                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                     No. 07-12-00537-CR


                         NGHIA TRUNG NGUYEN, APPELLANT

                                             V.

                            THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 181st District Court
                                     Randall County, Texas
                 Trial Court No. 23,329-B, Honorable John B. Board, Presiding

                                    February 28, 2014

                             MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Appellant, Nghia Trung Nguyen, appeals his conviction for the offense of

aggravated robbery1 with an affirmative finding of a deadly weapon and the subsequent

sentence of confinement in the Institutional Division of the Texas Department of

Criminal Justice (ID-TDCJ) for 75 years.          Appellant contends that he was denied

effective assistance of counsel. Disagreeing with appellant, we will affirm.




      1
          See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011).
                          Factual and Procedural Background


       Appellant entered an open plea of guilty to the indicted offense of aggravated

robbery.   It is helpful to understand that, prior to entering his open plea of guilty,

appellant rejected two proposed plea offers from the State. Each of these offers would

have required appellant to be sentenced to either eight years or five years in the ID-

TDCJ. Appellant was intent upon receiving a deferred adjudication and this was his

stated reason for turning down the State’s offers.


       Appellant orally entered a plea of guilty before the trial court in which appellant

asserted he was pleading guilty only because he was guilty. The trial court proceeded

to inquire if the decision to plead guilty was one made by appellant and not because of

any promises made to him or any threats or force used against him. The trial court then

inquired about appellant’s ability to think clearly.    Likewise, the trial court asked

appellant if he had ever been found mentally incompetent, to which appellant answered

negatively. Proceeding forward, the trial court inquired whether appellant was a citizen

of the United States. At this juncture, the trial court advised that he found appellant

mentally competent and a citizen of the United States. The trial court then asked the

following question of appellant:


       Do you understand that when there is not a recommendation to me that
       what I’ll do is just hear evidence and testimony that the State wants to
       present, and then I’ll make a determination as to what to do with regard to
       your plea of guilty.
       Following this discussion, the trial court went over the documents that appellant

signed in connection with the plea of guilty. Specifically, the judge inquired generally

whether appellant had read the paperwork that he had signed. Likewise, the judge


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asked if appellant understood what he signed, if he had any questions about any of this

and, whether his counsel was able to answer them.             Appellant answered in the

affirmative.


       The trial court then inquired about the judicial confession that appellant signed by

asking appellant if he understood that “by signing that in front of a notary you were

swearing that you were guilty.” Appellant responded by saying “Yes, sir.” Appellant

then was asked if he understood he was giving up, “with regard to guilt or innocence,”

the right to a jury trial. Again, appellant responded yes. At this stage of the proceeding,

the trial court first made inquiry regarding any issue concerning punishment by asking

appellant if he understood that he was also giving up his right to a jury trial on the issue

of punishment. Appellant stated he understood that.


       In addition to these oral admonishments and warnings, appellant signed a

document denoted as a “FELONY PLEA MEMORANDUM.” Contained therein were

statements that appellant understood that the punishment range was from 5 to 99 years

or life in prison and a fine up to $10,000. Also contained therein was the statement that

there was no plea agreement between appellant and the State. Additionally, there is

the written statement that appellant is giving up his right to a trial by jury in the

memorandum. Appellant, along with his counsel, signed this document.


       Below the above referenced waivers, there is contained the written waiver of

appellant’s rights of confrontation of witnesses and stipulation of evidence.       By the

stipulation of evidence, appellant agrees the State may use oral stipulations or affidavits




                                             3
in lieu of testimony. This waiver, like its predecessor, was signed by both appellant and

his counsel.


       Additional waivers, not germane to this appeal, are also contained in this

memorandum document. However, the next portion that is important to our discussion

of the issues is the judicial confession. Appellant judicially confessed “to committing the

offense of Agg. Robbery w/dw [sic] exactly as charged in the indictment.” Below that

judicial confession, there is appellant’s written plea of guilty to the above specified

offense and plea of true to the special allegation of exhibition of a deadly weapon.


       The next paragraph of this memorandum contains a statement that “[appellant]

understands the warnings and information set out above and is aware of the

consequences of this plea.” Appellant swore to this statement before a notary public.


       Appellant then signed below a paragraph entitled “Defendant’s Statement on

Admonishments” wherein appellant reaffirmed all of the admonishments previously

given to him by the court, including statements regarding his competency and

awareness regarding the consequences of a plea.


       The trial court then stated that it accepted and approved the admonishments,

waivers, and judicial confession. The trial court then announced “I will withhold my

judgment until such time as I’ve heard all the evidence and testimony.”


