Jones, Sean Carlo v. The State of Texas--Appeal from 179th District Court of Harris County

Affirmed and Memorandum Opinion filed October 27, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00950-CR

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SEAN CARLO JONES, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 942,254

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

Appellant entered a plea of guilty to the offense of engaging in organized crime. On September 22, 2004, the trial court sentenced appellant to confinement for fifteen years in the Institutional Division of the Texas Department of Criminal Justice, and assessed a fine of $10,000. Appellant filed a pro se notice of appeal.

Appellant=s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant. Appellant was advised of the right to examine the appellate record and file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). On June 30, 2005, appellant filed a pro se response to the brief filed by appointed counsel.

Appellant raises four issues. Appellant first claims he did not make a knowing, voluntary or intelligent waiver of his right to counsel. The record shows that appellant filed a motion to represent himself, pro se, with the assistance of appointed counsel, Layton Duer. This motion was granted. Appellant cites to Johnson v. State, 614 S.W.2d 116 (Tex. Crim. App. 1981) and Faretta v. California, 422 U.S. 806 (1975).

Although it is true that a judge ordinarily must admonish a defendant before allowing him to represent himself, the rules are different where the trial judge allows appointed counsel to continue to assist and advise the pro se defendant. A judge need not admonish an accused of the dangers and disadvantages of self representation when he allows the accused to present his own defense but, at the same time, appoints standby counsel to advise the accused as necessary. See Walker v. State, 962 S.W.2d 124, 126 27 (Tex. App. Houston [1st Dist.] 1997, pet. ref'd); Robertson v. State, 934 S.W.2d 861, 865-66 (Tex. App.BHouston [14th Dist. 1996, no pet.). Furthermore, in cases where such Ahybrid representation@ is allowed or standby counsel is appointed, "no question of waiver of counsel is involved," since counsel remains to assist the accused, and thus, there is no need to admonish the accused of the dangers and disadvantages of self representation. See Maddox v. State, 613 S.W.2d 275, 286 (Tex. Crim. App. 1981); Robertson, 934 S.W.2d at 865. Nonetheless, the record indicates that appellant in this case was admonished about the dangers of self-representation. Thus, we find no merit to appellant=s first issue.

Appellant next claims he received ineffective assistance of counsel. The trial court granted appellant=s request to represent himself, but appointed standby counsel. The Supreme Court has identified two primary limitations on the role standby counsel plays. First, counsel's participation must not undermine the pro se defendant's Aactual control over the case he chooses to present.@ McKaskle v. Wiggins, 465 U.S. 168, 178 (1984). Second, in the context of a jury trial, standby counsel's participation (particularly over the pro se defendant's objection) Ashould not be allowed to destroy the jury's perception that the defendant is representing himself.@ Id.

Appellant claims counsel did not advise him about the deadlines for filing motions to allow appellant to elect punishment to be assessed by jury and to request community supervision. Because the motions were not timely filed, they were denied. Appellant contends this establishes standby counsel=s ineffectiveness. However, appellant competently and intelligently invoked his Sixth Amendment right to self representation, and thus waived his right to appointed counsel within constitutional parameters. See Dunn v. State, 819 S.W.2d 510, 526 (Tex. Crim. App. 1991) (en banc). Therefore, appellant may not now be heard to attack standby counsel under the circumstances of this case. See id.

Even if we were to address appellant=s claim, we would find no ineffective assistance in this case. It is the defendant's burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). To prevail on a claim of ineffective assistance of counsel, the appellant must show both 1) that counsel's performance was so deficient it was outside the range of reasonable professional judgment, and 2) that the appellant was prejudiced by this performance and there is a reasonable probability, one sufficient to undermine confidence in the outcome of the trial, that the result of the trial would have been different. Id. at 812. An appellant must demonstrate trial counsel's ineffectiveness in light of the totality of the circumstances. Id. at 813. The appellant must overcome the presumption that the challenged action might be considered sound trial strategy. Id. That another attorney may have pursued a different strategy does not necessarily indicate ineffective assistance of counsel. See Hawkins v. State, 660 S.W.2d 65, 75 (Tex. Crim. App.1983). When facing a silent record as to defense counsel's strategy, the court will not speculate as to defense counsel's tactics or guess what the reasons might be for taking or not taking certain actions. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.1994). Without evidence of the strategy and methods involved concerning counsel's actions at trial, the court will presume sound trial strategy. Thompson, 9 S.W.3d at 814. Accordingly, we find no merit to appellant=s claim that standby counsel was ineffective.

Appellant=s third issue concerns the voluntariness of his guilty plea. After one day of trial, appellant decided to plead guilty without an agreed sentencing recommendation from the State. Appellant claims he was induced to plead guilty by promises he would receive probation.

Proper admonishment by a trial court creates a prima facie showing that a guilty plea is both knowing and voluntary. Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim.App. 1985); George v. State, 20 S.W.3d 130, 135 (Tex. App.BHouston [14 Dist.] 2000, pet. ref=d). A defendant still may raise the claim that his plea was not voluntary, but the burden shifts to him to demonstrate that he did not fully understand the consequences of his plea. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). Further, when a defendant affirmatively indicates at the plea hearing that he understands the nature of the proceeding and is pleading guilty because the allegations in the indictment are true, not because of any outside pressure or influence, he has a heavy burden to prove that his plea was involuntary. George, 20 S.W.3d at 135.

The voluntariness of a plea is determined by the totality of the circumstances. Id.; Munoz v. State, 840 S.W.2d 69, 74 (Tex. App.BCorpus Christi 1992, pet. ref'd). The record shows that appellant was admonished by the trial court that he could be sentenced within the full range of punishment. Nothing in the record supports appellant=s claim that he was induced to plead guilty by promises of probation. Accordingly, we find no merit to appellant=s claim that his plea was involuntary.

Finally, appellant claims the trial court erred in denying his motions to elect to have the jury assess punishment and to request community supervision. When appellant pled guilty, however, he waived the right to a jury trial, which includes both the jury determination of guilt and assessment of punishment. This is reflected in the record. Furthermore, appellant stated he understood the consequences of his plea, which included the possibility of punishment within the range allowed by law.

A defendant has an absolute right to be sentenced within the proper range of punishment established by the Legislature. Speth v. State, 6 S.W.3d 530, 532-33 (Tex. Crim. App. 1999). The granting of community supervision, however, is a privilege, not a right. Id. at 533. Furthermore the decision whether to grant probation is wholly discretionary and nonreviewable. Id. Accordingly, we find no error in the trial court=s decision to sentence appellant within the range of punishment allowed by law.

We have carefully reviewed the record, counsel=s brief, and the pro se response, and agree the appeal is wholly frivolous and without merit. Further, we find no reversible error in the record.

Accordingly, the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed October 27, 2005.

Panel consists of Justices Hudson, Frost, and Seymore.

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