Derrick Wayne Hightower v. The State of Texas--Appeal from 252nd District Court of Jefferson County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00709-CR
Derrick Wayne Hightower, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF JEFFERSON COUNTY, 252ND JUDICIAL DISTRICT
NO. 73732, HONORABLE LEONARD GIBLIN, JUDGE PRESIDING
Indicted for aggravated sexual assault of a child, appellant Derrick Wayne Hightower pleaded guilty and judicially confessed to the lesser included offense of sexual assault of a child. See Tex. Penal Code Ann. 22.011, 22.021 (West 1994 & Supp. 1998). The district court found appellant guilty of the lesser offense and assessed punishment at imprisonment for ten years.

In his only point of error, appellant contends his plea was involuntary because he did not receive effective assistance of counsel. He states that he would not have pleaded guilty if he been told by his attorney that deferred adjudication was not possible and that he could go to prison for ten years.

Erroneous legal advice that prevents a defendant from making an informed and conscious choice about whether to waive his right to a jury trial constitutes ineffectiveness. Ex parte Canedo, 818 S.W.2d 814, 815 (Tex. Crim. App. 1991). If his attorney's misinformation induces a defendant to plead guilt, the plea is involuntary. Ex parte Kelly, 676 S.W.2d 132, 135 (Tex. Crim. App. 1984).

Appellant did not file a motion for new trial and there is no evidence before us regarding the advice appellant received from trial counsel. Before accepting the guilty plea, the district court told appellant, "Now, your lawyer's going to recommend to me that I give you deferred probation. Do you understand that I can go along with his recommendation if I want to, but I don't have to?" Appellant replied, "Yes, sir." The court went on, "You understand I can put you in the penitentiary for 20 years also[?]" Appellant answered, "Yes, sir." Thus, the only relevant evidence indicates that appellant understood that deferred adjudication was not assured and that he could receive up to twenty years' imprisonment.

The opinion on which appellant relies, Ex parte Battle, 817 S.W.2d 81 (Tex. Crim. App. 1991), is distinguishable. Battle was a post-conviction habeas corpus proceeding and the court had before it evidence as to the advice counsel gave the defendant prior to the guilty plea. The evidence established that the defendant pleaded guilty in reliance on his attorney's advice that he might receive probation, when in fact probation was legally unavailable for that offense. In the cause before us, we do not know what counsel told appellant and, in any event, deferred adjudication was not legally foreclosed. See Tex. Code Crim. Proc. Ann. art. 42.12, 5(a) (West Supp. 1998).

Appellant has not sustained his burden of demonstrating ineffectiveness of counsel. The point of error is overruled and the judgment of conviction is affirmed.

 

John Powers, Justice

Before Justices Powers, Kidd and B. A. Smith

Affirmed

Filed: August 13, 1998

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