      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00783-CR



                           Edward Donovan Cornelison, Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
            NO. 69736, HONORABLE JOE CARROLL, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Edward Donovan Cornelison pleaded guilty to theft of aluminum valued

at under $20,000. See Tex. Penal Code § 31.03(e)(4)(F)(i). The trial court accepted Cornelison’s

plea, convicted him of the offense alleged, and sentenced him to twenty months’ confinement in a

state jail facility. On appeal, Cornelison asserts that his guilty plea was involuntary because he

received ineffective assistance of counsel. We affirm the trial court’s judgment.


                                          DISCUSSION

               In his sole issue on appeal, Cornelison argues that his guilty plea was involuntary

because his trial counsel failed to advise him that he could not be convicted of theft of aluminum.

Specifically, Cornelison asserts that theft of aluminum is “an offense applicable [only] to those in

the metal recycling business,” and because Cornelison was not employed or involved in the metal
recycling business, he could not be convicted of this offense. Therefore, according to Cornelison,

his counsel was deficient for advising Cornelison to plead guilty.

                  When a defendant challenges the voluntariness of a guilty plea on the basis of

ineffective assistance of counsel, the voluntariness of his plea depends on (1) whether counsel’s

advice was within the range of competence demanded and, if not, (2) whether there is a reasonable

probability that, but for the ineffective assistance, the defendant would not have pleaded guilty

and would have insisted on going to trial. See Ex parte Niswanger, 335 S.W.3d 611, 615 (Tex.

Crim. App. 2011); see also Strickland v. Washington, 466 U.S. 668, 687–88 (1984) (establishing

test for determining when counsel is ineffective). To demonstrate that trial counsel’s advice was

deficient—and therefore not within the range of competence demanded—the defendant must prove

by a preponderance of the evidence that the counsel’s advice “fell below an objective standard of

reasonableness.” Ex parte Ali, 368 S.W.3d 827, 833 (Tex. App.—Austin 2012, pet. ref’d) (internal

quotations omitted). Our review of counsel’s performance must be highly deferential; we presume

that counsel makes all significant decisions in the exercise of reasonable judgment. Strickland,

466 U.S. at 689.

                  In this case, Cornelison was convicted of theft of aluminum valued at less than

$20,000. Section 31.03(e)(4) of the Penal Code provides, in relevant part, that a theft is a state

jail felony if:


        (F) the value of the property stolen is less than $20,000 and the property stolen is:

                  (i) aluminum;

                  (ii) bronze;

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               (iii) copper; or

               (iv) brass.


Tex. Penal Code § 31.03(e)(4)(F). Nothing in the language of section 31.03 indicates that the above

provision applies only to persons involved in metal recycling businesses.

               Nevertheless, Cornelison asserts that the most recent amendment to section 31.03 of

the Penal Code indicates that the legislature intended subsection 31.03(e)(4)(F) to apply only to

those involved in the metal recycling business. See Act of May 31, 2011, 82d Leg., R.S., ch. 1234,

§ 21, 2011 Tex. Gen. Laws 3302, 3311. This amendment added “brass” to the list of metals that,

if stolen, would enhance a theft to a state jail felony. See id. Cornelison argues that the “bill

amending the theft subsection was part of a comprehensive series of laws aimed at regulating

metal recycling businesses,” that the majority of that series of laws was aimed at registering and

regulating metal recycling businesses, and that therefore section 31.03(e)(4)(F) should be

understood to apply only to those involved in the metal recycling business. See id. at 3302–08

(amending Occupations Code to require metal recycling businesses to register business and report

purchases of regulated metals).

               “Under the canons of statutory construction, we are to construe a statute according

to its plain language, unless the language is ambiguous or the interpretation would lead to absurd

results that the legislature could not have intended.” Tapps v. State, 294 S.W.3d 175, 177 (Tex. Crim.

App. 2009) (internal quotations omitted). Nothing in the language of the section 31.03 indicates

that subsection (e)(4)(F) applies only to those involved in metal recycling businesses. Furthermore,

Cornelison does not assert that the statutory language is ambiguous or leads to an absurd result.

                                                  3
The plain language of the statute makes clear that conviction for theft of aluminum is not limited

to those involved in metal recycling businesses, and we need not look to the legislative history

of the statute to discern the legislature’s intent. See Nguyen v. State, 359 S.W.3d 636, 642 (Tex.

Crim. App. 2012) (noting that if statute is clear and unambiguous, “our analysis ends because the

Legislature must be understood to mean what it has expressed”) (internal quotations omitted).

               Given our conclusion that a conviction for theft of aluminum is not limited to those

involved in metal recycling businesses, Cornelison’s trial counsel was not deficient for failing

to advise Cornelison that he could not be convicted for this offense. Therefore, Cornelison has

failed to satisfy the first prong of his ineffective-assistance-of-counsel claim, and thus he has

not shown that his guilty plea was involuntary based on ineffective assistance of counsel. See

Niswanger, 335 S.W.3d at 615. We overrule Cornelison’s sole appellate issue.


                                        CONCLUSION

               Having overruled Cornelison’s only issue on appeal, we affirm the trial court’s

judgment of conviction.



                                             __________________________________________

                                             Scott K. Field, Justice

Before Chief Justice Jones, Justices Goodwin and Field

Affirmed

Filed: August 14, 2014

Do Not Publish

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