Dezman Duran Scott v. State

Opinion issued

February 24, 2011

In

The

Court of

Appeals

For

The

First District

of Texas

————————————

NO. 01-10-00254-CR

NO. 01-10-00255-CR

———————————

DEZMAN DURAN SCOTT , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 178th

District Court

Harris County, Texas

Trial Court Case Nos. 1157530

& 1227808

MEMORANDUM OPINION

Appellant,

Dezman Duran Scott, was charged by indictment with the offense of aggravated

robbery. [1] See Tex. Penal

Code Ann. § 29.03 (Vernon

2003). In a separate indictment,

appellant was charged with the offense of aggravated assault. [2] See Tex.

Penal Code Ann. § 22.02 (Vernon Supp.

2010). Appellant pleaded guilty to both offenses and pleaded true to one

enhancement allegation in each case.

Following the preparation of

a presentence investigation (“PSI”) report, the trial court conducted a

sentencing hearing. At the hearing, the

trial court found appellant guilty of each offense, found the enhancement

allegations to be true, and found the deadly-weapon allegations contained in

the indictments to be true. The trial

court sentenced appellant to 30 years in prison for each offense, with the

sentences to run concurrently. In one point

of error, appellant contends that he received ineffective assistance of counsel

in the trial court.

We

affirm the judgment in each appellate cause.

Background

On March 6, 2008,

14-year-old D.W. was home alone.

Unbeknownst to D.W., appellant, a stranger to D.W., entered the

home. Appellant held D.W. at gunpoint

while he collected items to steal.

Before appellant left, D.W.’s mother, Yolanda, and other family members

returned home. Appellant threatened

Yolanda with the gun and fled.

Several

days later, the complainants spotted appellant working at a neighborhood fast

food restaurant. The complainants contacted

the police, who arrested appellant. The

police found several items in appellant’s backpack that had been taken from the

complainants’ home.

In three separate

indictments, appellant was charged with the offense of aggravated robbery and

with two offenses of aggravated assault.

The indictments also contained a single enhancement paragraph alleging

that appellant had been convicted of the felony offense of burglary of a

habitation in 2005.

Appellant

pleaded guilty to the charge of aggravated robbery and to one of the charges of

aggravated assault. He also pleaded true

to the enhancement allegation in each indictment.

Before his pleas, the trial

court orally admonished appellant regarding the consequences of his plea. The trial court also reviewed the plea papers

and written admonishments that appellant had signed.

The trial court explained to

appellant that, if proven, the enhancement allegation in each indictment

increased the applicable sentencing range for each offense. The trial court informed appellant that if

the State met its burden of proof at trial regarding the primary offense of

aggravated robbery and the enhancement allegation, the sentencing range was 15

to 99 years in prison and up to a $10,000 fine.

The trial court also informed appellant that, if the aggravated assault

offense and the enhancement allegation were proven at trial, the sentencing

range was 5 to 99 years in prison and up to a $10,000 fine.

In

each case, the written stipulation of evidence and judicial confession signed

by appellant provided that, following a PSI and a sentencing hearing, the State

would recommend to the trial court that appellant be sentenced to a minimum of

15 years in prison. A handwritten

notation in the plea papers noted that such recommendation was without an

agreed recommendation regarding punishment.

The trial court reviewed this provision with appellant. The trial court further said to appellant,

“There is no plea bargain, per se, there’s [sic] recommendations. You will have the right to appeal whatever I

assess in this case.”

After

the trial court finished reviewing the plea papers, appellant pleaded guilty to

the offenses of aggravated robbery and aggravated assault. Appellant pleaded true to the enhancement

allegation in each indictment. Following

the pleas, the trial court stated that it found the pleas to be knowing and

voluntary and accepted appellant’s pleas.

The court noted that it would wait until receiving the PSI report and

conducting the punishment hearing to make its guilt findings, although it had

sufficient evidence to find appellant guilty of each offense at that time.

Only

then did the State inform the trial court that it would be filing a motion to

dismiss the second charge of aggravated assault to which appellant had not

pleaded guilty. The court indicated that

it would sign an order granting the motion.

A PSI

report was prepared and admitted into evidence at the sentencing hearing. D.W. and Yolanda also testified for the State. They described the events of March 6, 2008,

when appellant came into their home, held D.W. at gunpoint while stealing

items, and then threatened Yolanda with a gun when she returned home. D.W. also testified that, at the time, she

thought that appellant would kill her.

After the robbery, D.W. had nightmares, refused to return to her

mother’s house, and underwent therapy.

