Kris Deon Williams v. The State of Texas--Appeal from 248th District Court of Harris County

Affirmed and Memorandum Opinion filed July 31, 2007

Affirmed and Memorandum Opinion filed July 31, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00680-CR

NO. 14-06-00681-CR

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KRIS DEON WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause Nos. 1056242 & 1056397

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

Appellant Kris Deon Williams pleaded guilty to two counts of aggravated robbery. The trial court assessed punishment at twenty years= confinement for each conviction, to run concurrently, in the Texas Department of Criminal Justice, Institutional Division. Appellant contends he was denied effective assistance of counsel and therefore entered an involuntary plea. However, because he failed to timely file his motion for new trial, he asks that we abate his appeal and order that he be allowed to file his motion for new trial out of time. We deny his motion to abate the appeal as well as his motion to file an out-of-time motion for new trial. We also affirm the judgment of the trial court and overrule appellant=s issue alleging ineffective assistance of counsel.

I. Background

On June 16, 2006, appellant pleaded guilty to two counts of aggravated robbery. Appellant retained counsel to represent him. Following his plea, a pre-sentence investigation report (APSI@) was made and presented to the trial court. Appellant also presented the trial court support letters from family and friends. On August 4, 2006, the trial court heard testimony and assessed appellant=s sentence.

During the sentencing hearing, the trial court allowed appellant and his hired counsel approximately an hour to discuss whether he was withdrawing his guilty plea. The trial court was initially concerned because appellant made a statement, as recorded in the PSI, that he was not guilty. Ultimately, appellant determined he would not withdraw his guilty plea.

When the trial court announced it was sentencing appellant to twenty years= confinement for each conviction, to run concurrently, appellant=s counsel expressed surprise and had the following exchange with the trial court:

[Counsel]: Your Honor?

The Court: Yes?

[Counsel]: It was our understanding that we entered into a plea of five years with the DAs for Mr. Williams.

The Court: Excuse me?

[Counsel]: That=s my understanding. That=sC

[State]: No, Your Honor. That=s notC

[Counsel]: It=s written on the folder.

[State]: I=m sorry?

The Court: The plea papers say a PSI agreementCI mean, a PSI without an agreement. And I say the same thing on all PSIs. It could be anywhere from five years deferred adjudication up to life. And I say the same thing, ADo you think that there is anything, any promises that anyone has made?@

If this were a five-year agreement, then it would be saying five years; and there wouldn=t have been a PSI.

[Counsel]: Okay. Thank you.

The Court: All right.

Counsel, you were hired on the case. You need to discuss with your client any request for appeal; and if you are withdrawing, then I need to appoint someone for purposes of appeal in the case.

[Counsel]: Yes, ma=am.

Appellant did not make any statement on the record concerning what punishment he had thought the trial court would assess.

II. Analysis

 A. Appellant=s Motions

Appellant claims on appeal that he retained trial counsel because she assured him that he would receive either probation, or, at the worst, five years= imprisonment. As a result, appellant asserts he pleaded guilty involuntarily and did not receive effective assistance of counsel. Yet appellant=s appellate counsel did not timely file a motion for new trial and, therefore, there was no hearing to flesh out appellant=s accusations. Therefore, appellant asks us to grant his motions to abate this appeal and order that he be allowed to file an out-of-time motion for new trial.

There is precedent to support this request in the context of a claim of ineffective assistance of counsel causing an involuntary guilty plea.[1] See Prudhomme v. State, 47 S.W.3d 683, 687 (Tex. App.CTexarkana 2001, pet. ref=d) (referencing prior order in case); Massingill v. State, 8 S.W.3d 733, 738 (Tex. App.CAustin 1999, no pet.). However, that remedy was allowed in those cases because those appellants were denied counsel during a critical stage of trial[2]Cduring the time available to file a motion for new trial. See Prudhomme, 47 S.W.3d at 687; Massingill, 8 S.W.3d at 737B38. Unlike these cases, the trial court appointed appellant=s counsel during the time period to file a motion for new trial. Appellant=s complaint on appeal is that counsel did not file the motion because she was waiting for affidavits. Regardless of the reasons for the failure to timely file, this case does not present a factual scenario appropriate for granting the relief appellant seeks. Appellant was represented by counsel during the time period when he could have filed a motion for new trial. Therefore, we deny his motions to abate and allow him to file an out-of-time motion for new trial.

B. Ineffective Assistance of Counsel

Appellant=s other issue is his claim that his guilty plea was involuntary and was the result of ineffective assistance of counsel. Appellant alleges that his counsel incorrectly told him that he would receive either probation or no more than five years= imprisonment, causing him to plead guilty when he otherwise would not have. When a party challenges the voluntariness of a plea entered upon the advice of counsel contending that his counsel was ineffective, the voluntariness of the plea depends on (1) whether counsel=s advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that but for counsel=s errors, he would not have pleaded guilty and would have insisted on going to trial. Ex Parte Moody, 991 S.W.2d 856, 857B58 (Tex. Crim. App. 1999). There is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). To defeat this presumption, A>any allegation of ineffectiveness 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) (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). When no specific reason is given 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 813B14.

In the case before us, the record is simply bare concerning exactly what trial counsel promised, why she did so, and whether that had any effect on appellant.[3] We have only appellant=s trial counsel=s view of the situation as expressed at sentencing, and that is insufficient to meet appellant=s burden of showing he received incompetent advice that caused him to plead guilty. See Moody, 991 S.W.2d at 857B58. On the record before us, there is nothing to substantiate appellant=s claims, and we therefore overrule appellant=s issue.

Having denied appellant=s motions and overruled his claim of ineffective assistance of counsel, we affirm the trial court=s judgment.

/s/ Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed July 31, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47

[1] Appellant states that we could issue orders on his request pursuant to Texas Rule of Appellate Procedure 2, which allows us to suspend the appellate rules in some circumstances. We could not utilize that rule even if the situation were appropriate for the relief appellant seeks. See Oldham v. State, 977 S.W.2d 354, 360 (Tex. Crim. App. 1998) (rejecting the use of Rule 2 to abate appeal and allow out-of-time motion for new trial).

[2] Although the Court of Criminal Appeals has not yet determined whether the time period for filing a motion for new trial is a critical stage, this court has determined it is a critical stage, thus giving rise to the right to counsel. See Nguyen v. State, No. 14-06-00043-CR, __ S.W.3d __, 2007 WL 608996, at *1 (Tex. App.CHouston [14th Dist.] Mar. 1, 2007, no pet. h.).

[3] After the clerk=s record was prepared in this case, appellant filed a motion to supplement the record with two affidavits supporting his ineffective assistance claim, which he had filed with the trial court after the trial court entered judgment. The State filed a motion to strike these affidavits, arguing that we should not consider them because they were never presented to the trial court and thus not properly part of the appellate record. We agree. See Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Berry v. State, 995 S.W.2d 699, 702 n.5 (Tex. Crim. App. 1999). Therefore, we grant the State=s motion to strike and do not consider appellant=s affidavits in resolving this appeal.