Tonya Deniese Hebert v. State

Opinion issued February 3, 2011.

In The

Court of Appeals

For The

First District of

Texas

NO.

01-10-00305-CR

TONYA DENIESE HEBERT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1138380

MEMORANDUM OPINION

Tonya Deniese Hebert appeals from the order

adjudicating her guilt for the offense of theft. See

Tex. Penal Code Ann. § 31.03 (West

Supp. 2010); see also Tex. Code Crim. Proc. Ann. art. 42.12,

§ 5 (West Supp. 2010). She contends that

she received ineffective assistance of counsel because her counsel “lied” to

her and, as a result, her plea of true to the allegation of violating her

community supervision was involuntary. We

affirm the judgment of the trial court.

Background

In accord with an agreed

recommendation from the State, the trial court deferred adjudication of

Hebert’s guilt, following her guilty plea to the offense of theft, and placed

her on community supervision for three years.

The State later filed a motion to adjudicate guilt, alleging Hebert

violated the terms of her supervision.

Hebert signed a stipulation of evidence and judicial confession,

admitting that she had violated her supervision. The stipulation included a recommendation

from the State that she receive eight months’ confinement in a state jail and a

$500 fine. On the same day, Hebert

signed admonishments, waivers, and a “Statement of Defendant,” which stated she

made her plea voluntarily and she was satisfied with the representation she

received. The trial court found Hebert

guilty and assessed punishment according to the State’s recommendation. [1]

Hebert

filed two letters within five days of the trial court’s judgment adjudicating

guilt. She asserted in the letters that

her counsel pressured her to prevent her from retaining her own lawyer and told

her she would receive over a year of confinement if she tried to reset the hearing. She asserted she accepted the State’s

recommendation and pleaded true based on this misinformation.

Ineffective

Assistance of Counsel

I. Standard of Review

To show ineffective

assistance of counsel, a defendant must demonstrate that: (1) counsel’s

performance fell below an objective standard of reasonableness; and (2) 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 defendant has the burden to establish both

of these prongs by a preponderance of the evidence, and a failure to make

either showing defeats the ineffectiveness claim. Mitchell v. State , 68 S.W.3d 640, 642 (Tex. Crim.

App. 2002). We presume that counsel’s

conduct falls within the wide range of reasonable professional assistance, and

we will find 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 . Any allegation of ineffectiveness must be

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

ineffectiveness. Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

In assessing the voluntariness of a

plea, we review the record as a whole and consider the totality of the

circumstances. Griffin v. State , 703 S.W.2d 193, 196 (Tex. Crim. App.

1986); Lee v. State , 39

S.W.3d 373, 375 (Tex. App.—Houston [1st Dist.] 2001, no pet). A trial court may accept a guilty plea only

if the defendant enters it knowingly and voluntarily. Tex. Code

Crim. Proc. Ann . art. 26.13(b) (Vernon Supp. 2010). A record indicating that the trial court

properly admonished the defendant presents a prima facie showing that the

guilty plea was made knowingly and voluntarily.

Starz v. State , 309 S.W.3d

110, 117 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (citing Martinez

v. State , 981 S.W.2d 195,

197 (Tex. Crim. App. 1998)). If the

record presents such a showing, then the burden shifts to the defendant to show

that he entered the plea without understanding the consequences. Id. A defendant who attests to understanding the

nature of the guilty plea and that it is voluntary has a heavy burden on appeal

to show that the plea was involuntary. Id. ; Dusenberry v. State , 915

S.W.2d 947, 949 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d). A guilty plea based on erroneous information

conveyed by defense counsel is involuntary. Labib v. State , 239 S.W.3d 322, 333

(Tex. App.—Houston [1st Dist.] 2007, no pet.) . H owever, a trial court

may reject the defendant’s uncorroborated testimony that he was misinformed by

counsel. Starz , 309 S.W.3d at 117 ; see

also Labib , 239 S.W.3d at 335 (“Appellant’s uncorroborated testimony that

he was misinformed by counsel does not meet his burden to show that his plea

was involuntary.”)

II. Uncorroborated

Statements

Hebert filed two letters asserting

that her counsel “lied” and pressured her into pleading true to the violation

of her community supervision. Before her

plea, however, Hebert signed written admonishments stating that she understood

the admonishments and the consequences of pleading true. The admonishments create a prima facie

showing that her plea was made knowingly and voluntarily. See

Starz , 309 S.W.3d at 117 . Hebert

waived the right to a court reporter at the hearing adjudicating her guilt, so

no transcript of the hearing exists and she did not file any post-trial

motions. The record, therefore, is

silent as to any advice, recommendations, or promises given by defense counsel

and does not demonstrate that Hebert’s understanding deviated from the

admonishments she signed. The only

exceptions in the record are the unsworn letters filed with the trial

court. We hold her uncorroborated

statements in the letters are not sufficient to meet her burden to show her

plea was involuntary and that she received ineffective assistance of

counsel. See Labib , 239 S.W.3d at 335 .

We overrule Hebert’s sole

issue.

Conclusion

We affirm the judgment

of the trial court.

Harvey

Brown Justice

Panel consists of Justices Jennings,

Higley, and Brown.

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

[1] The

original trial court certification of the right to appeal stated that this is a

“plea bargain” case and that Hebert has no right to appeal. The State made punishment recommendations at

both Hebert’s guilty plea and at her plea of true to the violation of her

community supervision in response to the State’s motion to adjudicate her

guilt. The term “plea bargain” only

applies to the original guilty plea and not a plea of true on the grounds to

revoke community supervision. Hargesheimer v. State , 182 S.W.3d 906,

913 (Tex. Crim. App. 2006); Wilkerson v. State ,

264 S.W.3d 102, 103 (Tex. App.—Houston [1st Dist.] 2007) (memorandum

order). We received a corrected trial

court certification on January 4 designating that this was not a plea bargain

case and Hebert had the right to an appeal.