Kelley, James v. The State of Texas--Appeal from 282nd Judicial District Court of Dallas County (opinion )

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AFFIRM; Opinion issued January 31. 2013. i rfll IItiurt tif Apprah Fiffl! 1itrirt cu cxaa at a11a No. 05-1 1-00842-CR No, 05-11-00843-CR JAMES KEIiEY, Appellant V. TIlE STATE OF TEXAS, Appellee On Appeal from the 282nd Judicial District Court I)allas County. Texas Trial Court Cause Nos. F09-59178-S and F09-72634-S OPINION Before Justices Lang-Miers, Myers, and Lewis Opinion By Justice Lang-Miers Appellant James Kelley was charged with one count of possession of less than one gram of cocaine in a drug free zone and one count of fraudulent possession of between five and nine items of identifying information. Appellant waived a jury trial and entered an open plea of guilty in both cases. The trial court assessed punishment in each case at five years in prison and ordered the sentences to run consecutively. Appellant raises three issues on appeal. In his first issue appellant argues that he received ineffective assistance of counsel because a court reporter did not record the open plea proceeding. In his second and third issues appellant argues that thejudgment in both cases should be reformed to reflect the fact that appellant entered an open plea of guilty and was not sentenced in accordance with the terms of a plea bargain agreement. We modify the judgments and i lii flll 1S fl 10(1 lied. FIRST ISSUE In his first issue appellant argues that he received ineffective assistance of counsel because he was depri ve(l ol a reporter s record of the open plea proceeding. We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington. 466 U.S. 668 (1984). To obtain reversal based on ineffective assistance of counsel, an appellant must show that (1) counsel s representation fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, hut for counsel s errors, the result of the proceeding would have been different. See Andrews i . Slate, 159 S.W.3d 98. 101 (Tex. Crim. App. 2005). An ineffective assistance claim must be firmly founded in the record, and the record must affirmatively demonstrate that the claim has merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Williams i. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at 101. Appellant argues that his counsel was ineffective for failing to request that a court reporter transcribe the plea hearing because appellant was entitled to a court reporter under Texas Rule of Appellate Procedure 1 3.1. Appellant also notes that he made a pretrial written request for a court reporter and his written pleas do not indicate that he waived his right to a court reporter. Appellant argues that he was harmed by his counsel s failure to request a court reporter at the plea hearing because a transcript of the proceedings would have shown that appellant s guilty pleas were not made voluntarily. To support this claim appellant cites to his statement contained in the presentence report prepared approximately two months before appellant s plea hearing: 2 Judge ( hatham. I would like the Opportunity to attempt this lrohalion in order to resubstantiate my lile. Previous to this last arrest I had started a company and it had just acquired the last few pieue.s of equipment needed to hegin. Also, I have relocated my dauihter s mother and daughter here from Kansas City. in order to he closer to me. These two things conzruent are what I have needed to he happy with lit and a new beginning here in Dallas. l3asically. I am NOT a menace to society and I will he a prominent basketball coach for children ages elementary school to middle school. I believe that I will successfully complete the probation offered and you will not have any further problems (nil of James L. Kelley. Appellant argues that this statement demonstrates that appellant did not understand the consequences of his guilty pleas because it shows that he believed he would be given probation. With respect to the first prong of Strickland, it is not per se ineffective assistance of counsel to fail to request a court reporter to record a plea hearing. See Rivera r . Slate, 981 S.W.2d 336, 339 (Tex. App. Flousron [14th Dist.] 1998, no pet.). Because a silent record provides no explanation lou counsel s actions, the record on direct appeal is usually not sufficient to show that counsel s representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsels conduct was reasonable and professional. Cannon v. Stale, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008); Rvlander v. Slate, 101 S.W.3d 107, 1 10--I 1 (Tex. Crim. App. 2003). Furthermore, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rviander, 101 S.W.3d at ill; Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Consequently, the Texas Court of Criminal Appeals has repeatedly explained that an application for writ of habeas corpus is usually the more appropriate vehicle to raise claims of ineffective assistance of counsel. See, e.g., Rvlander, 101 S.W.3d at 110. In this case, appellant did not file a motion for new trial or introduce any evidence relating to his counsel s reasoning or rationale for not requesting a court reporter at the plea hearing. As a result, we cannot conclude that the record firmly demonstrates that counsel s performance fell below an objective standard of reasonableness. See generally Goodspeed, 187 S.W.3d at 392 (noting appellate couits otdinarily vil I nut declare trial counsel ineffective without a record showing counsel had an oppoitun itv to explain hiiuscllj. We resolve appellant s ii ist issue against him SECOND ANt) I HJRI) ISSUES In his second and third issues appellant argues that the judgments erroneously state that appellant was sentenced in accordance with the terms of a plea bargain, and that the judgments should he modified to reflect that appellant entered an open plea of guilty. The State agrees with appellant. This Court has the power to modify an incorrect judgment to make the record speak the truth when we have the necessary inlormation to do so .5cc TEx. R. App. P. 43.2(b); BigIe v. State, 865 S.W.2d 26, 27 28 (Tex. Crirn. App. 1993); Asherry v. State, 813 S.W.2d 526, 529 30 (Tex. App. Dallas 1 991, pet. ref d). The record demonstrates that appellant entered an open plea of guilty. We modify the judgments to delete the notation 5 YEARS TDCJ under the heading Terms of Plea Bargain. CON CI USION We resolve appellant s first issue against him. We resolve appellant s second and third issues in his favor. We modify the trial court s judgments and affirm the trial court s judgments as modified / I / ELIZABETH LANG-MIERS JUSTICE Do Not Publish TEx. R. ApP. P.47 1 10842F.U05 -4- Qnairi uf Aipra1i Fif1I! JiIrirt of i xa it Ja1Iw JUDGMENT JAMES KELLEY. Appellant No. 051 l00$4-CR V. THE STATE OF TEXAS, Appellee Appeal from the 282nd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09-59l78S). Opinion delivered hy Justice Lang-Miers, Justices Myers and Lewis participating. Based on the Court s opinion of this date, the trial court s judgment is modified to delete 5 YEARS TDCi under the heading Terms of Plea Bargain. the notaflon As modified the trial court s judgment is AFFIRMED. Judgment entered January 3 1, 2013. ELIZABETH LANG-MIERS JUSTICE (!nitrt tf \pirihi 3Fiftt! Ji3trirt uf cxa at Ja11a JUDGMENT JAMES KELLEY. Appellant No. 051 l00843CR V. THE STATE OF TEXAS. Appellee Appeal from the 282nd Judicial District Court of Dallas County, Texas. (Tr.CtNo, F0972634S). Opinion delivered by Justice Lang-Miers, Justices Myers and Lewis participating. Based on the Court s opinion of this date, the trial court s judgment is modified to delete the notation 5 YEARS TDCJ under the heading Terms of Plea I3argain. As modified the trial court s judgment is AFFIRMED. Judgment entered January 31, 201 3. ELIZABETIl LANG-MIERS* JUSTICE

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