JACKIE LEE SMITH, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion Issued December 19, 1996
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-92-02018-CR
............................
JACKIE LEE SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F92-01647-LJ
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O P I N I O N
Before Justices Ovard, Hankinson, and Moseley
Opinion By Justice Moseley
        Jackie Lee Smith appeals his conviction for aggravated robbery. Without an agreement on punishment, appellant pleaded guilty to the offense alleged in the indictment. The trial court found appellant guilty and assessed a thirty-year sentence. On appeal, appellant complains (1) the evidence is insufficient to support his conviction, (2) the trial court's improper admonishments rendered his guilty plea involuntary, and (3) his trial counsel's ineffective assistance rendered his guilty plea involuntary. We affirm the trial court's judgment.
BACKGROUND
        Appellant was indicted for aggravated robbery. Without the benefit of a plea bargain agreement, appellant waived his right to a jury trial and pleaded guilty to the offense alleged in the indictment. Before accepting appellant's guilty plea, the trial court orally admonished him as required by article 26.13 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon 1989). The trial court also advised appellant that he was eligible for both court-ordered or "regular" probation and deferred adjudication probation. The State introduced appellant's signed, written confession into evidence without objection.         Appellant testified that he was pleading guilty freely and voluntarily. He understood the charges against him. Appellant admitted he committed the offense exactly as it was alleged in the indictment. He stated that he was pleading guilty because he was guilty and for no other reason. The trial court accepted appellant's plea but made no finding on guilt, ordered a presentence investigation report, and reset the case for a sentencing hearing.
        At the sentencing hearing, appellant reaffirmed he was pleading guilty because he was guilty. After the trial judge reviewed the presentence report, he found appellant guilty of aggravated robbery and assessed a thirty-year sentence.
SUFFICIENCY OF THE EVIDENCE
        In his first point of error, appellant contends that the evidence is insufficient under Texas statutory law to support the trial court's judgment. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 1997). Appellant argues that the preprinted document does not constitute a judicial confession because it (1) is unsworn, (2) is not evidentiary, and (3) does not establish the elements of the offense.
        A guilty plea is an admission of guilt to the offense charged; however, under state law, it does not authorize a felony conviction in a bench trial unless sufficient evidence is offered to support the plea. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 1997); Dinnery v. State, 592 S.W.2d 343, 351 (Tex. Crim. App. 1980) (op. on reh'g). A judicial confession, standing alone, is sufficient to sustain a conviction upon a guilty plea. Dinnery, 592 S.W.2d at 353.
        Here, appellant signed a written statement admitting he was guilty of aggravated robbery exactly as it was alleged in the charging instrument. Following appellant's plea, the State introduced appellant's written statement into evidence without objection. Appellant testified on his own behalf. He admitted that the allegations in the indictment were true and correct. Contrary to appellant's contentions, his sworn testimony and written stipulations are judicial confessions. See Davenport v. State, 858 S.W.2d 1, 3 (Tex. App.--Dallas 1993, no pet.); Jones v. State, 857 S.W.2d 108, 110-11 (Tex. App.--Corpus Christi 1993, no pet.). Appellant's sworn testimony that the allegations in the indictment were true and correct, without elaboration, is enough to sustain the court's finding of guilt. See Dinnery, 592 S.W.2d at 352. We overrule appellant's first point of error.
 
ADMONISHMENTS
        In his second point of error, appellant complains his guilty plea was involuntary because the trial court's admonishments did not substantially comply with article 26.13(a) of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon 1989). Specifically, appellant contends that the trial court incorrectly informed him that he was eligible for court-ordered probation.         
        No plea of guilty shall be accepted by the trial court unless it appears that the defendant is mentally competent and the plea is free and voluntary. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon 1989). The purpose of article 26.13 is to ensure that only constitutionally valid guilty pleas are entered and accepted by the trial courts. Soto v. State, 837 S.W.2d 401, 404 (Tex. App.--Dallas 1992, no pet.). Substantial compliance with the statute is sufficient unless the accused shows he entered his guilty plea without understanding the consequences of his action and that he suffered harm. See Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon 1980); see also Smith v. State, 857 S.W.2d 71, 73-74 (Tex. App.--Dallas 1993, pet. ref'd).
