                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         _________________________

              No. 06-11-00250-CR
        ______________________________


     RANDALL DOUGLAS SMITH, Appellant

                         V.

         THE STATE OF TEXAS, Appellee



   On Appeal from the 354th Judicial District Court
                Hunt County, Texas
               Trial Court No. 26259




    Before Morriss, C.J., Carter and Moseley, JJ.
   Memorandum Opinion by Chief Justice Morriss
                                      MEMORANDUM OPINION

        After the trial court admonished Randall Douglas Smith in Hunt County in accordance

with statutory requirements, Smith entered his open guilty plea to first degree murder of Gregory

Clifford Poteet and was sentenced to fifty years’ imprisonment. On appeal, Smith presents a

single, multifarious1 issue claiming that his plea was involuntary and that his trial counsel

rendered ineffective assistance of counsel.

        We affirm the trial court’s judgment because (1) Smith failed to meet his burden of

showing his plea was involuntary, and (2) the record does not show ineffective assistance of

counsel.

(1)     Smith Failed to Meet His Burden of Showing His Plea Was Involuntary

        When evaluating the voluntariness of a guilty plea, we consider the entire record.

Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). When the record

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

guilty pleas were made knowingly and voluntarily. Id. Faced with this prima facie showing, the

burden then shifts to the defendant to demonstrate that his pleas were not voluntary. Id. A

defendant, who attests, when he enters his plea of guilty, that he understands the nature of his

plea and that his plea is voluntary, has a heavy burden on appeal to show that his plea was

involuntary. See Houston v. State, 201 S.W.3d 212, 217 (Tex. App.—Houston [14th Dist.] 2006,

no pet.); Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.—Houston [1st Dist.] 1996, pet.


1
 A multifarious issue embraces more than one specific ground on appeal and risks being rejected. Smith v. State,
316 S.W.3d 688, 694 (Tex. App.—Fort Worth 2010, pet. ref’d). Where we can determine the arguments on appeal,
we prefer to address them. See Newby v. State, 169 S.W.3d 413, 414 (Tex. App.—Texarkana 2005, pet. ref’d).

                                                       2
ref’d). The simple allegations of ineffective assistance of counsel, standing alone, are not

sufficient to meet that burden.

       Smith’s brief does not dispute that he ―was properly admonished by the court both orally

and in writing‖ in accord with the statute. See TEX. CODE CRIM. PROC. ANN. art. 26.13(a) (West

Supp. 2011). Smith signed a judicial confession and stipulation of evidence that were admitted

into evidence at the plea hearing. Smith stated at the hearing that he was satisfied with counsel’s

representation and further represented, both in writing and on the record, that he received the

court’s admonishments and was aware of the consequences of the plea. During the plea hearing,

Smith specifically testified (1) that he had been provided sufficient time with counsel to go over

the facts and admonishments in this case, (2) that he understood the paperwork he signed,

(3) that he understood the punishment ranges for the offense, and (4) that he was entering a

guilty plea to the charge in the indictments because he was guilty. Smith also stated at the

hearing that he understood he was waiving his right to a jury trial, his right to cross-examine

witnesses, and his right to present defenses to the charged offense. The trial court concluded, as

do we, that Smith’s guilty pleas were entered knowingly and voluntarily. We overrule this issue.

(2)    The Record Does Not Show Ineffective Assistance of Counsel

       A defendant is entitled to effective assistance of counsel during the plea process. Hart v.

State, 314 S.W.3d 37, 40 (Tex. App.—Texarkana 2010, no pet.) (citing Ex parte Battle, 817

S.W.2d 81, 83 (Tex. Crim. App. 1991)). ―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.‖ TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (West Supp. 2011). ―A plea of

                                                3
guilty is not knowingly and voluntarily entered if it is made as a result of ineffective assistance

of counsel.‖ Hart, 314 S.W.3d at 40 (quoting Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim.

App. 1980)).

           We employ the two-pronged Strickland2 test for determining whether a defendant

received ineffective assistance of counsel during a guilty plea. Id. at 40 (citing Hill v. Lockhart,

474 U.S. 52, 58–59 (1985); Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009)). To

establish ineffective assistance of counsel, an appellant must first show counsel’s performance

was deficient to the extent that it fell below an objective standard of reasonableness under

prevailing professional norms. Strickland, 466 U.S. at 687–88. Second, a defendant claiming

that he was provided ineffective assistance of counsel in the plea process must show ―a

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

have insisted on going to trial.‖ See Ex parte Briggs, 187 S.W.3d 458, 469 (Tex. Crim. App.

2005); Battle, 817 S.W.2d at 83.

           The Strickland test ―requires a case-by-case examination of the evidence.‖ Hart, 314

S.W.3d at 41 (citing Williams v. Taylor, 529 U.S. 362, 391 (2000)).                 Allegations of

ineffectiveness must be firmly founded in the record. Id. (citing Bone v. State, 77 S.W.3d 828,

835 (Tex. Crim. App. 2002)). Rarely will a reviewing court be provided the opportunity to make

its determination on direct appeal with a record capable of providing an evaluation of the merits

of ineffective assistance claims. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).



2
    Strickland v. Washington, 466 U.S. 668, 687 (1984).


                                                          4
―In the majority of instances, the record on direct appeal is simply undeveloped and cannot

adequately reflect‖ the reasoning of trial counsel. Id. at 813–14. As demonstrated below, this is

such a case.

         In a conclusory manner, Smith argues his plea was involuntary because of trial counsel’s

inadequate explanation of the charges against him, the law in relation to the facts of his case, and

the consequences of his plea. In support of his argument, Smith points us to his testimony at the

plea hearing and the punishment hearing. At the plea hearing, Smith testified that he did not

intentionally3 shoot Poteet, and during the punishment hearing, he testified that he ―never meant

to shoot him.‖ At the punishment hearing, Smith testified regarding a struggle between he and

Poteet and detailed the evidence supporting a possible claim of self-defense and/or jury

instruction regarding the lesser included offense of manslaughter. In light of such evidence and

testimony, Smith argues that pleading guilty was illogical and could only be the product of his

trial counsel’s failure to properly inform him of the charges, the law in relation to the facts and

the consequences of his plea. He asserts that, had he been properly informed, he would have

insisted on going to trial.

         However, the record and Smith’s brief fail to reveal what advice and information, if any,

he received from counsel. We have not been provided with a record (such as that which might

have been produced by way of a hearing on a motion for new trial, a habeas corpus hearing, or

by affidavit) attempting to explain counsel’s strategy (or, alternatively, want of strategy) as to

3
 Under Section 19.02(b)(1) of the Texas Penal Code, a person commits the offense of first degree murder if he
―intentionally or knowingly causes the death of an individual.‖ TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011).
While Smith denied intentionally killing Poteet, he could still be found guilty if he knowingly caused Poteet’s death.
When Smith pled guilty, he affirmed that his counsel had explained to him the legal definition of ―knowing.‖

                                                          5
any alleged errors or omissions. Additionally, the record demonstrates that Smith was satisfied

with counsel’s representation, that the charges against him were explained, and that he

understood the consequences of his plea. We find that Smith’s claims are not firmly founded in

the record. Accordingly, we overrule his claims of ineffective assistance of counsel.

       We affirm the trial court’s judgment.




                                               Josh R. Morriss, III
                                               Chief Justice

Date Submitted:       June 21, 2012
Date Decided:         July 6, 2012


Do Not Publish




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