Vincent Kirk v. State of Texas--Appeal from 23rd District Court of Brazoria County

IN THE

TENTH COURT OF APPEALS

No. 10-01-022-CR

VINCENT KIRK,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 23rd District Court

Brazoria County, Texas

Trial Court # 37,608

O P I N I O N

Vincent Kirk pled guilty to the offense of forgery and pled true to two enhancements. Pursuant to a plea bargain, the trial court sentenced Kirk to two years in prison. Kirk received permission to appeal. He now claims his plea was involuntary due to trial counsel s ineffective assistance. We affirm.

Ineffective Assistance of Counsel

In three issues, Kirk contends his plea was involuntary because his counsel was ineffective. Combining all three issues, Kirk specifically argues that his counsel did not investigate the State s case or his potential defenses which led to incompetent advice from counsel to enter a plea of guilty. Only the first issue is in the context of the denial of a motion for new trial based on the ineffectiveness of his trial counsel. We will address the three issues together as well.

In assessing the effectiveness of counsel we apply the test set forth by the Supreme Court in Strickland v. Washington. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999); Ex parte Jarrett, 891 S.W.2d 935, 938 (Tex. Crim. App. 1994). Strickland requires us to determine whether:

(1) counsel's performance was deficient; and if so,

(2) whether there is a reasonable probability the results would have been different but for counsel's deficient performance.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. This two-pronged test is the benchmark for judging whether counsel s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a reliable result. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999).

Recently, the Court of Criminal Appeals has reminded us that under Strickland, the defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission. Bone v. State, No. 0473-00, slip op. at 13 (Tex. Crim. App. June 19, 2002). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel s conduct was reasonable and professional. Id. at 7. Not only does Strickland require proof of professional incompetence but it also requires proof of prejudice. Id. at 14. In the context of a plea of guilty or nolo contendere, the defendant must show a reasonable probability that but for trial counsel s errors, the defendant would not have pled guilty and would have insisted on going to trial. Kober v. State, 988 S.W.2d 230, 232 (Tex. Crim. App. 1999). The failure to make any effort to prove prejudice for counsel s allegedly deficient performance precludes relief. Ladd v. State, 3 S.W.3d 547, 570 (Tex. Crim. App. 1999).

The denial of a motion for new trial is reviewed under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, (Tex. Crim. App. 2001). That decision, absent a clear abuse of discretion, should not be disturbed on appeal. Gonzalez v. State, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993).

Kirk complains that his counsel did not contact him regularly, did not investigate his case thoroughly, and did not explain the consequences of his plea. Although Kirk testified at the hearing on his motion for new trial, he never proved that but for these perceived deficiencies, he would not have pled guilty and would have insisted on going to trial. In fact, the State introduced correspondence from Kirk soon after his arrest requesting to be placed on the docket so he could plead guilty.

Thus, Kirk did not prove he was prejudiced, and he is not entitled to relief on his claims of ineffective assistance of counsel. Because he is not entitled to relief, the trial court did not err in denying his motion for new trial. Issues one, two, and three are overruled.

Conclusion

Having overruled each issue, we affirm the judgment of the trial court.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed July 3, 2002

Do not publish

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