        We determine the voluntariness of a guilty plea under the totality of the circumstances. Crawford v. State, 890 S.W.2d 941, 944 (Tex. App.--San Antonio 1994, no pet.). When the record shows the trial court admonished the accused either orally or in writing, substantial compliance exists even if the admonishments are incomplete or incorrect. See Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985) (per curiam); Soto, 837 S.W.2d at 405. The burden then shifts to the appellant to establish that he did not understand the consequences of his plea and that he suffered harm. Ex parte Gibauitch, 688 S.W.2d at 871; Soto, 837 S.W.2d at 405. An appellant's assertion that he was misled does not suffice to show harm. Meyers v. State, 780 S.W.2d 441, 445 (Tex. App.--Texarkana 1989, pet. ref'd). Instead, the accused must show, by evidence grounded in a judicial record subject to review, both his lack of knowledge or understanding about the consequences of his plea and, objectively, the manner in which he was misled or harmed. See Grays v. State, 888 S.W.2d 876, 879 (Tex. App.--Dallas 1994, no pet.). Appellant must also make known that he would not have pleaded guilty if the trial court had correctly admonished him. Meyers, 780 S.W.2d at 445.
        In this case, the record shows the trial court orally admonished appellant in substantial compliance with article 26.13. The trial court admonished him about the correct range of punishment for aggravated robbery and informed him of the possible deportation consequences of his plea. However, the trial court further informed appellant that he was eligible for both court-ordered probation and deferred adjudication probation.
        Although the trial court does not have a duty under article 26.13 to admonish the defendant accused about the availability of probation, once the trial court volunteers this information, the trial court becomes obligated to provide accurate information. Ex parte Williams, 704 S.W.2d 773, 776 (Tex. Crim. App. 1986). Here, appellant pleaded guilty to aggravated robbery. The code of criminal procedure specifically eliminates court-ordered probation for a defendant adjudged guilty of aggravated robbery. FN:1 Therefore, the trial court incorrectly informed appellant that court-ordered probation was a sentencing option. However, substantial compliance with article 26.13 exists if the trial court admonished appellant, even if the admonishments are incorrect. See Ex parte Gibauitch, 688 S.W.2d at 871. The burden then shifts to appellant to establish that he did not understand the consequences of his plea. See Ex parte Gibauitch, 688 S.W.2d at 871; Soto, 837 S.W.2d at 405.
        In this case, appellant does not argue that he relied on the court's statement that he was eligible for court-ordered probation. He does not point to any evidence in the record showing he did not understand the consequences of his plea. To the contrary, at both the guilty plea hearing and the sentencing hearing, appellant testified that he was pleading guilty freely and voluntarily. Further, we note the trial court correctly informed appellant he was eligible for deferred adjudication probation. FN:2 Although appellant admitted at the motion for new trial hearing that he hoped to receive probation, his guilty plea is not rendered involuntary because he received a greater punishment than he anticipated. See West v. State, 702 S.W.2d 629, 633 (Tex. Crim. App. 1986); Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.--Dallas 1993, no pet.).
        Appellant has not shown that he did not understand the consequences of his plea or that he was misled by the trial court's incorrect information about his eligibility for court-ordered probation. See Gibauitch, 688 S.W.2d at 871; Soto, 837 S.W.2d at 405. We conclude the trial court's incorrect information did not affect the voluntariness of appellant's guilty plea. We overrule appellant's second point of error.
INEFFECTIVE ASSISTANCE OF COUNSEL
        In his third point of error, appellant argues his attorney's ineffective assistance rendered his guilty plea involuntary. Appellant contends his attorney was ineffective because he failed to conduct a proper investigation of the charges against him.
