Opinion issued September 18, 2014




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-13-00369-CR
                          ———————————
              RONALD CHARLES WASHINGTON, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 178th District Court
                           Harris County, Texas
                       Trial Court Case No. 1357621


                         MEMORANDUM OPINION

      Appellant Ronald Charles Washington pleaded guilty to the first-degree

felony offense of aggravated assault of a family member using a deadly weapon.

See TEX. PENAL CODE ANN. § 22.02(b)(1) (West 2011). The plea was entered

without an agreed recommendation as to punishment, and the trial court sentenced
him to imprisonment for 25 years. Washington now argues that the trial court

should have granted him a new trial because he received ineffective assistance of

counsel. However, because none of the alleged errors have been shown to have

affected the result of the trial court proceedings, we affirm.

                                    Background

      On April 12, 2011, Ronald Charles Washington attacked the complainant,

Veronica Sanchez, with a machete. Sanchez had dated Washington sporadically for

ten years, and she was the mother of his daughter.

      On the night of the assault, Washington told Sanchez to “sneak out and don’t

tell nobody,” directing her to meet him at a friend’s body shop. Sanchez drove to

the body shop with her infant daughter—Washington’s child—in the car with her.

When she arrived at the unfamiliar, isolated location, she found Washington

waiting for her, drinking and wearing latex gloves. After a brief, emotional

conversation, Washington walked to his nearby truck and returned with a machete.

He struck Sanchez with the machete repeatedly, causing injury to her head, arms,

hands, and body. Sanchez tried to run away, but Washington caught up and doused

her with a can of gasoline, trying unsuccessfully to light her on fire. She was

hospitalized and treated for numerous wounds.

      Washington was indicted for aggravated assault of a family member using a

deadly weapon. He filed a notice of intent to plead not guilty and elected that the



                                           2
trial court assess punishment in the event of a guilty verdict. Prior to the start of

voir dire, while the venire panel was in the hallway, defense counsel approached

the trial judge and informed him that Washington had decided to plead guilty. The

parties agreed to an expedited voir dire that would empanel a jury in order to hear

the plea. Once the jury had been selected and sworn, Washington pleaded guilty.

The court then recessed in anticipation of a short proceeding at which the jury

would enter a verdict on the basis of Washington’s guilty plea.

      When court reconvened three days later, defense counsel confessed that he

had mistakenly advised his client about the availability of community supervision.

Counsel explained that he had incorrectly believed that the court could suspend

sentence and place Washington on community supervision following conviction by

the jury, although in fact he could be placed on community supervision only if he

pleaded guilty and the court deferred adjudication. Counsel argued that

Washington’s plea had been predicated on this erroneous advice, and accordingly

he moved for a mistrial, which the court denied.

      The court nevertheless allowed Washington to withdraw his plea on the

grounds that he had not been properly admonished of the rights he was waiving

prior to pleading guilty. Washington requested that punishment be assessed by a

jury in the event of conviction, but the State refused to agree to that change. In the




                                          3
presence of the jury, Washington withdrew his plea of guilty and entered a plea of

not guilty.

      Eventually an agreement was reached whereby the State would consent to a

mistrial, Washington would plead guilty once reindicted, and the court would

assess punishment after receiving a presentence investigation report. In this

scenario, the court would have discretion to defer adjudication and place

Washington on community supervision, something it could not do following

conviction by a jury. Compare TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g(a)(2)

(West Supp. 2014) (judge-ordered community supervision unavailable under § 3(a)

to a defendant who pleaded guilty and used a deadly weapon during the

commission of a felony offense), with id. art 42.12, § 5(d) (permitting deferred

adjudication and community supervision under § 5(a)). The trial court approved

the agreement, granted Washington’s renewed motion for mistrial, and discharged

the jury. Later, when the court read the new indictment, Washington pleaded guilty

and signed an acknowledgement that his guilty plea was free and voluntary.

      Several months later, the court held a punishment hearing, received the

presentence investigation report, and heard evidence from the parties. At the

conclusion of the hearing, the judge sentenced Washington to 25 years in prison.

The trial court denied a motion for new trial, and Washington timely filed a written

notice of appeal.



                                         4
                                      Analysis

      In his sole issue on appeal, trial counsel’s performance has been challenged

as ineffective because he: (1) misinformed Washington about the trial judge’s

authority to suspend sentence and place him on community supervision following

conviction; (2) failed to file a sworn application for community supervision; and

(3) failed to offer evidence of Washington’s clean record to prove his eligibility for

community supervision.

      The Sixth Amendment to the Constitution provides: “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have the Assistance of

Counsel for his defence.” U.S. CONST. amend. VI. This right to counsel is not

merely the right to have counsel physically present in the courtroom; it is the right

to have the effective assistance of counsel in the courtroom. McMann v.

Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 (1970).

      The United States Supreme Court has established a two-pronged test for

determining whether there was ineffective assistance of trial counsel. Strickland v.

Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068 (1984). To

prevail on a claim of ineffective assistance of counsel under Strickland,

Washington must show that counsel’s performance fell below an objective

standard of reasonableness, and that but for counsel’s unprofessional error, there

was a reasonable probability that the result of the proceeding would have been



                                          5
different. See id.; Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). A

failure to make a showing under either prong defeats an ineffective-assistance

claim. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). The

Strickland standard applies to a challenge to a guilty plea based on ineffective

assistance of counsel. See Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 369–70

(1985).

