David S Soliz v. the State of Texas

Opinion issued August 17, 2021

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-20-00192-CR

NO. 01-20-00193-CR

———————————

DAVID S. SOLIZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Case Nos. 1560682 & 1560683

MEMORANDUM OPINION

After appellant, David S. Soliz, without agreed punishment recommendations

from the State, pleaded guilty to the felony offenses of insurance fraud1 and forgery

of a commercial instrument,2 the trial court assessed appellant’s punishment at

confinement for two years for each offense, suspended the sentences, placed

appellant on community supervision for five years for each offense, and ordered that

appellant pay $2,200 in restitution related to the insurance fraud offense. In three

issues, appellant contends that the trial court erred in denying his motion to withdraw

his guilty pleas, his trial counsel provided him with ineffective assistance of counsel,

and the record does not support the trial court’s restitution order.

We modify the trial court’s judgments and affirm as modified.

Background

A Harris County Grand Jury issued a true bill of indictment, alleging that

appellant, on or about July 19, 2016,

unlawfully, with intent to defraud and deceive an insurer, and in support

of a claim for payment of the value of at least two thousand five hundred

dollars and less than thirty thousand dollars under an insurance policy,

present[ed] and cause[d] to be presented to an insurer, namely

Nationwide, a statement that [appellant] knew to contain false and

misleading information, to-wit: a false audit of rental income.

1

See TEX. PENAL CODE ANN. § 35.02; appellate cause no. 01-20-00192-CR; trial

court cause no. 1560682.

2

See TEX. PENAL CODE ANN. § 32.21(b), (d); appellate cause no. 01-20-00193-CR;

trial court cause no. 1560683.

2

And a Harris County Grand Jury issued a true bill of indictment, alleging that

appellant, on or about July 19, 2016, “unlawfully, and with the intent to defraud and

harm, forge[d] the writing duplicated [and] attached [to the indictment] . . . , which

was purported to be the act of another who did not authorize that act, by making and

passing it, knowing it was forged.”

Subsequently, appellant signed and filed, in each trial court cause number, a

“Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession,”

in which he pleaded guilty to the felony offenses of insurance fraud and forgery of

a commercial instrument and admitted that he committed the acts alleged in each

indictment. Appellant’s trial counsel also signed the “Waiver[s] of Constitutional

Rights, Agreement[s] to Stipulate, and Judicial Confession[s],” affirming that he

believed that appellant had entered his guilty pleas knowingly, voluntarily, and after

a full discussion of the consequences of the pleas. And trial counsel affirmed that

he believed that appellant was competent to stand trial.

Appellant also signed written “Admonishments,”3 in each trial court cause

number, informing him that he had been indicted for the felony offenses of insurance

fraud and forgery of a commercial instrument and the punishment ranges for the

offenses. Appellant represented that he “waive[d] and g[a]ve up any time provided

[him] by law to prepare for trial,” was “totally satisfied with the representation

3

See TEX. CODE CRIM. PROC. ANN. art. 26.13.

3

provided by [his trial] counsel,” “received effective and competent representation,”

and understood “the consequences of [his] plea[s] . . . after having fully consulted

with [his] attorney.” Appellant requested that the trial court accept his guilty pleas.

The written admonishments include findings, signed by the trial court, “that

[appellant was] fully mentally competent” and his “plea[s] w[ere] freely, knowingly

and voluntarily entered.” Appellant’s trial counsel signed the admonishments,

representing that he had advised appellant and appellant was “aware of the

consequences of [his] plea[s].”

Appellant also signed the “Statements and Waivers of Defendant”4 in each

trial court cause number, affirming that he was mentally competent, “underst[ood]

the nature of the charge[s] against” him, understood the trial court’s admonishments,

understood the consequences of his guilty pleas, and had consulted with his trial

counsel about the pleas. Appellant stated that he had “committed each and every

element alleged” in the “Waiver[s] of Constitutional Rights, Agreement[s] to

Stipulate, and Judicial Confession[s],” and freely, knowingly, and voluntarily

entered his guilty pleas. Appellant also waived his right to have the trial court orally

admonish him and to have the court reporter record his pleas.

As to the right to appeal, appellant signed the “Advice of Defendant’s Right

to Appeal,” in which the trial court advised him that Texas law gives a defendant the

4

See id.

4

right to appeal his conviction, but if he pleaded “guilty or no contest and accepted

the punishment recommended by the [State],” he “c[ould not] appeal [his] conviction

unless th[e] [c]ourt g[ave] [him] permission.” Yet, if a defendant did not plead

guilty, he “may have a right to appeal.”

