Oscar Charles Neal v. State ( 2006 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-04-479 CR ____________________

OSCAR CHARLES NEAL, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 91091

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MEMORANDUM OPINION

Oscar Charles Neal appeals his conviction for the offense of Unauthorized Use of a Motor Vehicle. The record indicates Neal pleaded "no contest" to the charge without the benefit of an agreed punishment recommendation. Following the compilation of a pre-sentence investigation report ("PSI") in which community supervision was not recommended, the trial court assessed Neal a term of eighteen years confinement in the Texas Department of Criminal Justice - Correctional Institutions Division. In a single appellate issue, Neal complains that his no contest plea was neither knowing nor voluntary because of the ineffective assistance of his trial counsel.

When a defendant challenges the voluntariness of a plea entered upon the advice of counsel, contending that his counsel was ineffective, the voluntariness of the plea depends upon (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded "no contest" and would have insisted on going to trial. See Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999); Courtney v. State, 39 S.W.3d 732, 736-37 (Tex. App.--Beaumont 2001, no pet.). However, it is now axiomatic that any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See Bone v. State, 77 S.W.3d 828, 833 n. 13 (Tex. Crim. App. 2002). There is a strong presumption that any conduct by counsel fell within the wide range of reasonable professional assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). It is the defendant that bears the burden of proving by a preponderance of the evidence that his counsel was ineffective. Id.

It is well-settled in law that a guilty plea must be freely, knowingly, and voluntarily made. See Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); Mitschke v. State, 129 S.W.3d 130, 132 (Tex. Crim. App. 2004). The admonishments required by article 26.13(a) of the Texas Code of Criminal Procedure apply in guilty pleas for felony offenses and may be made orally or in writing. Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon 1989 & Supp. 2005). When the record reflects that a defendant was properly admonished, it presents a prima facie showing that the guilty plea was knowing and voluntary. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). The burden then shifts to the defendant to establish that, notwithstanding the statutory admonishments, he did not understand the consequences of the plea. Id. A defendant who asserted to the trial court that he understood the nature and consequences of his plea and that it was voluntary has a heavy burden to prove on appeal that his plea was involuntary. See McNeill v. State, 991 S.W.2d 300, 302 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd, untimely filed).

In the instant case, Neal contends his plea was involuntary "because he was advised by his defense counsel that he would received [sic] probation since he had been accepted in the 'Cenikor Program.'" He further alleges his plea was involuntary because "his trial attorney did not explain to him the throughly [sic] the plea process. The Appellant contends that he [sic] unaware that it would be the Judge and not a Jury to judge him." The record before us does not indicate that Neal filed a motion for new trial. A pro se "Motion To Withdraw Plea," was filed but apparently not ruled upon. Needless to say, therefore, we have nothing in the record supporting any of Neal's contentions with regard to what his trial counsel advised him as to how he should plea, or as to any other part of his case. The record does contain evidence of Neal's extensive criminal history including at least sixteen prior misdemeanor convictions for which he served jail time, and at least five felony convictions for which he received state jail or penitentiary time. Consequently, we find it somewhat incredible that a part of Neal's involuntariness claim blames his trial counsel for failing to thoroughly explain the plea process to him.

At any rate, upon examining the entire record before us we find that Neal was admonished by the trial court in compliance with article 26.13, and that Neal indicated to the trial court that he understood the charge against him and that his plea was an act of free will. The record also reflects that the trial court explained to Neal that his plea was entered without benefit of an agreed punishment recommendation with the consequence that the trial court could assess a punishment of "probation," or up to "20 years" in the penitentiary. Neal indicated that he understood these various punishment options. Neal also indicated that he understood "everything contained" in the written judicial confession he signed along with his trial counsel and the State's attorney, and that he signed it of his own free will. Finally, Neal indicated to the trial court that he was "totally satisfied" with the manner in which his trial counsel had handled his case. A plea is not involuntary simply because the sentence exceeded what the appellant expected, even if that expectation was raised by his attorney. West v. State, 702 S.W.2d 629, 633 (Tex. Crim. App. 1986); Malley v. State, 9 S.W.3d 925, 929 (Tex. App.--Beaumont 2000, pet. ref'd).

On the record before us, we find Neal has failed to carry his burden to show that his plea was entered involuntarily or that he did not understand the consequences of his plea. Furthermore, we find nothing in the record to rebut the presumption that trial counsel's actions were well within the wide range of professional assistance available to Neal under the particular circumstances of his case. The record indicates Neal had an extensive criminal history and that the PSI did not recommend Neal's punishment include community supervision. Trial counsel made as an effective and impassioned request for community supervision as was possible in the face of Neal's extensive criminal background and the negative PSI. The record before us fails to demonstrate any deficient performance or lack of competence on the part of trial counsel. Neal's appellate issue is overruled. The judgment of the trial court is affirmed.

AFFIRMED.

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CHARLES KREGER

Justice

Submitted on November 30, 2005

Opinion Delivered March 1, 2006

Do Not Publish

Before McKeithen, C.J., Kreger and Gaultney, JJ.