             NUMBERS 13-14-00691-CR AND 13-14-00692-CR

                                COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


JOHN KIRBY,                                                                          Appellant,

                                                 v.

THE STATE OF TEXAS,                                                                  Appellee.


                      On appeal from the 319th District Court
                            of Nueces County, Texas.


                             MEMORANDUM OPINION

                 Before Justices Rodriguez, Garza, and Longoria
                  Memorandum Opinion by Justice Rodriguez
         Appellant John Kirby pled guilty to two felony driving while intoxicated (DWI)

charges.1 See TEX. PENAL CODE ANN. § 49.04 (West, Westlaw through Ch. 46, 2015

R.S.).       Kirby’s DWI convictions were enhanced under Texas Penal Code section



         1Though appealed separately, we address Kirby’s appellate causes in one opinion because they
involve the same facts and issues. Kirby’s raises the same issues in both appeals.
12.42(d). See id. § 12.24(d) (West, Westlaw through Ch. 46, 2015 R.S.). The trial court

sentenced Kirby to thirty years’ imprisonment for each conviction, with the sentences to

run concurrently. Kirby raises two issues on appeal contending: (1) that he received

ineffective assistance of counsel, thereby rendering his plea involuntary; and (2) that the

Texas law allowing an attorney to act as a bondsman is unconstitutional and creates an

impermissible conflict of interest. We affirm.

                                   I.     BACKGROUND

       Kirby was charged by two separate indictments for DWIs committed on May 18,

2013, and February 1, 2014. The DWI charges were enhanced to third-degree felonies

pursuant to section 49.09(b) of the penal code because Kirby had two prior DWI

convictions from June 2005 and January 2006.          See id. § 49.09(b) (West, Westlaw

through Ch. 46, 2015 R.S.). The DWI charges were further enhanced into the habitual

offender range under section 12.42(d) of the penal code because Kirby had two prior

felony convictions: (1) a 1986 conviction for a burglary of a building; and (2) a 1990

conviction for robbery. See id. § 12.42(d). In his Judicial Confessions and Stipulations,

filed on November 10, 2014, Kirby pled guilty and judicially confessed to the May 2013

and February 2014 DWIs. During his consolidated plea hearing on both charges, Kirby

stipulated to the truth of his prior convictions for enhancement purposes. The judgments

reflect a guilty plea and findings of true to the enhancing convictions.

                       II.    INEFFECTIVE ASSISTANCE OF COUNSEL

       By his first issue, Kirby contends that he received ineffective assistance of counsel,

thereby rendering his plea involuntary. Specifically, Kirby contends that his counsel

misadvised him concerning his potential punishment range.           In response, the State

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contends that Kirby failed to identify any proof in the record supporting his contention that

he received ineffective assistance of counsel.

         A.        Applicable Law

         As part of the Sixth Amendment's guarantee of a right to a fair trial, a defendant in

a criminal case is entitled to effective assistance of counsel.                   See Strickland v.

Washington, 466 U.S. 668, 686 (1984); see also Gideon v. Wainwright, 372 U.S. 335,

339–40 (1963) (setting out that the right to counsel is necessary to protect the

fundamental right to fair trial). The Strickland standard applies to a challenge to a guilty

plea based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 56 (1985).

“A plea of guilty is not knowingly and voluntarily entered if it is made as a result of

ineffective assistance of counsel.” Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim.

App. 1980) (en banc) (recognizing that a defendant’s constitutional right to counsel does

not mean “errorless counsel”); Ex parte Karlson, 282 S.W.3d 118, 129 (Tex. App.—Fort

Worth 2009, pet. ref'd).

         In Strickland, the Supreme Court established a two-pronged test for determining

whether a defendant was afforded effective assistance of counsel.2 See Strickland, 466

U.S. at 687.          To establish the first prong, an appellant must first show, by a

preponderance of the evidence, that counsel's performance was deficient to the extent it

fell below an objective standard of reasonableness under prevailing professional norms.

See id. at 687–88; Wert v. State, 383 S.W.3d 747, 752 (Tex. Crim. App. 2012); Ex parte

Karlson, 282 S.W.3d at 129. Then, to satisfy the second Strickland prong, a defendant



         2   Texas adopted the Strickland test in Hernandez v. State. 726 S.W.2d 53, 57 (Tex. Crim. App.
1986).
                                                     3
claiming 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); Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991); Ex parte Karlson, 282

S.W.3d at 129.