The trial court found sufficient evidence of appellant’s guilt and that appellant

had entered his guilty pleas freely, knowingly, and voluntarily. It admonished

appellant of his legal rights, accepted his guilty pleas, and ordered a presentence

investigation. The trial court also signed a “Certification of Defendant’s Right to

Appeal” in each trial court cause number, certifying that each case was “not a

plea-bargain case[] and [appellant] ha[d] the right of appeal.”5 Appellant and his

trial counsel signed the certifications, representing that he had been “informed of the

rights concerning an[] appeal of [his] criminal case[s].” At the bottom of the page,

the certifications state:

[a] defendant in a criminal case has the right of appeal under these rules.

The trial court shall enter a certification of the defendant’s right to

appeal in every case in which it enters a judgement of guilt or other

appealable order. In a plea bargain case—that is, a case in which a

defendant’s plea was guilty or nolo contender[e] and the punishment

did not exceed the punishment recommended by the [State] and agreed

to by the defendant—a defendant may appeal only: (A) those matters

that were raised by a written motion filed and ruled on before trial, or

(B) after getting the trial court’s permission to appeal. Texas Rule[] of

Appellate Procedure 25.2(a)(2).

5

See TEX. R. APP. P. 25.2(d).

5

Before his sentencing hearing, appellant filed a motion to withdraw his guilty

plea in each trial court cause number. He argued that his pleas were involuntary

because his trial counsel led him to believe that “he would be able to preserve his

right to appeal all matters related to the case[s], including his guilty plea[s], the

State’s allegations, and the merits of the underlying charges,” and he did not

understand that, by pleading guilty, he had “waived his right to contest the charges

[against him].” He asserted that his inability to effectively communicate with trial

counsel contributed to his mistaken understanding, and he pleaded guilty to the

felony offenses of insurance fraud and forgery of a commercial instrument under

duress because of his lack of confidence in his trial counsel’s preparedness for trial.

At the hearing on his motion to withdraw his guilty pleas, appellant testified

that he “want[ed] to go to trial,” and if, when appellant entered his pleas, appellant’s

trial counsel had been “prepared to try the case and [appellant had] felt [that counsel]

was prepared, [appellant] would have gone to trial.” But based on his prior

interactions with counsel and his discussion with counsel in the courthouse hall

before he entered his pleas, appellant believed that counsel “was not prepared.”

Appellant also stated that when he met with his trial counsel some months earlier,

they did not discuss any specific trial strategy. During their discussion in the

courthouse hall, appellant recognized some of the State’s witnesses, who were also

6

standing in the hall, but counsel did not know the names of those witnesses, and he

told appellant that he had not interviewed them.

According to appellant, he was given and signed the written admonishments,

then pleaded guilty to the felony offenses of insurance fraud and forgery of a

commercial instrument. He claimed, though, that he misunderstood the effect of his

guilty pleas. Appellant recalled that, while he and his counsel were standing in the

courthouse hall, counsel “recommended that [he] plead guilty, but that [he] had the

opportunity to withdraw that plea.” But appellant saw “at the top” of one of the

documents he signed a statement that he “had [thirty] days to appeal [his] plea[s].”

That statement, which was checked, confirmed in his mind what he understood

counsel to have told him about his right to appeal.

Appellant also testified that he had tried to contact his trial counsel “numerous

times” between the date he entered his guilty pleas and the date of the sentencing

hearing, but counsel never responded. Feeling desperate because counsel was not

responding to his text messages and telephone messages, appellant “filed a pro se

document to the court to appeal [his] plea[s].” Appellant admitted that he had

previously been convicted of the misdemeanor offense of “lying under oath.”6

6

Appellant was previously convicted of the misdemeanor offense of perjury. See

Soliz v. State, No. 14-99-01095-CR, 2003 WL 22433813, at *1 (Tex. App.—

Houston [14th Dist.] Oct. 28, 2003, no pet.) (mem. op., not designated for

publication) (affirming appellant’s conviction); see also TEX. PENAL CODE ANN.

7

James Smith testified that he began practicing law in 1989 and had represented

many defendants in plea hearings. He was appellant’s trial counsel at the time

appellant pleaded guilty to the felony offenses of insurance fraud and forgery of a

commercial instrument. Smith had a general practice of admonishing a defendant

about the consequences of his plea before the defendant entered his plea. Smith

acknowledged that appellant’s cases had a November 2019 trial setting, and Smith

had reviewed a “moderately large amount of discovery” related to the cases and was

“prepared to go to trial.” “If [he] had to [go to trial], [he] could have.” But Smith

“didn’t think it would be advisable,” and he was “afraid it was going to be rather

bloody if [they] did.” He advised appellant of his assessment on more than one

occasion. Smith “suggested to” appellant, based on the evidence that Smith had

seen, “that the best way to resolve [appellant’s] case[s] would be . . . to plead guilty

to the charge[s] and then request a presentence investigation.”

Smith believed that he had explained to appellant “that once the [trial court]

accept[ed] the plea[s], that there[] [would be] no going back from that unless the

[trial court] . . . allow[ed] it.” His recollection was “not 100%, but good enough.”