       The trial court then heard 103 pages of testimony regarding all aspects of the

commission of the offense and appellant’s criminal history. Contained within this record

is appellant’s testimony. Appellant’s testimony was, to say the least, not helpful to his



                                             4
request for deferred adjudication. At the conclusion of the testimony, the trial court

stated as follows:


       Okay. Well, based on the evidence and testimony before the Court I do
       accept [appellant’s] plea of guilty. I do find the evidence is sufficient to
       sustain a finding of guilt.
The trial court then proceeded to sentence appellant to confinement in the ID-TDCJ for

75 years.


       Appellant appeals the judgment sentencing him to prison, contending that he

received ineffective assistance of counsel because his counsel did not inform him that

he had the right to withdraw his plea after his testimony went poorly. Additionally,

should the Court find that the record is insufficient to permit us to determine the

effectiveness of counsel, appellant requests that we remand for a hearing on appellant’s

motion for new trial regarding the question of the effectiveness of counsel. We will

overrule appellant’s issue.


                                  Standard of Review


       The United States Constitution’s guarantee of the right to counsel encompasses

the right to effective assistance of counsel. U.S. CONST. amend. VI; Strickland v.

Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In determining

whether counsel’s representation was so inadequate as to violate a defendant’s Sixth

Amendment right to counsel, Texas courts apply the two-pronged test enunciated in

Strickland, 466 U.S. at 687. See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim.

App. 1986) (en banc). Judicial review of an ineffective assistance of counsel claim must

be highly deferential, and there is a strong presumption that trial counsel’s conduct fell


                                            5
within the wide range of reasonable professional assistance. Strickland, 466 U.S. at

689.   An appellant claiming ineffective assistance of counsel bears the burden of

proving by a preponderance of the evidence that (1) counsel’s representation fell below

an objective standard of reasonableness and (2) the deficient performance prejudiced

the appellant. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Failure to

make the required showing of either deficient performance or sufficient prejudice is fatal

to an ineffectiveness claim. See id.


       The “right to effective assistance of counsel merely ensures the right to

reasonably effective [not perfect] assistance.” Robertson v. State, 187 S.W.3d 475, 483

(Tex. Crim. App. 2006) (quoting Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App.

1984) (en banc)).     This right does not mean errorless or perfect counsel whose

competency of representation is to be judged by hindsight. See Ingham, 679 S.W.2d at

509. “Isolated instances in the record reflecting errors of omission or commission do

not render counsel’s performance ineffective, nor can ineffective assistance of counsel

be established by isolating one portion of trial counsel’s performance for examination.”

Robertson, 187 S.W.3d at 483 (quoting McFarland v. State, 845 S.W.2d 824, 843 (Tex.

Crim. App. 1992) (en banc)). Counsel’s performance is judged by “the totality of the

representation,” and “judicial scrutiny of counsel’s performance must be highly

deferential” with every effort made to eliminate the distorting effects of hindsight. Id.

The Strickland Court cautioned us to avoid an intrusive post-trial inquiry into attorney

performance because such an inquiry would encourage the proliferation of

ineffectiveness challenges. Id. (citing Strickland, 466 U.S. at 690).




                                             6
       To that end, we are instructed that, in order for an appellate court to find that

counsel was ineffective, counsel’s deficiency must be affirmatively demonstrated in the

trial record. Lopez, 343 S.W.3d at 142. The court further advises, “When such direct

evidence is not available, we will assume that counsel had a strategy if any reasonably

sound strategic motivation can be imagined.” Id. at 143.


                                          Analysis


       Appellant’s claim of ineffective assistance of counsel is grounded on the

proposition that, after appellant’s testimony was bad during the taking of evidence, he

had a right to withdraw his plea of guilty. As the theory goes, since his trial counsel did

not advise appellant of this right, then trial counsel was ineffective. Therefore, we must

review the law regarding withdrawal of a plea of guilty to ascertain, first, whether

appellant had the unfettered right to withdraw his plea of guilty and, second, should we

reach the issue, whether trial counsel’s action, in failing to advise appellant of the right

to withdraw his plea, was so deficient as to be considered ineffective.


       Turning to the first part of the inquiry, we begin by noting that, Texas has

historically had a liberal practice concerning the withdrawal of a guilty plea.        See

Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. [Panel Op.] 1979). In fact, a

defendant has the right to withdraw his guilty plea without assigning any reason to the

action until judgment has been pronounced or the case has been taken under

advisement. See id. The corollary to the above statement is, once the case has been

taken under advisement or judgment is pronounced, the decision to allow a defendant

to withdraw his plea is left to the sound discretion of the trial court. See id.