       If the reasons for counsel's conduct at trial do not appear in the record and it is

possible that the counsel’s conduct could have been grounded in legitimate trial strategy,

an appellate court will defer to counsel's decisions and deny relief on an ineffective

assistance claim on direct appeal. Garza v. State, 213 S.W.3d 338, 347–48 (Tex. Crim.

App. 2007); Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002) (recognizing that

“ineffective assistance of counsel claims are not built on retrospective speculation; they

must be firmly founded in the record”); see also Menefield v. State, 363 S.W.3d 591, 593

(Tex. Crim. App. 2012) (holding that “[a]n ineffective-assistance claim must be ‘firmly

founded in the record’ and ‘the record must affirmatively demonstrate’ the meritorious

nature of the claim.”) (internal citations omitted). Direct appeal is usually an inadequate

vehicle for raising such a claim.3 Menefield, 363 S.W.3d at 592–93.

       B.      Discussion

       To satisfy the first Strickland prong, Kirby must show that his counsel's

performance was deficient and fell below an objective standard of reasonableness under

prevailing professional norms. See Strickland, 466 U.S. at 687–88. Those allegations



        3 A proper record is best developed in a habeas corpus proceeding or in a motion for new trial

hearing. Jensen v. State, 66 S.W.3d 528, 542 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). We
note that no motion for new trial was filed in this case and there has not yet been a habeas corpus
proceeding whereby a record could be developed.
                                                  4
of ineffectiveness must be firmly founded in the appellate record. 4 See Garza, 213

S.W.3d at 347–48; Bone, 77 S.W.3d at 835.

        J. Esequiel Ramos represented Kirby during his consolidated plea hearing.

During the hearing, the trial court asked Kirby questions regarding his plea and provided

the following statutory admonishments:

        Court:        Mr. Kirby, have you also gone over with your attorney the
                      charges pending against you in the indictment . . . ?

        Kirby:        Yes, sir.

        Court:        All right. And you understand that this [ ] driving while
                      intoxicated, third offense or more. It looks like it should be a
                      third degree felony, but its punished as a first-degree felony—
                      actually, its punished as an enhanced first-degree felony which
                      keeps it at 25 to life, or 25 to 99 years. Do you understand that?

        Kirby:        Yes, sir.

        Court:        All right, the—have you also gone over with your attorney the
                      Court’s admonishments, that is the Court’s warnings in each of
                      these cases?

        Kirby:        Yeah.

        Court:        Did you see this document before? [indicating Kirby’s Judicial
                      Confession and Stipulation]

        Kirby:        Yes, sir.

        Court:        All right. Did you read that and go over that with your attorney
                      as well?

        Kirby:        Yes, sir.

        Court:        Then—and my understanding is, Mr. Kirby, this is an open plea,
                      which means you do not have the benefit of a plea bargain,
                      which means the Court can sentence you anywhere in the range
                      of punishment. Do you understand that?

       4 Kirby attached his affidavit to his briefs in this case; however, because the affidavit is not part of

the appellate record, we cannot consider it. See Martin v. State, 492 S.W.2d 471, 472 (Tex. Crim. App.
1973).
                                                      5
Kirby:         Yes, sir.

               ....

Court:         Then to the charge of driving while intoxicated, third offense or
               more, how do you plead?

Kirby:         Guilty, sir.5

Court:         One other thing, Mr. Kirby. In both of these cases you signed
               what are called judicial confessions. Do you understand that?
               These documents right here. Is that your signature on the back
               part of it?

Kirby:         I’m not understanding what maybe I signed.

Court:         Did you sign these? This is called a judicial confession and
               stipulation of evidence.   Do you remember signing that
               document?

Kirby:         My name is on there, I guess I did.

Court:         Okay.

Kirby:         But I don’t—I’m not sure what this was for, though, you know.
               Is that for evidence or—

Court:         Right. It’s basically a judicial confession. Did you not
               understand you were signing a judicial confession?

Kirby:         No sir.

Court:         Okay. Do you want to take time to talk to your attorney about
               it?

Kirby:         Yes, sir.

Court:         All right. Go ahead Mr. Ramos.        You can talk to him right
               there . . . .

               [Kirby and his counsel conferred off of the record]

Counsel: I believe he understands, Your Honor.

Kirby:         Yeah.


5   Kirby pled guilty to both pending DWI cases.
                                             6
Court.   Mr. Kirby, I want to take a moment. Let’s go through some
         things.     Let’s make sure you understand what you’re
         doing. . . . You understand you’re here to enter a plea of guilty.
         Do you understand that?

