Affirmed and Memorandum Opinion filed September 5, 2013.




                                    In The

                   Fourteenth Court of Appeals

                              NO. 14-12-00672-CR

              ROCKY CHRISTOPHER BURNETT, Appellant
                                      V.

                     THE STATE OF TEXAS, Appellee

                   On Appeal from the 405th District Court
                          Galveston County, Texas
                      Trial Court Cause No. 10CR3812

                MEMORANDUM                    OPINION


      Appellant Rocky Christopher Burnett pleaded guilty to felony theft and was
sentenced to seven years’ confinement. On appeal, he argues that his guilty plea
was involuntary. We affirm.

                               BACKGROUND

      From July 3, 2009 to September 4, 2010, the appellant made several
unauthorized charges on a credit card that belonged to his mother’s employer; over
that 14-month period, the appellant spent more than $120,000 on the card. On
December 16, 2010, the appellant was indicted for the second degree felony of
theft of property valued between $100,000 and $200,000.

      The appellant signed a document titled “Written Plea Admonishments-
Waivers-Stipulations” on February 22, 2012. That document explained that the
appellant was charged with a second degree felony and that, if convicted, he would
face punishment of “[a] term of not more than 20 years or less than 2 years in the
Institutional Division of the Texas Department of Criminal Justice[] and in
addition, a possible fine not to exceed $10,000.00.” A handwritten notation states
that there is no agreed recommendation on punishment and that the issue would be
determined by the trial court.

      The document expressly notes the appellant’s knowledge of the possible
consequences of his plea and his satisfaction with his attorney’s performance:

      Comes now the Defendant, joined by counsel, and states that I
      understand the foregoing admonishments from the Court and am
      aware of the consequences of my plea. I further state that I am
      mentally competent, [and] that my plea is freely and voluntarily made.
      . . . I am totally satisfied with the representation provided by my
      attorney who provided fully effective and competent representation . .
      . . I completely understand all of the written waivers, stipulations and
      motions herein stated in connection with the plea, and each was done
      freely, voluntarily, and intelligently.

These sentiments are reiterated immediately above the appellant’s signature, in a
paragraph titled “Guilty Plea,” which provides:

      Understanding and agreeing to all of the above, I freely and
      voluntarily plead GUILTY and confess my GUILT to having
      committed each and every element of the offense alleged in the
      indictment or information by which I have been charged in this cause
      and I agree and stipulate that the facts contained in the indictment or
      information are true and correct and constitute the evidence in this
      case.

On June 20, 2012, the trial court sentenced the appellant to seven years’
confinement; this appeal followed. On July 5, 2012, the appellant’s trial counsel
filed a motion to withdraw as counsel of record, citing conflicts that had arisen
between the appellant and himself. By July 16, 2012, the appellant had retained a
new attorney, and he filed a motion for new trial on July 20, 2012, alleging that his
guilty plea had been rendered involuntary by the ineffective assistance of his trial
counsel.

      On appeal, the appellant argues that (1) his guilty plea should be nullified as
involuntary because he “was not made aware that a prison sentence was even a
remote possibility,” and (2) his trial counsel rendered ineffective assistance for
failing to inform him “about even a remote possibility of prison time.”

      Because both arguments rely on the allegation that the appellant’s trial
counsel misinformed the appellant about the consequences of his plea, we analyze
them together to determine whether the appellant’s guilty plea was rendered
involuntary by the ineffective assistance of his trial counsel.

                                     ANALYSIS

      No plea of guilty or nolo contendere shall be accepted by the court unless it
appears that the defendant is mentally competent and the plea is voluntary. Tex.
Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2012). “It is a due process
violation for a trial court to accept a guilty plea without an affirmative showing
‘spread on the record’ that the guilty plea was intelligently and knowingly made.”
Fuller v. State, 253 S.W.3d 220, 229 (Tex. Crim. App. 2008) (quoting Boykin v.
Alabama, 395 U.S. 238, 242 (1969)). “The record must ‘affirmatively disclose that
a defendant who pleaded guilty entered his plea understandingly and voluntarily.’”
Fuller, 253 S.W.3d at 229 (quoting Brady v. United States, 397 U.S. 742, 747 n.4
(1970)).

      In considering the voluntariness of a guilty plea, the court should examine
the record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App.
1998).     A record that indicates that the trial court properly admonished the
defendant provides a prima facie showing that the guilty plea was made voluntarily
and knowingly. Id.; Chapa v. State, No. 14-12-00900-CR, __ S.W.3d __, 2013
WL 3757081, at *2 (Tex. App.—Houston [14th Dist.] July 18, 2013, no pet. h.). A
defendant may still raise the claim that his plea was not voluntary; however, the
burden shifts to the defendant to demonstrate that he did not fully understand the
consequences of his plea such that he suffered harm. Martinez, 981 S.W.2d at 197;
Chapa, 2013 WL 3757081, at *2. This is a heavy burden, and it is especially so
when an appellant attests to the voluntariness of his plea at his original plea
hearing. See Chapa, 2013 WL 3757081, at *2; Arreola v. State, 207 S.W.3d 387,
391 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

