Montgomery, Rondale VonKeith v. The State of Texas--Appeal from 232nd District Court of Harris County

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Affirmedand Memorandum Opinion filed December 8, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00671-CR

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RONDALE VONKEITH MONTGOMERY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 951,011

M E M O R A N D U M O P I N I O N

Appellant, Rondale Vonkeith Montgomery, was charged with the first degree felony of engaging in organized criminal activity. After the State offered to reduce the charge to a second degree felony, appellant entered a plea of guilty to the reduced charge of engaging in organized criminal activity. Appellant also pled true to an enhancement allegation. Because there was no agreement between the parties regarding punishment, the trial court deferred sentencing for a pre-sentencing investigation (APSI@) hearing. At the conclusion of the PSI hearing, the trial court found the enhancement paragraph true and sentenced appellant to 40 years in the Texas Department of Corrections, Institutional Division.


On appeal, appellant brings two points of error claiming ineffective assistance of counsel. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. See U.S. Const. amend. VI; Tex. Co[KTF1] nst. art. I, ' 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 1977). The right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The United States Supreme Court has established a two prong test to determine whether counsel is ineffective. Id. Appellant must first demonstrate his counsel=s performance was deficient and not reasonably effective. Id. at 688B92. Thereafter, appellant must demonstrate the deficient performance prejudiced his defense. Id. at 693. Essentially, appellant must show that his counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for his counsel=s unprofessional errors, the result of the proceeding would have been different. Id.; Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997).

Judicial scrutiny of counsel=s performance must be highly deferential and we are to indulge the strong presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We assume counsel=s actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Id. Moreover, it is appellant=s burden to rebut this presumption, by a preponderance of the evidence, via evidence illustrating why trial counsel did what he did. Id. Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998). Where the record contains no evidence of the reasoning behind trial counsel=s actions, we cannot conclude counsel=s performance was deficient. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); Jackson, 877 S.W.2d at 771. An appellate court is not required to speculate on the reasons behind trial counsel=s actions when confronted with a silent record. Jackson, 877 S.W.2d at 771.


If appellant proves his counsel=s representation fell below an objective standard of reasonableness, he must still affirmatively prove prejudice as a result of those acts or omissions. Strickland, 466 U.S. at 693; McFarland, 928 S.W.2d at 500. Counsel=s errors, even if professionally unreasonable, do not warrant setting the conviction aside if the errors had no effect on the judgment. Strickland, 466 U.S. at 691. Appellant must prove that counsel=s errors, judged by the totality of the representation, denied him a fair trial. See McFarland, 928 S.W.2d at 500. If appellant fails to make the required showing of either deficient performance or prejudice, his claim fails. See id.

In his first issue, appellant claims his plea was involuntary due to ineffective assistance of counsel. The two-prong Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). Thus, when a defendant enters a guilty plea on the advice of counsel and later challenges the voluntariness of his plea on basis of ineffective assistance of counsel, he must show (1) counsel=s advice was not within the range of competence demanded of attorneys in criminal cases, and (2) 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. Id. at 58B59.

Appellant raised this issue in a motion for new trial to which he attached a four-page affidavit alleging that his trial counsel had neither investigated the facts of his case nor reviewed the District Attorney=s file. Appellant further claimed he told his trial counsel that he did not want to plead guilty, but his trial counsel told him it was best for him to plead guilty and allow the judge sentence him because if he went to trial and were convicted, he could be sentenced to forty-five years in prison, whereas, if he pleaded guilty, the judge would sentence him to only six or seven years in prison. The trial court denied the motion for new trial without a hearing.


A motion for new trial is not self-proving. Lamb v. State, 680 S.W.2d 11, 13 (Tex. Crim. App. 1984). During the hearing on the motion for new trial, the trial court may receive evidence by affidavits. Tex. R. App. P. 21.7. An affidavit attached a motion for new trial, however, is merely a pleading authorizing the introduction of supporting evidence; it is not evidence. Stephenson v. State, 494 S.W.2d 900, 909 (Tex. Crim. App. 1973). For an affidavit to be evidence, it must be introduced into evidence at a hearing on the motion for new trial. Id. at 909B10. Here, because there was no hearing on appellant=s motion for new trial, appellant=s affidavit was not introduced into evidence and, therefore, is not evidence.

Moreover, there is nothing in the record regarding trial counsel=s representation of appellant. An appellate court is not required to speculate on the reasons behind trial counsel=s actions when confronted with a silent record. Jackson, 877 S.W.2d at 771; see also Thomspon, 9 S.W.3d at 14 (holding that when record provides no explanation as to motivation behind trial counsel=s actions, appellate court should be hesitant to declare ineffective assistance of counsel). Because appellant has not provided this court with any evidence to affirmatively demonstrate the ineffectiveness of his trial counsel, he has not satisfied his burden on appeal to rebut the presumption that counsel=s actions were reasonably professional and motivated by sound trial strategy. Appellant=s first point of error is overruled.

In his second point of error, appellant asserts he received ineffective assistance of counsel at the punishment hearing because defense counsel did not file a request for notice of the State=s intent to offer evidence of extraneous offenses and bad acts. After the State offered evidence of multiple extraneous offenses and bad acts at the punishment hearing, it urged the trial court to assess punishment at 40 years= incarceration. Article 37.07 of the Texas Code of Criminal Procedure provides that on a defendant=s timely request, the State must provide notice of intent to offer evidence of extraneous offenses and bad acts in the same manner as required by Rule 404(b) of the Texas Rules of Evidence. Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(g) (Vernon Supp. 2005).


Trial counsel=s failure to file a request for notice of the State=s intent to offer extraneous offenses and bad acts is not per se ineffective assistance of counsel. Rodriguez v. State, 981 S.W.2d 357, 359 (Tex. App.CSan Antonio 1998, no pet.); see also Autry v. State, 27 S.W.3d 177, 182 (Tex. App.CSan Antonio 2000, pet. ref=d) (explaining that trial counsel=s failure to file pretrial motions generally does not result in ineffective assistance of counsel); Wills v. State, 867 S.W.2d 852, 856 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d) (same). As explained by the San Antonio Court of Appeals:

Were we to so hold, failure to request notice would effectively block any attempt by the state to introduce evidence of this type, because in the case of an unfavorable result a defendant would be able to claim ineffective assistance as a matter of right. Whatever the intent of the statute, it was not to give the defense attorney a veto over the prosecution=s use of extraneous offense testimony.

Rodriguez, 981 S.W.2d at 359.

Moreover, appellant has not explained (1) whether the extraneous offenses and bad acts were admissible, (2) what he or his trial counsel would have done with such notice, or (3) how the result would have been different, i.e., the imposition of a lesser sentence. Appellant=s second point of error is overruled.

Accordingly, the judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed December 8, 2005.

Panel consists of Justices Hudson, Frost, and Seymore.

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

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