Opinion
No. 07-17-00300-CR
02-26-2018
NOE MORIN, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 286th District Court Cochran County, Texas
Trial Court No. 11-01-1399; Honorable Pat Phelan, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Pursuant to a guilty plea, Appellant, Noe Morin, was placed on deferred adjudication community supervision for indecency with a child for a period of seven years. Less than two years later, the State moved to proceed with an adjudication of guilt for multiple violations of the conditions of community supervision. Following a plea of true to the allegations in the State's motion, the trial court found sufficient evidence to adjudicate Appellant guilty of the original offense and sentenced him to fifteen years confinement and imposed a $2,500 fine. By a sole issue, Appellant requests that his case be remanded to the trial court "due to the uncontroverted evidence" that he was under the influence of drugs at the time he entered his original guilty plea. The State did not file a brief. We affirm.
TEX. PENAL CODE ANN. § 21.11(a)(1) (West Supp. 2017). An offense under this section is felony of the second degree. Id. at § 21.11(d).
BACKGROUND
Appellant was indicted for engaging in sexual contact with a child younger than seventeen years of age. In March 2013, in exchange for a recommendation of seven years deferred adjudication and a fine of $750, Appellant agreed to enter a plea of guilty and abide by the conditions of deferred adjudication community supervision imposed by the trial court. Appellant was subsequently charged with committing multiple violations of the conditions of his deferred adjudication community supervision which, following a hearing on the State's motion to proceed, resulted in his conviction.
ANALYSIS
By his argument, Appellant maintains his 2013 guilty plea was involuntary because "more likely than not," he was on drugs at the time and no inquiry was made into his competence. Appellant also urges that his trial counsel may have been ineffective for advising him to plead guilty while under the influence of drugs.
Prior to accepting a guilty plea, a trial court must admonish the defendant pursuant to article 26.13(a) of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 26.13(a) (West Supp. 2017). The admonishments may be given orally or in writing. Id. at art. 26.13(d). The trial court may not accept a defendant's guilty plea unless it appears that the defendant is mentally competent and the plea is free and voluntary. Id. at art. 26.13(b).
Appellant and his trial counsel executed written admonishments acknowledging the consequences of Appellant's guilty plea. Nothing in the record of the guilty plea hearing indicates that Appellant was under the influence of any drugs. For that matter, nothing in the record indicates any other reason why the trial court should have rejected Appellant's guilty plea as being involuntary.
Moreover, a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding only in an appeal taken when deferred adjudication community supervision is first imposed. Wiley v. State, 410 S.W.3d 313, 319 (Tex. Crim. App. 2013) (citing Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999)). By waiting more than three years to raise the voluntariness of his guilty plea, Appellant has procedurally defaulted his claim.
Regarding Appellant's ineffective assistance claim, we refer him to the standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). Appellate review of trial counsel's representation is highly deferential and presumes that counsel's conduct fell within the wide range of reasonable and professional representation. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). See also Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Before deeming representation ineffective, trial counsel should be afforded the opportunity to explain his actions. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001) (finding that usually, a record on direct appeal is undeveloped and cannot adequately reflect trial counsel's motives). See also Goodspeed, 187 S.W.3d at 392. Where the accusations of ineffective assistance of counsel are errors of omission rather than commission revealed in the trial record, collateral attack by way of a writ of habeas corpus may be the more appropriate vehicle by which to develop a detailed record of those allegations. See Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003). See generally Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690, 1694 155 L. Ed. 2d 714 (2003) (stating that when a claim of ineffectiveness is raised on direct appeal, a trial record is usually not developed for establishing such a claim).
Although Appellant filed a motion for new trial alleging ineffective assistance of counsel, no hearing was held. Trial counsel was not given the opportunity to explain why he allowed his client to plead guilty. Where, as here, the record from the guilty plea hearing does not support a claim of ineffective assistance of counsel, the more appropriate means of developing that record is via a writ of habeas corpus. See Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012). Appellant's sole issue is overruled.
CONCLUSION
The trial court's Judgment Adjudicating Guilt is affirmed.
Patrick A. Pirtle
Justice Do not publish.