Patrick Ballard v. The State of Texas--Appeal from 23rd District Court of Brazoria County

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State: Texas

Court: Texas Northern District Court

Docket No: 01-02-01158-CR

Case Date: 02/19/2004

Plaintiff: Patrick Ballard

Defendant: The State of Texas--Appeal from 23rd District Court of Brazoria County

Preview:Patrick Ballard v. The State of Texas--Appeal from 23rd District Court of Brazoria County
Opinion issued February 19, 2004

In The Court of Appeals For The First District of Texas

NO. 01-02-01158-CR

PATRICK BALLARD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court Brazoria County, Texas Trial Court Cause No. 41,372

MEMORANDUM OPINION

Appellant, Patrick Ballard, pleaded guilty before a jury to the offense of possession of a prohibited substance in a correctional facility. See Tex. Pen. Code Ann. 38.11 (Vernon Supp. 2004). However, appellant pleaded not true to enhancement paragraphs, alleging that he had six previous felony convictions. The jury found appellant guilty, found true all six enhancement allegations, and assessed punishment at 28 years confinement. In his sole point of error, appellant contends that he was deprived of effective assistance of counsel and, thus, his plea was involuntary. We affirm. Anders Brief

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Appellant s appointed counsel moved to withdraw from appellant s representation on appeal and, in support, submitted a brief stating her opinion that the appeal was without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967), by presenting a professional evaluation of the record and stating why there are no arguable grounds for error on appeal. Stephens v. State, 35 S.W.3d 770, 771 (Tex. App. Houston [1st Dist.] 2000, no pet.). Counsel advised appellant of her evaluation of the appeal, sent appellant a copy of her Anders brief and the record, and informed appellant of his right to file a pro se response. Thereafter, appellant timely filed a pro se response. Background Prior to trial, the trial court admonished appellant regarding his waiver of constitutional rights in pleading guilty, and, when satisfied that appellant s guilty plea was voluntary, accepted appellant s guilty plea without a plea bargain. After a jury was selected, appellant pleaded guilty to the indictment before the jury, and the jury found appellant guilty of the offense as instructed by the trial court. After the punishment phase, the jury found the enhancement allegations to be true and assessed punishment at 28 years confinement. Appellant subsequently filed a motion for new trial on the grounds that the punishment assessed was cruel and unusual punishment; however, the motion was denied. // Discussion In a single point of error, appellant asserts that his guilty plea was involuntary because of ineffective assistance of counsel. Specifically, appellant complains that his counsel did not provide him with effective assistance because counsel mistakenly advised appellant that any sentence he received would run concurrently with the sentence he was presently serving. Appellant contends that, based upon this erroneous information, he withdrew his plea of not guilty and, instead, pleaded guilty. In attacking a guilty plea on the ground of ineffective assistance of counsel, the essential requirement is a showing that the plea of guilty was unknowingly and involuntarily made. Ex parte Adams, 707 S.W.2d 646, 648 (Tex. Crim. App. 1986). The two-part test announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984) applies to guilty-plea challenges based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370 (1985); see also Ex parte Adams, 707 S.W.2d at 649. Under the Strickland test, as applied to guilty pleas, the defendant must first show that trial counsel s performance fell below an objective standard of reasonableness based upon prevailing norms. Strickland, 466 U.S. at 688. The defendant must show that trial counsel s advice fell outside the range of competence demanded of attorneys in criminal cases. Ex parte Morrow, 952 S.W.2d at 536. A defendant must then show that there is a reasonable probability that, but for trial counsel s errors, the defendant would not have entered the plea and would have insisted on going to trial. Hill, 474 U.S. at 59, 106 S. Ct. at 370-71; Ex parte Morrow, 952 S.W.2d at 536. Appellant has the burden to establish both of these prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998); Davis v. State, 830 S.W.2d 762, 765 (Tex. App. Houston [1st Dist.] 1992, pet. ref d). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700, 104 S. Ct. at 2071. Here, we need not address the first prong of the Strickland test because appellant has failed to meet the second prong; that is, appellant fails to show that, but for counsel s alleged error, he would not have pleaded guilty. In this case, appellant argues that his trial counsel did not provide him with effective assistance because counsel mistakenly advised him that any sentence he received would automatically run concurrently with the sentence he was presently serving. In support of his argument, appellant points to the following exchange that transpired during the pretrial hearing: APPELLANT S COUNSEL: And do you also understand that any sentence you receive in this case is going to be, by law, concurrent [sic] with the sentence that you re already serving? DEFENDANT: Correct; I understand. Appellant argues that this single statement rendered counsel s performance deficient, by alleging that, had he known
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that his sentences could not run concurrently, he would not have pleaded guilty, but, instead, would have insisted upon a jury trial. // However, this allegation is not supported by the record. A careful review of the record indicates that appellant voluntarily entered a plea of guilty prior to his counsel s misstatement. The following are the pertinent sections of the record reflecting appellant s pretrial guilty plea: TRIAL COURT: I m informed at this time that you wish to change that plea to Guilty, but go to the jury on the matter of punishment. Is that right? APPELLANT: Yes, sir. TRIAL COURT: All right. You do understand you do have the right to a jury trial on the matter of guilt or innocence. APPELLANT: I understand. TRIAL COURT: You want to waive that right, is that right? APPELLANT: I want to waive that right, your Honor. TRIAL COURT: All right, sir. And you understand the range of punishment APPELLANT S TRIAL COUNSEL: Well, Your Honor, he s still going to he s still going to the jury he s got to go to the jury on TRIAL COURT: Yeah, he said on punishment. APPELLANT S TRIAL COUNSEL: But you have to TRIAL COURT: But he s waiving his right to a jury trial on the issue of guilt. APPELLANT S TRIAL COUNSEL: Right. TRIAL COURT: Which is what I asked. APPELLANT S TRIAL COUNSEL: Right, but he still has to he s going to have to the jury still has to be involved in that. TRIAL COURT: Right. APPELLANT S TRIAL COUNSEL: I just wanted to make sure we re clear. Sorry, I didn t mean to interrupt you. TRIAL COURT: He has the right to have the jury decide the matter of guilt or innocence. APPELLANT S TRIAL COUNSEL: That s right. TRIAL COURT: But you don t want the jury to do that. APPELLANT: I m waiving that. TRIAL COURT: Right, to have the jury decide the issue of guilt and enter a plea of guilty at this time? APPELLANT: Yes, sir. TRIAL COURT: All right, we all understood it. And further, you understand, in doing that, the range of punishment for a third degree, without any enhancement, would be not less than 2 years, nor more than 10 years and a fine of up to $10,000 could be imposed?