                                              7
       Our review of the record reveals that the trial court waited to pronounce judgment

of guilt until after it had heard all of the punishment evidence. Therefore, unless the trial

court took the matter under advisement prior to the pronouncement of guilt, appellant

had the right to withdraw his plea. See Murray v. State, 302 S.W.3d 874, 883 (Tex.

Crim. App. 2009). We now move to consider whether the trial court took this matter

under advisement prior to the time that it pronounced judgment.


       The record before the Court clearly shows that the trial court went from going

through the admonishments and warnings necessary to receive a plea of guilty to

review of the documents executed by appellant to support a plea of guilty and, finally, to

receipt of evidence necessary to determine the question of punishment. This type of

process must be examined closely to determine if we, as the appellate court, can say

that at any particular point the trial court took the case under advisement.


       We first turn our attention to the fact pattern. As outlined in a previous section of

this opinion, the trial court went through extensive questions of appellant about whether

it was his desire to enter a plea of guilty, whether he had been forced or coerced into

entering such a plea, and whether he understood what he was doing and had the

mental capacity to enter a plea of guilty. Appellant, at each step, reasserted he knew

what he was doing and desired to enter the plea in question.               Following these

questions, appellant was advised by the trial court that there was “not a

recommendation,” which, under the facts, can only mean no recommendation as to the

punishment issue. The trial court then advised that it would hear the evidence that the

State wanted to present and make a determination as what to do “with regard to your

plea of guilty.”

                                             8
      Next, the trial court went through each of the written waivers and admonishments

contained within the “Felony Plea Memorandum.” This document included all of the

admonishments contained in the Texas Code of Criminal Procedure article 26.13. See

TEX. CRIM. PROC. CODE ANN. art. 26.13 (West Supp. 2013). Additionally, the “Felony

Plea Memorandum” contained a written waiver of trial by jury and plea of guilty to the

indictment and true to the deadly weapon allegation.            Following the discussion

regarding the “Felony Plea Memorandum,” the trial court entered written orders

accepting all of the waivers appellant had signed and found that appellant had freely

and voluntarily entered into the plea agreement, was in his right mind, and understood

what he was doing. At this juncture of the proceeding, the trial court proceeded to

entertain the evidence on the issue of punishment.


      After this review of the record, we arrive at the conclusion that the trial court took

the matter under advisement prior to hearing the evidence on the issue of punishment,

just as the trial court had advised appellant that it would do. See Scott v. State, 860

S.W.2d 645, 646 (Tex. App.—Dallas 1993, no pet.) (holding that a court is deemed to

have taken a case under advisement after each side concluded presentation of

evidence on the subject of guilt, the defendant’s guilt has been established, and the only

issue remaining is appropriate punishment); see also Perez v. State, Nos. 05-11-00297-

CR, 05-11-00298-CR, 05-11-00299-CR, 05-11-01554-CR, 2012 Tex. App. LEXIS 4973,

at *6-8 (Tex. App.—Dallas June 21, 2012, no pet.) (not designated for publication). In

reaching this conclusion, Scott relies on Wissinger v. State, 702 S.W.2d 261, 262 (Tex.

App.—Houston [1st Dist.] 1985, pet. ref’d), for the proposition that there is no

requirement that there be a finding of guilt before a case is considered to have been


                                            9
taken under advisement. We agree with this conclusion, as applied to the facts of the

case before us. The trial court had completed actions required to entertain a plea of

guilty and there was nothing left except to determine what the punishment would be.

See Scott, 860 S.W.2d at 646. Accordingly, we find that, because the trial court had

taken the case under advisement, appellant had no unqualified right to withdraw his

plea of guilty. See Murray, 302 S.W.3d at 883. Further, since appellant had no right to

withdraw his plea of guilty, the failure of trial counsel to so advise him would not be an

act of ineffective assistance of counsel because the same would not have been a

deficient performance of his duties. See Lopez, 343 S.W.3d at 142. Appellant’s first

issue is overruled. Because we overrule appellant’s first issue, we do not reach his

second issue. See TEX. R. APP. P. 47.1.


                                        Conclusion


       Having overruled appellant’s issue contending his trial counsel was ineffective,

we affirm the judgment of the trial court.




                                                  Mackey K. Hancock
                                                       Justice


Do not publish.




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