                                     NUMBER 13-07-730-CR

                                    COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


ARMANDO VELASQUEZ,                                                          Appellant,

                                                       v.

THE STATE OF TEXAS,                                                         Appellee.


   On appeal from the 319th District Court of Nueces County, Texas.


                                MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
               Memorandum Opinion by Justice Yañez

      Appellant, Armando Velasquez, entered an “open” plea of guilty to two counts of

aggravated sexual assault of a child1 and two counts of indecency with a child.2 The trial

court assessed punishment at fifteen years’ imprisonment for each count, to be served


      1
          See T EX . P EN AL C OD E A N N . § 22.021 (Vernon Supp. 2007).

      2
          See id. § 21.11 (Vernon 2003).
concurrently. In three issues, appellant contends: (1) the trial court abused its discretion

by imposing a prison sentence instead of community supervision; (2) the trial court erred

in failing to admonish him regarding the sex offender registration requirements;3 and (3)

he received ineffective assistance of counsel. We affirm.

                                          I. Community Supervision

        In his first issue, appellant contends the trial court abused its discretion in denying

his request for community supervision.                        Appellant argues that his guilty plea was

involuntary because he allegedly entered the plea based on an erroneous belief that he

would be eligible for community supervision. According to appellant, he “did not know that

the decision to receive community supervision [was] entirely discretionary with the [c]ourt,”

and “was under the impression that by entering a plea of guilty, he would receive

community supervision.” Appellant argues he “was harmed by being convicted of a 3(g)

offense and not being eligible for parole under the normal rules [of the code of criminal

procedure].”

        The record contains appellant’s “Application for Community Supervision,” in which

he requested deferred adjudication. We construe appellant’s argument to be that because

of the nature of his offenses, he was not eligible for court-ordered community supervision

under the provisions of section 3g of article 42.12 of the code of criminal procedure.4



        3
          Appellant contends that the failure to adm onish him as to the sex-offender registration requirem ent
violated due process, and therefore, his guilty plea was involuntary. See Young v. State, 8 S.W .3d 656,
666-67 (Tex. Crim . App. 2000) (holding waiver of all non-jurisdictional defects that occurred before a guilty
plea entered without the benefit of an agreed sentencing recom m endation, other than the voluntariness of the
plea, occurs when the judgm ent of guilt was rendered independent of, and is not supported by, the claim ed
error).

        4
            See T EX . C OD E C R IM . P R O C . A N N . art. 42.12, § 3g(a)(1)(C), (E) (Vernon 2006).

                                                             2
However, at the punishment hearing, appellant’s counsel made clear that he was

“requesting deferred adjudication, which is the only probation available in this kind of

case.”5 Therefore, the record reflects that appellant was properly advised, and his counsel

requested that the trial court consider deferred adjudication, the only type of “probation”

available under the circumstances.

                             A. Standard of Review and Applicable Law

         A guilty plea must be freely, knowingly, and voluntarily made.6 In considering the

voluntariness of a guilty plea, the court should examine the record as a whole.7 When the

record reflects that a defendant was properly admonished, it presents a prima facie

showing that the guilty plea was knowing and voluntary.8 The burden then shifts to the

defendant to demonstrate that his or her plea was not voluntary.9

         A defendant's guilty plea has been found to be voluntary despite a record showing

that he timely filed a motion for probation for an offense for which judge-ordered probation

was not available under section 3 of article 42.12.10 The mere fact that an appellant may

have received a higher punishment than he or she anticipated or hoped does not render



         5
             See id. art. 42.12, § 5.

         6
          Brady v. United States, 397 U.S. 742, 748 (1970); Mitschke v. State, 129 S.W .3d 130, 136 (Tex.
Crim . App. 2004).

         7
             Martinez v. State, 981 S.W .2d 195, 197 (Tex. Crim . App. 1998); see also T EX . C OD E C R IM . P R O C .
A N N . art. 26.13 (Vernon Supp. 2007).

         8
          Pena v. State, 132 S.W .3d 663, 665 (Tex. App.–Corpus Christi 2004, no pet.); Martinez, 981 S.W .2d
at 197; Ribelin v. State, 1 S.W .3d 882, 884 (Tex. App.–Fort W orth 1999, pet. ref'd).