And it would have been Smith’s “normal practice to explain . . . [t]hat you can

appeal anything that happens after the plea[s], but you can’t—once the [trial court]

§ 37.02(a)(1). He also admitted that he pleaded no contest to the felony offense of

theft in 1990 and again in 2000.

8

accepts the plea[s], you cannot appeal that.” He and appellant “discussed the appeal”

on “several occasions.” Smith remembered that once, “in passing,” appellant asked

him, “so we can appeal.” And Smith responded “yes to that.” But Smith believed

that he “had already explained” the right to appeal “in detail to [appellant] before”

that exchange occurred.

Smith stated that he did not recall receiving any text messages from appellant

on November 29, 2019 and December 1, 2019 asking about the status of his cases.

Smith did not believe he communicated with appellant between November 4,

2019—the date appellant entered his guilty pleas—and January 22, 2020—the initial

date for appellant’s sentencing hearing.

Smith was present when appellant pleaded guilty to the felony offenses of

insurance fraud and forgery of a commercial instrument. And Smith heard the trial

court give appellant the admonishments. He believed that the trial court made it

clear to appellant that he was giving up his right to a trial and was instead entering

guilty pleas and requesting a presentence investigation.

The trial court denied appellant’s motion to withdraw his guilty pleas. The

court then held appellant’s sentencing hearing, at which the State and appellant both

presented evidence. At the conclusion of appellant’s sentencing hearing, the trial

court found appellant guilty of the offenses of insurance fraud and forgery of a

commercial instrument and assessed appellant’s punishment at confinement for two

9

years for each offense, suspended the sentences, placed appellant on community

supervision for five years for each offense, and ordered that appellant pay $2,200 in

restitution related to the insurance fraud offense.

Voluntariness of Guilty Pleas

In his first issue, appellant argues that the trial court erred in denying his

motion to withdraw his guilty pleas because the evidence showed he relied on the

erroneous advice of his trial counsel in deciding to plead guilty rendering his pleas

involuntary.

A defendant may withdraw his guilty plea at any time before judgment is

pronounced or the trial court takes the plea under advisement. Jackson v. State, 590

S.W.2d 514, 515 (Tex. Crim. App. 1979); Browning v. State, No. 01-14 00052-CR,

2015 WL 831999, at *1 (Tex. App.—Houston [1st Dist.] Feb. 26, 2015, pet. ref’d)

(mem. op., not designated for publication). A case is “under advisement” when the

trial court has admonished the defendant, received the plea and evidence, and reset

the case to allow a presentence investigation. Jackson, 590 S.W.2d at 515;

Browning, 2015 WL 831999, at *1. Once a plea has been taken under advisement,

a request to withdraw a plea is untimely, and the decision to allow or deny the request

is within the sound discretion of the trial court. Jackson, 590 S.W.2d at 515;

Browning, 2015 WL 831999, at *1. Thus, we review the trial court’s denial of

appellant’s motion to withdraw his guilty pleas for an abuse of discretion. Jagaroo

10

v. State, 180 S.W.3d 793, 802 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).

To show that the trial court abused its discretion when it refused to allow appellant

to withdraw his guilty pleas, appellant must show that the trial court’s ruling lies

outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372,

391 (Tex. Crim. App. 1991); Jagaroo, 180 S.W.3d at 802.

A guilty plea constitutes a waiver of three constitutional rights: (1) the right

to a jury trial, (2) the right to confront one’s accusers, and (3) the right not to

incriminate oneself. Boykin v. Alabama, 395 U.S. 238, 243 (1969); McCarthy v.

United States, 394 U.S. 459, 466 (1969). Thus, to be consistent with due process, a

guilty plea must be entered knowingly, intelligently, and voluntarily. See Boykin,

395 U.S. at 242–44; McCarthy, 394 U.S. at 466; Fuller v. State, 253 S.W.3d 220,

229 (Tex. Crim. App. 2008); see also TEX. CODE CRIM. PROC. ANN. art. 26.13(b)

(“No plea of guilty or plea of nolo contendere shall be accepted by the court unless

it appears that the defendant is mentally competent and the plea is free and

voluntary.”). To be “voluntary,” a guilty plea must be the expression of the

defendant’s own free will and not induced by threats, misrepresentations, or

improper promises. Brady v. United States, 397 U.S. 742, 755 (1970); Kniatt v.

State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006).

In determining the voluntariness of a guilty plea, we examine the record as a

whole. See Martinez v. State, 981 S.W.2d 195, 196–97 (Tex. Crim. App. 1998);

11

Rios v. State, 377 S.W.3d 131, 136 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).