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APPELLANT: Yes sir. TRIAL COURT: And you understand that further, that the range of punishment for the felony offense of a prohibitive substance in a correctional facility, as a repeat offender, would be by confinement of a term of not more than 20 years nor less than 2 years and the range of punishment for possession of a prohibitive substance in a correctional facility as an habitual would be not less [sic] than 99 years or would be a term of not more than 99 years, nor less than 25 years or life and you re going to leave you re going to enter a plea of Not true, I understand, on the enhancements, is that right, and go to the jury on the matter of punishment? APPELLANT: Right. Right. TRIAL COURT: But you are facing those ranges of punishment if they find those allegations are true by the prior convictions that are alleged in the indictment and well, then you could receive up to the range that we just discussed. APPELLANT: Right, your Honor. TRIAL COURT: All right. APPELLANT: I understand. TRIAL COURT: Now, further, you never have been adjudged insane or had any mental health problems before, have you? APPELLANT: No, sir, your Honor. TRIAL COURT: All right. You do understand that a plea of guilty or nolo contendre could result could result in your being deported, failure to receive naturalization, failure to readmit you to the country. You re not worried about that? APPELLANT: No, sir. TRIAL COURT: All right, and nobody s punished you [sic] promised you a pardon? You haven t got any delusive hope of pardon, I take it? APPELLANT: No, sir, your Honor. TRIAL COURT: All right, and you are entering this plea voluntarily then, you haven t been promised or threatened to make you do it in any way? APPELLANT: No sir. TRIAL COURT: It s voluntarily and for no other reason? APPELLANT: Voluntary. TRIAL COURT: All right. I ll accept the plea of guilty, satisfied it s voluntary. And are there any exhibits at this time? STATE: None at this time, your Honor. TRIAL COURT: All right, not at this time. All right, and anything to add to what we ve already done? After the trial court accepted appellant s guilty plea, appellant s counsel questioned appellant in a brief examination. It was during this examination that appellant s counsel used the word concurrent instead of consecutive with regard to the punishment range. Later, during the charge conference, the record shows that appellant was present when appellant s counsel objected to
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the fact that appellant s sentence by law, [sic] must be stacked on top of [his current] sentence, on the grounds that it was cruel and unusual punishment. The trial court overruled the objection. Subsequently, the trial court charged the jury as follows: Under the law applicable in this case, if a defendant is sentenced for an offense committed while the defendant was an inmate in the institutional division of the Texas Department of Criminal Justice and the defendant has not completed the sentence he was serving at the time of the offense, the judge shall order the sentence for the subsequent offense to commence immediately on completion for the original offense. Thus, the record reveals two instances wherein appellant was present during discussion of the stacking of his sentences, such that he had sufficient opportunity to consider the information and decide whether or not to complain. Although appellant filed a motion for new trial, he did not claim that his plea was involuntary because he believed that his sentences would run concurrently. Instead, appellant argued that the sentence imposed, 28 years confinement, was cruel and unusual punishment. Thus, appellant has not provided any evidence that, but for counsel s misstatement, he would not have entered a guilty plea. // Nothing in the record undermines our confidence in the proceedings. Because appellant s ineffective assistance claim is not demonstrated in the record, we hold that he has not met his burden of proving that his trial counsel was ineffective. Rodriquez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App. 1995). Accordingly, we overrule appellant s sole point of error. Conclusion We affirm the judgment of the trial court. We grant appellate counsel s motion to withdraw. See Stephens v. State, 35 S.W.3d 770, 771 (Tex. App. Houston [1st Dist.] 2000, no pet.). Counsel still has a duty to inform appellant of the result of this appeal and also to inform appellant that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. Id. at 771-72; see Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Jennings and Higley. Do not publish. Tex. R. App. P. 47.2(b).

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