                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                            No. 07-14-00247-CR, 07-14-00248-CR


                          MAURICE SEAN WHITE, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 108th District Court
                                      Potter County, Texas
          Trial Court No. 58,709-E, 61,097-E; Honorable Douglas Woodburn, Presiding

                                      March 6, 2015

                             MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Asserting his trial counsel rendered ineffective assistance, appellant Maurice

Sean White appeals his conviction and sentence in case number 07-14-00247-CR (trial

court cause number 58,709-E) for assault against a public servant1 and in case number

07-14-00248-CR (trial court cause number 61,097-E) for assault on a family member,




      1
          TEX. PENAL CODE ANN. § 22.01(b)(1) (West Supp. 2014).
prior conviction.2 Finding appellant’s issue unsupported by the record, we will affirm the

judgments in both cases.


                                      Background


      According to the terms of a plea bargain agreement in case number 58,709-E the

trial court found appellant guilty of assault on a public servant, sentenced him to ten

years’ confinement in prison, and probated the sentence to six years’ community

supervision. Appellant received an identical sentence in cause number 61,097-E for the

charge of assault on a family member with one or more prior convictions.


      The State subsequently moved to revoke appellant’s community supervision in

both cases, alleging appellant had used cocaine and failed to complete the SAFPF

treatment plan.


      The trial court heard both motions in a single hearing. Appellant plead true to the

allegations in both motions. Appellant’s probation officer testified that appellant had

used cocaine and failed to complete the SAFPF program.               The court revoked

appellant’s community supervision in each case and sentenced him to concurrent

sentences of ten years’ confinement in prison.


                                        Analysis


      Through a single issue, appellant asserts his counsel at the revocation hearing

rendered ineffective assistance in that she erroneously advised him that the maximum

available prison sentence on revocation was six years.       Appellant explains he was


      2
          TEX. PENAL CODE ANN. § 22.01(b)(2) (West Supp. 2014).

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prejudiced by counsel’s ineffectiveness because if he had known the maximum

sentence of confinement was ten years rather than six years he would not have made

an open plea allowing the court to set punishment, but would have accepted an

undisclosed plea bargain offer allegedly extended by the State.


      The Supreme Court’s opinion in Strickland v. Washington directs our analysis of

an ineffective assistance of counsel claim. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). Our review of counsel’s performance is highly deferential and a strong

presumption exists that counsel’s conduct fell within a wide range of reasonable

professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); see

Strickland, 466 U.S. at 689 (noting there are countless ways to provide effective

assistance in any given case).        To overcome the presumption of reasonable

professional assistance, any allegation of ineffectiveness must be firmly rooted in the

record.   Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999); see

Strickland, 466 U.S. at 688; Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App.

1991). Absent evidence of counsel’s reasons for the challenged conduct, we will not

conclude it constituted deficient performance unless the conduct was so outrageous

that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436,

440 (Tex. Crim. App. 2001).


      The Court in Strickland established a two-pronged test for analyzing a claim of

ineffective assistance of counsel.    Reversal requires an appellant to demonstrate

counsel’s representation fell below an objective standard of reasonableness and the

deficient performance prejudiced the appellant. 466 U.S. at 687; see Hernandez v.



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State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986) (applying Strickland standards

under Texas Constitution).


       Appellant’s contention on appeal is based on a statement his counsel made after

the trial court pronounced sentence. The record reflects the following exchange:


       [Defense Counsel]: Your honor, I believe his sentence was 6 years in the
                          original sentence. He was placed on probation for 10
                          years and sentenced to 6 years. Am I wrong?
       The Court:            All right.
       [The Prosecutor]:     Yeah—Its 10 years probated for 6, so there’s a 10
                             year sentence with a 6 year probation.
       The Court:            That’s right. That’s Correct.
       [Defense Counsel]: Thank you.


       Appellant argues his counsel’s statement demonstrates she misunderstood the

maximum punishment range available for sentencing. Based only on that foundation,

he contends she erroneously told him the maximum prison sentence on revocation

would be six years rather than ten, leading him to reject the State’s plea offer.


       Appellant’s contention founders on the requirement that claims of ineffectiveness

of counsel must be firmly rooted in the record. His assertion his lawyer misrepresented

the maximum prison sentence appears only in his brief. The record before us contains

no motion for new trial or other post-trial motion containing such an assertion, nor any

affidavit of appellant, his trial counsel or anyone else with knowledge stating that any

such misrepresentation was made to appellant. Counsel’s misstatement to the trial

court does not translate into evidence of wrong advice to appellant. This is particularly

so because of the several statements appearing in the record that the maximum prison


                                              4
sentence was ten years.       In plea papers signed prior to the hearing, appellant

acknowledged he could be sentenced up to that which he was originally sentenced on

his guilty plea.   And on cross-examination during his revocation hearing testimony

appellant agreed he was sentenced in 2010 “to ten years in jail, but that was probated

for 6 years.” He agreed also that when his community supervision was modified in

2012, he “had a 10-year sentence hanging over [his] head in 2012, just like in 2010.”

Appellant’s assertion he was misadvised by his lawyer that the maximum sentence was

six years is not supported by the record. His claim he was deprived of reasonably

effective assistance of counsel does not meet the first prong of the Strickland standard.


       Nor does appellant’s contention satisfy the prejudice prong of the Strickland test.

To establish prejudice, a party asserting rejection of a plea-bargain offer because of

incorrect legal advice must demonstrate a reasonable probability that he would have

accepted the offer had counsel not rendered ineffective assistance, the prosecution

would not have withdrawn the offer, and the court would not have refused to accept the

offer. Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013). Appellant has not

satisfied these requirements. Indeed he cannot on the present record as it does not

contain proof of the substance of counsel’s allegedly erroneous advice, the terms of the

plea-bargain offer appellant allegedly declined, and presentation of the offer to the trial

court. See Piland v. State, __ S.W.3d__, No. 06-14-00063-CR, 2014 Tex. App. LEXIS

13437, at *5-6 (Tex. App.—Texarkana Dec. 17, 2014, n.p.h.) (finding on direct appeal

no showing the trial court would have accepted a specified plea agreement).




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                                       Conclusion


        Appellant has not shown that his counsel’s representation fell below an objective

standard of reasonableness, or that he was prejudiced by trial counsel’s deficient

representation. We overrule his sole issue on appeal and affirm the judgment of the

trial court.




                                                James T. Campbell
                                                   Justice


Do not publish.




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