         9
             Pena, 132 S.W .3d at 666; Martinez, 981 S.W .2d at 197; Ribelin, 1 S.W .3d at 884.

         10
              See Powers v. State, 727 S.W .2d 313, 315-16 (Tex. App.–Houston [1st Dist.] 1987, pet. ref'd).

                                                          3
the guilty plea involuntary.11 A guilty plea is not involuntary simply because the sentence

exceeded what an accused expected, even if that expectation was raised by his or her

attorney.12

                                            B. Discussion

        Here, the evidence is insufficient to rebut the presumption that appellant’s plea was

voluntary. The record contains the court’s written admonishments and the “Defendant’s

Statement Understanding Admonishments,” signed and initialed by appellant.                            The

document states, among other things, that appellant understands the written

admonishments and is satisfied with his counsel’s representation. At the plea hearing,

appellant’s counsel referred to deferred adjudication three times, including the following

exchange:

        Q [Appellant’s counsel]: Now, Mr. Velasquez, I’ve already expressed to [the
        judge] that I’ll be asking that he consider placing you on deferred
        adjudication. Do you understand that?

        A [Appellant]: Yes, sir, I do.

        Q: And do you understand that deferred adjudication, if you were placed on
        ten years probation, that if you violated any condition of your probation you
        could be facing two sentences of five years to 99 years, and two sentences
        of two years to 20 years, and those could all be stacked on top of each
        other?

        A: I found that out today, yes, sir.

        Considering the totality of the circumstances, viewed in light of the entire record, we


        11
             Thomas v. State, 2 S.W .3d 640, 642 (Tex. App.–Dallas 1999, no pet.).

        12
           Houston v. State, 201 S.W .3d 212, 217-18 (Tex. App.–Houston [14th Dist.] 2006, no pet.); Hinkle
v. State, 934 S.W .2d 146, 149 (Tex. App.–San Antonio 1996, pet. ref'd); Russell v. State, 711 S.W .2d 114,
116 (Tex. App.–Houston [14th Dist.] 1986, pet. ref'd).



                                                     4
conclude appellant has failed to meet his burden to demonstrate that his plea was not

voluntary.13 Appellant’s responses at the plea hearing reflect that he understood that he

was asking the trial court to consider placing him on deferred adjudication. We also

conclude the trial court did not abuse its discretion in denying appellant’s request for

deferred adjudication community supervision. We overrule appellant’s first issue.

                             II. Sex-Offender Registration Requirements

        In his second issue, appellant contends the trial court erred by failing to give him the

sex-offender-registration admonition.14 Appellant also asserts that his plea was involuntary

because the failure to admonish as to the registration requirements violated due process.

        The court of criminal appeals has directly addressed this issue. In Anderson v.

State, the court held that “the failure to admonish [an] appellant as to a direct, non-punitive

consequence of his plea, specifically, the sex-offender-registration requirement, did not

violate due process or render his plea involuntary.”15 Moreover, we conclude that the

record establishes that appellant was aware of the sex-offender registration requirements.

At the plea hearing, the following exchange occurred:

        Q [Appellant’s counsel]: Mr. Velasquez, you understand that you’ll never be
        allowed to be around children? Especially young girls. You understand that,
        even after—

        A [Appellant]: Yes, sir.

        Q: — if you go to prison and after you get out of prison you will never be


        13
             See Martinez, 981 S.W .2d at 197.

        14
             See T EX . C OD E C R IM . P R O C . A N N . art. 26.13(a)(5) (Vernon Supp. 2007).

        15
          Anderson v. State, 182 S.W .3d 914, 918 (Tex. Crim . App. 2006) (citing Mitschke, 129 S.W .3d at
136); see also Bessey v. State, 239 S.W .3d 809, 812 n.3 (Tex. Crim . App. 2007).

                                                             5
        allowed? That you will have to register as a sex offender?

        A: Yes, sir.

        Q: Regardless of what the Judge does?

        A: Yes, sir.

We conclude that appellant has not established that his plea was involuntary because he

was not admonished as to the sex-offender-registration requirements. We overrule

appellant’s second issue.

