Opinion issued July 18, 2013.




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                         NOS. 01-12-00757-CR
                              01-12-00758-CR
                              01-12-00759-CR
                               01-12-00760-CR
                        ———————————
                     MORGAN J. KLIEBERT, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                 On Appeal from the 182nd District Court
                          Harris County, Texas
        Trial Court Case Nos. 1328870, 1328871, 1328872, & 1328873



                         MEMORANDUM OPINION

      Appellant, Morgan J. Kliebert, pleaded guilty to four charges of possession

of child pornography and, pursuant to a plea agreement with the State, the trial

court assessed punishment at five years’ confinement on each charge. On appeal,
which the trial court granted appellant permission to file, appellant contends that he

received ineffective assistance of counsel. We affirm.

                                  BACKGROUND

      Appellant was charged with four counts of possession of child pornography.

Craig Goodhart was appointed to represent appellant in the proceedings and made

several court appearances with appellant.

      On May 30, 2012, appellant filed a pro se motion for hybrid representation.

The motion was never ruled on.

      On July 9, 2012, appellant began drafting a pro se motion to suppress, in

which he alleged, among other things, that (1) evidence seized exceeded the scope

of the warrant, (2) did not meet the requirements of the plain view doctrine, (3)

violated his First Amendment right to possess and collect “Books,” and (4)

violated his right to engage in private, intimate sexual conduct in his own home.

Appellant completed drafting his pro se motion on July 15, 2012, and the motion is

postmarked July 17, 2012. Attached to the motion to suppress was a letter to the

trial court, dated July 15, 2012, in which appellant stated:

      To the Honorable Judge of court 182. Your Honor, I cannot get my
      appointed lawyer Craig Goodhart to file this motion to suppress all
      evidence. So I have written it as best I know how, and ask Your
      Honor to make it part of the record, so I can use in appeal if needed. I
      asked Mr. Goodhart to file this several times and he has not. I gave
      Mr. Goodhart some leeway in my request, because of his illness and
      treatments he was taking. But after 8 months I can [afford] him no
      more leeway. I only wanted this filed so it could be part of record so I
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      can use in appeal if needed. I plead with Your Honor to please read
      and file as part of record. In 8 months, Mr. Goodhart has filed no
      motions I know of. Again I plead with Your Honor to please allow
      filing of this Motion. I also asked Mr. Goodhart if he had filed motion
      for discovery. Apparently he has not. In closing Your Honor, I plead
      once more to make it part of the record. Thank you for your
      consideration in this matter.

      On July 19, 2012, appellant appeared with Goodhart in court, at which time,

appellant, in accordance with a plea bargain agreement with the State, pleaded

guilty, and the trial court assessed punishment at 5 years’ confinement on each

charge, to run concurrently. In connection with his plea, appellant signed a waiver

of constitutional rights, agreement to stipulate, and judicial confession. He also

signed written admonishments, which indicate that appellant did not waive his

right to appeal. The same day, the trial court certified that “this is a plea-bargain

cause, but the trial court has given permission to appeal, and the defendant has the

right of appeal[.]”

      From the July 19, 2012, docket sheet entry, it appears that appellant’s pro se

motion to suppress was filed on that same date, even though it is file stamped

August 22, 2012. The docket sheet also shows that the motion to suppress was

overruled on July 19, 2012.

      On July 31, 2012, appellant filed a pro se notice of appeal.




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     INEFFECTIVE ASSISTANCE OF COUNSEL/INVOLUNTARY PLEA

       In two related issues on appeal, appellant contends that his guilty plea was

involuntary because he received ineffective assistance of counsel at trial.

Specifically, appellant contends that trial counsel did not inform him that, because

there had been no evidentiary hearing on his motion to suppress, there could be no

“meaningful appeal” of the motion.

Standard of Review & Applicable Law

       The test for determining the validity of a guilty plea is whether the plea

represents a voluntary and intelligent choice among the alternative courses of

action open to the criminal defendant. North Carolina v. Alford, 400 U.S. 25, 31,

91    S.   Ct.   160,    164    (1970).       The Strickland two-pronged   test   for

ineffective assistance of counsel applies in the guilty plea context. Hill v.

Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370 (1985) (citing Strickland v.

Washington, 466 U.S. 668, 687–88, 104 S. Ct. 2052, 2065 (1984)). To

establish ineffective assistance of counsel, a criminal defendant must prove by a

preponderance of the evidence that (1) his trial counsel’s representation was

deficient in that it fell below an objective standard of reasonableness and (2) there

is a reasonable probability that, but for counsel’s deficiency, the result of the

proceeding would have been different. See Strickland, 466 U.S. at 688, 694, 104 S.




