Jackson, David Wayne v. The State of Texas--Appeal from 339th District Court of Harris County

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00090-CR

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DAVID WAYNE JACKSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 868747

O P I N I O N

Appellant, David Wayne Jackson, pled guilty without an agreed recommendation as to punishment to improper sexual activity with a person in custody. See Tex. Pen. Code Ann. 39.04(a)(2) (Vernon Supp. 2002). The trial court found appellant guilty and assessed punishment at two years in state jail. We address (1) whether appellant was deprived of effective assistance of counsel, (2) whether appellant's plea was voluntary, and (3) whether we should consider appellant's alleged new exculpatory evidence on appeal. We affirm.

Introduction

Appellant's appointed counsel moved to withdraw from appellant's representation on appeal and, in support, submitted a brief stating his opinion that the appeal was without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967), by presenting a professional evaluation of the record and stating why there are no arguable grounds for error on appeal. Stephens v. State, 35 S.W.3d 770, 771 (Tex. App.--Houston [1st Dist.] 2000, no pet.). Counsel advised appellant of his evaluation of the appeal, sent appellant a copy of his Anders brief and the record, and informed appellant of his right to file a pro se response. Appellant timely filed a pro se response.

Procedural History

Appellant pled guilty on February 13, 2001. The trial court held a punishment hearing on November 2, 2001. Appellant did not testify at the hearing. Appellant's counsel argued for deferred adjudication. The trial court found appellant guilty and assessed punishment at two years in state jail.

Ineffective Assistance of Counsel

In his first point of error, appellant contends that his trial counsel was ineffective for (1) failing to file the necessary motions or to subpoena any witnesses to show appellant was not guilty and (2) failing to offer alleged exculpatory evidence that would have proved his innocence.

An appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Counsel's conduct is strongly presumed to fall within the wide range of reasonable professional assistance, and appellant must overcome the presumption that the challenged action might be considered sound trial strategy. Id.; Jackson v. State, 887 S.W.2d 768, 771 (Tex. Crim. App. 1994). To overcome this presumption, a claim for ineffective assistance of counsel must be firmly founded and affirmatively demonstrated in the record. Thompson, 9 S.W.3d at 813-14. Counsel need not undertake the same magnitude of independent factual investigation when the defendant knowingly and voluntarily pleads guilty to the alleged offense as would be required in a contested proceeding. Toupal v. State, 926 S.W.2d 606, 608 (Tex. App.--Texarkana 1996, no pet.).

Appellant claims that his trial counsel should have offered into evidence the statement of a certain witness, which would allegedly have proved that he did not commit the offense with which he was charged. The record does not support any of appellant's claims that such evidence existed; instead, the evidence in the record shows that appellant signed a guilty plea, which included a hand-written stipulation of evidence in which he admitting committing the offense with which he was charged. Because appellant's claim for ineffective assistance of counsel is not demonstrated in the record, and in light of his guilty plea, we hold that he has not met his burden of proving that his trial counsel was ineffective.

We overrule appellant's first point of error.

Voluntariness of Plea

In his second point of error, appellant argues that his plea was not voluntary because his trial counsel and the prosecutor falsely told him that if he testified against Michael Edwards and signed the guilty plea agreement, he would receive a punishment of only six months of deferred adjudication.

The trial court cannot accept a guilty plea unless the court determines that the plea is freely and voluntarily given. Burke v. State, 80 S.W.3d 82, 93 (Tex. App.--Fort Worth 2002, no pet.). Due process requires that each defendant who pleads guilty do so with a full understanding of the charges against him and the consequences of his plea. Id. A trial court's admonishing a criminal defendant pursuant to article 26.13 of the Texas Code of Criminal Procedure before accepting the plea constitutes prima facie evidence that the plea was knowing and voluntary. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2002); Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). Accordingly, when the trial court admonishes the defendant, the burden shifts to the defendant to prove that he did not fully understand the consequences of his plea and that he suffered harm. Martinez, 981 S.W.2d at 197. In considering the voluntariness of a guilty plea, we examine the record as a whole. Id.

Appellant signed a waiver of constitutional rights, agreement to stipulate, and judicial confession, which included a hand-written stipulation of evidence that he committed the offense with which he was charged. Appellant also signed and swore to article 26.13 admonishments acknowledging that he understood the possible range of punishment and that any punishment recommendation by the prosecuting attorney was not binding on the trial court. In the "Statements and Waivers of Defendant" section of these admonishments, appellant initialed the following statements: (1) he was mentally competent and understood the nature of the charge against him, (2) he understood the admonishments of the trial court, and (3) he understood the consequences should the trial court accept or refuse to accept the plea bargain or plea without an agreed recommendation. Because appellant signed the plea of guilty and the article 26.13 admonishments, and because nothing in the record indicates that appellant's plea was involuntary, appellant has failed to defeat the prima facie showing of voluntariness.

We overrule appellant's second point of error.

Allegedly New Exculpatory Evidence

In his third point of error, appellant contends that we should consider on appeal his allegedly new exculpatory evidence, including the results of two DNA tests. Appellant alleges the existence of these test results in his pro se brief and claims that they prove that he did not commit the offense.

A defendant may move for a new trial if favorable evidence comes to light after his trial has ended, but he must fil the motion timely. See Tex. R. App. P. 21.3; see State v. Vega, 927 S.W.2d 81, 83-84 (Tex. App.--Houston [1st Dist.] 1996, pet. dism'd w.o.j.). Here, the appellant did not file any motion for new trial, much less one alleging the existence of newly discovered evidence. Further, the record does not support appellant's claim that this allegedly new exculpatory evidence exists.

We overrule appellant's third point of error.

We affirm the judgment of the trial court.

We grant appellate counsel's motion to withdraw. See Stephens v. State, 35 S.W.3d 770, 771 (Tex. App.--Houston [1st Dist.] 2000, no pet.). Counsel still has a duty to inform appellant of the result of this appeal and also to inform appellant that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. Id. at 771-72; see Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).

Panel consists of Justices Taft, Alcala, and Price. (1)

Do not publish. Tex. R. App. P. 47.4.

1.