Kirby:   Yeah. Yes, sir.

Court:   And in order for me to accept that plea of guilty, which you pled
         guilty to, and I think I understand that, but you also have to be
         made aware that you’re signing certain documents that indicate
         to me that you’re waiving certain rights. Do you understand
         that?

Kirby:   Yes, sir.

Court:   Do you understand that you have a right to a jury trial, you have
         a right to make the State prove their case beyond a reasonable
         doubt, that you would have an opportunity to present witnesses
         on your own if you wanted to, that those—that your attorney
         would be able to cross-examine the State’s witnesses, and then
         that a jury of 12 people would hear your case. By signing the
         document that I see in front of me, you’re indicating to me that
         you don’t want that to happen, that you want me to make the
         decision on this case. Is that right?

Kirby:   Yes, sir, but it’s like I haven’t had enough, you know, insight to
         my case, or my attorneys really haven’t gotten with me to see if
         there’s anything that to have a jury trial, you know. So I don’t
         know if, you know, like I—Mr. Giovannini, all he did was ever
         take my money and he never did sit down and talk to me about
         my case or anything, you know. And I feel like I—you know, I
         don’t know nothing about my case.

Court:   Okay. Well, you were set on Friday, I reset your case until
         Monday so that you would have more time to go through it. But
         based upon your attorney’s request, so I gave you that. I’m not
         giving you any more additional time today because this case has
         been going on for a while. This one, DWI in 13-1711-G has
         been going on since I arraigned you back in March, 2014.

Kirby:   Uh-huh.

Court:   And then back on 6/27/14, there was a status that it was going
         to be a plea, but you needed additional time, so I gave you 40
         days back there. “Plea set on 9/11.” Then I extended out the
         plea to docket call on October, and then we did the—there was
         going to be a plea and I set you to November the 10th. So I’ve
                                   7
                         given you plenty of time. I can’t tell you what you talked about
                         with your attorneys. What I’m doing here today is making sure
                         you understand what you’re doing. That is, that you’re waiving
                         your right to trial by jury, waiving your right to remain silent, enter
                         your plea of guilty, and then I’m going to decide punishment on
                         this case.

                         ....

          Court:         . . . So do you understand that you signed what are called
                         judicial confessions in both cases?

          Kirby:         Yes, sir.

          Court:         And did you sign those freely and voluntarily?

          Kirby:         Yes, sir. I did.

From the hearing transcript it was also apparent that Kirby and his counsel believed that

the trial court could sentence Kirby to probation; Kirby requested an alcohol treatment

program from the trial court and asked for a probated sentence and Kirby’s counsel also

requested probation on the record and noted that Kirby had been sentenced to probation

previously with the same criminal record.6 In response, the State noted that as a habitual

offender, Kirby was not eligible for probation.

          Kirby asserts that the record demonstrates that he received ineffective assistance

of counsel because of his confusion regarding his first attorney, 7 his stated confusion

regarding the nature of his judicial confession and stipulation, his statements that he had

not had a chance to discuss his case prior to the consolidated plea hearing, and his

apparent confusion about the availability of probation. However, as quoted above, the


          6   In 2006, Kirby was put on probation for the offense of evading arrest with a vehicle, a state jail
felony.

        7 Another attorney initially represented Kirby. However, at all relevant times for the purpose of

this appeal, Kirby was represented by J. Esequiel Ramos.

                                                         8
trial court noted that it had previously extended the date of the plea hearing to allow Kirby

an opportunity to further review his case and declined to allow an additional delay. The

trial court also read the statutorily required admonishments where it warned Kirby of the

effects of his plea and clearly informed Kirby what his range of punishment was as a

habitual offender. Further, Kirby stated on the record that he understood the effects of

his plea and the range of punishment before he pled guilty to both DWI offenses.

