Nos. 05-10-00544-CR, 05-10-00545-CR, 05-10-00546-CR
Opinion issued April 12, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 265th Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F08-00758-R, F09-59030-R, F09-59031-R.
Before Justices MURPHY, FILLMORE, and MYERS.
Opinion By Justice FILLMORE.
Appellant Danny Winzer pleaded guilty and was found guilty and sentenced by the trial court on two counts of theft and one count of evading arrest. In a single point of error, Winzer complains he received ineffective assistance of counsel. We affirm the trial court's judgments. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in this case is well settled.
Procedural Background
In three indictments, Winzer was charged with the offenses of theft of money in the aggregate value of more than $20,000 but less than $100,000, evading arrest, and theft of an ATM machine and currency in the value of at least $100,000 but less than $200,000. Winzer pleaded guilty to theft of $20,000 or more and "true" to enhancement paragraphs alleging a 1995 California conviction for robbery and a 2004 Texas conviction for violation of a protective order. Winzer pleaded guilty to the theft of an ATM machine and currency in the value of at least $100,000 and "true" to the enhancement paragraph alleging the 2004 Texas conviction for violation of a protective order. Winzer also pleaded guilty to evading arrest. After entering pleas of guilty to the three charges and "true" to the enhancement paragraphs, Winzer testified that: (1) he had pleaded "true" to an enhancement paragraph involving a California conviction; (2) he had been incarcerated in a California penitentiary for possession of drugs in 1998; and (3) in 2004 he was released from a Texas penitentiary where he had been incarcerated after conviction for violation of a protective order. The trial judge sentenced Winzer to twenty-five years' confinement in a state prison and assessed a $5000 fine in each of the theft cases and to two years' confinement in a state jail and assessed a $1500 fine in the evading arrest case, with the sentences to run concurrently. Winzer filed motions for new trial in each of the three cases in which he entered guilty pleas. In each of his motions, Winzer sought a new trial "for the good and sufficient reason that the verdict is contrary to the law and evidence." There was no post-conviction hearing on the motions for new trial. Analysis
Winzer asserts his counsel was ineffective by failing to move to withdraw Winzer's plea of "true" to the enhancement paragraph regarding the 1995 California robbery conviction when the evidence showed a "mere drug possession conviction" and by permitting Winzer "to be punished for having committed a robbery [in California] rather than a less serious drug possession crime." We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984) and adopted in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). Winzer has the burden to show by a preponderance of the evidence that (1) trial counsel's performance was deficient in that it fell below an objective standard of reasonableness and (2) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. Andrews, 159 S.W.3d at 101. We examine the totality of counsel's representation to determine whether an appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, there is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813. Any allegation of ineffectiveness must be firmly founded in the record; the record must affirmatively demonstrate the alleged ineffectiveness. Id. Because a silent record provides no explanation for counsel's actions, the record on direct appeal usually "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." Cannon v. State, 252 S.W.3d 342, 349-50 (Tex. Crim. App. 2008) (quoting Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)); see Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Furthermore, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. "A petition for writ of habeas corpus usually is the appropriate vehicle to investigate ineffective-assistance claims." Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Here, Winzer pleaded "true" to the enhancement allegations contained in his indictment for theft of $20,000 or more. "[P]leas to enhancement allegations are different from pleas to the guilt-innocence phase of trial because a plea of 'true' does constitute evidence and sufficient proof to support the enhancement allegation." Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984) (emphasis in original). As a result, the general rule is that a plea of "true" satisfies the State's burden of proof for enhancement allegations. Id. We disagree with Winzer's characterization of the evidence regarding Winzer's criminal history in California. Winzer contends there is a conflict in the evidence because, while he pleaded "true" to an enhancement paragraph alleging a 1995 California conviction for robbery, he testified he was imprisoned in California for a 1998 drug possession conviction. Contrary to Winzer's contention on appeal, his testimony that he was imprisoned in California for a 1998 drug possession conviction does not conflict with his plea of "true" to the enhancement allegation that he was convicted in 1995 of robbery in California or to his acknowledgment in testimony that one of the enhancement paragraphs to which he pleaded "true" was "out of California." In this case, Winzer filed motions for new trial, but there was no post-conviction hearing on any of the motions. As was the case in Thompson, the record here provides no discussion of trial counsel's strategy and no explanation of the motivation behind counsel's decisions and actions. See Thompson, 9 S.W.3d at 814. Winzer's counsel has not been given an opportunity to explain his actions. Because the record provides no explanation for counsel's actions, and because Winzer's testimony that he was imprisoned in California for a 1998 drug possession conviction was not inconsistent with his plea of "true" to the enhancement allegation that he was convicted in 1995 of a California robbery, we conclude Winzer has not met his burden of showing that trial counsel's performance fell below an objective standard of reasonableness. In other words, the record does not establish that Winzer's trial counsel's "failure" to move to withdraw Winzer's plea of "true" to the enhancement paragraph regarding the 1995 California robbery conviction fell below prevailing professional norms. Although there are rare cases in which a record on direct appeal is sufficient for an appellate court to make a decision on the merits of an ineffective assistance of counsel claim, this is not one of those cases. See Cannon, 252 S.W.3d at 350. We conclude Winzer failed to meet his burden to overcome the strong presumption of reasonable assistance of counsel. See Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003) ("The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim."). Since we have concluded Winzer has failed to establish error on the part of trial counsel sufficiently egregious to satisfy the first prong of Strickland, it is unnecessary for us to reach the second prong requiring that an appellant show than an alleged deficiency of trial counsel resulted in prejudice. We overrule Winzer's sole point of error. We affirm the trial court's judgments.