WARD v. STATE (2017)

MEMORANDUM OPINION

Raymond Ward Jr. appeals his conviction for evading arrest with a vehicle. Ward argues (1) the trial court erred by not holding a hearing on his motion for new trial; and (2) his trial counsel rendered ineffective assistance of counsel. We affirm the trial court's judgment.

BACKGROUND

A grand jury indicted Ward for evading arrest with a vehicle. The indictment alleged Ward had been finally convicted of burglary in 2005. At the plea hearing, the trial court asked Ward whether he intended “to plead guilty and true to an open plea and have [the trial court] make the decision as far as punishment.” Ward responded, “Yes, sir.” Ward then entered a plea of guilty to evading arrest with a vehicle and a plea of true to the enhancement allegation. The trial court accepted Ward's pleas, and sentenced Ward to ten years' confinement.

Ward sent a letter to the trial court stating the trial court had admonished him that he could withdraw his pleas if he disagreed with the sentence. Ward stated that at his sentencing hearing, “things were not as explained” by his attorney. Ward filed a motion for new trial stating his trial counsel advised him he had a plea agreement and would receive a two-year probated sentence. The trial court denied Ward's motion for new trial, and Ward appeals.

FAILURE TO HOLD A HEARING ON WARD'S MOTION FOR NEW TRIAL

Ward argues the trial court erred by not holding a hearing on his motion for new trial. As a pre-requisite to obtaining a hearing on a motion for new trial, the motion for new trial must “be supported by affidavit, either of the accused or someone else specifically showing the truth of the grounds of attack.” Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). The purpose of this requirement is to prevent “fishing expeditions.” Id. Neither Ward's motion for new trial nor his letter was verified, sworn to, or otherwise supported by affidavit. Because Ward did not file a motion for new trial that was properly supported by affidavit, the trial court was not required to hold a hearing on the motion for new trial. See id.

INEFFECTIVE ASSISTANCE OF COUNSEL

Ward argues his trial counsel rendered ineffective assistance by incorrectly advising him “that he had a plea agreement for 2 years probated in exchange for his plea.” He also argues no competent attorney would have advised a client to enter an open plea given Ward's criminal background. Ward contends his trial counsel's deficient performance was prejudicial because his plea was involuntary.

Sixth Amendment ineffective assistance of counsel claims are governed by Strickland's two-prong test of determining whether a trial counsel's representation was constitutionally deficient and whether the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668 (1984); accord Russell v. State, 90 S.W.3d 865, 875 (Tex. App.—San Antonio 2002, pet. ref'd). “Any allegation of ineffectiveness must be firmly founded in the record.” Russell, 90 S.W.3d at 875. To satisfy Strickland's first prong on direct appeal, the record must demonstrate: (1) trial counsel's deficient performance of some act or failure to perform some act; and (2) trial counsel had no reasonable trial strategy for the act or omission. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). “There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.” Id. at 813. “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 decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional.” Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

Ward's claim of ineffective assistance is based on misrepresentations Ward's trial counsel allegedly had made to him. As previously noted, Ward's letter and motion for new trial were not supported by affidavit. The record is devoid of any evidence showing what Ward's trial counsel advised him regarding his plea or counsel's strategy during the plea bargaining process. We hold Ward's claim of ineffective assistance is not firmly founded in the record. See Russell, 90 S.W.3d at 875. Because we hold the record does not establish deficient performance under Strickland's first prong, we need not address whether Ward was prejudiced under Strickland's second prong. See TEX. R. APP. P. 47.1.

In his issue regarding ineffective assistance of counsel, Ward argues the trial court misinformed him that there was a plea agreement. It is unclear whether Ward intended to raise his plea was involuntary as a separate issue. For a guilty plea to be constitutionally valid, it must be entered knowingly and voluntarily. See Fuller v. State, 253 S.W.3d 220, 229 (Tex. Crim. App. 2008). In considering the voluntariness of a guilty plea, we examine the record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). If the trial court properly admonished the defendant before the plea was entered, there is a prima facie showing the plea was both knowing and voluntary. Id. The burden then shifts to the defendant to show the plea was involuntary. See id. A defendant who attests his plea is voluntary at a plea hearing bears a heavy burden to later establish he entered the plea involuntarily. Houston v. State, 201 S.W.3d 212, 217 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

The record shows Ward signed a document stating he intended to enter an open plea and understood “punishment shall be set by the court from 2 years probated to 20 year in [prison].” The record also shows the trial court admonished Ward at the plea hearing regarding the range of punishment, and Ward stated he understood the charges for which he had been indicted and the possible range of punishment. Having examined the record as a whole, we cannot say Ward has overcome his heavy burden to demonstrate he did not understand the range of punishment. We therefore cannot conclude Ward's plea was involuntary.

CONCLUSION

The trial court's judgment is affirmed.

Luz Elena D. Chapa, Justice