        Though Kirby’s counsel requested that the trial court deviate from the mandatory

minimum sentence, such a request could have been made because there was no other

viable argument to make on his client’s behalf.                The reasons for Kirby’s counsel’s

conduct do not appear in the record and it is possible that the request for probation was

part of a successful trial strategy to obtain a sentence close to the twenty-five year

minimum sentence.8 See Garza, 213 S.W.3d at 348. We therefore determine that the

record before us on direct appeal is undeveloped and does not adequately reflect alleged

failings of Kirby’s counsel. See Garza, 213 S.W.3d at 347–48; Jackson v. State, 973

S.W.2d 954, 957 (Tex. Crim. App. 1998).                 Kirby has not shown that his attorney’s

performance was so deficient that it fell below objective standards of reasonableness

under prevailing professional norms. See Strickland, 466 U.S. at 687–88; Garza, 213

S.W.3d at 347–48. We cannot conclude based on the information available in the record

that Kirby established, by a preponderance of the evidence, that he received ineffective

assistance of counsel such that his plea was rendered involuntary. See Strickland, 466

U.S. at 687–88; Menefield, 363 S.W.3d at 593; Garza, 213 S.W.3d at 347–48; see also


        8 As a habitual offender, Kirby faced a range of punishment from twenty-five to ninety-nine years’

imprisonment, and he was only sentenced to thirty years’ imprisonment, a sentence on the low end of the
punishment range. See TEX. PENAL CODE ANN. § 12.42(d) (West, Westlaw through Ch. 46, 2015 R.S.).
                                                    9
Ex parte Burns, 601 S.W.2d at 372.

       Even if we assume without deciding that Kirby satisfied the first Strickland prong,

he cannot satisfy the second prong—the record does not show that but for his counsel’s

ineffective assistance—he would not have pled guilty. See Ex parte Briggs, 187 S.W.3d

at 469; Ex parte Battle, 817 S.W.2d at 83. Without considering Kirby’s affidavit, there is

nothing in the record indicating that Kirby would not have pled guilty but for his counsel’s

alleged deficiency.

       The Texas Court of Criminal Appeals has held that in the context of a guilty plea,

the second Strickland factor requires Kirby to show “a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on going to

trial”—an assessment that depends upon whether counsel’s errors likely would have

changed the outcome of a trial. Ex parte Briggs, 187 S.W.3d at 469 (recognizing that

the appellant’s trial counsel wholly failed to develop evidence that raised considerable

doubt of appellant’s guilt). In this case, the State presented evidence that placed Kirby’s

blood-alcohol level well above the legal limit for both his May 2013 and February 2014

DWI charges. The trial court admitted into evidence the arresting officers’ reports, which

indicated that Kirby failed the sobriety tests. The State also offered and the trial court

admitted the judgments entered in Kirby’s prior convictions as evidence supporting his

enhancements. There was overwhelming evidence supporting Kirby’s guilt for the two

DWI offenses, and there is no evidence that, but for errors committed by Kirby’s counsel,

he would not have pled guilty and would have insisted on going to trial. See id.

       From the record before us, Kirby has not satisfied either prong of the Strickland

test. See Strickland, 466 U.S. 486–88; Martin, 492 S.W.2d at 472. We overrule Kirby’s

                                            10
first issue.

                               III.   CONFLICT OF INTEREST

       By his second issue, Kirby contends that the statute permitting an attorney to act

as a bondsman for his or her client is unconstitutional. Specifically, he asserts that

section 1704.163(a) of the Texas Occupations Code, providing an exemption to the

licensing of bondsman where the bondsman is the individual’s attorney, creates an

impermissible conflict of interest. The State argues that Kirby waived his issue because

he failed to adequately brief it and further argues that Kirby failed to preserve his

constitutional challenge by not raising it before the trial court. Finally, the State argues

that there is no demonstrable conflict of interest.

       As a threshold matter, we determine that Kirby did not waive his constitutional

issues by failing to cite to supporting legal authority. See DiGiuseppe v. Lawler, 269

S.W.3d 588, 597 n.10 (Tex. 2008) (recognizing that though failure to brief ordinarily

waives claimed error, that rule is relaxed when fact issues are not germane to the

resolution of the issue and the issue is a question of law involving constitutional

ramifications). However, Kirby did not preserve his constitutional challenge for appellate

review because he may not raise, for the first time on appeal, a facial challenge to the

constitutionality of a statute. See Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim.

App. 2009) (holding that a defendant may not raise for the first time on appeal a facial

challenge to the constitutionality of a statute); see also Salinas v. State, ___ S.W.3d ___,

___, No. PD-0419-14, 2015 WL 3988955, at *3 (Tex. Crim. App. July 1, 2015) (“A facial

attack on the constitutionality of a statute requires . . . that a party establish that the

statute in question operates unconstitutionally in all possible circumstances.”).

                                             11
Therefore, we do not reach Kirby’s second issue.

                                   IV.    CONCLUSION

       We affirm the judgments of the trial court.



                                                       NELDA V. RODRIGUEZ
                                                       Justice

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

Delivered and filed the 1st
day of September, 2015.




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