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Ct. 2064, 2068. Failure to show either deficient performance or sufficient prejudice

defeats the claim of ineffectiveness. Strickland, 466 U.S. at 697, 104 S. Ct. 2069.

      In the context of guilty pleas, the first half of the Strickland test is applied in

the same manner as in other contexts. See Hill, 474 U.S. at 58–59, 106 S. Ct. at 370.

In other words, the applicant must show that counsel’s advice “fell below an

objective standard of reasonableness.” Strickland, 466 U.S. at 687–88, 104 S. Ct. at

2064. The “prejudice” requirement, on the other hand, is applied somewhat

differently. The focus of the prejudice inquiry is “on whether counsel’s

constitutionally ineffective performance affected the outcome of the plea process.”

Hill, 474 U.S. at 59, 106 S. Ct. at 370. In other words, in order to satisfy the

“prejudice” requirement, the applicant must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial. Id.

Analysis

      Appellant contends that his trial counsel failed to tell him that simply filing

the motion to suppress was insufficient to preserve error so that its denial could be

meaningfully challenged on appeal. In support of his argument, appellant points to

the letter accompanying his pro se motion to suppress, in which he claimed that he

wanted to file the motion “so [he] can use in appeal if needed.” Appellant also




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points out that the plea paperwork indicates that he did not waive his right to

appeal and the trial court granted him permission to appeal.

      However, nothing in the record supports appellant’s contention that his trial

counsel led him to think that simply filing the motion to suppress was sufficient to

preserve error. In fact, nothing in the record shows that trial counsel was even

aware that a pro se motion to suppress had been filed or that appellant claimed that

he needed to file the motion himself in case he needed it for an appeal.

      Also, appellant’s letter to the court and pro se motion was completed and

mailed two days prior to date he decided to plead guilty. The record is silent about

any discussions that appellant may have had with trial counsel during the interim

between appellant’s drafting of the letter and his decision to plead guilty. It is

entirely conceivable the appellant and his trial counsel decided not to pursue the

motion to suppress and to plead guilty instead. It is also possible that trial counsel

actually told appellant that the filing of the motion alone would not preserve error,

but appellant decided to file it anyway.

      Finally, the fact that the trial court granted permission to appeal does not

necessary imply that appellant had been informed that he could bring a meaningful

appeal of his motion to suppress. In fact, the trial court did not limit appellant’s

appeal to “matters . . . raised by written motion filed and ruled on before trial.”

Instead, the trial court gave appellant permission to appeal, which does not limit

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the issues that might be raised on appeal to pretrial motions. Any notion that

appellant desired to appeal only his motion to suppress is mere speculation.

      When, as in this case, there is no proper evidentiary record developed at a

postconviction hearing, it is extremely difficult to show trial counsel’s performance

was deficient. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). The

record on direct appeal will normally be insufficient to demonstrate by a

preponderance of the evidence that an attorney’s representation was so deficient

that an appellant will succeed in overcoming the presumption that representation

was reasonably professional. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.

App. 2002). When the record is silent as to counsel’s actions, we may

not speculate to find trial counsel ineffective. Gamble v. State, 916 S.W.2d 92, 93

(Tex. App.—Houston [1st Dist.] 1996, no pet.). To conclude that counsel misled

appellant into believing that he could “meaningfully appeal” his motion to suppress

would require speculation, which we will not do. As such, appellant has not met

the first prong of Strickland by showing that his trial counsel’s representation was

deficient.

      Furthermore, appellant presented no evidence, either by testimony or

affidavit, that, but for counsel’s alleged deficiency, he would not have pleaded

guilty, but would have insisted on proceeding to trial. Absent evidence in the

record that appellant would have insisted on proceeding to trial, appellant fails to

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meet the second prong of Strickland. Jackson v. State, 139 S.W.3d 7, 20–21 (Tex.

App.—Fort Worth 2004, pet. ref’d) (“[W]e hold that Appellant has failed to show

prejudice . . . because she did not offer any evidence that there existed a reasonable

probability that, but for trial counsel’s failure to advise her of the consequences her guilty

plea would have on her pending capital cases, she would not have pleaded guilty and

would have insisted on going to trial.”); Munoz v. State, 840 S.W.2d 69, 75 (Tex.

App.—Corpus Christi 1992, pet. ref’d) (“The record does not show any claim by

appellant that, but for inept advice from counsel, he would not have pleaded guilty.”).

       Accordingly, we overrule issues one and two.

                                     CONCLUSION

       We affirm the trial court’s judgment.




                                                  Sherry Radack
                                                  Chief Justice

Panel consists of Chief Justice Radack and Justices Sharp and Massengale.

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




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