KENDELL GLEN NICHOLS, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRMED as modified; Opinion issued October 18, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-01097-CR
............................
KENDELL GLEN NICHOLS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-28037-KV
.............................................................
OPINION
Before Chief Justice Thomas and Justices Bridges and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Kendell Glen Nichols pleaded guilty, before the trial court and without the benefit of a plea bargain, to possession with intent to deliver methamphetamine in an amount of four grams or more but less than two hundred grams, as charged in the indictment.   See Footnote 2  See Tex. Health & Safety Code Ann. §§ 481.102(6), 481.112(a), (d) (Vernon 2003 & Supp. 2006). The trial court continued the case for a sentencing hearing and for preparation of a presentence report. On July 22, 2005, after hearing punishment testimony from appellant and his mother, and reviewing the presentence report, the trial court found appellant guilty as charged, assessed his sentence at twelve years' confinement in the penitentiary, and sentenced appellant.
        In three points of error, appellant contends his plea was involuntary because he was not made aware of the range of punishment,   See Footnote 3  he received ineffective assistance of counsel, and the judgment should be modified to delete the fine.   See Footnote 4  The State concedes the judgment should be modified, but contends appellant's first two points of error are without merit.
        We modify the judgment to delete the fine. We affirm the judgment, as modified.
Involuntary Plea
        In his first point of error, appellant complains his plea was involuntary because the trial court did not admonish him of the full punishment range. Specifically, appellant contends in his first point that his plea was rendered involuntary because he was not made aware of the minimum sentence of five years' imprisonment should the trial court not grant community supervision. Appellant argues by not so admonishing him, the trial court violated article 26.13(a)(1) of the Texas Code of Criminal Procedure. See Tex. Code. Crim. Proc. art. 26.13(a)(1) (Vernon Supp. 2006). The State responds that the trial court properly admonished appellant of the range of punishment. The State further argues that any error was harmless because the record does not show appellant was unaware of the consequences of his plea. Therefore, appellant's guilty plea was voluntary.
Background
        After the parties announced ready, the following occurred:
 
 
[Court]:
 
Mr. Nichols, you're charged with the offense of possession with intent to deliver methamphetamine. Do you understand what you're charged with?
 
 
 
 
[Appellant]:
 
Yes, sir.
 
[Court]:
 
You and Mr. Knox, lawyer at your side, have gone over the facts as you know them to be. In fact, this case was set for trial this morning, I think, wasn't it?
 
 
 
 
[Defense Counsel]:
 
Yes, sir.
[Court]:
 
So you know what the State's saying you did to violate the law. Is that a fair statement?
 
 
 
 
[Appellant]:
 
Yes, sir.
 
[Court]:
 
One reason I ask that question, sir, paperwork that you and Mr. Knox, your attorney, have given me here tell me you're going to waive a jury in this case and enter a plea of guilty. Are you doing that freely and voluntarily?
 
 
 
 
[Appellant]:
 
Yes, sir.
 
 
 
 
[Court]:
 
Client competent, Mr. Knox?
 
 
 
 
[Defense Counsel]:
 
Yes, sir.
 
 
 
[Court]:
 
I accept your plea if you make it. I find you make it freely and voluntarily, you're competent to do so. In the file is a statement by you in writing you've gone over certain rights you have in connection with this plea and you understand those rights. Did that happen that way?
 
 
 
 
[Appellant]:
 
Yes, sir.
 
[Court]:
 
Approve your admonishment.
 
 
        Thereafter, defense counsel represented to the trial court his client would testify. Appellant did testify, in relevant part, as follows:
 
[Defense Counsel]:
 
Now, you're pleading guilty because you are guilty and for no other reason; is that right?
 
 
 
[Appellant]:
 
Yes, sir.
 
[Defense Counsel]:
 
Now, Kendall, it-you understand this was set for a trial on a plea of not guilty today. And the State's-State's here, and they-I understand they have their witnesses available. And you decided that you would rather enter a plea of guilty; is that correct?
 
 
 
[Appellant]:
 
Yes, sir.
 
[Defense Counsel]:
 
Now, a couple of things. You understand I can't promise you any result here. You understand I haven't even talked to the Judge about this. I can't. It's not proper. You understand that?
 
