GREGORY ARNOLD JONES, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued June 27, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00355-CR
............................
GREGORY ARNOLD JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-81646-06
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OPINION
Before Chief Justice Thomas and Justices Lang and Maloney   See Footnote 1 
Opinion By Justice Maloney
        The jury convicted appellant of possession of cocaine with intent to deliver on his plea of guilty and assessed a six-year sentence in the Texas Department of Corrections Institutional Division. In a single point of error, appellant contends (1) he did not receive reasonably effective assistance of counsel because of his trial counsel's failure to inform appellant of the District Attorney's policy of withdrawing all plea bargains on the day of trial, and (2) counsel's ineffective assistance rendered appellant unable to make an informed decision on whether “to accept a plea bargain as opposed to pleading guilty.” We affirm the trial court's judgment.
INEFFECTIVE ASSISTANCE OF COUNSEL
 
 
        Appellant contends his trial counsel's failure to investigate, prepare for trial, and inform him of the District Attorney's policy of withdrawing any plea bargains on the day of trial was not reasonably effective assistance of counsel. As a result of trial counsel's failures, appellant could not accept the State's offer of probation and instead received a six-year sentence from the jury. Specifically, appellant argues “his trial counsel did not provide him with sufficient information” to enable him to make an intelligent and voluntary plea of guilty or not guilty.
        The State responds that the record does not support appellant's claim. Rather, on the day of trial, appellant informed the court that he wished to enter his plea of guilty and have the jury assess punishment.
1. Applicable Law
        
        We evaluate the effectiveness of counsel under the standard of Strickland v. Washington, 466 U.S. 668 (1984). Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694; Mallet v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001). Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
        In determining whether a plea was knowingly and voluntarily entered, we examine the record as a whole. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). Trial counsel's erroneous information renders a guilty plea involuntary. See Fimberg v. State, 922 S.W.2d 205, 207 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd). When appellant challenges entry of his plea of guilty, he must show that but for counsel's errors, he would not have pleaded guilty and would have gone to trial. Kober v. State, 988 S.W.2d 230, 232 (Tex. Crim. App. 1999). To apply the standard “but for counsel's error, appellant would not have pleaded guilty,” we must determine that trial counsel erroneously advised appellant. See Fimberg, 922 S.W.2d at 208. We do not necessarily attribute the length of sentence to unprofessional or incompetent trial counsel. See Bone, 77 S.W.3d at 836.
        We examine the record as a whole to determine the voluntariness of a plea. See Martinez, 981 S.W.2d at 197. When the record is silent regarding the motive behind counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel acted reasonably. Mallett, 65 S.W.3d at 63. Usually, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999).
2. Application of Law to Facts
 
        We begin by recognizing that appellant's brief recites that appellant appeared on the day of trial and announced he wanted to enter a plea of guilty and accept the State's plea bargain of ten years probation. However, appellant's brief cites us to no place in the record where appellant even mentions telling the trial court, his attorney, or the State's attorney that he wanted to accept the plea bargain offer. Nor could we find anything in the record that reflects that appellant did anything to inform anyone of his wish to accept the State's offer or that the offer was withdrawn because of “policy.”
        The clerk's record shows that the State did make an offer of ten years, probated for ten years, and a $2000 fine on August 15, 2006. Apparently, this offer was still valid on October 26, 2006. The docket sheet, however, shows that on October 26, 2006, a jury trial was set for February 19, 2007.
        On February 19, 2007, the trial court admonished appellant on the nature of the charged offense, the full range of punishment for a first degree felony, and his rights. When appellant entered his plea of guilty, the trial court inquired of appellant if he was entering his plea freely and voluntarily. Appellant responded, “[t]his was my decision.” Appellant's response caused the trial court to inquire if the plea was freely given; whether anyone had forced, threatened, or promised him anything in return for his plea of guilty; and if he was pleading guilty because he was guilty and for no other reason. Appellant confirmed that he was pleading guilty because he was guilty and for no other reason. The trial court questioned appellant's trial counsel if he concurred in the plea, if appellant was competent, and if appellant understood the nature and consequences of his plea. Upon trial counsel's affirmative response, the trial court turned to appellant and asked if appellant concurred in his trial counsel's affirmation. Appellant answered in the affirmative.
        Next, appellant confirmed that he understood everything that had just happened. The trial court then asked appellant if “he had anything else, any question you have about anything you would like to ask me about today?” To this, appellant replied, “no.”
        Appellant testified that he decided to take responsibility and admit his guilt. He asked the jury to give him a chance to turn his life around. He believed that probation would give him that chance. Both of his parents testified that they wanted him to have another chance. Additionally, appellant's mother confirmed that they tried to talk appellant out of pleading guilty.
        Nothing in the record before this Court shows that appellant would not have pleaded guilty but for trial counsel's erroneous information. Nor does the record contain any evidence of trial counsel's advice. The record before us is insufficient to review claims of ineffective assistance of counsel. We affirm the trial court's judgment.
 
 
                                                          
                                                          FRANCES MALONEY
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
070355F.U05
 
Footnote 1 The Honorable Frances Maloney, Retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.