MARCUS LEE MANNING v. THE STATE OF TEXAS (2012)

OPINION

Opinion By Justice Richter

After appellant entered an open plea of guilty to aggravated sexual assault of a child under fourteen years of age, the trial court sentenced him to eight years' deferred adjudication community supervision.   The state subsequently filed a motion to revoke probation or proceed to an adjudication of guilt, and appellant plead true to the state's allegations.   Following an adjudication of guilt, appellant was sentenced to twelve years' imprisonment.   Appellant asserts two issues on appeal.   First, he contends the trial court

should have admonished him regarding his privilege against self-incrimination prior to accepting his plea at the probation revocation hearing.   Appellant also asserts he was denied the effective assistance of counsel.   Concluding appellant's arguments are without merit, we affirm the trial court's judgment.

Admonishment

In his first issue, appellant argues the trial court erred in failing to admonish him and obtain an express waiver of his privilege against self-incrimination prior to accepting his plea at the probation revocation hearing.   According to appellant, this resulted in his denial of due process of law.   Appellant premises his argument on the assertion that “open pleas on motions to revoke probation should be held to be separate from the initial plea of guilt and therefore require issuance of new admonishments․”  (Emphasis added).   Appellant further asserts that these types of pleas “should constitute separate proceedings exposing a defendant to deprivation of life and liberty distinct from the underlying crime.”  (Emphasis added).   In making these arguments, appellant provides no authority to support the proposition that such admonishments are in fact required at a probation revocation hearing.   But we need not determine whether new admonishments are required, because in the present case, admonishments were given.

The record reflects that on December 16, 2010, appellant signed a document entitled “Plea Agreement (Motion to Revoke or Adjudicate).”   The document reflects the agreement between appellant and the state that he would enter a plea of true to the allegations in the state's motion to adjudicate and go “open” as to sentencing.   The plea agreement contains a section entitled “Court's Admonitions to Defendant,” which provides in pertinent part:

You have an absolute right to confront and cross-examine the witnesses against you, and to call witnesses on your behalf.   You have a right to testify, but you cannot be compelled to do so.   If you do testify anything you say can and will be used in evidence against you.

The plea agreement also contains a section entitled “Defendant's Statements and Waivers.”   In this section, appellant acknowledges that he understands the consequences of a plea of true, the nature of the accusation against him, and the range of punishment for the offense with which he was initially charged.   The plea agreement further provides:

I understand that I have the right to remain silent, that anything I say can and will be used against me, and that I have the right to confront and cross-examine witnesses against me ․ I hereby waive my right to remain silent.

The plea agreement was signed by appellant, his counsel, the state, and the trial judge.   In signing the agreement, appellant certified that his statements and waivers were made knowingly, freely, and voluntarily, and that his counsel had explained the court's admonitions and warnings concerning his plea.   Therefore, even if appellant was entitled to a specific admonishment concerning his privilege against self-incrimination at this stage of the proceeding, the admonishment was given and waived.   Appellant's first issue is overruled.

Ineffective Assistance of Counsel

In his second issue, appellant complains that trial counsel was ineffective because he failed to assert that appellant was not able to pay his probation fees.¹  The state responds that the silent record cannot overcome the presumption of effective assistance.   We agree with the state.

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel.   U.S. Const. amend.   VI;  Tex. Const. art.   I, § 10.   This right necessarily includes the right to reasonably effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 686 (1984);  Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex.Crim.App.1997).   To prove ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms;  and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance.  Strickland, 466 U.S. at 688–92.   Appellant bears the burden of proving his claims by a preponderance of the evidence.  Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App.1998).

Review of counsel's representation is highly deferential, and we indulge a strong presumption that counsel's conduct fell within a wide range of reasonable representation.  Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App.2005);  Mallett v. State, 65 S.W.3d 59, 62–63 (Tex.Crim.App.2001).   A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim.   Salinas, 163 S.W.3d at 740;  Thompson v. State, 9 S.W.3d 808, 813–14 (Tex.Crim.App.1994).   To overcome the presumption of reasonable professional assistance, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.”  Id. (quoting Thompson, 9 S.W.3d at 813).   It is not appropriate for an appellate court to simply infer ineffective assistance based upon unclear portions of the record.  Mata v. State, 226 S.W.3d 425, 432 (Tex.Crim.App.2007).

When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel's performance was deficient.   See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002).   When there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective assistance claim.  Stults v. State, 23 S.W.3d 198, 208–09 (Tex.App.—Houston [14th Dist.] 2000, pet. ref'd).   The Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel's trial strategy.   See Andrews v. State, 159 S.W.3d 98, 103 (Tex.Crim.App.2005).   On such a silent record, this court can find ineffective assistance of counsel only if the challenged conduct was “so outrageous that no competent attorney would have engaged in it.”  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005).

Here, there is nothing in the record to indicate trial counsel's strategy or the advice he gave appellant concerning his plea.   Thus, on this record, we cannot conclude appellant was denied the effective assistance of counsel.   Appellant's second issue is overruled.

Having resolved all of appellant's issues against him, we affirm the trial court's judgment.

110126F.U05 S

Court of Appeals

Fifth District of Texas at DallasJUDGMENT

MARCUS LEE MANNING, Appellant

No. 05–11–00126–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 194th Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F06–28381–M).

Opinion delivered by Justice Richter, Justices Lang–Miers and Murphy participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered April 5, 2012.

/Martin Richter/

MARTIN RICHTER

JUSTICE

FOOTNOTES

FN1. Failure to pay probation fees was one of four violations of the conditions of probation to which appellant plead true..  FN1. Failure to pay probation fees was one of four violations of the conditions of probation to which appellant plead true.

MARTIN RICHTER JUSTICE