Walters, Michael Clayton v. The State of Texas--Appeal from Crim Dist Ct 5 of Dallas Co of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MICHAEL CLAYTON WALTERS, )

) No. 08-01-00419-CR

Appellant, )

) Appeal from

v. )

) Criminal District Court No. Five

THE STATE OF TEXAS, )

) of Dallas County, Texas

Appellee. )

) (TC# F-0118841-TL)

O P I N I O N

Michael Walters appeals a ten-year sentence, stating his plea was involuntary due to ineffective assistance of counsel. Appellant pleaded no contest to a charge of deadly conduct, a third-degree felony. Appellant made an open plea without a plea bargain. The trial judge sentenced appellant to the maximum applicable term of years--with credit for time served--and fined appellant $2,500 out of a possible $10,000 fine. Appellant then filed a motion for new trial claiming ineffective assistance of counsel which resulted in an involuntary plea. The trial court overruled the motion and appellant timely appealed. We will affirm.

Background

Appellant had no prior convictions or trouble with the law. On the night of May 8, 2001, he was drinking heavily, got into some type of verbal exchange at a sports bar called the Box Car, left and returned with a friend and firearms. Upon returning to the Box Car, appellant and friend sprayed the bar with thirty-five to forty rounds from their .22 pistol and AK 47. One of the rounds struck the bar owner in the head, creasing his skull, causing extensive nerve damage in the owner=s right forehead, top of his head, and right side. The owner had been sitting at a table in front of a plate glass window when the deadly force was used.

Appellant=s motion for new trial contained four affidavits. The affidavits were from his mother, his fiancée, appellant, and his trial counsel. Appellant averred his attorney, Paul Blocker, told him several times he would receive a probated sentence, did not explain the words Aopen plea,@ and Blocker=s contract calls for a $350 fee indicating a plea bargain. Blocker=s fee for an open plea was $600. In other words, appellant would have us infer that the lower fee charged, corroborates the allegation Blocker promised probation or he would have charged the higher $600 for an open plea. Appellant=s mother essentially reiterated the same allegations in her affidavit and added both Blocker and his associate told her several times her son would receive probation. Appellant=s fiancée swore in her affidavit, an unnamed associate of Blocker said appellant would receive a probated sentence if he pleaded guilty. In a pre-prepared check-off affidavit, appellant=s attorney swore he visited appellant two times in jail, did not tell appellant or his mother Walters would receive probation, had zero conversations with witnesses or co-defendants, did read Walters=s confession, and did not visit the scene of the shooting.

In a single issue, appellant argues his plea was involuntary due to ineffectiveness of counsel because defense counsel promised him he would receive probation and his counsel did not properly investigate the case.

 Standard of Review and Applicable Law

When a defendant challenges the voluntariness of a plea contending that his counsel was ineffective, 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 upon a trial on the merits. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999) (citing Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997); Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970)). Like other types of ineffective assistance of counsel claims, appellant has the burden to show that counsel=s performance fell below a reasonable standard of competence and that appellant would have, with reasonable probability, pleaded not guilty and insisted on a trial had he been properly advised that he could be denied probation and received a term of years. See id. When the record shows the trial court properly admonished the defendant regarding the consequences of his plea, the record presents a prima facie showing the defendant entered a knowing and voluntary plea. Ybarra v. State, 960 S.W.2d 742, 745 (Tex. App.--Dallas 1997, no pet.) (citing Harris v. State, 887 S.W.2d 482, 484 (Tex. App. Dallas 1994, no pet.)). The burden then shifts to the defendant to show the plea was not voluntary. Id. Where the evidence is conflicting, the trial court, as fact finder, may believe part or all of any testimony. See Floyd v. State, 914 S.W.2d 658, 666 (Tex. App.--Texarkana 1996, pet. ref=d).

Analysis

First, we observe that appellant was duly admonished concerning the voluntariness of his plea. Therefore, the burden shifted to appellant to show his plea was not voluntary. Ybarra, 960 S.W.2d at 745. This he first does by his profession that he was told he would receive probation by his counsel. Counsel, however, specifically denies this charge. The trial court is free to believe defense counsel and disregard all or parts of appellant=s proof. Floyd, 914 S.W.2d at 666. In denying appellant=s motion for new trial, the trial court implicitly rejected the substance of appellant=s affidavits on this issue. The trial court was within its discretion to do so. Id. Thus, appellant has failed to meet the first prong of his voluntariness test, that counsel=s actions were outside the required range of competence. Ex parte Moody, 991 S.W.2d at 857-58; Strickland, 466 U.S. at 687.

Next we turn to appellant=s second attack on his counsel=s actions, inadequate investigation. Appellant is entitled not merely to the assistance of counsel, but rather to the reasonably effective assistance of counsel. Id. Counsel=s own affidavit shows he spoke with no witnesses, and did not visit the scene of the shooting. Counsel did visit appellant in jail two times, reviewed his confession, and apparently visited with appellant=s mother. We will assume, without deciding, that counsel=s actions fell below the applicable standard of competence. However, the record is devoid of any evidence that the probable outcome of the proceeding would have been different. An appellant must affirmatively prove prejudice with a showing that there is a reasonable probability that, but for counsel=s substandard performance, the outcome of the proceeding would have been different. Castellano v. State, 49 S.W.3d 566, 573 (Tex. App. -Corpus Christi 2001, pet. ref=d) (citing Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)). Our review of the record demonstrates there is no evidence of any prospective testimony, physical evidence from the scene, third-party involvement, or extenuating factors.[1] Other than a bare assertion, appellant neither argues, nor does the record lead us to conclude, there is a reasonable probability, but for counsel deficiencies, the outcome would have changed. See Thompson, 9 S.W.3d at 812. And finally, the record does not show

appellant would have otherwise pleaded not guilty and insisted upon a trial. Ex parte Moody, 991 S.W.2d at 857-58. Appellant=s sole issue is overruled. The judgment is affirmed.

DON WITTIG, Justice

July 11, 2002

Before Panel No. 5

Larsen, Chew, and Wittig, JJ.

(Wittig, J., sitting by assignment)

(Do Not Publish)

[1]It seems to us, appellant is most fortunate, given the shooting spree and permanent gun shot injury to the bar owner, that his charge was limited to a third-degree felony.