When the record reflects that a defendant was duly admonished by the trial court

before entering a guilty plea, it constitutes a prima facie showing that the plea was

both knowing and voluntary. Martinez, 981 S.W.2d at 197; Rios, 377 S.W.3d at

136; see Mason v. State, 527 S.W.3d 505, 509 (Tex. App.—Houston [1st Dist.] 2017,

pet. ref’d). The burden then shifts to the defendant to show that he entered his plea

without understanding the consequences of his actions and was harmed as a result.

Martinez, 981 S.W.2d at 197; Rios, 377 S.W.3d at 136. A defendant who attests that

he understands the nature of his plea and that his plea was voluntary carries a “heavy

burden” on appeal to show that his plea was involuntary. Mason, 527 S.W.3d at

509.

A plea of guilty based on misinformation is involuntary. Labib v. State, 239

S.W.3d 322, 333 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Thus, if counsel

conveys erroneous information to a defendant, a plea of guilty based on that

misinformation is involuntary. Id.; Fimberg v. State, 922 S.W.2d 205, 208 (Tex.

App.—Houston [1st Dist.] 1996, pet. ref’d). In considering a claim that defense

counsel’s erroneous advice rendered the defendant’s plea involuntary, we determine

whether the record supports the defendant’s contention that his guilty plea was

induced by significant misinformation. Russell v. State, 711 S.W.2d 114, 116 (Tex.

App.—Houston [1st Dist.] 1986, pet. ref’d); see Brown v. State, 943 S.W.2d 35, 42

12

(Tex. Crim. App. 1997). A defendant’s uncorroborated testimony that he was

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

involuntary. Labib, 239 S.W.3d at 333; see Fimberg, 922 S.W.2d at 208. Where a

guilty plea has been held involuntary, the record in those cases contained

confirmation of the misinformation by counsel or documentation in evidence

corroborating the defendant’s testimony that reveals the misinformation and shows

its conveyance to the defendant. See, e.g., Ex parte Griffin, 679 S.W.2d 15, 18 (Tex.

Crim. App. 1984); Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980);

Rivera v. State, 952 S.W.2d 34, 36 (Tex. App.—San Antonio 1997, no pet.);

Fimberg, 922 S.W.2d at 208.

Here, the record establishes a prima facie showing that appellant entered his

guilty pleas voluntarily and with knowledge of the consequences of entering them.

Appellant signed and filed, in each trial court cause number, a “Waiver of

Constitutional Rights, Agreement to Stipulate, and Judicial Confession,” stating that

he was pleading guilty and admitting to the acts alleged in each of the indictments.

Appellant’s trial counsel also signed the “Waiver[s] of Constitutional Rights,

Agreement[s] to Stipulate, and Judicial Confession[s],” affirming that he believed

that appellant had entered his guilty pleas knowingly, voluntarily, and after a full

discussion of the consequences of the pleas. See, e.g., Harrison v. State, Nos.

01-18-00150-CR, 01-18-00151-CR, 2018 WL 5986140, at *5 (Tex. App.—Houston

13

[1st Dist.] Nov. 15, 2018, pet. ref’d) (mem. op., not designated for publication)

(record established prima facie showing defendant entered guilty pleas voluntarily

where he signed and filed “Waiver[s] of Constitutional Rights, Agreement[s] to

Stipulate, and Judicial Confession[s]” (internal quotations omitted)).

Appellant also received and signed written admonishments, informing him

that he had been indicted for the felony offenses of insurance fraud and forgery of a

commercial instrument and the punishment ranges for the offenses. Appellant

represented that he “waive[d] and g[a]ve up any time provided [him] by law to

prepare for trial,” was “totally satisfied with the representation provided by [his trial]

counsel,” “received effective and competent representation,” and understood “the

consequences of [his] plea[s] . . . after having fully consulted with [his] attorney.”

The written admonishments include findings, signed by the trial court, “that

[appellant was] fully mentally competent” and his “plea[s] w[ere] freely, knowingly

and voluntarily entered.” And appellant’s trial counsel signed the written

admonishments, representing that he had advised appellant and appellant was

“aware of the consequences of [his] plea[s].” See, e.g., Harrison, 2018 WL

5986140, at *5 (record established prima facie showing defendant entered guilty

pleas voluntarily where he signed written admonishments).

Still yet, appellant signed the “Statements and Waivers of Defendant” in each

trial court cause number, affirming that he was mentally competent, “underst[ood]

14

the nature of the charge[s] against” him, understood the trial court’s admonishments,

understood the consequences of his guilty pleas, and had consulted with his trial

counsel about the pleas. Appellant also stated that he had “committed each and every

element alleged” in the “Waiver[s] of Constitutional Rights, Agreement[s] to

Stipulate, and Judicial Confession[s],” and freely, knowingly, and voluntarily

entered his guilty pleas. See e.g., Harrison, 2018 WL 5986140, at *5 (record

established prima facie showing defendant entered guilty pleas voluntarily where he

signed “Statements and Waivers of Defendant” (internal quotations omitted)).

