Kevin Oliver Antoine v. State ( 2011 )

Opinion issued June 2, 2011.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-01073-CR

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Kevin Oliver Antoine, Appellant

V.

The State of Texas, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Case No. 1207545

MEMORANDUM OPINION

          Appellant, Kevin Oliver Antoine, pleaded guilty without a recommendation on punishment to aggravated sexual assault of a child.[1]  The trial court accepted his plea and assessed appellant’s punishment at ten years’ confinement.  In one point of error, appellant argues that he was denied constitutionally effective counsel.

          We affirm.

Background

Appellant was indicted for aggravated sexual assault of his fifteen-year-old daughter.  He entered a guilty plea without an agreed recommendation as to punishment.  Appellant waived his rights to trial by jury, to appearance, to confrontation and cross-examination of witnesses, and against self-incrimination, and he signed a judicial confession that he was guilty of the assault.  Appellant also initialed and signed the following statements, among others:

I am mentally competent and I understand the nature of the charge against me.

I understand the admonishments or warnings of the trial court set out herein and I have no questions.

. . . .

I represent to the trial court that the State will make the plea bargain agreement or recommendation, if any, . . . and I understand the consequences, as set out above, should the trial court accept or refuse to accept the plea bargain or plea without an agreed recommendation.

. . . .

I have freely, knowingly, and voluntarily executed this statement in open court with the consent of and approval of my attorney, and I request that the Court accept my plea;

. . . .

If my counsel was appointed, I waive and give up any time provided to me by law to prepare for trial.

. . . .

I am fully satisfied with the services rendered to me by my attorney, and believe she/he has represented me competently, conscientiously and to the best of her/his ability.

I understand the offenses I am charged with, and my attorney has discussed with me all the defenses, if any, I might have to these charges and I am entering this plea freely and voluntarily, in the exercise of my own good judgment.

Appellant and his trial counsel also signed written admonishments regarding appellant’s required registration as a sex offender.

The trial court began the sentencing hearing by confirming the prior plea proceedings:

[Trial court]:         [Appellant] entered a plea of guilty to the offense of aggravated sexual assault of a child.  [Appellant,] you pled guilty freely and voluntarily?

[Appellant]:                   Yes, ma’am.

[Trial court]:         Did anybody threaten you in any way to cause you to plead guilty?

[Appellant]:                    No, ma’am.

[Trial court]:         Did anyone promise you anything that caused you to plead guilty?

[Appellant]:                   No, ma’am.

The trial court also asked appellant to confirm that he signed the waiver, judicial confession, and admonishments described above, which he did.  The trial court then asked, “You understood when you signed this you were . . . admitting you were guilty of committing this offense?” Appellant answered, “Yes, ma’am.” The State did not offer any evidence at the hearing other than the plea documents, but it provided the trial court with a brief description of the assault and appellant’s prior criminal history.

Appellant testified on his own behalf at his punishment hearing.  His trial counsel asked him about his family members who were present at the hearing and asked,

[Trial counsel]:     Are they here in support of you?

[Appellant]:                   They’ve always supported me.

[Trial counsel]:     Do you feel like they will continue to support you throughout this process?

[Appellant]:                   Yes, sir.

[Trial counsel]:     How has this—what are your feelings about this case?

[Appellant]:          My feelings are very embarrassed, sinful about what happened.

Appellant also testified about his work situation and his ability to comply with any probation terms the trial court might set.

          On cross-examination, the State asked:

[the State]:            [W]ould you agree you have a problem with sexually abusing young girls?

[Appellant]:                   Yeah, it happened but—yes, ma’am.

. . . .

[the State]:            So, you’re not denying that you did have sex with [the complainant]; is that correct?

[Appellant]:                   Yes, ma’am.

          Appellant’s common-law wife, Gillian Glouden, also testified at his punishment hearing.  She testified that appellant had a good relationship with their one-year-old daughter and that she believed appellant had a desire to correct his past behavior.  On cross-examination, the State asked her,

[the State]:            [Appellant] had admitted to you that he sexually abused his daughter [the complainant]?

[Glouden]:            Yes.

[the State]:            And you believe that happened, right?

[Glouden]:            Yes.

The trial court assessed appellant’s punishment at ten years’ confinement.  More than thirty days after judgment, appellant moved for new trial, arguing that he was denied effective assistance of counsel because he was “forced to plead guilty against his will and under duress by his then attorney.”  The motion stated that appellant “informed his attorney that he did not want to plead guilty to the judge without a recommendation from the prosecutor and he did not want to plead guilty to a crime he did not commit.” The motion stated that appellant’s trial counsel “insisted” that appellant plead guilty and refused to do any trial preparation.  No affidavit or other evidence accompanied the motion for new trial, nor did the trial court hold a hearing.

Ineffective Assistance of Counsel

In his sole point of error, appellant argues that his trial counsel was ineffective.  To make a showing of ineffective assistance of counsel, an appellant must demonstrate that (1) his counsel’s performance was deficient and (2) there is a reasonable probability that the result of the proceeding would have been different but for his counsel’s deficient performance.  Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Cannon v. State, 252 S.W.3d 342, 348–49 (Tex. Crim. App. 2008).  The appellant must prove ineffectiveness by a preponderance of the evidence.  Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

          The right to effective assistance of counsel applies to a defendant’s entry of a guilty plea.  Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997).  When a defendant enters a guilty plea and later challenges the voluntariness of that plea based on ineffective assistance of counsel, the voluntariness of the plea depends on (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 error, the defendant would not have pleaded guilty and would have insisted on going to trial.  Id.

          Our 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).  To overcome the presumption of reasonable professional assistance, an “allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.”  Id.; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

          Here, appellant argues that his trial counsel compelled him to plead guilty in spite of appellant’s insistence that he was innocent and that he did not want to plead guilty without an agreed recommendation on punishment.  He also argues that his trial counsel refused to conduct any pretrial investigation. However, appellant points to nothing in the record in support of his allegations.  In fact, the evidence in the record, including appellant’s written confession, his signed and initialed admonishments, and his testimony given under oath at the sentencing hearing, supports a conclusion that appellant freely and voluntarily pleaded guilty to a crime he believed he had committed.  In the absence of anything in the record affirmatively demonstrating otherwise, we presume that his trial counsel’s performance was reasonable.  See Salinas, 163 S.W.3d at 740.  Thus, appellant has failed to establish that his trial counsel’s advice fell outside the range of competence demanded of attorneys in criminal cases.  See Morrow, 952 S.W.2d at 536.

          We overrule appellant’s sole point of error.

Conclusion

          We affirm the judgment of the trial court.

                                                                   Evelyn V. Keyes

                                                                   Justice

Panel consists of Justices Keyes, Higley, and Hinde.[2]

Do not publish.   Tex. R. App. P. 47.2(b).

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[1]           See Tex. Penal Code Ann. § 22.021(a)(1)(B) (Vernon 2010).

[2]           The Honorable Dan Hinde, Judge of the 269th District Court of Harris County, sitting by assignment.