Randle, Tymeshia LeShon v. The State of Texas--Appeal from 209th District Court of Harris County

Affirmed and Memorandum Opinion filed March 22, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00936-CR

NO. 14-03-00937-CR

____________

TYMESHIA LESHON RANDLE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause Nos. 933,018; 933,019

M E M O R A N D U M O P I N I O N

Appellant Tymeshia Leshon Randle was convicted on two counts of fraudulent use of identifying information. Appellant argues in two issues that she received ineffective assistance of counsel. We affirm.

Appellant obtained and used the names and social security numbers of at least two people in order to apply for various credit cards. With the fraudulently obtained credit cards, appellant purchased a computer and several other items. After a complaint was filed by one of the victims, appellant was arrested. Appellant entered a non-negotiated guilty plea, but the trial court withheld a finding of guilt pending a presentence investigation. At the presentence investigation hearing, the trial court found appellant guilty and sentenced her to fifteen months in state jail. This appeal followed.[1]

In two issues, appellant complains that she received ineffective assistance of counsel. The standard by which ineffective assistance claims are governed is found in the U.S. Supreme Court s pronouncement in Strickland v. Washington, 466 U.S. 668 (1984). The Court of Criminal Appeals adopted the two-part Strickland test in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To prove ineffective assistance, appellant must show that (1) trial counsel s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) the result of the proceeding would have been different but for trial counsel s deficient performance. Strickland, 466 U.S. at 687 96;Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). There is a strong presumption that counsel s conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813. To defeat this presumption, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Without specific explanations for counsel s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim. See Bone v. State, 77 S.W.3d 828, 830, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813 14 (noting that when the record contains no explanation for counsel s decisions, an appellate court should be hesitant in deciding whether the motivation behind counsel s actions was of strategic design or the result of negligent conduct ).

In her first issue, appellant contends that ineffective assistance of counsel rendered her guilty plea involuntary. Specifically, appellant complains that counsel s advice that she would probably receive probation amounted to ineffective assistance. Appellant s own statement to the trial judge at the presentence investigation hearing is the only evidence in the record supporting the contention that appellant s counsel advised appellant that she would probably receive probation. The record is otherwise silent as to whether appellant s counsel did provide this advice, and if he did, why he provided it. Without more evidence, appellant has not defeated the presumption that counsel provided effective assistance. See Thompson, 9 S.W.3d at 813 14. Further, a guilty plea is not involuntary simply because the sentence exceeded what appellant expected, even if her attorney raised that expectation. Stephens v. State, 15 S.W.3d 278, 280 n.1 (Tex. App. Houston [14th Dist.] 2000, pet. ref d). We overrule appellant s first issue.

In her second issue, appellant contends that counsel was ineffective for failing to call witnesses to testify during the presentence investigation hearing. However, counsel is not ineffective for failing to call witnesses absent a showing that there were witnesses available to testify and that their testimony would have aided appellant. Hoang v. State, 825 S.W.2d 729, 732 (Tex. App. Houston [14th Dist.] 1992, pet. ref d). There has been no such showing here. Accordingly, we overrule appellant s second issue.

The judgment of the trial court is affirmed.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed March 22, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] The State argues that we should dismiss both of appellant s cases because the trial court did not sign the certifications of defendant s right of appeal. See Tex. R. App. P. 25.2(d). The trial court s initial certifications showed the cases were plea-bargained and that appellant had no right of appeal. Because the record indicated that appellant entered a non-negotiated plea, the clerk of this court, pursuant to Rule 37.1, sent a letter to the trial court requesting corrected certifications. See Tex. R. App. P. 37.1. Corrected certifications now appear in supplemental records in each case, but the certifications are not signed by the trial judge. A recent Court of Criminal Appeals case advises that an appellate court should not dismiss a case due to a defective certification before utilizing the remedial measures found in Rules 34.5(c) and 37.1. See Tex. R. App. P. 34.5(c), 37.1; Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005). This court utilized Rule 37.1 to obtain corrected certifications and received unsigned, corrected certifications. Because the new certifications appear to be supported by the record, we have determined that we have jurisdiction to address the merits of appellant s appeal.