Michael Ray Deyon v. State ( 2010 )

Affirmed and Memorandum Opinion filed March 25, 2010.

In The

Fourteenth Court of Appeals

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NO. 14-08-01143-CR

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Michael Ray Deyon, Appellant

V.

The State of Texas, Appellee

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 07CR3806

MEMORANDUM OPINION

Appellant Michael Ray Deyon challenges his conviction for unlawful possession of a firearm by a felon. After appellant pleaded guilty, the trial court assessed punishment as confinement for eight years.  Appellant appeals contending that he received ineffective assistance of counsel.  We affirm.

Background

           On November 30, 2007, Texas City Police Officer Bjerke observed appellant and another man in a vehicle parked in front of a vacant building.  Appellant got out of the vehicle and started walking towards a house on the other side of the street.  Bjerke approached appellant and told appellant to come towards Bjerke’s vehicle.  Appellant began retreating towards the vehicle he had recently exited.  Bjerke ordered appellant to stop several times and observed appellant’s hand moving towards appellant’s waistband.  Bjerke then observed appellant “toss” or “drop” something inside of the vehicle.  Bjerke ordered appellant to get on the ground, and appellant complied. 

            Bjerke arrested appellant and the vehicle appellant was in was searched.  A silver handgun was uncovered in the search of the vehicle.  Appellant, who previously had been convicted of burglary and possession of a controlled substance, subsequently was charged with unlawful possession of a firearm by a felon.

            Appellant, on May 30, 2008, filed a motion to suppress any statements made by appellant relating to this case.  The State initially offered a plea bargain of seven years in prison.  Appellant rejected the offer.  The State later offered a plea bargain of two years in prison.  Appellant also rejected this offer.  Appellant then attempted to accept the State’s plea bargain of two years in prison at a hearing on November 3, 2008.  The State informed appellant that the offer of two years in prison was no longer available.  Appellant then pleaded guilty, and the trial court assessed punishment as confinement for eight years.

Analysis

Appellant contends on appeal that he received ineffective assistance of counsel because his trial counsel did not (1) advise him that “if he rejected the State’s two year [plea bargain] offer, that would have the effect of terminating that offer, which could not be revived;” and (2) pursue a hearing on his motion to suppress any statements he made relating to this case. 

As a threshold matter, the State argues that appellant waived his complaint on appeal regarding his trial counsel’s alleged ineffectiveness relating to plea negotiations by pleading guilty.  A valid guilty plea waives a defendant’s right to appeal a claim of error when the judgment of guilt was rendered independently of, and is not supported by, the alleged error.  Young v. State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000) (en banc), superseded in part by Tex. R. App. P. 25.2(b) as stated in Monreal v. State, 99 S.W.3d 615 (Tex. Crim. App. 2003).  For a defendant to have a right to appeal from a valid guilty plea, there must be a nexus between the alleged error and the judgment of guilt.  Guidry v. State, 177 S.W.3d 90, 93 (Tex. App.—Houston [1st Dist.] 2005, no pet.); Brink v. State, 78 S.W.3d 478, 484 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).

The State addresses appellant’s complaint regarding his trial counsel’s alleged failure to pursue a hearing on his motion to suppress on the merits and does not specifically argue that appellant waived this complaint by pleading guilty.  However, because appellant pleaded guilty, the court’s holding in Young applies to our review.  See Martinez v. State, 109 S.W.3d 800, 803 (Tex. App.—Corpus Christi 2003, pet. ref’d). Therefore, we must determine if the judgment of guilt was rendered independent of, and is not supported by, appellant’s complaints on appeal.[1]  See Young, 8 S.W.3d at 667; Guidry, 177 S.W.3d at 93.        

Allegations of ineffective assistance of counsel may or may not have a direct nexus with a defendant’s guilty plea.  Guidry, 177 S.W.3d at 93; Martinez, 109 S.W.3d at 803.  A judgment of guilt is rendered independently of the alleged error when the alleged grounds of ineffective assistance of counsel are not related to the guilty plea.  Guidry, 177 S.W.3d at 93; Martinez, 109 S.W.3d at 803.       

Appellant does not assert that his decision to plead guilty was related in any way to the alleged ineffectiveness of his trial counsel.  Nothing in the record indicates that appellant would have pleaded not guilty but for his trial counsel’s alleged ineffectiveness.  The record on appeal demonstrates no nexus between appellant’s guilty plea and his trial counsel’s alleged ineffectiveness.  Instead, the record demonstrates that appellant chose to plead guilty without an agreed recommendation rather than proceed to trial on the merits.  Appellant does not assert that his guilty plea was related in any way to his trial counsel’s alleged failure to (1) explain to him the effect of rejecting the State’s plea bargain offer, or (2) pursue a hearing on appellant’s motion to suppress any statements he made relating to this case. 

We hold that appellant has waived any right to appeal based on his complaints of ineffective assistance of counsel because the judgment of guilt was rendered independently of, and not supported by, the alleged ineffectiveness of appellant’s trial counsel.  See Young, 8 S.W.3d at 667; Guidry, 177 S.W.3d at 93; Martinez, 109 S.W.3d at 803.  We overrule appellant’s issues.

Conclusion

We affirm the trial court’s judgment.  

                                                                        /s/        William J. Boyce

                                                                                    Justice

Panel consists of Justices Frost, Boyce, and Sullivan.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] In any event, appellant cannot satisfy the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), under which we review claims of ineffective assistance of counsel.  See Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991) (en banc). 

Under Strickland, an appellant must establish that (1) his trial counsel’s representation was deficient; and (2) the deficient performance was so serious that it deprived the appellant of a fair trial.  Strickland, 466 U.S. at 687.  To establish these prongs, the appellant must establish by a preponderance of the evidence that (1) counsel’s representation fell below the objective standard of prevailing professional norms; and (2) there is a reasonable probability that, but for counsel’s deficiency, the result of the proceeding would have been different.  Id. at 690-94.  If the reasons for counsel’s conduct at trial do not appear in the record and it is at least possible that the conduct could have been grounded in legitimate trial strategy, we will defer to counsel’s decisions and deny relief on an ineffective assistance claim on direct appeal.  Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007). 

Appellant cannot satisfy Strickland’s first prong by showing by a preponderance of the evidence that trial counsel’s representation fell below an objective standard of reasonableness based on prevailing professional norms.  See Rivera-Reyes v. State, 252 S.W.3d 781, 788-89 (Tex. App.—Houston [14th Dist.] 2008, no pet.).  The record contains no evidence regarding the trial strategy of appellant’s counsel. Therefore, the record does not rebut the presumption that trial counsel’s actions and decisions were reasonably professional and were motivated by sound trial strategy.  See id.