        Appellant filed a motion for new trial raising his ineffective assistance of counsel claim. The trial court held a hearing on appellant's motion. At the hearing, the complainant testified that, although appellant was involved in the robbery, he did not strike the complainant; the man with appellant actually struck him. The complainant also stated that no one from the defense had contacted him about the incident.
        Appellant testified on his own behalf. He stated that he told his attorney that he did not strike the complainant or take the complainant's car. Appellant testified he told his attorney he was not guilty. His attorney informed him that it would cost $10,000 for a trial. His attorney advised him that a guilty plea would be his "best chance" and he would probably receive probation. To appellant's knowledge, his attorney did not attempt to talk to the complainant about the facts of the case. Upon questioning by the trial court, however, appellant admitted that if he had been granted probation, he would not have moved for a new trial. Appellant's trial counsel did not appear at the hearing. The trial court denied appellant's motion for new trial.
        In determining whether a guilty plea made upon advice of counsel is constitutionally valid, we look to see whether counsel rendered effective representation for the defendant during the proceeding. Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991). To establish ineffective assistance of counsel during the plea bargaining process, the defendant must show (1) that counsel's representation fell below an objective standard of reasonableness and (2) that this deficient performance prejudiced the defense. Ex parte Battle, 817 S.W.2d at 84 (citing the two-part test of Strickland v. Washington, 466 U.S. 669 (1984)). To show prejudice in the context of a guilty plea, the defendant must show a reasonable probability that, were it not for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Ex parte Pool, 738 S.W.2d 285, 286 (Tex. Crim. App. 1987). The record must affirmatively support claims of ineffective assistance of counsel. See Smith v. State, 676 S.W.2d 379, 385 (Tex. Crim. App. 1984), cert. denied, 471 U.S. 1061 (1985); Weeks v. State, 894 S.W.2d 390, 391 (Tex. App.--Dallas 1994, no pet.).         Appellant suggests his attorney was ineffective because he did not interview the complaining witness. Assuming without deciding that counsel's representation fell below an objective standard of reasonableness, appellant has neither alleged in his brief on appeal nor shown beyond a reasonable probability that, were it not for counsel's failure to investigate, he would not have pleaded guilty and would have insisted on going to trial. See Ex parte Pool, 738 S.W.2d at 286.
        At both the guilty plea hearing and the sentencing hearing, appellant testified that he knowingly and voluntarily entered his guilty plea. He stated that he was pleading guilty because he was guilty and for no other reason. Nothing in the record ties appellant's decision to plead guilty to his attorney's failure to investigate. At the motion for new trial hearing, appellant indicated that he hoped to receive probation by pleading guilty. However, as noted above, a guilty plea is not rendered involuntary because appellant received a greater punishment than he anticipated. See West, 702 S.W.2d at 633; Tovar-Torres, 860 S.W.2d at 178. We conclude appellant has not affirmatively shown that but for his attorney's failure to interview the complaining witness, he would not have pleaded guilty and would have insisted on going to trial. We overrule appellant's third point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
 
 
 
 
FN:1 See Act of May 29, 1989, 71st Leg., R.S., ch. 785, § 4.17, 1989 Tex. Gen. Laws 3471, 3499, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 4.01, 1993 Tex. Gen. Laws 3586, 3718 (current version at Tex. Code Crim. Proc. Ann. art. 42.12, § 3(g)(1)(F) (Vernon Supp. 1997)).
FN:2 See Act of May 29, 1989, 71st Leg., R.S., ch. 785, § 4.17, 1989 Tex. Gen. Laws 3471, 3500, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 4.01, 1993 Tex. Gen. Laws 3586, 3719, amended by Act of May 26, 1995, 74th Leg., R.S., ch. 256, § 2, 1995 Tex. Gen. Laws 2190, 2191, amended by Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 53, 1995 Tex. Gen. Laws 2734, 2750 (current version at Tex. Code Crim. Proc. Ann. art. 42.12 § 5 (Vernon Supp. 1997)).
File Date[12-19-96]
File Name[922018F]