      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                     NO. 03-05-00663-CR




                                 Kenneth Lee Gest, Appellant

                                               v.


                                 The State of Texas, Appellee




    FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
       NO. 10,853, HONORABLE REVA TOWSLEE CORBETT, JUDGE PRESIDING



                           MEMORANDUM OPINION


               Appellant Kenneth Lee Gest was indicted for possession of a controlled substance,

methamphetamine, with intent to deliver, in an amount of 200 grams or more but less than 400

grams. See Tex. Health & Safety Code Ann. §§ 481.102(6), .112(a), (e) (West 2003). Gest pled

guilty without a plea bargain. The district court accepted Gest’s plea and assessed punishment at

thirty-five years’ confinement. In his sole issue on appeal, Gest contends that his trial counsel

rendered ineffective assistance. We will affirm the conviction.
                                          BACKGROUND

                At his sentencing hearing, Gest testified that, on the evening of his arrest, he had

agreed to cut some trees on Eula1 LaFrance’s property. According to Gest, LaFrance had agreed to

give Gest a ride to her property because Gest did not have a driver’s license. Gest stated that he fell

asleep while en route and that, while he was asleep, LaFrance instead drove to downtown Bastrop

and parked outside a clothing resale shop. Gest awoke to find himself in the car alone and was

arrested after police officers found methamphetamine and materials for manufacturing

methamphetamine in the trunk of the car.

                A grand jury indicted Gest for knowingly possessing a controlled substance with

intent to deliver, a first degree felony. Gest pled guilty to the offense. Before accepting his plea, the

court admonished Gest that he could “possibly go to jail for not less than five nor more than 99 years

or life.” The court asked Gest whether he understood everything in the plea documents, had signed

them “freely and voluntarily,” and was pleading guilty “because you are guilty and for no other

reason.” The court also inquired whether Gest was satisfied with the representation that his counsel

had given him. Gest answered each of these questions in the affirmative.

                During the punishment phase of the proceedings, Gest’s counsel made the following

opening statement:




        1
         The record of the sentencing hearing shows that Gest also identified this person as
“Buelah” La France.

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       We don’t and never have admitted to the idea that he’s the owner of this meth lab in
       the vehicle in which it was found, and that’s the testimony that we would present to
       this court, that this is not [Gest’s] responsibility although he has admitted guilt to
       being present at the time.


Gest testified that he lacked any knowledge of the meth lab in the trunk of LaFrance’s vehicle. But

upon cross-examination he admitted telling an officer at the scene that he had seen a wooden box

in which the lab was discovered and “didn’t ask her what was in the box but I had an idea of what

it was, I had seen her cook meth before.” Gest filed a motion for new trial that was denied by

operation of law. This appeal followed.


                                          DISCUSSION

               In his sole issue on appeal, Gest contends that his trial counsel provided ineffective

assistance by “allowing” him to enter a guilty plea and then “argu[ing] to the court that Gest was not

guilty during the punishment phase” of trial.


Standard of review

               We apply the Strickland test to claims of ineffective assistance of counsel under the

Sixth Amendment. See Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hill v.

Lockhart, 474 U.S. 52, 58 (U.S. 1985) (Strickland test applies to challenges to guilty pleas based on

ineffective assistance of counsel); Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex. Crim. App.

1999). To prevail on such a claim, appellant must show that his counsel’s performance was deficient

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

prejudiced his defense. Strickland, 466 U.S. at 688, 691. Prejudice is shown by proving that the


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result of the proceeding would have been different but for counsel’s deficient performance. Id. at

694; Ex parte Lemke, 13 S.W.3d 791, 796 (Tex. Crim. App. 2000). We must indulge a strong

presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.

See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To overcome this presumption,

any allegation of ineffectiveness must be firmly founded in the record and the record must

affirmatively demonstrate the alleged ineffectiveness. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim.

App. 2001). In this case, Gest must prove that he would not have pled guilty but for his counsel’s

performance, and find support in the record for this assertion. See Ex parte Moody, 991 S.W.2d 856,

857-58 (Tex. Crim. App. 1999).


Ineffective assistance of counsel

               Gest does not claim specifically that his counsel’s advice rendered his guilty plea

either involuntary or unknowing. See Ex parte Adams, 707 S.W.2d 646, 648 (Tex. Crim. App. 1986)

(attack on guilty plea based on ground of ineffective assistance of counsel requires showing that

guilty plea was unknowingly and involuntarily entered); see also Cole v. State, No. 03-04-00067-CR,

2004 Tex. App. LEXIS 11218, at *8-9 (Tex. App.—Austin, Dec. 16, 2004, no pet.) (not designated

for publication). Before accepting a guilty plea, a court must admonish the defendant of the range

of the punishment attached to the offense, and it must appear that the defendant is mentally

competent and that the plea is free and voluntary. See Tex. Code Crim. Proc. Ann. art. 26.13(a)-(b)

(West Supp. 2003). By admonishing a defendant in substantial compliance with article 26.13 and

assessing a punishment that is within both the actual and stated range of punishment, a court makes

a prima facie showing that the defendant’s guilty plea is knowing and voluntary. See Eatmon v.

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State, 768 S.W.2d 310, 311-12 (Tex. Crim. App. 1989). In this case, the record shows that the court

admonished Gest in accordance with article 26.13, which constitutes a prima facie showing that

Gest’s plea was knowing and voluntary. This presumption is also consistent with Gest’s testimony

that his plea was knowing and voluntary.

                We construe Gest’s assertion that his “[t]rial counsel allowed her uneducated client

to enter a guilty plea and then argued to the court that he was not guilty during the punishment

phase” as claiming that his guilty plea was based upon his counsel’s erroneous advice. A guilty plea

is not voluntary or knowing when the defendant based it upon the erroneous advice of counsel. Ex

parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991). Gest has not properly briefed this

argument because he has not affirmatively demonstrated, from the record, that he would not have

pled guilty and would have insisted on proceeding to trial if he had been properly advised. See Ex

parte Moody, 991 S.W.2d at 858. The fact that Gest denied his guilt during the sentencing phase is

not necessarily inconsistent with his making a knowing and voluntary guilty plea. See Ex parte

Tuley, 109 S.W.3d 388, 393 (Tex. Crim. App. 2002) (decision to plead guilty may be influenced by

factors that have nothing to do with defendant’s guilt). The record does not reflect the advice, if any,

that Gest’s counsel provided before he entered his guilty plea. The only reference in the record to

the conduct of Gest’s counsel is Gest’s testimony that he was satisfied with the representation his

counsel had given to him. Thus, Gest cannot overcome the presumption that his counsel’s conduct

fell within the wide range of reasonable professional assistance. See Mallett, 65 S.W.3d at 63;

Jackson, 877 S.W.2d at 771; see also Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App.




                                                   5
1999) (recognizing that, in most instances, the record on direct appeal is underdeveloped and cannot

adequately reflect counsel’s shortcomings). We overrule Gest’s sole issue.


                                         CONCLUSION

               Because Gest has not affirmatively demonstrated that his trial counsel was ineffective,

we affirm his conviction.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Affirmed

Filed: July 7, 2006

Do Not Publish




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