She stated that she continues to live with the fear that someone will

come into her home. Yolanda also

testified regarding her daughter’s trauma.

In its

closing argument, the State requested that appellant be sentenced to 30 years

in prison for each offense. Appellant’s

counsel requested that appellant be sentenced to the minimum recommendation

reflected in the plea papers, which was 15 years in prison.

The

trial court sentenced appellant to 30 years in prison for each offense. In each case, the trial court signed, as

required by Rule of Appellate Procedure 25.2(a)(2), a certification of

appellant’s right to appeal. The

certifications each recite, “[T]his criminal case . . . is not a plea-bargain

case, and the defendant has the right of appeal.” [3]

Appellant did not file a

motion for new trial in either case. These

two appeals followed.

Ineffective Assistance of

Counsel

In

each appeal, appellant asserts one point of error. He contends that he received ineffective

assistance of counsel in the trial court.

A. Applicable Legal Principles

The Sixth Amendment to the

United States Constitution guarantees the right to reasonably effective

assistance of counsel in criminal prosecutions. See U.S. Const. amend. VI. To show ineffective assistance of counsel, a defendant

must demonstrate both (1) that his counsel’s performance fell below an

objective standard of reasonableness and (2) that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Strickland v. Washington , 466 U.S. 668 ,

687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State , 159 S.W.3d 98 , 101–02 (Tex. Crim. App. 2005). A failure to make a showing under either

prong defeats a claim of ineffective assistance of counsel. Rylander

v. State , 101 S.W.3d 107 , 110–11 (Tex. Crim. App. 2003).

An appellant bears the

burden of proving by a preponderance of the evidence that his counsel was

ineffective. Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Any allegation of ineffectiveness must be

firmly founded in the record, and the record must affirmatively demonstrate the

alleged ineffectiveness. Id . at 814. We presume that a counsel’s conduct falls

within the wide range of reasonable professional assistance, and we will find a

counsel’s performance deficient only if the conduct is so outrageous that no

competent attorney would have engaged in it. Andrews ,

159 S.W.3d at 101 .

B. Analysis

Appellant’s ineffective

assistance of counsel claim stems from the provision in the plea papers

indicating that the State would recommend a minimum sentence of 15 years for

each offense. Appellant contends that

defense counsel’s performance was deficient because counsel approved and signed

the plea papers even though counsel knew that the State would recommend at

least a 15-year sentence for appellant in each case.

In his appellate brief, appellant

points out that “the plea admonishments were signed by Appellant’s attorney and

plainly state Appellant entered his plea with ‘the consent and approval’ of his

attorney.” Appellant contends, “[T]here

is no plausible reason an attorney would approve of a plea that detrimentally

caps his client’s punishment without any benefit. In effect, Appellant gave up his valuable

right to a trial and gave up any possibility of receiving deferred

adjudication. In exchange, Appellant

received no benefit whatsoever.” Appellant

asserts that counsel’s approval of his pleas constitutes deficient representation.

In

trying a case, a criminal-defense lawyer controls the progress of a case,

except for three decisions that are reserved to the client: (1) how to plead to

the charges against him; (2) whether to be tried by a jury or to the court; and

(3) whether to testify in his own behalf. S ee Burnett

v. State , 642 S.W.2d 765 , 768 n.8 (Tex. Crim. App. 1982). Thus, the decision to plead guilty is the

personal decision of the accused. See Moore v. State , 4 S.W.3d 269, 276

(Tex. App.—Houston [14th Dist.] 1999, no pet.).

The Court of Criminal Appeals has held that “the only required duty of

counsel under the most liberal construction when a plea of guilty is entered is

that counsel should ascertain if the plea is entered voluntarily and

knowingly.” Butler v. State , 499 S.W.2d 136, 139 (Tex. Crim. App. 1973); see Starz v. State , 309 S.W.3d 110, 118

(Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).

Here, appellant does not

contend that his pleas were not entered voluntarily and knowingly. Nor does the record reflect as much. To the contrary, the record shows that the

trial court orally admonished appellant and insured that appellant understood

the written admonishments that he had signed earlier. See

Tex. Code Crim. Proc. Ann . art.

26.13 (Vernon Supp. 2010) (listing required admonishments).

The trial court informed

appellant that he had a right to a trial by jury and that, by pleading guilty,

he was waiving that right. The court

also informed appellant regarding the sentencing range for each offense and the

effect of the enhancement allegation on the possible sentences. The trial court read the plea papers to

appellant, including the portion indicating that the State would recommend a

minimum 15-year sentence in each case.

