Jerry Dale White v. The State of Texas--Appeal from 263rd District Court of Harris County

Opinion issued February 21, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-01025-CR

__________

JERRY DALE WHITE Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 1058513

MEMORANDUM OPINION

In this appeal, we are asked to decide if a promise from counsel to defendant regarding punishment resulted in an involuntary plea of guilty. Appellant, Jerry Dale White, pleaded guilty to aggravated sexual assault of a child // and was sentenced by the trial court to 15 years in prison. In his sole point of error, appellant contends that his plea of guilty was involuntary as a result of ineffective assistance of counsel. We affirm.

Standard of Review

To reverse a conviction based on ineffective assistance of counsel, the appellate court must find: (1) counsel s representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 695, 104 S. Ct. 2052, 2068 (1984). This standard applies to challenges to guilty pleas. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985). To satisfy the second prong of Strickland, appellant must show there is a reasonable probability that, but for counsel s errors, he would not have pleaded guilty, but would instead have insisted on going to trial. Id.; Fimberg v. State, 922 S.W.2d 205, 207 (Tex. App. Houston [1st Dist.] 1996, pet. ref d). In assessing counsel s competence, we presume that counsel has knowledge of legal principles that are neither novel nor unsettled. Ex parte Welch, 981 S.W.2d 183, 185 (Tex. Crim. App. 1998). Trial counsel who fails to inform a defendant about the direct, punitive consequences of a guilty plea provides ineffective assistance. Arreola v. State, 207 S.W.3d 387, 392 (Tex. App. Houston [1st Dist.] 2006, no pet.).

An involuntary guilty plea must be set aside. Boykin v. Alabama, 395 U.S. 238, 244, 89 S. Ct. 1709, 1713 (1969); Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975); Fimberg, 922 S.W.2d at 207. To determine if a plea is voluntary, we consider the record as a whole. Williams, 522 S.W.2d at 485. If counsel conveys erroneous information to a defendant, a plea of guilty based on that misinformation is involuntary. Ex parte Griffin, 679 S.W.2d 15, 17 (Tex. Crim. App. 1984); McGuire v. State, 617 S.W.2d 259, 261 (Tex. Crim. App. 1981).

Here, appellant signed admonishments recognizing that (1) he was charged with the felony offense of aggravated sexual assault of a child, (2) he faced the first-degree felony punishment range of life imprisonment or any term of imprisonment of not more than 99 years or less than five years, (3) he was mentally competent, (4) he understood the nature of the charge against him, (5) he understood the admonishments, (6) he fully understood the consequences of his plea, (7) he understood English, and (8) his plea was freely and voluntarily made. We presume that recitals in court documents are correct unless the record affirmatively shows otherwise. Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984). Appellant s only explanation for his failure to understand the consequences of his plea is that his trial counsel advised him that he would receive community supervision. The record, however, contains no evidence of any promise made to appellant by his attorney regarding a sentence of probation. The only recorded statement to appellant concerning sentencing is the trial court s admonishments that he would receive a sentence of not less than five years confinement if found guilty.

A defendant s claim that he was misinformed by counsel, standing alone, is not enough to render his plea was involuntary. Fimberg, 922 S.W.2d at 208. In cases in which a guilty plea has been held to have been involuntary, the record contains confirmation of the misinformation by counsel, or documents augmenting the defendant s testimony that reveal the misinformation and show its conveyance to the defendant. See, e.g., Griffin, 679 S.W.2d at 15; McGuire, 617 S.W.2d at 259; Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980); State v. Hartman, 810 S.W.2d 22, 22 (Tex. App. Beaumont 1991, no pet.); Murphy v. State, 663 S.W.2d 604, 610 (Tex. App. Houston [1st Dist.] 1983, no pet.). Given this and faced with the absence of independent corroborating evidence in the record indicating appellant was misinformed, we hold appellant s plea of guilty was voluntary. Therefore, the first prong of the Strickland test has not been satisfied. Accordingly, we overrule appellant s sole point of error.

Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.

Justice

Panel consists of Justices Nuchia, Hanks, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).