Angela Ann Nelson v. The State of Texas--Appeal from 128th District Court of Orange County

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-06-472 CR
____________________
ANGELA ANN NELSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 128th District Court
Orange County, Texas
Trial Cause No. A000064-R
MEMORANDUM OPINION

Pursuant to a plea bargain, appellant Angela Ann Nelson pled guilty to attempting to obtain a controlled substance by fraud. After Nelson failed to appear at her sentencing hearing, the trial court refused to follow the plea bargain agreement, assessed punishment at ten years of confinement and a $10,000 fine, (1) and rescheduled the sentencing hearing. Nelson filed this appeal, in which her sole contention is that she received ineffective assistance of counsel. We affirm the trial court's judgment.

Nelson contends she received ineffective assistance of counsel because her trial counsel (1) did not request that the trial court allow her to withdraw her plea, and (2) did not call any witnesses other than appellant at the sentencing hearing. To prevail on a claim of ineffective assistance of counsel, appellant must satisfy a two-pronged test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

 

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). Texas courts have interpreted Strickland to require appellant to show a reasonable probability that, but for her counsel's errors, the outcome would have been different. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). The same standard applies to both guilt-innocence and punishment. See Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). "Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance." Bone, 77 S.W.3d at 833 (footnote omitted). Appellant must prove there was no plausible professional reason for specific acts or omissions of her counsel. Id. at 836.

"Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Appellant must bring forward a record that indicates trial counsel's performance was not based on sound strategy. See Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994). The bare record on direct appeal is usually insufficient to overcome the presumption that counsel's conduct was reasonable and professional. Bone, 77 S.W.3d at 833. In the context of a guilty plea, appellant must show that, but for counsel's deficient performance, she would not have pled guilty and would have insisted upon going to trial. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999). When an appellant asserts counsel was ineffective because he failed to call witnesses, appellant must demonstrate that such witnesses were available to testify and that she would have benefitted from their testimony. Wade v. State, 164 S.W.3d 788, 796 (Tex. App.--Houston [14th Dist.] 2005, no pet.) (citing Wilkerson v. State, 726 S.W.2d 542, 551 (Tex. Crim. App. 1986); King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)). Appellant carries the burden to prove ineffective assistance of counsel by a preponderance of the evidence. See Thompson, 9 S.W.3d at 813.

The written plea admonishments signed by Nelson contain the following statement: "Should the court reject the [plea bargain] agreement, you will be entitled to withdraw your plea." At the plea hearing, the trial court orally admonished Nelson that she would be permitted to withdraw her plea of guilty if the trial court rejected the plea bargain agreement. The trial judge also admonished Nelson that if she failed to appear for sentencing or failed to report to the probation department, he would refuse to follow the plea bargain agreement. The record indicates that counsel sought a continuance when Nelson failed to appear. The record does not reveal why counsel did not seek to withdraw the plea. See id.; Bone, 77 S.W.3d at 833. In addition, the record does not demonstrate that witnesses were available to testify at the sentencing hearing and that Nelson would have benefitted from their testimony. See Wade, 164 S.W.3d at 796. A petition for writ of habeas corpus is generally a more appropriate vehicle than direct appeal for raising ineffective assistance of counsel claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Accordingly, we overrule Nelson's sole issue and affirm the trial court's judgment.

AFFIRMED.

 

STEVE McKEITHEN

Chief Justice

Submitted on August 7, 2007

Opinion Delivered September 12, 2007

Do Not Publish

 

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. We note that the judgment incorrectly recites that the plea bargain agreement was for ten years of confinement and a $10,000 fine. In fact, the plea bargain agreement was for deferred adjudication, nine years of community supervision, a $1,000 fine, and twenty-five days in jail.