Appellant asserts that his attempts to file his own notices of appeal before the

trial court’s sentencing hearing corroborate his testimony that his trial counsel did

not adequately explain the appeal process and his limited right of appeal. Appellant

attached his alleged pro se notices of appeal to his motion to withdraw his guilty

pleas, but the record does not reveal when or if they were separately filed with the

trial court.7 See TEX. R. APP. P. 25.2(b), (c). Appellant also argues that his trial

counsel’s testimony that he was “prepared to go to trial” and that he properly advised

appellant as to the consequences of entering a guilty plea lacked credibility because

trial counsel was unable to specifically recall what he said to appellant about the

7

The copies scanned into the record contain a filing stamp of January 21, 2020—the

date that they were filed as exhibits to appellant’s motion to withdraw his guilty

pleas—but nothing indicates that they were filed in the trial court independently as

notices of appeal. See TEX. R. APP. P. 25.2(b), (c) (notice of appeal must be timely

filed with trial court clerk).

15

consequences of entering a guilty plea, even though only a few months had passed

since the plea hearing.

Although appellant testified at the hearing on his motion to withdraw his

guilty pleas that he misunderstood the effect of his guilty pleas, appellant’s

testimony conflicts with his previous acknowledgment that he understood the written

admonishments. In denying appellant’s motion to withdraw his guilty pleas, the trial

court implicitly rejected appellant’s position that his pleas were involuntary. See

Reissig v. State, 929 S.W.2d 109, 113 (Tex. App.—Houston [14th Dist.] 1996, pet.

ref’d) (trial court not required to accept as true testimony of defendant). As the fact

finder, the trial court was the sole judge of the credibility of the testimony of

appellant and his trial counsel and the weight of their testimony. See, e.g., Scott v.

State, No. 01-09-00928-CR, 2010 WL 3718598, *4 (Tex. App.—Houston [1st Dist.]

Sept. 23, 2010, pet. ref’d) (mem. op., not designated for publication); see also

Coronado v. State, 25 S.W.3d 806, 810 (Tex. App.—Waco 2000, pet. ref’d) (as sole

judge of credibility on motion to withdraw guilty plea, trial court was free to accept

or reject all or any part of defendant’s testimony). We defer to the trial court’s

credibility determinations in resolving this issue. See, e.g., Henderson v. State, No.

05-04-00423-CR, 2005 WL 1331698, at *3 (Tex. App.—Dallas June 7, 2005, no

pet.) (mem. op., not designated for publication) (in holding defendant did not carry

16

her burden to establish that her guilty plea was involuntary, deferring to trial court’s

credibility determination).

Smith testified that, in preparing for trial, he met with appellant and reviewed

a “moderately large” amount of discovery. The questioning of Smith at the

motion-to-withdraw hearing did not go into exhaustive detail about the extent of his

trial preparations, but Smith stated that he “could have” gone to trial if necessary.

Further, Smith was acquainted enough with appellant’s cases to advise appellant,

based on the evidence that Smith had seen, that he “didn’t think it would be

advisable” to try the cases and was “afraid it was going to be rather bloody if [they]

did.” Smith “suggested to” appellant “that the best way to resolve [appellant’s]

case[s] would be . . . to plead guilty to the charge[s] and then request a presentence

investigation.” Smith believed that he had explained to appellant “that once the [trial

court] accept[ed] the plea[s], that there[] [would be] no going back from that unless

the [trial court] . . . allow[ed] it.” Smith had a general practice of admonishing a

defendant about the consequences of his plea before the defendant entered his plea.

And Smith’s “normal practice [was] to explain . . . [t]hat you can appeal anything

that happens after the plea[s], but you can’t—once the [trial court] accepts the

plea[s], you cannot appeal that.” He and appellant “discussed the appeal” on

“several occasions.” The trial court was entitled to credit Smith’s testimony about

17

his routine practice of explaining the consequences of a guilty plea to a defendant,

acquired in his thirty years of experience in advising clients. See TEX. R. EVID. 406.

Because appellant did not meet his burden to show that his guilty pleas were

involuntary, we hold that the trial court did not err in denying appellant’s motion to

withdraw his guilty pleas.

We overrule appellant’s first issue.

Ineffective Assistance of Counsel

In his second issue, appellant argues that his trial counsel did not provide him

with effective assistance of counsel, which led to him entering his guilty pleas

involuntarily, because counsel “did not provide explicit, clear advice to [a]ppellant

about the limited scope of his appeal upon a plea of guilty without a plea bargain”

and counsel “could not provide specific instances of trial preparation.”

The Sixth Amendment to the United States Constitution guarantees the right

to the reasonably effective assistance of counsel in criminal prosecutions. U.S.

