                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-15-00064-CR


KHYREE CARSON                                                     APPELLANT

                                      V.

THE STATE OF TEXAS                                                      STATE


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         FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
                   TRIAL COURT NO. F-2014-0376-F

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                       MEMORANDUM OPINION1

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                               I. INTRODUCTION

     A jury found appellant Khyree Carson guilty of the offense of burglary of a

habitation. See Tex. Penal Code Ann. § 30.02 (West 2011). Carson pleaded

true to an enhancement paragraph, the jury assessed his punishment at thirteen

years’ confinement, and the trial court sentenced him accordingly.      Carson


     1
      See Tex. R. App. P. 47.4.
perfected this appeal; he raises one issue claiming ineffective assistance of

counsel.

           II. INEFFECTIVE ASSISTANCE OF COUNSEL NOT ESTABLISHED

      Carson argues that he was denied effective assistance of counsel because

his trial counsel failed to request an “Alford2 hearing” and failed to subpoena a

witness.

                            A. Standard of Review

      To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsel’s representation was deficient

and that the deficiency prejudiced the defense. Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289,

307 (Tex. Crim. App. 2013).     An ineffective-assistance claim must be “firmly

founded in the record,” and “the record must affirmatively demonstrate” the

meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999).

      Direct appeal is usually an inadequate vehicle for raising an ineffective-

assistance-of-counsel claim because the record is generally undeveloped.

Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012); Thompson,

9 S.W.3d at 813–14.      In evaluating the effectiveness of counsel under the

deficient-performance prong, we look to the totality of the representation and the


      2
       North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970).


                                        2
particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue

is whether counsel’s assistance was reasonable under all the circumstances and

prevailing professional norms at the time of the alleged error. See Strickland,

466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307. Review of

counsel’s representation is highly deferential, and the reviewing court indulges a

strong presumption that counsel’s conduct was not deficient. Nava, 415 S.W.3d

at 307–08.

      It is not appropriate for an appellate court to simply infer ineffective

assistance based upon unclear portions of the record or when counsel’s reasons

for failing to do something do not appear in the record. Menefield, 363 S.W.3d at

593; Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel

“should ordinarily be afforded an opportunity to explain his actions before being

denounced as ineffective.” Menefield, 363 S.W.3d at 593. If trial counsel is not

given that opportunity, we should not conclude that counsel’s performance was

deficient unless the challenged conduct was “so outrageous that no competent

attorney would have engaged in it.” Nava, 415 S.W.3d at 308.

             B. Ineffectiveness Not Raised in Motion for New Trial

      Although Carson filed a motion for new trial, he did not complain of

ineffective assistance in his motion. No hearing was held on the motion, and it

was overruled by operation of law. See Tex. R. App. P. 21.8(c). Consequently,

any trial strategy that Carson’s trial counsel may have had for her challenged

actions is not contained in the record. Generally, a silent record that provides no


                                        3
explanation for counsel’s actions will not overcome the strong presumption of

reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim.

App. 2003).   As noted above, trial counsel “should ordinarily be afforded an

opportunity to explain [her] actions before being denounced as ineffective.”

Menefield, 363 S.W.3d at 593.

               C. Trial Counsel Was Not Ineffective for Failing
                        to Request an “Alford Hearing”

      Carson reached a plea agreement with the State and executed the

necessary paperwork. At the plea hearing, however, after the trial court had

admonished Carson of his rights, explained Carson’s waiver of those rights, and

confirmed that Carson had read through and signed the plea paperwork, the

following colloquy occurred:

      THE COURT: Are you pleading guilty because you are, in fact,
      guilty, and for no other reason?

      THE DEFENDANT: No, sir.

      THE COURT: I’m sorry?

      THE DEFENDANT: No, sir. I’m just pleading guilty so I can go on
      and serve my time, sir.

      THE COURT: So you’re not guilty of the offense?

      THE DEFENDANT: No, sir.

      THE COURT: Okay. We’ll see you for trial next Monday, okay?

      THE DEFENDANT: All right.

      THE COURT: Sir, you are ordered to appear on Monday a week
      from today for trial. The last thing I’m ever going to do is take a plea


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      from someone that says they’re not guilty. That would be violating
      my oath, and it is a travesty of the justice system to lock people up
      when they’re not guilty of what they’re accused of having done.

      THE DEFENDANT: Yes, sir.

      THE COURT: So I’m not sure how we got to this point, but
      sometimes people just change their minds at the last minute.
      Whatever the case may be, we’re not going to proceed with the plea
      today, and you are free to go. We will see you next Monday.