      However, a guilty plea is not knowing or voluntary if made as a result of
ineffective assistance of counsel. Ex parte Moussazadeh, 361 S.W.3d 684, 689
(Tex. Crim. App. 2012). When a defendant enters a plea on advice of counsel and
subsequently challenges the voluntariness of that plea based on ineffective
assistance, the voluntariness of the plea depends on whether counsel’s advice was
within the range of competence demanded of attorneys in criminal cases and, if
not, whether there is a reasonable probability that, but for counsel’s errors, the
defendant would not have pleaded guilty and would have insisted on going to trial.
Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (citing Hill v.
Lockhart, 474 U.S. 52, 59 (1985)); Chapa, 2013 WL 3757081, at *2. Such a
challenge must be affirmatively supported by the record. Tabora v. State, 14
S.W.3d 332, 336 (Tex. App.—Houston [14th Dist.] 2000, no pet.); see Thompson
v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

      The appellant’s claim for ineffective assistance rests on an affidavit signed
by the appellant. In relevant part, it states:

      2.     On or about September 27, 2010, my mother, Joan Burnett, and
      I retained the counsel of attorney Paul H. LaValle (“Paul”). From the
      beginning of Paul’s representation until the day that I was sentenced,
      Paul informed us that we would get probation.

      3.    Throughout the duration of Paul’s representation, Paul was [sic]
      emphatically told us that there was no possibility that we would go to
      jail. Paul constantly assured us, and even family members that we
      were only going to receive probation. Specifically, Paul told this to
      my step-father David Evans, my aunt Denise Burnett, Eaven
      Morrison, and my wife Brittney Burnett.

      4.    On or about February 22, 2012, my mother and I were in Court
      for my plea agreement hearing. After speaking with our attorney and
      probation officer in the court, Paul came back and told me I would
      receive probation. To prove what he had been telling us all along Paul
      showed me a document which showed me the specifics of the
      probation to which I was being granted. In particular the probation
      document showed things such as the duration of probation,
      community service requirements, drug testing requirements, and that I
      would get 10 years probation.

      5.    In reliance on Paul H. LaValle, I pled guilty only thinking that I
      was going to be given probation. Based on Paul’s representations, at
      no time was I told that there was even a that [sic] I had probation.

      6.     On or about June 20, 2012, we were in Court for sentencing.
      Having already been told that we had received probation, I believed
      that the hearing was just a formality. Once Judge Wayne Mallia
      sentenced me to jail time, I was more than shocked. I never would
      have pled guilty had I known that the judge could sentence me to jail
      time.
The affidavit was attached to the appellant’s motion for new trial; there was no
hearing on the motion. This is insufficient to support the appellant’s allegations
for two reasons.

      First, affidavits themselves are not evidence; an affidavit attached to a
motion is merely “a pleading that authorizes the introduction of supporting
evidence.” Stephenson v. State, 494 S.W.2d 900, 909 (Tex. Crim. App. 1973);
Jackson v. State, 139 S.W.3d 7, 20 (Tex. App.—Fort Worth 2004, pet. ref’d). To
constitute evidence, an affidavit must be introduced as evidence in a hearing before
the trial court. Stephenson, 494 S.W.2d at 909-10; Jackson, 139 S.W.3d at 20.
Unless an affidavit or other document in the clerk’s record has been offered and
admitted into evidence, it cannot be considered on appeal. Webber v. State, 21
S.W.3d 726, 731 (Tex. App.—Austin 2000, pet. ref’d) (citing Stephenson, 494
S.W.2d at 909-10).     In the present case, the affidavit was not admitted into
evidence, and therefore, the record contains no evidence in support of the
appellant’s claims. See Webber, 21 S.W.3d at 731; see also Wright v. State, 178
S.W.3d 905, 916-17 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (rejecting
the appellant’s argument that the court could consider a DVD attached to the
appellant’s motion for a hearing and new trial).

      Second, the allegations contained in the appellant’s affidavit do not rebut the
prima facie showing that he entered his plea voluntarily and knowingly. See
Martinez, 981 S.W.2d at 197; Chapa, 2013 WL 3757081, at *2. Standing alone, a
defendant’s claim that he was misinformed by counsel is not enough for a
reviewing court to hold that the plea was involuntary. Tabora, 14 S.W.3d at 336
(citing Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.—Houston [1st Dist.]
1996, pet ref’d)).   Likewise, a plea is not rendered involuntary because the
defendant did not receive the punishment he hoped for, even if his expectation was
the result of something the defendant claims his lawyer told him. Nicholas v.
State, 56 S.W.3d 760, 771 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d)
(citing Heiligmann v. State, 980 S.W.2d 713, 715 n.4 (Tex. App.—San Antonio
1998, no pet.). Without affirmative support in the record, the allegations contained
in the appellant’s affidavit are insufficient to support a claim of ineffective
assistance. See Thompson, 9 S.W.3d at 813. Accordingly, we cannot conclude
that the ineffective assistance of his trial counsel — if it existed — rendered the
appellant’s plea involuntary.

      We overrule both of the appellant’s issues.

                                 CONCLUSION

      Having overruled both issues raised by the appellant, we affirm the
judgment of the trial court.




                                      /s/    William J. Boyce
                                             Justice



Panel consists of Justices Boyce, Jamison, and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).