CONST. amend. VI; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001);

see also TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.05; Hernandez

v. State, 726 S.W.2d 53, 55–57 (Tex. Crim. App. 1986) (test for ineffective

assistance of counsel same under both federal and state constitutions). To prove a

claim of ineffective assistance of counsel, appellant must show that (1) his trial

counsel’s performance fell below an objective standard of reasonableness and

18

(2) there is a reasonable probability that, but for his counsel’s unprofessional errors,

the result of the proceeding would have been different. Strickland v. Washington,

466 U.S. 668, 687–88, 694 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim.

App. 2011). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. In reviewing counsel’s

performance, we look to the totality of the representation to determine the

effectiveness of counsel, indulging a strong presumption that counsel’s performance

fell within the wide range of reasonable professional assistance or trial strategy. See

Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006). Appellant has

the burden to establish both prongs by a preponderance of the evidence. Jackson v.

State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). “[A]ppellant’s failure to satisfy

one prong of the Strickland test negates a court’s need to consider the other prong.”

Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see also Strickland,

466 U.S. at 697.

To be valid, a plea must be entered voluntarily, knowingly, and intelligently.

TEX. CODE CRIM. PROC. ANN. art. 26.13(b); Fuller v. State, 253 S.W.3d 220, 229

(Tex. Crim. App. 2008). “Before deciding whether to plead guilty, a defendant is

entitled to the effective assistance of competent counsel.” Padilla v. Kentucky, 559

U.S. 356, 364 (2010) (internal quotations omitted); see also Ex parte Reedy, 282

S.W.3d 492, 500 (Tex. Crim. App. 2009) (“There is no doubt that an accused has a

19

Sixth Amendment right to the effective assistance of counsel in guilty plea

proceedings.”). A plea is not voluntarily and knowingly entered if it is made as a

result of ineffective assistance of counsel. Ulloa v. State, 370 S.W.3d 766, 771 (Tex.

App.—Houston [14th Dist.] 2011, pet. ref’d).

In the context of a claim that the defendant’s plea is involuntary due to

ineffective assistance of counsel, the defendant must show that (1) counsel’s advice

was outside the range of competency demanded of attorneys in criminal cases and

(2) but for counsel’s erroneous advice, the defendant would not have pleaded guilty

and would have instead gone to trial. Ex parte Moody, 991 S.W.2d 856, 857–58

(Tex. Crim. App. 1999); Labib, 239 S.W.3d at 333. We make the prejudice inquiry

on a case-by-case basis, considering the circumstances surrounding the plea and the

gravity of the alleged failure. Ex parte Obi, 446 S.W.3d 590, 596 (Tex. App.—

Houston [1st Dist.] 2014, pet. ref’d). We note that “[s]urmounting Strickland’s high

bar is never an easy task,” and “it is often quite difficult for [defendants] who have

acknowledged their guilt to satisfy Strickland’s prejudice prong.” Padilla, 559 U.S.

at 371 & n.12.

Here, appellant did not formally raise an ineffective-assistance-of-counsel

claim in his motion to withdraw his guilty pleas, but his

ineffective-assistance-of-counsel argument on appeal is substantially the same as the

argument raised in his motion to withdraw about why his guilty pleas were

20

involuntary. Thus, the trial court had the opportunity to consider the evidence,

including the above-discussed testimony of appellant and his trial counsel, that was

presented at the hearing on appellant’s motion to withdraw.

In denying appellant’s motion to withdraw his guilty pleas, the trial court

implicitly found that appellant’s pleas were voluntary. See Johnson v. State, 169

S.W.3d 223, 239 (Tex. Crim. App. 2005). We have already held that appellant did

not meet his burden to show that his pleas were involuntary and the trial court did

not err in denying appellant’s motion to withdraw him guilty pleas. Thus, because

appellant entered his guilty pleas voluntarily, he is unable to show that there is no

reasonable probability that, but for any alleged errors by trial counsel, appellant

would not have pleaded guilty and would have instead gone to trial. See, e.g., Bell

v. State, No. 05-94-00879-CR, 1995 WL 238584, at *2 (Tex. App.—Dallas Apr. 25,

1995, no pet.) (not designated for publication) (holding defendant did not establish

prejudice where defendant did not show that “he was not aware of the consequences

of his plea or that his plea of guilty was unknowingly and involuntarily entered”).

We hold that appellant has not established that his trial counsel provided him with

ineffective assistance.

We overrule appellant’s second issue.

21

Restitution Order

In his third issue, appellant argues that the record does not support the trial

court’s restitution order because “[t]he restitution amount is improper” and “the case

should be remanded for a restitution hearing.”

Texas Code of Criminal Procedure article 42.037 authorizes a trial court to

award restitution to the victim of a criminal offense and provides:

In addition to any fine authorized by law, the court that sentences a

defendant convicted of an offense may order the defendant to make

restitution to any victim of the offense . . . . If the court does not order

restitution or orders partial restitution under this subsection, the court

shall state on the record the reasons for not making the order or for the

limited order.