      Carson argues that when the trial court rejected his plea at the plea

hearing, his trial counsel “should have recognized that holding an Alford hearing

was in the client’s best interest” and should have “requested a hearing so that the

State could present the evidence it intended to introduce at trial regarding the

Defendant’s guilt so the trial court could fulfill its proper function to determine that

Defendant’s plea was being entered intelligently, knowingly, and voluntarily

despite Defendant’s assertions of innocence.”

      In Alford, the defendant pleaded guilty to second-degree murder pursuant

to a plea agreement so that he could avoid being tried for first-degree murder

and facing the death penalty. 400 U.S. at 28–29, 91 S. Ct. at 162–63. Before

the trial court finally accepted Alford’s plea, the court heard the sworn testimony

of a police officer who summarized the State’s case, heard the testimony of two

other witnesses, and heard the testimony of Alford. Id. at 28, 91 S. Ct. at 162.

Although Alford testified he had not committed the murder and was pleading

guilty to avoid facing the death penalty, the testimony from the witnesses was

that Alford took his gun from his house, stated his intention to kill the victim, and



                                           5
returned home with the declaration that he had carried out the killing. Id. at 28,

91 S. Ct. at 162. After Alford denied his guilt on the witness stand and before

accepting the plea bargain, the trial court inquired whether Alford still wanted to

plead guilty. Id. at 28–29, 91 S. Ct. at 162–63. Alford said, “Yes, sir.” Id. at 29,

91 S. Ct. at 163.

      After his conviction for second-degree murder, Alford sought habeas

corpus relief, claiming his guilty plea was coerced. Id., 91 S. Ct. at 163. The

Supreme Court explained,

             If Alford’s statements were to be credited as sincere
      assertions of his innocence, there obviously existed a factual and
      legal dispute between him and the State. Without more, it might be
      argued that the conviction entered on his guilty plea was invalid,
      since his assertion of innocence negatived any admission of guilt.

Id. at 32, 91 S. Ct. at 165. But because the trial court had heard an account of

the events occurring on the night of the murder, including from Alford’s

acquaintances that Alford had departed from his home with his gun stating his

intention to kill and that he had later declared that he had carried out his

intention, and because Alford never wavered in his desire to plead guilty, the

Supreme Court compared Alford’s plea and circumstances to a plea of nolo

contendere.    Id. at 36, 91 S. Ct. at 167.      Because (as in a plea of nolo

contendere) the Constitution does not bar imposition of a prison sentence upon

an accused who is unwilling to expressly admit his guilt, but who, faced with grim

alternatives, is willing to waive his trial and accept the sentence, the Supreme

Court likewise held that under the facts presented to the trial court in Alford’s


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case, an express admission of guilt was not a constitutional requisite to the

imposition of criminal penalty on Alford and that Alford’s guilty plea was therefore

not involuntarily made despite his professed belief in his innocence. Id. at 38, 91

S. Ct. at 168.

      Trial judges possess broad discretion to refuse a plea even when there is a

plea agreement between the State and the defendant. See Tex. Code Crim.

Proc. Ann. art. 26.13(a)(2) (West Supp. 2015); Rodriguez v. State, 470 S.W.3d

823, 828 (Tex. Crim. App. 2015); Roberts v. State, No. 03-96-00481-CR, 1998

WL 10276, at *1 (Tex. App.—Austin Jan. 15, 1998, pet. ref’d) (not designated for

publication) (recognizing “trial court has absolute discretion in every case to

reject a plea bargain agreement entered into between the state and the

defense”).   And a trial court acts within its discretion in rejecting a plea

agreement when a defendant claims he did not commit the offense. See Allen v.

State, 827 S.W.2d 69, 70 (Tex. App.—Houston [1st Dist.] 1992, no pet.) (holding

trial court did not abuse its discretion by rejecting plea agreement when during

plea hearing defendant testified that he did not remember committing the

offense); see also Roberts, 1998 WL 10276, at *1 (holding trial court did not

abuse its discretion by rejecting plea agreement when defendant vacillated in his

admission of guilt to the offense).

      Carson claimed he did not commit the offense of burglary of a habitation.