Appellant indicated both orally and in writing that he understood the

terms and conditions as provided in the plea papers. After acknowledging that he understood and

accepted the terms and conditions of his pleas, appellant indicated that he

desired to plead guilty. The trial court

found appellant to be mentally competent and to have entered the pleas freely,

voluntarily, and knowingly.

Significantly,

there is no assertion by appellant, or in the record, that his plea was

involuntary because he was misinformed or misled by his counsel regarding the

terms of the plea or the plea process. See Fimberg v. State , 922 S.W.2d 205,

208 (Tex. App. — Houston

[1st Dist.] 1996, pet. ref’d) (explaining that a guilty plea is involuntary

when based on erroneous information conveyed by trial counsel to defendant). Nor does appellant contend that that his plea

was involuntary because his counsel failed to investigate the charges against

him. See

Ex parte Briggs , 187 S.W.3d 458 , 468–69 (Tex. Crim. App. 2005) (granting habeas relief in case in

which counsel failed to perform adequate investigation of case facts before

defendant pleaded guilty).

In short, the record before

us shows that appellant made a voluntary and informed decision to plead guilty with

the full knowledge that the State would seek a minimum 15-year sentence against

him. As the Court of Criminal Appeals

has explained, “Trial counsel is in no position to prevent a defendant from

knowingly and intelligently entering a plea of his choosing. Counsel exists to advise his client of the

consequences of the defendant’s actions.”

Rodriguez v. State , 899 S.W.2d

658, 666 (Tex. Crim. App. 1995). Here,

the trial court verified that appellant was knowingly and intelligently

entering his plea and that he had been advised of the detrimental effects of

his plea, which, by implication, included the State’s sentencing

recommendations. Accordingly, the record

shows that trial counsel performed his duty, in the context of a plea

proceeding, to ensure that appellant’s pleas were knowing and voluntary. See Butler ,

499 S.W.2d at 139 .

In addition, appellant did

not file a motion for new trial in either case.

We have no record to show what advice trial counsel gave with regard to

the minimum 15 year sentence recommendation or why appellant chose to plead

guilty with full knowledge of the minimum sentencing recommendations. See Johnson

v. State, 176 S.W.3d 74, 79 (Tex. App. — Houston [1st Dist.] 2004, pet. ref’d) (“In the

absence of a proper evidentiary record, it is extremely difficult to show that

trial counsel’s performance was deficient.”).

We conclude that appellant

has not shown, by a preponderance of the evidence, his counsel’s representation

fell below an objective standard of reasonableness. See Strickland ,

466 U.S. at 688 , 104 S. Ct. at 2064 . We

hold that appellant has not shown that he received ineffective assistance of

counsel when he pleaded guilty to the offenses of aggravated robbery and

aggravated assault. Because appellant

has not shown deficient representation by his trial counsel, we do not reach

the second Strickland prong. See Rylander , 101 S.W.3d at 110–11.

We overrule appellant’s sole

point of error in each appeal.

Conclusion

We

affirm the judgments of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices

Jennings, Higley, and Brown.

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

[1] A ppellate cause number 01–10–00254–CR ; trial court case number 1157530.

[2] A ppellate cause number 01–10–00255–CR; trial court

case number 1227808.

[3] The State contends that the Rule 25.2 certifications

incorrectly reflect that the cases were not plea-bargain cases within the

meaning of that rule. We disagree. Rule 25.2(a)(2) defines a plea-bargain case

as one in which a defendant’s plea was guilty or nolo contendere and the

punishment did not exceed the punishment recommended by the prosecutor and

agreed to by the defendant. See Tex.

R. App. P. 25.2(a)(2). Here, the

plea papers provide that the State would recommend a minimum sentence of 15 years.

Such an agreement does not fit within the rubric of plea-bargain cases

as contemplated by Rule 25.2. See Tex.

R. App. P. 25.2(a)(2); cf. Shankle

v. State , 119 S.W.3d 808, 813 (Tex. Crim. App. 2003) (explaining that agreement

placing cap on punishment is plea bargain for purposes of Rule 25.2(a)(2)). The record also does not support the State’s

assertion that it dismissed the other aggravated assault charge against

appellant in exchange for appellant’s guilty pleas. See Shankle ,

119 S.W.3d at 813 (explaining that charge bargaining in which State agrees to

dismiss or refrain from bringing additional charges in exchange for guilty or

no contest plea is plea bargain case for Rule 25.2 purposes). The record does not contain an agreement by

appellant to plead guilty to the other two charges in exchange for the

dismissal of the third charge. Instead,

as it appears in the record, the State’s decision to dismiss the third charge

was a unilateral decision made after appellant pleaded guilty to the first two

charges.