TEX. CODE CRIM. PROC. ANN. art. 42.037(a). Article 42.037 also directs the trial

court, when determining whether to order restitution and the amount of restitution,

to consider “the amount of the loss sustained by any victim” and “other factors the

court deems appropriate.” Id. art. 42.037(c). “Restitution is not only a form of

punishment, it is also a crime victim’s statutory right.” Hanna v. State, 426 S.W.3d

87, 91 (Tex. Crim. App. 2014). The State bears the burden of “demonstrating the

amount of the loss sustained by a victim as a result of the offense.” TEX. CODE CRIM.

PROC. ANN. art. 42.037(k). We review a trial court’s restitution order for an abuse

of discretion. See Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel

Op.] 1980).

22

The trial court must orally pronounce a sentence, including any order to pay

restitution, in the defendant’s presence. See TEX. CODE CRIM. PROC. ANN. art. 42.03,

§ 1(a); Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). If the

pronouncement makes clear that restitution is owed but does not identify the specific

amount of restitution in open court and the defendant is not given an opportunity to

challenge the sufficiency of the evidence or the specific amount of restitution due to

each victim or recipient of restitution, the proper remedy is to vacate the award and

remand the case for a hearing on restitution. Burt v. State, 445 S.W.3d 752, 755

(Tex. Crim. App. 2014).

In orally pronouncing appellant’s sentences in these cases, the trial court

stated that appellant “will pay any restitution on this case that—that is due.” The

trial court’s written judgment for felony offense of forgery of a commercial

instrument does not order appellant to pay any restitution, but the trial court’s written

judgment for the felony offense of insurance fraud orders appellant to pay $2,200 in

restitution and includes the notation “[s]ee special finding or order of restitution

which is incorporated herein by this reference.”8 The written judgments were signed

by the trial court on the day of appellant’s sentencing hearing.

8

The terms of community supervision appellant signed include the requirement that

appellant “[p]ay $385.00 restitution” and “[p]ay $2,200.21 restitution” related to his

conviction for the felony offense of insurance fraud. No restitution payment is

included in the terms of community supervision related to appellant’s conviction for

the felony offense of forgery of a commercial instrument.

23

The State argues that appellant failed to preserve his restitution issue for

appellate review because he did not first raise it in the trial court. Appellant asserts

that he had no opportunity to object to the amount of restitution because the trial

court ordered it without a formal hearing.

In Burt, the trial court orally pronounced that the defendant would pay

restitution and told the parties to either agree on the amount or have a hearing

scheduled to determine the amount, but then the trial court ordered the defendant to

pay restitution in its written judgment, in the absence of the parties’ agreement and

without a hearing. Id. at 755–56. In an earlier opinion in the same case, the Texas

Court of Criminal Appeals considered whether the defendant forfeited his right to

raise the restitution issue on appeal by failing to raise it in the trial court. See Burt

v. State, 396 S.W.3d 574, 578–79 (Tex. Crim. App. 2013). There, the Court held

that the defendant did not forfeit error because he never had the opportunity to

object: at the oral pronouncement, he could not have known that the sentence in the

written judgment would be different, and when he moved for new trial, the written

judgment had not yet issued, so he could not have known to include the restitution

issue in the motion. Id. at 578. And the trial court ruled on the motion for new trial

the same day it issued its written judgment, which prevented the defendant from

amending the motion to include his restitution issue. Id. at 579.

24

Here, appellant faced no such obstacles. He could have filed a motion for new

trial to present his challenges to the trial court’s restitution order. See TEX. R. APP.

P. 21.4(a) (“The defendant may file a motion for new trial before, but no later than

30 days after, the date when the trial court imposes or suspends sentence in open

court.”). Because he did not, we hold that appellant failed to preserve this issue for

appellate review.9

To the extent that appellant, in his restitution issue, challenges the sufficiency

of the evidence supporting the trial court’s $2,200 restitution order in the written

judgment related to the insurance fraud offense, he may raise that challenge for the

first time on appeal. See Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App.

2010); Agbeze v. State, No. 01-13-00140-CR, 2014 WL 3738048, at *7 (Tex. App.—

Houston [1st Dist.] July 25, 2014, pet. ref’d) (mem. op., not designated for

publication). For purposes of Texas Code of Criminal Procedure article 42.037, the

State “must prove, by a preponderance of the evidence, that the loss was a ‘but for’

result of the criminal offense and resulted ‘proximately,’ or foreseeably, from the

criminal offense.” Hanna v. State, 426 S.W.3d 87, 94 (Tex. Crim. App. 2014); see

TEX. CODE CRIM. PROC. ANN. art. 42.037(k). Appellant, in the “Waiver of

9

The State asks this Court to modify the trial court’s judgment to show that the

amount of restitution appellant owes is $2,585.21. Because the trial court did not

orally pronounce that amount of restitution as part of the sentence, we lack the

authority to make the requested modification. See Ette v. State, 559 S.W.3d 511,

516 (Tex. Crim. App. 2018).

