testimony of family members at the hearing on the motion for new trial, based on our review of the record, we cannot conclude that the trial court's decision was arbitrary or unreasonable. Appellant's third issue is overruled. The Right of Allocution
In his fourth issue, appellant argues the trial court erred in its failure to afford him the right of allocution. Article 42.07 of the Texas Code of Criminal Procedure provides that prior to sentencing, a defendant should be asked if he has anything to say as to why the sentence should not be pronounced. Tex. Code Crim. Proc. Ann. art. 42.07 (Vernon 2006). Appellant admits he failed to object to the trial court's failure to make this inquiry, but insists the error is reversible nonetheless. We disagree. An objection to a denial of allocution is required to preserve a complaint on appeal. See Tenon v. State, 563 S.W.2d 622, 623-24 (Tex.Crim.App. 1978). Further, there was no contention then or now that any of the statutory reasons not to impose the sentence ever existed. We conclude appellant was not harmed by the trial court's failure to follow article 42.07. See Hernandez v. State, 628 S.W.2d 145, 147 (Tex.App.-Beaumont 1982, no pet.). As stated by the court in Tenon v. State, 563 S.W.2d 622 (Tex.Crim.App. 1978), "[s]urely appellant would not have this court reverse this cause and order a new sentencing so that when the court asks [him] if [he] has anything to say why sentence should not be pronounced against [him] he can then answer 'nothing.'" Appellant's fourth issue is overruled. Reformation of the Judgment
In his fifth issue, appellant asserts the judgment should be modified to reflect the correct amount of the fine that was imposed and the name of the attorney representing the State. The State agrees that reformation is appropriate. At the sentencing hearing, the court announced the imposition of a $1,000 fine. The judgment, however, reflects that a $1,500 fine was imposed. When there is a conflict between the oral pronouncement and the written memorial of a sentence, the oral pronouncement controls. See Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App. 1998). The judgment also lists "Danielle Usher" as counsel for the State. The reporter's record for the sentencing hearing indicates the State was represented by "Drew Gaitlin." Therefore, the trial court's judgment is incorrect. We modify the trial court's judgment to reflect that the fine imposed was $1,000 and the State was represented by Drew Gaitlin. See Tex. R. App. P. 43.2(b). As modified, we affirm the trial court's judgment.