                                    III. Ineffective Assistance

        By his third issue, appellant contends he was denied effective assistance of

counsel. Specifically, appellant complains that: (1) his counsel failed to fully admonish

him as to the consequences of pleading guilty to a sexual offense; (2) he relied on his

counsel’s assertions that he would receive community supervision; (3) he would not have

pleaded guilty if he had known the full consequences of his plea; and (4) his counsel erred

by allowing him to testify at the sentencing hearing because the only negative testimony

against his being placed on community supervision was his own testimony.

        In determining the voluntariness of a plea based on a claim of ineffective

assistance of counsel, we consider: “(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 guilty [or no contest] and would have insisted on going to trial.”16 In evaluating


        16
             Ex parte Moody, 991 S.W .2d 856, 857-58 (Tex. Crim . App. 1999) (quoting Ex parte Morrow, 952
S.W .2d 530, 536 (Tex. Crim . App. 1997)); see also Strickland v. W ashington, 466 U.S. 668, 687(1984) (to
prevail on a claim of ineffective assistance, an appellant m ust show that counsel’s perform ance was deficient
(i.e., fell below an objective standard of reasonableness), and prejudiced the appellant (i.e., there is a

                                                      6
the effectiveness of counsel under the first prong, we look to the totality of the

representation and the particular circumstances of each case.17                   Any allegation of

ineffectiveness must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness.18 There is a strong presumption that counsel’s

conduct fell within the wide range of reasonable professional assistance.19 Appellant

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

ineffective.20

        Here, appellant was required to show that his counsel’s failures to (1) inform him

of the sex-offender registration requirements, (2) properly advise him regarding community

supervision, and (3) warn him against testifying at the sentencing hearing were outside

the range of competence demanded of attorneys in criminal cases, and that, but for

counsel’s errors, he would not have entered a plea, and instead, would have proceeded

to trial.

        Appellant filed a motion for new trial in which he complained that his counsel was

ineffective because he was not admonished as to the consequences of pleading guilty to

a sexual offense (i.e., the requirement to register as a sex offender). No hearing was held

on appellant’s motion for new trial.



reasonable probability the result of the proceeding would have been different but for counsel’s errors);
McFarland v. State, 928 S.W .2d 482, 500 (Tex. Crim . App. 1996).

        17
             Thompson v. State, 9 S.W .3d 808, 813 (Tex. Crim . App. 1999).

        18
             Id.

        19
             Id.

        20
             Id.

                                                     7
           We have already determined that the record does not support appellant’s claims

that his counsel failed to advise him regarding his request for deferred adjudication

community supervision and the requirement to register as a sex offender. As to counsel’s

decision to allow appellant to testify at the sentencing hearing, we conclude that the

decision was a matter of trial strategy. The record is silent as to any advice counsel may

have provided regarding the decision.

           On direct examination, appellant’s counsel elicited testimony regarding appellant’s

teaching career, his relationship with his son, his remorse for his conduct, and his

willingness to abide by any conditions of community supervision. On cross-examination,

the State elicited testimony from appellant that although the instances of sexual assault

were his “fault,” sometimes the victims “invite[d] the situation.”21 Although this testimony

was damaging, counsel’s strategy likely was to persuade the trial court to place appellant

on deferred adjudication community supervision. In any event, in the face of a silent

record as to counsel’s strategy, we may not speculate about counsel’s tactics or reasons

for taking or not taking certain actions.22 Moreover, appellant has made no showing that

but for his counsel’s errors, he would not have pleaded guilty and would have gone to

trial.23

           Appellant has not satisfied his burden to show that he received ineffective

assistance of counsel. He failed to establish that his counsel’s conduct fell below a


           21
          The two victim s, a ten-year-old girl and a seven-year-old girl, were friends of appellant’s son, and
they frequently visited his hom e.

           22
                See Bone v. State, 77 S.W .3d 828, 833-35 (Tex. Crim . App. 2002).

           23
                See Ex parte Moody, 991 S.W .2d at 857-58.

                                                        8
reasonable standard of competence or that but for his counsel’s errors, he would not have

pleaded guilty.24 We overrule appellant’s third issue.

                                   IV. Conclusion

      We affirm the trial court’s judgment.




                                                  LINDA REYNA YAÑEZ,
                                                  Justice




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

Memorandum Opinion delivered and filed
this the 29th day of August, 2008.




      24
           See id.

                                              9