 
 
[Appellant]:
 
Yes, sir.
 
[Defense Counsel]:
 
I haven't talked to him about it. I have no idea what the Judge will do. You understand that?
 
 
 
[Appellant]:
 
Yes.
 
[Defense Counsel]:
 
An open plea is kind of like the Judge is the referee. The State, as I told you, is going to want you to serve prison time. We're going to ask the Court to consider probation. You understand that?
 
 
 
[Appellant]:
 
Yes.
 
[Defense Counsel]:
 
But I can't promise you that the Court will give you probation. In fact, you understand this is a first degree felony. The Court could give you up to life in prison. You understand that?
 
 
 
[Appellant]:
 
Yes.
 
 
(Emphasis added).
        The prosecutor then offered, and the trial court admitted, into evidence appellant's signed written voluntary judicial confession and stipulation of evidence and requested the trial court to take judicial notice of the entire contents of the court's file. The record contains a written “Plea Agreement” form signed by appellant, defense counsel, the prosecutor, and the trial judge.   See Footnote 5  That document reflects the punishment range for a first degree felony is five to ninety-nine years or life and an optional fine not to exceed $10,000.
        At the July 22, 2005 sentencing hearing, the following occurred, in relevant part:
 
[Defense Counsel]:
 
Now, I've explained to you that this is a first degree felony, and the Judge can set-this is what's called an open plea. And you and I have thoroughly discussed what an open plea is; is that right?
 
 
 
[Appellant]:
 
Yes, sir.
 