Accordingly, the trial court acted within its discretion in rejecting his plea

agreement. See Allen, 827 S.W.2d at 70; see also Roberts, 1998 WL 10276, at


                                         7
*1. And because the trial court here rejected Carson’s guilty plea after Carson

claimed he did not commit the offense—as opposed to in Alford where the trial

court accepted Alford’s guilty plea despite his proclamations that he did not

commit the offense—the holdings of Alford are inapplicable here.                An

examination of whether Carson made an intelligent, knowing, and voluntary plea

of guilty is not necessary because the trial court rejected Carson’s plea of guilty

and Carson was found guilty by a jury after a trial. Consequently, we hold that

Carson’s trial counsel’s failure to request an “Alford hearing” was not

unreasonable under the circumstances, nor did it fall below prevailing

professional norms at the time of the alleged error. See Strickland, 466 U.S. at

688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307. We overrule this portion

of Carson’s issue.

   D. Trial Counsel Was Not Ineffective for Failing to Subpoena Witness

      In the remainder of Carson’s sole issue, he argues that his trial counsel

was ineffective for failing to subpoena Detective Airaghi.      Detective Airaghi

investigated the offense and interviewed the complainant two days after the

incident. The State gave notice to the Dallas Police Department3 for Detective

Airaghi to appear in court but did not call him to testify, and any report he may

have made was not admitted into evidence.


      3
       The trial court noted that it was common practice for the State to send
notice to the police department for an officer to appear in court rather than
subpoena a police officer.


                                        8
      A claim of ineffectiveness based upon trial counsel’s failure to call a

particular witness cannot succeed absent a showing that the witness was

available to testify and that his testimony would have been of some benefit to the

defense. See Ex parte Ramirez v. State, 280 S.W.3d 848, 853 (Tex. Crim. App.

2007). Similarly, trial counsel's failure to present certain evidence is immaterial

absent a showing that the evidence was available and that the evidence would

have affected the outcome of the proceeding. See King v. State, 649 S.W.2d 42,

44 (Tex. Crim. App. 1983).

      Here, Carson’s trial counsel did not intend to call Detective Airaghi to

testify until after hearing the complainant’s testimony. When trial counsel notified

the trial court on the second day of the three-day trial that she wanted to call

Detective Airaghi to testify, the trial court recessed the court at 2:55 p.m. on

February 3, 2015, and offered to authorize payment for a private investigator to

assist trial counsel with locating and serving a subpoena on Detective Airaghi.

The following morning, an investigator for the District Attorney’s office and

Carson’s trial counsel testified that Detective Airaghi was not available to testify

because he had been on medical leave for all of January 2015 and would not

return to work until February 11, 2015.      And although Carson hoped to use




                                         9
Detective Airaghi’s testimony to impeach the complainant’s testimony,4 the record

contains no evidence as to what Detective Airaghi’s testimony would have been.

      Because Carson has not shown that Detective Airaghi was available to

testify or that Detective Airaghi’s testimony would have been favorable to the

defense, Carson has not demonstrated that his trial counsel was ineffective for

failing to subpoena Detective Airaghi. See Ramirez, 280 S.W.3d at 853 (holding

that applicant had failed to show that his trial attorney was ineffective for failing to

call a witness because applicant failed to show that witness was available to

testify or that her testimony would have been favorable to applicant’s case); cf.

Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994) (holding that trial

court did not err by denying hearing on motion for new trial regarding alleged

ineffective assistance in failing to investigate and subpoena witnesses because

appellant’s affidavit did not state what the witnesses’ testimony would have been

and stated only that the witnesses “could have provided crucial exculpatory

information”). Based on the record before us, in light of the strong presumption

of reasonable professional assistance by trial counsel, and in the absence of any

opportunity for trial counsel to explain her strategy for not subpoenaing Detective

Airaghi, we cannot say that Carson has met his burden of showing by a

preponderance of the evidence that his trial counsel’s representation fell below


      4
       Trial counsel stated that Detective Airaghi’s testimony was “just for
impeachment purposes of the complainant. It’s not really substantive in the
sense that it’s not going to make any difference as to Mr. Carson’s position.”


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the standard of prevailing professional norms. See Thompson, 9 S.W.3d at 813.

We therefore overrule the remainder of Carson’s sole issue.5

                                III. CONCLUSION

      Having overruled Carson’s sole issue, we affirm the trial court’s judgment.



                                                  /s/ Sue Walker
                                                  SUE WALKER
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.

SUDDERTH, J., filed a concurring opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 4, 2016




      5
        Because Carson has not satisfied the deficient-performance prong of
Strickland, we need not address the prejudice prong. 466 U.S. at 697, 104 S. Ct.
at 2069 (stating that there is no requirement that a court approach the two-
pronged inquiry in any particular order or even address both components of the
inquiry if the defendant makes an insufficient showing on one component).


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