Opinion
No. 05-04-00857-CR
Opinion Filed July 15, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-76388-SU. Affirm as Reformed.
Before Justices WRIGHT, BRIDGES, and FITZGERALD.
OPINION
William Roger Wherry appeals his conviction for attempted sexual assault. After appellant pleaded guilty without the benefit of a plea agreement, the trial court assessed punishment at five years' confinement and a $2000 fine. In a single issue, appellant contends the trial court erred by overruling his motion for new trial because he did not receive the effective assistance of counsel at trial. We overrule appellant's sole issue and affirm the trial court's judgment. When, as here, a defendant challenges the voluntariness of a plea based on the ineffectiveness of counsel, the voluntariness of the plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases, and, if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). William T. Knox, appellant's trial counsel, testified at the hearing on appellant's motion for new trial. Knox said he had numerous meetings with appellant and his wife regarding the case. When appellant's wife was present, appellant would deny the offense; but when she was not present, appellant admitted the crime had happened as alleged. Knox was aware of Chris Bagsby, appellant's friend and a potential witness, and knew that Bagsby would testify that the complaining witness called appellant to come over to her apartment because she needed money. She was willing to have sex with appellant, but he did not have any money, became angry, and beat her. Knox explained that the day of trial, he offered to try and get a continuance so Bagsby could testify. However, after reviewing the probable cause affidavit again, appellant told Knox he would rather plead. With respect to the incorrect punishment range, Knox testified that he initially told appellant an incorrect punishment range, but later corrected it. He also told appellant if he went to trial he could be sentenced anywhere within the range of punishment. At the plea hearing, Knox questioned appellant and asked him if he understood that although appellant had asked Knox "many, many times" what his punishment would be, Knox had "no idea" and the judge could give him up to ten years' in prison. He also told appellant that because the offense was aggravated, appellant would have to serve at least 50 percent of his time before he would be eligible for parole. Appellant indicated that he understood the punishment range and his parole eligibility. Appellant also indicated that he wanted to plead guilty and that he understood "exactly" what he was doing. Knox denied ever telling appellant he would withdraw as surety on appellant's bond. Bagsby testified regarding a telephone conversation he had with the complainant after the offense. During that conversation, she said appellant was going to give her some money when he arrived at her apartment, but he did not. She was willing to have sex with appellant, but not oral sex. When she refused to have oral sex with appellant, he became angry. She did not tell Bagsby that appellant tried to force her to have oral sex. Bagsby also testified that he had seen the complainant a few days before the offense, and that she had a swollen cheek and an injured eye, purportedly from being beaten by her boyfriend. According to Bagsby, Knox never called or interviewed him. Bagsby did receive one subpoena for a hearing that was cancelled and he came to court one other time. No one contacted him about the plea hearing and he was not present at the courthouse that day. At the hearing on his motion for new trial, appellant testified that he was not guilty of the offense. Appellant explained that he pleaded guilty because the morning of trial, Knox told him he had made a deal with the prosecutor and appellant would get probation if he pleaded guilty. He also testified that if Bagsby had been present, he would not have pleaded guilty. After reviewing the record, we cannot conclude appellant met his burden to overcome the strong presumption of effective assistance of counsel or to show that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Although appellant contends counsel failed to interview and produce a "critical" defense witness, the record shows counsel was aware of the witness, knew what his testimony would be, and had subpoenaed him for past trial settings. After reviewing the probable cause affidavit, appellant said, "Well, I did do it," and said he would rather plead guilty than seek a continuance and get Bagsby to testify. Similarly, the record from both the plea hearing and counsel's testimony at the new trial hearing belie appellant's claims regarding his knowledge about the punishment range, his promise of probation, and threatening to withdraw as surety on appellant's bond. The trial court, as the sole judge of the credibility of the witnesses, was free to disbelieve appellant's assertions. Additionally, the record confirms that appellant was fully admonished orally and in writing when he entered his guilty plea, and he indicated that he understood the nature of the charges, the range of punishment, and that there was no plea-bargain agreement. A finding that a defendant was duly admonished creates a prima facie showing that a guilty plea was entered knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998). Once an accused attests that he understands the nature of his plea and that it was voluntary, he has a heavy burden to prove on appeal that his plea was involuntary. McNeill v. State, 991 S.W.2d 300, 302 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). Finally, with respect to appellant's complaint that counsel misinformed him about his parole eligibility, the record shows that after examining the law with both counsel, the trial court determined this was an aggravated offense, requiring completion of one-half of the sentence before parole eligibility. Counsel so informed appellant. Subsequently, the court of criminal appeals issued its opinion in Leggett v. State, 132 S.W.3d 380 (Tex.Crim.App. 2004), holding that conviction for an attempted offense is not a conviction of the underlying penal code provision. Id. Therefore, appellant's parole eligibility would not be effected by his conviction for attempted sexual assault. Nevertheless, counsel's advice was within the prevailing norms at the time and was thus, not ineffective. See Ex parte Welch, 981 S.W.2d 183, 184 (Tex.Crim.App. 1998). And, in any event, we fail to see how erroneously telling appellant his parole eligibility would not take effect until he had served half his sentence would induce appellant to plead guilty. Based on our review of the record, we conclude that Appellant has failed to overcome the strong presumption that his trial counsel provided adequate assistance and that his plea was voluntarily entered. Thus, we cannot conclude the trial court abused its discretion by overruling appellant's motion for new trial. We overrule appellant's sole issue. The State requests that we reform the judgment to show appellant entered an "open" plea, without a plea agreement with the State. We have the power to modify incorrect judgments when the necessary data and information is available to do so. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993) (concluding that Rule 80, now 43.2, empowers the courts of appeal to reform judgments); Abron v. State, 997 S.W.2d 281, 282 (Tex.App.-Dallas 1998, pet. ref'd). Although the judgment reflects appellant had a plea agreement, the reporter's record reflects appellant entered a plea of guilty without the benefit of a plea agreement with the State. Because the record reflects that appellant entered an "open" plea, we reform the judgment, as requested, to recite the terms of the plea bargain were "open." As reformed, we affirm the trial court's judgment.