David Hosseini a/k/a Motahar Hosseini v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

MEMORANDUM OPINION
Nos. 04-02-00175-CR, 04-02-00176-CR, 04-02-00177-CR, & 04-02-00178-CR
David HOSSEINI a/k/a Motahar Hosseini,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court Nos. 2001-CR-0776, 2001-CR-0777, 2001-CR-1094-A, & 2001-CR-2586
Honorable Raymond Angelini, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: February 5, 2003

AFFIRMED

Appellant David Hosseini appeals his conviction for aggravated robbery and burglary of a habitation and sentence of 50 years confinement in the Institutional Division of the Texas Department of Criminal Justice in four separate causes. Hosseini contends that his guilty plea was not voluntary because he was not afforded effective assistance of counsel. We affirm.

The facts in support of the conviction are known to the parties. Accordingly, we address only those facts and allegations pertinent to Hosseini's sole issue that he was denied effective assistance of counsel such that his guilty plea was rendered involuntary. Hosseini specifically contends that he pleaded guilty on the charges because he was reassured by second chair trial counsel that he would receive a lighter sentence because of her standing with the trial court.

A guilty plea shall not be accepted by the trial court unless it appears that the defendant is mentally competent and the plea is free and voluntary. Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 1989 & Supp. 2003). Once defendant and trial counsel have signed written admonishments, statements, or waivers, and the trial court has established that the defendant has read and understood the admonishments, the judge is not required to orally inquire about the voluntariness of the plea. Cantu v. State, 993 S.W.2d 712, 717 (Tex. App.--San Antonio 1999, pet. ref'd). When the record shows the trial court properly admonished appellant regarding the consequences of his plea, the record presents a prima facie showing the defendant entered a knowing and voluntary plea. Cantu, 993 S.W.2d at 716-17. The burden then shifts to the defendant to show the plea was not voluntary.Id.

On appeal from an open plea, the defendant may only challenge the voluntary and intelligent character of the guilty plea by affirmatively demonstrating that the advice he received from counsel was deficient. Id. A plea of guilty is not knowingly and voluntarily made if it is made as a result of ineffective assistance of counsel. Id.

When a defendant challenges the voluntariness of a plea 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 was a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted upon a trial on the merits. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999) (citing Hill v. Lockhart, 474 U.S. 52 (1985) and Strickland v. Washington, 466 U.S. 668 (1970)). As with any type of ineffective assistance of counsel claim, appellant has the burden to show that counsel's performance fell below a reasonable standard of competence and that appellant would have, with reasonable probability, pleaded not guilty and insisted on a trial. See id. The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. Accordingly, under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

The record reflects that Hosseini signed a waiver and consented to stipulated evidence in each of the causes. These waivers were also signed by his first chair trial counsel. The record in each cause reflects that Hosseini was admonished both orally and in writing in each cause. Hosseini and his first chair trial counsel signed the trial court's written admonishments in each cause. At the hearing, Hosseini was admonished as to the full range of punishment in each cause, his right to jury trial in each cause, and whether he understood what could happen upon entering his guilty plea. He was also admonished as to the voluntary nature of his plea:

[The Court:] Did you know that, by signing these papers, you are giving up your right to a jury trial in each and every one of these cases, before I just talked about it?

[Hosseini:] I'm aware of it.

[The Court:] That's what you want to do?

[Hosseini:] Yes, sir.

[The Court:] Did anybody force or make you do that?

[Hosseini:] It was my decision.

[The Court:] Okay, You are doing this of your own free will?

[Hosseini:] Yes, sir.

[The Court:] Do you have any questions about any of your rights or giving up any of these rights?

[Hosseini:] No, sir.

Because the record reflects that Hosseini was duly admonished, the burden shifts to him to show his plea was involuntary. Cantu, 993 S.W.2d at 716-17.

Appellant fails to cite or identify facts in the record to support his claim that his plea was involuntary. Further, we note that appellant did not file a motion for new trial, therefore we do not have before us evidence in support of appellant's assertions regarding trial counsel's advice. Accordingly, appellant has failed to show that counsel's advice was not within the range of competence demanded of attorneys in criminal cases and that there is a reasonable probability that, but for counsel's errors, he would have pleaded guilty and would have insisted on going to trial. Because there is nothing in the record to affirmatively demonstrate trial counsel's ineffectiveness such that appellant's plea was rendered involuntary, we overrule Hosseini's sole issue on appeal. We affirm the conviction.

Alma L. L pez, Chief Justice

DO NOT PUBLISH