Galen Danyal Proctor v. The State of Texas--Appeal from 344th District Court of Chambers County

Affirmed and Memorandum Opinion filed August 7, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00113-CR

NO. 14-06-00114-CR

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GALEN DANYAL PROCTOR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 344th District Court

Chambers County, Texas

Trial Court Cause Nos. 12161 & 12162

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

Appellant, Galen Danyal Proctor, appeals from two judgments of conviction for the offenses of unlawful possession of a firearm and possession of a controlled substance with intent to deliver. Tex. Health & Safety Code Ann.' 481.114 (Vernon 2003); Tex. Penal Code Ann. ' 46.04 (Vernon 2003). Appellant entered a plea of nolo contendere to each of the two indictments, without an agreed sentencing recommendation. The trial court found appellant guilty in both cases. After a pre-sentence investigation, the trial court assessed punishment at ten years= confinement in the Texas Department of Criminal Justice, Institutional Division, for each offense. The trial court ordered the sentences to run concurrently. In two issues, appellant argues his nolo contendere plea was involuntarily and he received ineffective assistance of counsel. We affirm.

Discussion

 I. Voluntariness of Appellant=s Plea

In his first issue, appellant argues his plea was involuntary because his trial counsel Aled appellant to believe@ that the trial court would grant deferred adjudication if appellant entered a plea of nolo contendere. We recognize that a guilty plea must be entered voluntarily and freely. Tex. Code Crim. Proc. Ann. art. 23.16(b) (Vernon Supp. 2006); Houston v. State, 201 S.W.3d. 212, 217 (Tex. App.CHouston [14th Dist.] 2006, no pet.). In considering the voluntariness of a guilty plea, we examine the record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). A showing in the record that a defendant was properly admonished by the trial court before a guilty plea was entered creates a prima facie showing that the plea was entered knowingly and voluntarily. Id. The burden then shifts to the defendant to show that he entered the plea without understanding the consequences of his action and was harmed as a result. Ex Parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985); Houston, 201 S.W.3d. at 217. A defendant who was properly admonished by the trial court bears the heavy burden of proving that his plea was entered involuntarily. Martinez, 981 S.W.2d at 196B97.

The record shows appellant signed written plea admonishments in compliance with article 26.13(a) of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2006). During the plea hearing, appellant testified that his attorney fully explained the written plea admonishments, and appellant understood every admonition, warning, and waiver contained therein. Appellant was also orally admonished by the trial court regarding the nature of the charges against him, the range of punishment he would face if convicted, and the fact that he could be found guilty based upon his plea of nolo contendere. Appellant testified he understood each of the trial court=s oral admonishments. Appellant further testified his pleas of nolo contendere were given freely and voluntarily, and were not the result of coercion or threats. Hence, there is a prima facie showing that appellant=s pleas were entered voluntarily and knowingly, and appellant bears the heavy burden of proving his pleas were involuntary. Martinez, 981 S.W.2d at 197.

Because there was no motion for new trial in this case, appellant=s burden is compounded by the absence of a record regarding this issue. Our review of the clerk=s record and reporter=s record shows that appellant filed a motion for deferred adjudication and gave testimony in support of his motion at his sentencing hearing. However, there is no evidence that appellant=s trial counsel coerced appellant or promised appellant he would receive a sentence of deferred adjudication if he entered a plea of nolo contendere. See Cantu v. State, 988 S.W.2d 481, 484 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d) (holding appellant failed to overcome presumption of voluntariness where the record contained no evidence appellant=s trial counsel promised he would receive a sentence of probation). Further, a plea is not involuntary simply because the sentence exceeded what an accused expected, even if that expectation was raised by his attorney. Russell v. State, 711 S.W.2d 114, 116 (Tex. App.CHouston [14th Dist.] 1986, pet. ref=d). Therefore, based on our review of the record as a whole, we find appellant has failed to meet his burden of proving that his plea was entered involuntarily. Appellant=s first issue is overruled.

II. Ineffective Assistance of Counsel

In his second issue, appellant asserts his trial counsel rendered ineffective assistance Aby misleading appellant into believing that he would receive deferred adjudication from the trial court.@ In reviewing claims of ineffective assistance of counsel, we apply a two prong test. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)). To establish ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that (1) his trial counsel=s representation was deficient in that it fell below the standard of prevailing professional norms, and (2) there is a reasonable probability that, but for counsel=s deficiency, the result of the trial would have been different. Id. There is a strong presumption that counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy. Salinas, 163 S.W.3d at 740; Stults v. State, 23 S.W.3d 198, 208 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). To overcome the presumption of reasonable professional assistance, Aany 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, 813 (Tex. Crim. App. 1999).

There was no motion for new trial, and there is no indication in the record that appellant=s trial counsel misled appellant or assured appellant he would receive deferred adjudication if he pleaded nolo contendere. To find that appellant=s trial counsel was ineffective based on the record in this case would call for speculation, which we will not do. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant=s second issue is overruled.

Conclusion

Having overruled each of appellant=s issues, we affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Opinion filed August 7, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

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