                                  NUMBERS
                                13-10-00184-CR
                                13-10-00185-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI – EDINBURG

ISIAH NORMAN MITCHELL,                                                 Appellant,

                                         v.

THE STATE OF TEXAS,                                                      Appellee.


                On appeal from the Criminal District Court
                      of Jefferson County, Texas.


                       MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Justice Benavides
      Appellant, Isiah Norman Mitchell, appeals the revocation of probation resulting

from underlying offenses of theft and aggravated robbery. See TEX. PENAL CODE ANN.

§ 31.03 (West Supp. 2010), § 29.03 (West 2003).       After Mitchell pleaded true to

violations of his probation terms, the trial court sentenced him to two years’
incarceration for theft and ten years’ incarceration for aggravated robbery, with the

sentences ordered to run concurrently. By two issues on appeal, Mitchell contends that:

(1) he did not voluntarily plead true; and (2) he received ineffective assistance of

counsel due to his counsel’s failure to research and advise him properly. We affirm.

                                          I. BACKGROUND1

        On June 28, 2007, the State indicted Mitchell for the state-jail felony offense of

theft. Id. § 31.03. On July 23, 2007, Mitchell signed a plea agreement, and the trial

court entered a four-year deferred adjudication order. On September 17, 2007, the

State indicted Mitchell for the first-degree felony offense of aggravated robbery. Id.

§ 29.03. Mitchell signed a second plea agreement, and the trial court entered a ten-

year deferred adjudication order.

        On November 5, 2008, the State filed Motions to Revoke Unadjudicated

Probation for both causes on four alleged violations of probation.                   Mitchell pleaded

―true‖ to three violations.      The trial court heard the motions, placed the motions in

abeyance for twelve months, and ordered Mitchell to complete a day-reporting program.

        On January 26, 2010, the State filed its First Amended Motions to revoke

Unadjudicated Probation for both causes, alleging two additional violations for failing to

submit to alcohol and/or drug screening and failing to pay court assessed fees. On

March 12, 2010, Mitchell pleaded true to failing to submit to alcohol and/or drug

screening. Mitchell was then adjudicated guilty of the theft and aggravated robbery

charges and was sentenced to two and ten years’ incarceration in the Institutional

Division of the Texas Department of Criminal Justice, respectively. This appeal ensued.


        1
          This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).

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                                II. STANDARD OF REVIEW

       We review a revocation of probation for an abuse of discretion. Garret v. State,

619 S.W.2d 172, 174 (Tex. Crim. App. 1981). A court abuses its discretion when it

―applie[s] an erroneous legal standard, or when no reasonable view of the record could

support [its] conclusion under the correct law and the facts viewed in the light most

favorable to its legal conclusion.‖ Lanum v. State, 952 S.W.2d 36, 39 (Tex. App.—San

Antonio 1997, no writ) (quoting DuBose v. State, 915 S.W.2d 493, 497-98 (Tex. Crim.

App. 1996)).

                                      III. ANALYSIS

A. Voluntariness of Plea

       By his first issue, Mitchell contends that he did not make his plea of ―true‖

voluntarily. A plea of ―true,‖ standing alone, is sufficient evidence to revoke probation.

Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979). In a probation revocation

hearing, a plea of true must be made knowingly and voluntarily. Hawkins v. State, 112

S.W.3d 340, 344 (Tex. App.—Corpus Christi 2003, no pet.). The defendant bears a

heavy burden to prove that, considering the totality of the circumstances, he entered

into the plea without understanding the consequences. Pena, 132 S.W.3d at 666 (citing

Martinez, 981 S.W.2d at 197); Ybarra v. State, 93 S.W.3d 922, 925 (Tex. App.—Corpus

Christi 2002, no pet.). No requirement exists that the trial court orally inquire regarding

the defendant’s voluntariness of plea subsequent to defendant and counsel signing

written admonishments, waivers, or statements if the trial judge establishes that the

defendant read and understood the documents. Cantu v. State, 993 S.W.2d 712, 716–




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17 (Tex. App.—San Antonio 1999, pet. ref'd); Edwards v. State, 921 S.W.2d 477, 479

(Tex. App.—Houston [1st Dist.] 1996, no writ).

       In this case, Mitchell knowingly and voluntarily entered his plea. Martinez, 981

S.W.2d at 197. Mitchell signed written plea admonishments that stated the following for

both of his offenses:

       Pursuant to Art. 25.13 C.C.P. and having been duly sworn, you are hereby
       admonished in writing that you are charged with the offense shown . . . if
       convicted, you face confinement in a State Jail for any term of not less
       than 180 days or more than 2 years; [i]f convicted, you face . . . a term of
       not more than 99 years or less than 5 years in the Institutional Division of
       the Texas Department of Criminal Justice.