 
(Emphasis added).
Applicable Law
 
        Article 26.13(a)(1) of the Texas Code of Criminal Procedure requires the trial court to admonish a criminal defendant of the punishment range. See Tex. Code. Crim. Proc. art. 26.13(a)(1). The purpose of the article 26.13 admonishments is to ensure that only a constitutionally valid plea is entered by the defendant and accepted by the trial court. Carranza v. State, 980 S.W.2d 653, 656 (Tex. Crim. App. 1998). Although the article 26.13 admonishments are not constitutionally required, they assist the trial court in determining whether a defendant's guilty plea is knowing and voluntary. Id.
        Substantial compliance with article 26.13 is sufficient unless the defendant affirmatively shows he was not aware of the consequences of his plea and that he was misled by the admonishments given. See Tex. Code. Crim. Proc. art. 26.13(c). Substantial compliance creates a prima facie showing the plea was voluntary, and the burden shifts to the defendant to show he did not understand the consequences of his plea and that he was harmed or misled by the admonishment given. See id.; Aguirre-Mata v. State, 125 S.W.3d 473, 480 (Tex. Crim. App. 2003).
        If, however, the trial court wholly fails to give the defendant an article 26.13 admonishment, that does not constitute substantial compliance. See Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002). In such an instance, we review the harm resulting from the error under the non- constitutional harm analysis set out in Texas Rule of Appellate Procedure 44.2(b). See Anderson v. State, 182 S.W.3d 914, 918 (Tex. Crim. App. 2006). The question to decide is whether, considering the record as a whole, do we have a fair assurance the defendant's decision to plead guilty would not have changed had the court admonished him. Id. at 919.
Application
        We have no post-trial evidentiary record before us. We have only the trial court's plea and sentencing record.   See Footnote 6  Appellant asks us to review that record to determine whether it supports an inference appellant did not know the consequences of his plea and the corresponding range of punishment. While a silent record could support an inference “that a defendant did not know the consequences of his plea,” see Burnett, 88 S.W.3d at 638, we conclude the record here shows appellant was, in fact, admonished.
        The record reflects appellant understood he was pleading guilty to a first degree felony offense. The punishment range for a first degree felony is imprisonment for five to ninety-nine years or life and an optional fine not to exceed $10,000. See Tex. Pen. Code Ann. § 12.32 (Vernon 2003). That punishment range was clearly and correctly set out on the court's written admonishment form. Moreover, appellant's twelve-year sentence was within the range prescribed by law. Appellant has not affirmatively shown he was unaware of the consequences of his plea and that he was misled or harmed by the trial court's admonishments. See Tex. Code. Crim. Proc. art. 26.13(a)(1), (c); Burnett, 88 S.W.3d at 638. Accordingly, we conclude appellant has not shown his plea was involuntary. See Burnett, 88 S.W.3d at 638. We overrule appellant's first point of error.
Ineffective Assistance of Counsel
        In his second point of error, appellant contends he received ineffective assistance of counsel which resulted in his plea of guilty and twelve-year sentence. Appellant complains his trial counsel (a) failed to obtain a ruling on his pretrial motion to suppress; (b) allowed him to plead guilty after being improperly admonished; (c) failed to object to a prior conviction that had been reversed on appeal; and (d) failed to call additional witnesses at the sentencing hearing. Appellant argues that but for the deficiencies in representation, he would not have pleaded guilty and been sentenced to twelve years' confinement. The State responds the record does not support appellant's claim of ineffective assistance of counsel.
        The standard of review of ineffectiveness of counsel is well established. See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To prevail on an ineffective assistance of counsel claim, appellant has the burden of proving his trial counsel's advice was not within the range of professional competence demanded of attorneys in criminal cases, and that, but for his counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58 (1985).
        We “indulge [in] in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,” and that “the challenged action 'might be considered sound trial strategy.'” Strickland, 466 U.S. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)). An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Normally, trial counsel should be afforded an opportunity to explain his or her actions “before being condemned as unprofessional and incompetent.” Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim.App. 2002).         Generally, the record on direct appeal is not sufficient to show trial counsel's tactical or strategic reasons for his trial decisions; thus it is usually insufficient to overcome the presumption of reasonable and professional conduct. See Bone, 77 S.W.3d at 833; Weeks v. State, 894 S.W.2d 390, 391-92 (Tex. App.-Dallas 1994, no pet.). It is incumbent on appellant to present a record on appeal that shows a lack of plausible trial strategy. See Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994). In the face of a record silent as to counsel's strategy, the appellate court should not speculate about counsel's tactics or reasons for taking or not taking certain actions. See Bone, 77 S.W.3d at 833-35.
        No post-trial evidentiary hearing was held on appellant's ineffective assistance claim; therefore, our review is limited to the trial record. That record does not reflect trial counsel's reasoning behind his tactical or strategic decisions, and we may not speculate that no plausible professional reasons exist. See id. at 836. Because defense counsel has not been given an opportunity to explain his actions, he may not, on this record, be condemned as unprofessional and incompetent. See id.
        We conclude appellant has failed to present a sufficient record to rebut the presumption of reasonable and professional conduct by trial counsel. See Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004) (rejecting ineffective assistance claim for insufficient record). We overrule appellant's second point of error.
Modification of Judgment
        In his third point of error, appellant claims the written judgment is inaccurate because it reflects a fine that was not orally pronounced when the judge sentenced appellant. The State concedes this point and requests us to modify the judgment to delete the fine. We agree the judgment should not include the fine.         At the end of the sentencing hearing, the trial court sentenced appellant to twelve years in prison, and explicitly stated, “I will not order a fine.” Nevertheless, the written judgment reflects a sentence of twelve years' confinement and a fine of $2,000. Therefore, the judgment is incorrect.
        A trial court is required to pronounce the sentence orally in open court with the defendant present. Tex. Code. Crim. Proc. art. 42.03, § 1(a) (Vernon Supp. 2006). When there is a conflict between the oral pronouncement of a sentence and the written judgment, the oral pronouncement controls. See Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). We sustain appellant's third point of error. We modify the written judgment to delete the fine. See Tex. R. App. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
        As modified, we affirm the judgment.
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
051097F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 The State's recommendation was fifteen years' imprisonment. Appellant, however, refused to accept any prison time as part of a plea bargain.
Footnote 3 Appellant contends the deficient admonishment violated article 26.13 of the Texas Code of Criminal Procedure and his due process rights under the U.S. Constitution.
Footnote 4 The trial court explicitly stated it was not ordering a fine.
Footnote 5 Apparently this is the “statement” earlier referred to by the trial court about which he questioned appellant.
Footnote 6 Although appellant filed a motion for new trial, that motion did not allege involuntariness of his guilty plea. Moreover, the motion was denied without a hearing being held.

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