Charleston Lamon Moody v. The State of Texas Appeal from 213th District Court of Tarrant County (memorandum opinion)
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-16-00431-CR CHARLESTON LAMON MOODY APPELLANT V. THE STATE OF TEXAS STATE ---------FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1431996D ---------- MEMORANDUM OPINION1 ---------Appellant Charleston Lamon Moody appeals his conviction and eight-year sentence for burglary of a habitation.2 He raises ineffective assistance of counsel, claiming that his trial counsel fell below prevailing professional norms by failing to withdraw his guilty plea and enter a plea of not guilty on account of his 1 See Tex. R. App. P. 47.4. 2 See Tex. Penal Code Ann. § 30.02(a)(1) (West 2011). alleged protestations of innocence made during the preparation of a presentence investigation report (PSI) and during his testimony at a punishment hearing. Appellant’s claim fails for legal and factual reasons. We therefore affirm the trial court’s judgment. Background Facts A grand jury indicted appellant for burglary of a habitation. He pled guilty and judicially confessed to that charge. In the same plea proceeding, he pled guilty to five charges of aggravated assault with a deadly weapon. Later, the trial court found appellant guilty of the aggravated assault charges and sentenced him to eight years’ confinement for each charge. Appellant appealed the aggravated assault convictions, but we dismissed those appeals because appellant had entered a plea bargain in each case, and the trial court had certified that he had no right of appeal. See Moody v. State, Nos. 02-16-00426CR, 02-16-00427-CR, 02-16-00428-CR, 02-16-00429-CR, 02-16-00430-CR, 2017 WL 3081789, at *1 (Tex. App.—Fort Worth July 20, 2017, no pet. h.); see also Tex. R. App. P. 25.2(a)(2), (d). Concerning the burglary charge, the trial court accepted appellant’s plea and deferred making a finding of guilt so that a community supervision officer could conduct a presentence investigation. After the completion of the presentence investigation, during a punishment hearing, appellant explicitly testified that he was guilty of burglary. He testified that he was a “watch-out” during the burglary, repeating what he said during the presentence investigation. 2 After considering the parties’ evidence (including the PSI and testimony from appellant, his mother, and a pastor) and arguments, the trial court found appellant guilty of burglary and sentenced him to eight years’ confinement. He brought this appeal. Alleged Ineffective Assistance of Counsel Appellant’s first point of error relates to the aggravated assault convictions, so we overrule that point as moot. In his second point—the only point challenging his burglary conviction—appellant argues that he was denied effective assistance of counsel when his counsel did not seek to withdraw his guilty plea after appellant allegedly revealed in his presentence interview and in testimony before the trial court that he was not guilty of the crime. We conclude that legal and factual grounds foreclose appellant’s claim. To establish ineffective assistance of counsel, appellant must show by a preponderance of the evidence that his counsel’s representation was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). An ineffective-assistance claim must be “firmly founded in the record,” and “the record must affirmatively demonstrate” the meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Further, in evaluating the effectiveness of counsel under the deficientperformance prong, we look to the totality of the representation and the particular 3 circumstances of each case. Id. The issue is whether counsel’s assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307. Review of counsel’s representation is highly deferential, and the reviewing court indulges a strong presumption that counsel’s conduct was not deficient. Nava, 415 S.W.3d at 307–08. It is not appropriate for an appellate court to simply infer ineffective assistance based upon unclear portions of the record or when counsel’s reasons for failing to do something do not appear in the record. Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel “should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.” Menefield, 363 S.W.3d at 593. If trial counsel is not given that opportunity, we should not conclude that counsel’s performance was deficient unless the challenged conduct was “so outrageous that no competent attorney would have engaged in it.” Nava, 415 S.W.3d at 308. First, legal grounds preclude appellant’s ineffective assistance claim because the record is devoid of trial counsel’s strategy for not withdrawing appellant’s guilty plea, nor can we infer ineffective assistance. Appellant did not file a motion for a new trial, and the undeveloped trial record contains no evidence of counsel’s strategy concerning the decision to not seek withdrawal of appellant’s guilty plea. 4 In a similar case, Mallett v. State, Mallett, after entering an open guilty plea for aggravated assault against a police officer, attempted at a punishment hearing to qualify the plea. 65 S.W.3d 59, 61–64 (Tex. Crim. App. 2001). At the hearing, Mallett insisted he did not intentionally try to run over the officer. Id. at 63–64. He also, however, told the trial court that he was pleading guilty because the charges were “true.” Id. at 64. The court of appeals concluded that counsel should have withdrawn Mallett’s guilty plea at the point he claimed his actions were not intentional. Id. However, the court of criminal appeals reversed the court of appeals’s decision and reasoned that appellant’s testimony was equivocal—he testified his actions were both intentional and not intentional. Id. The court of criminal appeals also opined that even if Mallett’s testimony was construed as a proclamation of innocence, counsel could have had other reasons for not withdrawing the guilty plea, but the record was silent as to counsel’s strategy. Id. Because Mallett could not successfully satisfy the first prong of Strickland, the court of criminal appeals held that counsel was not proven ineffective. Id. at 65. Here, like the appellant in Mallett, appellant attempted to qualify his plea at sentencing. In his testimony, he admitted committing burglary but reiterated what he stated in his PSI—he was guilty only of being a “watch-out.” As in Mallett, the record is not developed because it is silent regarding counsel’s strategy for not seeking to withdraw appellant’s plea (or whether counsel even considered doing 5 so). We cannot infer ineffective assistance based on this unclear record. See id.; see also Menefield, 363 S.W.3d at 593. Second, factual grounds preclude appellant’s claim. As noted, appellant asserts that the trial record demonstrates counsel’s ineffectiveness. But the trial record shows appellant’s repeated admissions to being a “watch-out” during the burglary. While appellant apparently relied on the “watch-out” explanation as a protestation of innocence, he did not expressly deny participation in the burglary. In Rollerson v. State, Rollerson argued that evidence was insufficient to establish his guilt for burglary because while he was a party to the burglary, evidence could not place him inside the home during the burglary. 227 S.W.3d 718, 726 (Tex. Crim. App. 2007). The court of criminal appeals affirmed Rollerson’s burglary conviction and reasoned that “[e]ven if [Rollerson] was only a ‘lookout’ (or one of several burglars) he [was] still guilty of the offense of burglary.” Id. Thus, here, appellant did not effectively protest his innocence but merely confirmed his guilt by stating he was a “watch-out.” His attorney had no reason to withdraw his guilty plea. For these reasons, we hold that appellant cannot establish that his trial counsel was ineffective based on counsel’s alleged failure to withdraw appellant’s guilty plea to burglary. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Nava, 415 S.W.3d at 307. We overrule appellant’s second point. 6 Conclusion Having overruled each of appellant’s points, we affirm the trial court’s judgment. /s/ Terrie Livingston TERRIE LIVINGSTON CHIEF JUSTICE PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: August 24, 2017 7
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