Opinion
No. 05-09-00134-CR
Opinion issued June 11, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 194th Judicial District Court Dallas County, Texas, Trial Court Cause No. F07-55378-M.
Before Justices MORRIS, FITZGERALD, and FRANCIS.
OPINION
At trial, Claude Jerome Oliver pleaded guilty to aggravated robbery enhanced with two previous felony convictions. The trial court found appellant guilty and sentenced him to forty-five years' imprisonment. Appellant now contends he received ineffective assistance of counsel and his guilty plea was not entered knowingly or intelligently. Concluding appellant's complaints are without merit, we affirm the trial court's judgment. In his first point of error, appellant complains that he received ineffective assistance of counsel. He specifically complains his attorney incorrectly advised him he was eligible for probation and failed to investigate the facts of the case and appellant's background. To prevail on a claim of ineffective assistance of counsel, appellant must show that 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). Failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Here, both appellant and his attorney testified at a hearing on appellant's motion for new trial based on his allegations of ineffective assistance. Appellant's attorney contended that because of appellant's extensive criminal history and his admission to committing the offense, he encouraged appellant to accept a ten-year plea bargain offered by the State, but appellant insisted on entering an open guilty plea with the trial court in an effort to receive a sentence of probation and drug treatment. In the attorney's opinion, appellant was very familiar with the criminal justice system and appeared intelligent enough to make decisions about his case. The attorney never inquired about appellant's intelligence level. He stated that he had some familiarity with the issues of mental retardation because his mother was a psychiatrist and he had previously worked as a prosecutor handling civil mental commitments. He further noted that, rather than being open to suggestion as people with mental retardation can sometimes be, appellant was adamant in his desire to reject the plea bargain and instead enter an open guilty plea with hope for probation and drug treatment. The attorney briefly explored pursuing a motion to suppress in the case but abandoned it when appellant made the decision to enter an open plea and seek drug treatment. The attorney stated that he did not know appellant wanted an examining trial until appellant had already been indicted and an examining trial was no longer possible. He admitted he was unaware both that the trial judge had been appellant's attorney for the two offenses alleged as enhancement felonies and that appellant had served the sentences in both cases in one trip to the penitentiary. Appellant's current attorney introduced into evidence documents showing that appellant had repeated the ninth grade and one semester of the tenth grade. Appellant did not graduate from high school. He claimed he read at a third to fourth grade level. He also claimed he never told his trial attorney that he was guilty of the offense. He testified that trial counsel had guaranteed he would receive probation and drug treatment if he entered a guilty plea. Appellant alleged that his attorney never prepared him to testify in support of his open plea. He stated that he did not actually know what an open plea was and the attorney never explained it to him. Appellant claimed his trial attorney had never asked him the facts of the case or whether he had an alibi. Both appellant and his trial attorney agreed it was appellant who contacted a drug treatment facility to determine appellant's eligibility for the program, should he receive probation. At the conclusion of the hearing, the trial judge noted that any previous legal representation he may have given appellant "did not enter into any decision-making made by this Court." The judge denied the motion for new trial and concluded "that based on the testimony, that Mr. Oliver was [adequately] represented by Mr. Arnold." To begin, although appellant was not eligible for regular probation due to the nature of his crime, he was eligible for deferred adjudication probation. Compare Tex. Code Crim. Proc. Ann. art. 42.12, § 3g (Vernon Supp. 2009) with Tex. Code Crim. Proc. Ann. art. 42.12, § 5 (Vernon Supp. 2009). His one chance to receive probation for the offense was to enter a plea of guilty with the trial court and hope to receive deferred adjudication probation. The clerk's record indicates that was, in fact, the punishment he was seeking. Accordingly, appellant's trial lawyer did not incorrectly advise appellant about his eligibility for probation in the case. Next, with respect to appellant's other complaints, the trial court determined that appellant failed to meet his burden of proving ineffective assistance, and appellant does not challenge the trial court's ruling on appeal. This determination, deciding a mixed question of law and fact, required the trial court to evaluate the credibility and demeanor of the witnesses. Accordingly, we must afford almost total deference to the trial court's conclusion that appellant did not receive ineffective assistance of counsel. See Kober v. State, 988 S.W.2d 230, 233 (Tex. Crim. App. 1999). We conclude appellant has failed to prove he received ineffective assistance under the Strickland standard. We overrule his first point of error. In his second point of error, appellant complains that he did not enter his guilty plea knowingly or intelligently because his trial attorney failed to inform him he was ineligible for the punishment he was seeking — probation with drug treatment. As discussed above, because he entered a guilty plea with the trial court, he was eligible for deferred adjudication probation, despite the violent nature of his offense. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5. Accordingly, his argument is without merit. We overrule his second point of error. We affirm the trial court's judgment.
The trial judge noted for the record that he had not recalled during trial, or at the motion for new trial hearing, that he had represented appellant in those cases. And appellant's attorney stated that appellant never told him that the trial judge had previously been his attorney.
Other documents indicated appellant's scores on IQ and other tests, but no testimony was offered to explain the import of the results.
At the plea hearing, appellant testified the only reason he committed the offense was that he owed his accomplice drug money and the accomplice had threatened that if appellant did not commit the armed robbery, "he was going to go harm my peoples."