Gibbs, Kendall O'Brian v. The State of Texas--Appeal from 179th District Court of Harris County

Affirmedand Opinion filed October 5, 2004.

In The

Fourteenth Court of Appeals

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NOS. 14-03-00934-CR

14-03-00935-CR

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KENDALL O BRIAN GIBBS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 880,431; 925,622

O P I N I O N

Appellant, Kendall O Brian Gibbs, appeals from his conviction for aggravated robbery and from the revocation of his probation for a prior robbery conviction. After appellant pleaded no contest to the aggravated robbery charge and true to the allegations in the motion to revoke probation, the trial court found him guilty of aggravated robbery and revoked his probation. The court sentenced him to fifteen years confinement and a $10,000 fine for aggravated robbery and three years confinement and a $500 fine for the probation violation. On appeal, appellant contends that the ineffective assistance of his counsel rendered his pleas involuntary. We affirm.

Issues

During the presentence investigation hearing, appellant introduced evidence, primarily through his own testimony, suggesting that he was involuntarily intoxicated at the time of the alleged aggravated robbery. He now contends that his trial counsel (1) did not know that involuntary intoxication could be used as an affirmative defense and, consequently, (2) failed to inform him that it could be so used. In two issues, appellant argues that counsel s failure amounted to ineffective assistance and thus rendered his pleas involuntary.

Evidence

The record contains inconsistent evidence regarding the degree to which appellant was aware of his actions at the time of the alleged offense. He signed a judicial confession admitting that he committed the offense intentionally and knowingly. He began his testimony by stating that on the night in question he was with a group of people who were doing drugs, but that he refused. Eventually, he agreed to have an alcoholic drink. He believes that someone slipped a drug into the drink because he does not remember what happened after he consumed the drink and because he would not have been affected to that extent from just that one drink. He said that he passed out or blacked out, wasn t aware of what he was doing, and never intended to rob the store. At other points in his testimony, he stated I know I was wrong, and I was conscious but I wasn t conscious mentally, and he admitted that he may have known what was going on at the time of the offense and just didn t remember later. Appellant said that he remembered taking Xanax after the robbery but he wasn t aware of what he was doing [j]ust like when I robbed that store. He further said that he was with a particular person all day and that that person s statement that he picked appellant up after the robbery was false. Appellant also admitted that he had lied to the court when he was prosecuted for the prior offense because he told the court he committed the offense when he really had not. Two other witnesses testified that they had heard from other people that someone put something in appellant s drink on the night in question. During closing argument, defense counsel stated, We submit to you involuntary intoxication, that s mitigation of punishment.

Analysis

The constitutional key to validity of a guilty plea [or plea of no contest] is that it be voluntary and intelligently made and, if upon advice of counsel, that counsel be reasonably competent and render effective assistance. Meyers v. State, 623 S.W.2d 397, 401 02 (Tex. Crim. App. 1981); see also Nicholas v. State, 56 S.W.3d 760, 769 (Tex. App. Houston [14th Dist.] 2001, pet. ref d) (quoting Meyers). The Sixth Amendment to the United States Constitution guarantees the right to reasonably effective assistance of counsel in criminal prosecutions. U.S. Const. amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). When a defendant challenges the voluntariness of a plea entered upon the advice of counsel, 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 is a reasonable probability that, but for counsel s errors, he would not have pleaded guilty and would have insisted on going to trial. Ex parte Moody, 991 S.W.2d 856, 857 58 (Tex. Crim. App. 1999) (quotingEx parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997)).

In reviewing an ineffective assistance claim, an appellate court must indulge a strong presumption that counsel s conduct [fell] within the wide range of reasonable professional assistance; that is, [appellant] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland v. Washington, 466 U.S. 668, 689 (1984). Appellant has the burden to rebut this presumption by presenting evidence illustrating why trial counsel acted in the way that he or she did. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). In the absence of evidence regarding counsel s reasons for the challenged conduct, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel. Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003) (quoting Thompson v. State, 9 S.W.3d 808, 813 14 (Tex. Crim. App. 1999)).[1]

Involuntary intoxication constitutes an affirmative defense if at the time of the alleged offense, the defendant, as a result of a severe mental defect caused by involuntary intoxication, did not know that his conduct was wrong. Mendenhall v. State, 77 S.W.3d 815, 818, (Tex. Crim. App. 2002) (citing Tex. Pen. Code Ann. 8.01(a) (Vernon 2003)). Evidence of temporary insanity caused by intoxication, whether voluntary or involuntary, may be introduced in mitigation of the penalty for an alleged offense. See Tex. Pen. Code Ann. 8.04(b) (Vernon 2003).[2]

Appellant contends that defense counsel s use of the evidence regarding involuntary intoxication only for mitigation purposes demonstrated that his counsel was unaware that involuntary intoxication could be used as an affirmative defense. Appellant further contends that counsel s failure to inform him of this option amounted to ineffective assistance and rendered his plea invalid because it was not voluntarily and intelligently made. However, in light of the strong presumption that counsel s conduct was reasonable, the statements and evidence raised by appellant are not sufficient to demonstrate that defense counsel was ignorant of the use of involuntary intoxication as an affirmative defense. Indeed, his decision to submit involuntary intoxication solely in mitigation may have been a strategic move based on an assessment of the quality of evidence. For example, he may have decided, given appellant s inconsistent statements, that appellant had a better chance of getting a lenient sentence if he confessed and pleaded guilty than if he pursued an involuntary intoxication defense. Furthermore, the record is completely silent as to what counsel told appellant about intoxication. In the face of a silent record, we are not to speculate on counsel s strategy, level of knowledge, or what he told his client. See, e.g., Thompson, 9 S.W.3d at 813 14. This record is not sufficient to demonstrate that appellant received ineffective assistance of counsel or, consequently, that his pleas were involuntary. Accordingly, appellant has failed to meet his burden. His issues are overruled.

The trial court s judgment is affirmed.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Opinion filed October 5, 2004.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

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

[1] Because the record on direct appeal typically provides no evidence regarding defense counsel s motivations, it is usually preferable to bring ineffective assistance claims in habeas corpus proceedings. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

[2] The State contends that appellant could not have used involuntary intoxication as a defense under section 8.01(a) because he claimed he was unconscious at the time of the offense. See Mendenhall, 77 S.W.3d at 818 (stating claim of unconsciousness might give rise to the no-mental-state defense and the no-voluntary-act defense, but it would not support an insanity defense). However, given appellant s inconsistent statements at the PSI hearing, we shall address appellant s issues as he has framed them.