25

Constitutional Rights, Agreement to Stipulate, and Judicial Confession” that he

executed in connection with the insurance fraud offense, stipulated that he,

unlawfully, with intent to defraud and deceive an insurer, and in support

of a claim for payment of the value of at least two thousand five hundred

dollars and less than thirty thousand dollars under an insurance policy,

present[ed] and cause[d] to be presented to an insurer, namely

Nationwide, a statement that [appellant] knew to contain false and

misleading information, to-wit: a false audit of rental income.

This judicial confession constitutes sufficient evidence for the trial court to have

exercised its discretion in ordering appellant to pay $2,200 in restitution in

connection with his insurance fraud offense. See Menefee v. State, 287 S.W.3d 9,

14 (Tex. Crim. App. 2009) (holding defendant’s judicial confession adequate to find

evidence legally sufficient to support conviction, as long as it “covers every element

of the charged offense”); Lackey v. State, Nos. 01-16-00986-CR & 01-16-00987-CR,

2017 WL 6043677, at *3 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (mem. op.,

not designated for publication) (judicial confession constituted sufficient evidence

to support deadly weapon finding and enhancement paragraphs). We hold that

sufficient evidence supports the trial court’s $2,200 restitution order contained in its

written judgment.

Finally, to the extent that appellant challenges the community-supervision

requirements that he “[p]ay $385.00 [r]estitution” and “[p]ay $2,200.21

[r]estitution,” he failed to object to those terms in the trial court and thus forfeited

26

his challenge on appeal.10 See Gutierrez Rodriguez v. State, 444 S.W.3d 21 (Tex.

Crim. App. 2014).

We overrule appellant’s third issue.

Modification of Judgments

The trial court’s written judgments do not accurately comport with the record

in these cases in that they, under the sections titled, “Terms of Plea Bargain,”

incorrectly state: “2 YEARS STJ PROBATED 5 YEARS AND RESTITUTION

FEE” and “2 YEARS STJ PROBATED FOR 5 YEARS.” Here, the record does not

show that appellant pleaded guilty to the felony offenses of insurance fraud and

forgery of a commercial instrument, with agreed punishment recommendations from

the State. The “Waiver of Constitutional Rights, Agreement to Stipulate, and

Judicial Confession” that appellant signed in each trial court cause number states

that appellant made an “Open Plea to the Court,” and the “Certification[s] of

Defendant’s Right to Appeal” reflect that the appellant’s pleas were made without

10

“Conditions of probation that are not objected to are affirmatively accepted as terms

of the contract,” as long as they are not unconscionable. Gutierrez Rodriguez v.

State, 444 S.W.3d 21 (Tex. Crim. App. 2014). And it is not unconscionable to

require restitution for stolen items or funds “that were not included in the charging

instrument, but that belonged to the complaining witnesses and were stolen during

the same transaction as the charged items.” Id. Appellant points out the testimony

of the complainant insurance company’s policyholder during the sentencing hearing

that appellant charged her $385 for a paint job that she did not want. That testimony

shows that the additional restitution ordered was not unconscionable, and appellant

affirmatively accepted it as a term of his community supervision related to his

conviction for the felony offense of insurance fraud.

27

an agreement with the State as to punishment and that a presentence investigation

was ordered.

“[A]ppellate court[s] ha[ve] the power to correct and reform a trial court

judgment ‘to make the record speak the truth when [they] ha[ve] the necessary data

and information to do so[] or make any appropriate order as the law and nature of

the case may require.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston

[1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex.

App.—Dallas 1991, pet ref’d)). Although neither party addresses the inconsistency

between the trial court’s written judgment and the record, our authority to correct an

incorrect judgment does not depend on a request by the parties. See French v. State,

830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Dromgoole v. State, 470 S.W.3d 204,

226 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d); see also Asberry, 813 S.W.2d

at 529–30 (“The authority of an appellate court to reform incorrect judgments is not

dependent upon the request of any party, nor does it turn on the question of whether

a party has or has not objected in the trial court.”).

Accordingly, we modify the portion of trial court’s judgment in trial court

cause number 1560682, titled, “Terms of Plea Bargain,” to delete “2 YEARS STJ

PROBATED 5 YEARS AND RESTITUTION FEE,” and we modify the portion of

the trial court’s judgment in trial court cause number 1560683 titled, “Terms of Plea

28

Bargain,” to delete 2 YEARS STJ PROBATED FOR 5 YEARS.” See TEX. R. APP.

P. 43.2(b).

Conclusion

We affirm the judgments of the trial court as modified.

Julie Countiss

Justice

Panel consists of Justices Hightower, Countiss, and Farris.

Do not publish. TEX. R. APP. P. 47.2(b).

29