Opinion
Nos. 05-05-00175-CR, 05-05-00525-CR
Opinion Filed June 30, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause Nos. F04-35729-LH, F04-35730-TH. Affirm.
Before Justices WRIGHT, LANG-MIERS, and MAZZANT.
OPINION
Jose Luis Crispin Prado appeals his convictions for burglary of a habitation and aggravated robbery. After appellant pleaded guilty, the jury assessed punishment at twenty years' confinement in the burglary of a habitation case and thirty-five years' confinement in the aggravated robbery case. In four points of error, appellant contends: (1) he was not properly admonished, and (2) trial counsel was ineffective by failing to advise him he was eligible for deferred adjudication probation. We overrule appellant's points of error and affirm the trial court's judgments. In his first and second points of error, appellant contends the trial court failed to properly admonish appellant on the range of punishment. In particular, appellant maintains that the trial court volunteered information regarding probation eligibility but failed to inform appellant regarding the possibility of deferred adjudication probation. Article 26.13 of the Texas Code of Criminal Procedure provides that prior to accepting a plea of guilty or no contest, the trial court shall admonish the defendant as to the range of punishment, as well as to other consequences of his plea. Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2005). The "range of punishment" for purposes of article 26.13 does not include probation, and there is no mandatory duty for the trial court to admonish a defendant as to his eligibility for probation. See Harrison v. State, 688 S.W.2d 497, 499 (Tex.Crim.App. 1985). If, however, the trial court volunteers an admonishment as to the availability of probation, the court imposes a duty upon itself to accurately admonish the defendant. See Ex Parte Williams, 704 S.W.2d 773, 775 (Tex.Crim.App. 1986). A plea is involuntarily induced if it is shown that: (1) the trial court volunteered an admonishment that included information on the availability of probation, thereby creating an affirmative duty on the part of the trial judge to provide accurate information on the availability of probation; (2) the trial court provided inaccurate information on the availability of probation, thereby leaving the defendant unaware of the consequences of his plea; and (3) the defendant was misled or harmed by the inaccurate admonishment. See Williams, 704 S.W.2d at 776-77. Here, after appellant determined he wanted to plead guilty and have a jury assess punishment, the jury was selected and asked to return the next morning. At that time, appellant expressed doubt about pleading guilty. The trial court explained there were two ways appellant could proceed in front of the jury, either tell the jury, "Yes, I did wrong, but I want to explain what happened . . . and ask the jury for mercy. Or, . . . say I am not guilty and require the State to bring the witnesses and prove it." Appellant said he wanted to say he "did it and why [he] did it." Appellant then asked about pleading to the trial court and the trial court responded, "The only reason that it would probably not be best to come to me is the jury-I mean the Judge cannot give probation if they think it is the right thing to do." Appellant then decided to plead guilty and have the jury assess punishment. Because the trial court admonished appellant about the availability of probation, the court imposed a duty upon itself to accurately admonish the defendant. The trial court did not, however, tell appellant about the possibility that the trial court could place appellant on deferred adjudication probation. Because the trial court's admonishment was incomplete, we must determine whether appellant was misled or harmed by the trial court's failure to advise appellant of the possibility of deferred adjudication probation. See Williams, 704 S.W.2d at 777. After reviewing the record, we cannot make such a determination. There is nothing in the record to show that appellant was misled or relied on the trial court's incomplete admonishment in entering his plea. At no time during the plea hearing, sentencing hearing, or in a motion for new trial did appellant claim that his plea was involuntary due to misinformation provided to him by the trial court. At the time the trial court admonished appellant about probation eligibility, appellant had already decided to plead guilty, and was questioning whether he should plead before the jury or the trial court. Finally, there is nothing in the record indicating the State would have waived a jury trial or that the trial court would have placed appellant on deferred adjudication probation. Under these circumstances, we cannot conclude the record shows appellant was misled or harmed by the trial court's failure to advise appellant of the possibility of deferred adjudication probation. We overrule appellant's first and second points of error. In his third and fourth points of error, appellant claims counsel was ineffective for failing to advise him regarding the possibility of deferred adjudication probation. When reviewing such claims, we employ the standard of review set out in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770 (Tex.Crim.App. 1999) (holding Strickland two-prong test applies to ineffective assistance claims throughout trial, including punishment). To reverse a conviction based on ineffective assistance of counsel, we must determine: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 695. To satisfy the second prong of the test enunciated in Strickland, appellant must show there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty, but would have insisted on going to trial. See Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). However, "a defendant's claim he was misinformed by counsel, standing alone, is not enough for us to hold his plea was involuntary." Fimberg v. State, 922 S.W.2d 205, 208 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). Rather, appellant's claim must be affirmatively supported by the record. See Jackson v. State, 973 S.W.2d 954, 955 (Tex.Crim.App. 1998). Such a record is best developed in the context of an evidentiary hearing on application for writ of habeas corpus or motion for new trial. Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 834 (Tex.Crim.App. 2002). As the court of criminal appeals explained, rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation: "[i]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." Id. Here, the record is silent regarding the advice counsel gave to appellant about his plea. Likewise, the record is silent regarding whether appellant was induced into pleading guilty by counsel's failure to advise him of the possibility of deferred adjudication probation. Other than his bare statements, appellant has not shown by a preponderance of the evidence that counsel was ineffective by failing to advise him of the possibility of deferred adjudication probation or that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty, but would have insisted on going to trial. We overrule appellant's third and fourth points of error. Accordingly, we affirm the trial court's judgments.