      “The     proper   measure    of   attorney    performance    remains    simply

reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688;

104 S. Ct. at 2065. When we apply this standard, we do so deferentially. Id. at 689;

104 S. Ct. at 2065. In support of that deference, there is a presumption that,

considering the circumstances, a lawyer’s choices were reasonably professional

and motivated by sound trial strategy. Id. In the face of this presumption, a

criminal defendant has the burden of showing by a preponderance of the evidence

that his attorney failed to provide reasonably effective assistance. Bone v. State, 77

S.W.3d 828, 833 (Tex. Crim. App. 2002). “An ineffective-assistance claim must be

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

meritorious nature of the claim.” Menefield v. State, 363 S.W.3d 591, 592 (Tex.

Crim. App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.

App. 2005)).




                                          6
1. Incorrect advice regarding the trial court’s authority to grant community
   supervision

      A guilty plea entered after a proper demonstration of ineffective assistance

of counsel is considered involuntary and therefore invalid. See Ex parte Moody,

991 S.W.2d 856, 857–58 (Tex. Crim. App. 1999). In this context, satisfaction of

the second Strickland prong entails a demonstration of a “reasonable probability

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

have insisted on going to trial.” Id. (quoting Ex parte Morrow, 952 S.W.2d 530,

536 (Tex. Crim. App. 1997)).

      In arguing that his trial counsel provided erroneous advice about the

potential outcomes of his guilty plea, Washington relies upon the provisions of the

Code of Criminal Procedure dealing with postconviction community supervision.

See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 3. He correctly observes that the law

expressly forbids a judge from suspending sentence and placing the defendant on

community supervision following a felony conviction when there is an affirmative

finding that a deadly weapon was used. Id. at 42.12 § 3g(a)(2). It is ineffective

assistance of counsel when trial counsel relays erroneous advice to his client

regarding eligibility for community supervision. Riley v. State, 378 S.W.3d 453,

458 (Tex. Crim. App. 2012); Ex parte Stamnitz, 768 S.W.2d 461, 462 (Tex.

App.—Houston [1st Dist.] 1989, no writ).




                                        7
      But even though trial counsel conceded his mistake, that error nevertheless

fails the second prong of Strickland because there is no evidence it would have

produced a different outcome. Trial counsel rectified the situation, first by relaying

the correct information to his client, alerting the judge of his mistake, and moving

for a mistrial. Once Washington’s mistrial was granted and he entered his new plea

of guilty, his tainted plea was erased. See Lopez v. State, 428 S.W.3d 271, 282–83

(Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (holding that appellant’s claim of

ineffective assistance of counsel at his first punishment hearing was moot

following successful motion for new trial and second punishment hearing). There

is no evidence that the misinformation affected Washington’s subsequent decision

to plead guilty once again. Washington signed a waiver and informed the trial

court that his plea of guilty was free and voluntary and that he understood he was

waiving certain constitutional rights. Thus on appeal, he has failed to meet his

burden to prove that but for his trial counsel originally misinforming him about his

eligibility for court-ordered community service, he would have not entered a plea

of guilty later, after that mistake was corrected.

2. Failure to file a sworn application for community supervision.

      Pursuant to Texas Code of Criminal Procedure article 42.12 section 4(d)(3)

and (e), a defendant is required to file a sworn application for community

supervision before a jury may consider him for community supervision. See TEX.



                                           8
CODE CRIM. PROC. ANN. art. 42.12 § 4(d)(3) & (e). Nevertheless, Washington

agreed to plead guilty and have the trial court assess his punishment without a jury,

thus rendering article 42.12 section 4(d) inapplicable because that provision relates

solely to jury-recommended community supervision. As such, because punishment

ultimately was not assessed by a jury, trial counsel was not ineffective for failing to

file the sworn application. See Huynh v. State, 833 S.W.2d 636, 638 (Tex. App.—

Houston [14th Dist.] 1992, no pet.); George v. State, No. 03-05-00415-CR, 2007

WL 1451995, at *4 (Tex. App.—Austin May 16, 2007, no pet.) (mem. op., not

designated for publication) (counsel was not ineffective for failing to file a sworn

application for community service because it is only required when the jury

assesses punishment); Ruiz v. State, No. 05-01-01176-CR, 2002 WL 981911, at *1

(Tex. App.—Dallas May 14, 2002, pet dism’d) (mem. op., not designated for

publication) (same). Washington has failed to establish that trial counsel’s

performance was unreasonable; therefore, his claim fails the first prong of

Strickland.

3. Failure to offer evidence of criminal record

      The defendant must prove he has not been previously convicted of a felony

in order to receive community supervision from a jury. See TEX. CODE CRIM.

PROC. ANN. art 42.12 § 4(e). This requirement applies when the jury assesses

punishment, but it is not required when, as in this case, the trial court assesses



                                          9
punishment. See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(a). Washington

pleaded guilty and his punishment was assessed by the court. Therefore, trial

counsel was not ineffective for failing to offer evidence to prove Washington’s

eligibility for community supervision.

      Moreover, the record shows that the judge acknowledged that Washington

had a “clean record.” It also reflects that the trial court “listened to the full range of

testimony that was produced at the punishment hearing,” and that it considered the

full range of punishment, including probation. Therefore, even if counsel rendered

deficient performance by not submitting evidence of Washington’s good criminal

record, his claim fails the second prong of Strickland.

                                      Conclusion

      We affirm the judgment of the trial court.




                                                Michael Massengale
                                                Justice

Panel consists of Justices Massengale, Brown, and Huddle.

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




                                           10