Since the trial judge established the defendant read and understood the documents,

Mitchell showed voluntariness simply through the act of signing the written punishment

admonishments.      See Cantu v. State, 993 S.W.2d 712, 716-17 (Tex. App.—San

Antonio 1999, pet. ref'd). Thus, Mitchell did not meet his heavy burden of proving that

he entered into the plea without understanding the consequences. Pena, 132 S.W.3d

at 666 (citing Martinez, 981 S.W.2d at 197); Ybarra v. State, 93 S.W.3d 922, 925 (Tex.

App.—Corpus Christi 2002, no pet.). We overrule Mitchell’s first issue.

B. Ineffective Assistance of Counsel

       By his second issue, Mitchell contends that he pleaded ―true‖ due to ineffective

assistance of counsel. If defendant proves ineffective assistance of counsel led him to

pleading ―true,‖ such pleas are considered involuntary. Ex parte Burns, 601 S.W.2d

370, 372 (Tex. Crim. App. 1980). The defendant has the burden to establish ineffective

assistance of counsel by a preponderance of the evidence.         Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999). However, there is a ―strong presumption that




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counsel's conduct falls within the wide range of reasonable professional assistance.‖

Strickland v. Washington, 466 U.S. 668, 689 (1984).

      To prove ineffective assistance of counsel, the defendant must meet the heavy

burden established in the Strickland test. Id. In Strickland, assistance of counsel is

ineffective if, in considering the totality of the circumstances: (1) counsel made such

serious errors that he was not functioning effectively as counsel; and (2) the deficient

performance prejudiced the defense to such a degree that the defendant was deprived

of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Rodriguez v. State,

899 S.W.2d 658, 665 (Tex. Crim. App. 1995).              The record must affirmatively

demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999). Where the record does not do so, counsel is presumed effective. Id.

A defendant’s uncorroborated testimony to such deficiencies is not sufficient to establish

ineffective assistance of counsel. Arreola v. State, 207 S.W.3d 387, 391 (Tex. App.—

Houston [1st Dist.] 2006, no pet.).     Also, a defendant does not have a claim of

involuntary plea or ineffective assistance of counsel simply because counsel gave his

professional opinion, defendant relied on that opinion, and the opinion proved to be

incorrect. Kirven v. State, 492 S.W.2d 468, 470 (Tex. Crim. App. 1973); see Medford v.

State, 766 S.W.2d 398, 401 (Tex. App.—Austin 1989, no writ).

      In this case, Mitchell does not satisfy the strict Strickland test. Mitchell argues

that his attorney was ineffective because he did not advise him of Texas Code of

Criminal Procedure article 42.12 section 23(a) and (b), which provides that if community

supervision is revoked after a hearing, the judge can dispose of the case as if no

community supervision was ever fulfilled. See TEX. CODE CRIM. PROC. art. 42.12 §



                                            5
23(a), (b) (West 2009). Except for Mitchell’s uncorroborated testimony, nothing exists in

the record indicating that his counsel did not do this research or advise him of this; thus,

we assume that counsel’s actions were within the broad range of acceptable

assistance. See Arreola, 207 S.W.3d at 391; see also Flores v. State, 18 S.W.3d 796,

799-800 (Tex. App.—Austin 2000, no pet.) (holding that a claim of ineffective counsel

does not stand where the record was silent with regard to counsel’s strategies).

       Regardless, Mitchell cannot prove ineffective assistance of counsel because he

fails the second part of the Strickland test. Mitchell was not prejudiced by the actions of

his counsel to the point of being deprived of a fair trial. See Strickland, 446 U.S. at 687.

Mitchell made an informed decision because he was admonished that he could be

found guilty and sentenced to the entire range of punishment if he pleaded ―true.‖

Martinez, 981 S.W.2d at 197. Thus, whether or not his counsel performed adequate

research or advised him about article 42.12 section 23, the proceedings would have

resulted in the same conviction. See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim.

App. 2004) (holding appellant failed to prove the second part of the Strickland analysis

when he could not show prejudice caused by counsel’s ineffectiveness). Furthermore,

the fact that Mitchell simply relied on his attorney’s incorrect professional opinion does

not constitute ineffective assistance of counsel. See Kirven v. State, 492 S.W.2d 468,

470 (Tex. Crim. App. 1973) (holding appellant’s plea was voluntary even though she

relied on counsel’s professional opinion). Thus, this Court concludes that Mitchell failed

to overcome the strong presumption that counsel’s actions were within the wide range

of reasonable professional assistance. We conclude that Mitchell’s claim of ineffective

assistance of counsel fails.      Therefore, his claim that he pleaded ―true‖ due to



                                             6
ineffective assistance of counsel fails, and on this basis, we conclude that his plea of

―true‖ was not involuntary. See Ex parte Burns, 601 S.W.2d at 372.            We overrule

Mitchell’s second issue.

                                     IV. CONCLUSION

       Having overruled both of Mitchell’s issues, we affirm the trial court's judgments.




                                                        ________________________
                                                        GINA M. BENAVIDES,
                                                        Justice


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

Delivered and filed the
7th day of July, 2011.




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