Affirmed and Memorandum Opinion filed January 29, 2015.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-13-01138-CR

                         ANDRE OSAGIE, Appellant

                                       V.
                      THE STATE OF TEXAS, Appellee

                    On Appeal from the 21st District Court
                         Washington County, Texas
                        Trial Court Cause No. 16642

                MEMORANDUM                     OPINION


      Appellant Andre Osagie challenges his conviction for aggravated assault
with a deadly weapon asserting he received ineffective assistance of counsel. See
Tex. Penal Code Ann. § 22.02(a)(2) (West, Westlaw through 2013 3d C.S.). We
affirm.

                 I. FACTUAL AND PROCEDURAL BACKGROUND

      Appellant pleaded “guilty” to aggravated assault with a deadly weapon. The
trial court assessed punishment at confinement for twelve years in the Institutional
Division of the Texas Department of Criminal Justice.

      At the plea hearing, the trial court properly admonished appellant as to
appellant’s right to a jury trial and right to confront and cross-examine witnesses.
The trial court further admonished appellant that aggravated assault with a deadly
weapon is a second-degree felony subject to a range of punishment of two to
twenty years in prison and a fine not to exceed $10,000. The trial court asked
appellant if he understood the plea document he had signed. Appellant asked a
question of his trial counsel off the record, and, back on the record, told the trial
court he had no further questions. Appellant admitted he freely signed the plea
document in which he averred that he understood the range of punishment.

      At a subsequent punishment hearing, the complainant, appellant’s ex-wife,
testified that after a verbal altercation, appellant attacked her in her home.
Appellant threatened the complainant with a knife, and hit her in the face.
Appellant’s former probation supervisor testified that appellant did not
successfully complete a prior probation. While on probation in 2009, appellant
committed three new criminal offenses, and did not pay his fines or supervision
fees. For those reasons, appellant’s probation was revoked.

      Appellant testified that he has been diagnosed with bipolar disorder and
major depressive disorder. Appellant also admitted using illegal drugs. He testified
that his mental health issues and drug addiction led to the commission of the
assault on his ex-wife. Appellant admitted to the assault as described by the
complainant, and asked that he be treated for his mental illness and drug addiction.
At the conclusion of the hearing the trial court imposed a twelve-year sentence.




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                  II. INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIMS

      In a single issue appellant asserts he received ineffective assistance of
counsel because his trial counsel (1) advised him to plead “guilty” in an effort to
get probation when probation was not possible; and (2) failed to properly advise
appellant concerning the collateral consequences of a family violence finding.

      To prevail on an ineffective-assistance claim, a defendant must prove (1)
counsel’s representation fell below the objective standard of reasonableness, and
(2) there is a reasonable probability that but for counsel’s deficiency the result of
the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
687, 694 (1984); see Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App.
1986) (applying Strickland standard to ineffective-assistance claims under the
Texas Constitution).

      In considering an ineffective-assistance claim, we indulge a strong
presumption that counsel’s actions fell within the wide range of reasonable
professional behavior and were motivated by sound trial strategy. Strickland, 466
U.S. at 689; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999);
Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To overcome this
presumption, an appellant’s claim of ineffective assistance of counsel must be
firmly demonstrated in the record. Thompson, 9 S.W.3d at 814. In most cases,
direct appeal is an inadequate vehicle for raising such a claim because the record is
generally undeveloped and cannot adequately reflect the motives behind trial
counsel’s actions. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App.
2003); Thompson, 9 S.W.3d at 813–14. When the record is silent regarding trial
counsel’s strategy, we will not find deficient performance unless the challenged
conduct was “so outrageous that no competent attorney would have engaged in it.”
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

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      A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Instead, we
“review the totality of the representation and the circumstances of each case
without the benefit of hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.
App. 2011).

      Appellant first argues that his plea was rendered involuntary because his trial
counsel incorrectly advised him that he could receive probation. Under article
42.12, section 3(g) of the Code of Criminal Procedure, a judge cannot order
probation for a defendant when it is shown that a deadly weapon was used or
exhibited during the commission of a felony offense. See Tex. Code Crim. Proc.
Ann. art. 42.12, §3(g)(2) (West, Westlaw through 2013 3d C.S.). Appellant argues
that his counsel incorrectly advised him that if he pleaded “guilty” he would
receive probation. Appellant further argues that trial counsel failed to advise him
that the plea form contained a provision relating to a finding of family violence.

      “[M]isinformation concerning a matter, such as probation, about which a
defendant is not constitutionally or statutorily entitled to be informed, may render a
guilty plea involuntary if the defendant shows that his guilty plea was actually
induced by the misinformation.” Brown v. State, 943 S.W.2d 35, 42 (Tex. Crim.
App. 1997). However, “a defendant’s claim he was misinformed by counsel,
standing alone, is not enough for us to hold his plea was involuntary.” Fimberg v.
State, 922 S.W.2d 205, 208 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d). A
claim of ineffective assistance of counsel must be affirmatively supported by the
record. See Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998).
Therefore, in determining the voluntariness of a “guilty” plea, the court should
examine the record as a whole. See Martinez v. State, 981 S.W.2d 195, 197 (Tex.

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Crim. App. 1998). The record should focus specifically on the conduct of trial
counsel. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.—Houston [1st Dist.]
1994 pet. ref’d). Such a record is best developed in the context of an evidentiary
hearing on application for writ of habeas corpus or motion for new trial. Tabora v.
State, 14 S.W.3d 332, 336 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

      Appellant argues his counsel was ineffective in failing to (1) either ask the
trial court to withhold a finding of guilt until sentencing, or request a presentence
investigation report so that the plea and the sentencing could occur on the same
day; and (2) inform appellant that appellant was not eligible for probation, or that
the trial court would be required to make a finding of family violence. Each of
appellant’s complaints is based on appellant’s argument that trial counsel
mistakenly believed the trial judge could place appellant on probation. Appellant
did not make this complaint in his motion for new trial, nor has he filed a habeas
corpus petition.

      The record is silent as to the reasoning and strategy behind counsel’s action
or inaction; accordingly, appellant has not rebutted the strong presumption that
counsel exercised reasonable professional judgment. See Thompson, 9 S.W.3d at
814. Appellant filed a motion for new trial, but did not allege ineffective
assistance. Therefore, appellant did not have an opportunity to develop a record
with regard to whether counsel inappropriately advised him.

      As to appellant’s counsel’s alleged failure to ask the trial court to withhold a
finding of guilt until sentencing or to request a presentence investigation report so
that the plea and the sentencing could occur on the same day, there is no evidence
of counsel’s trial strategy and this conduct is not so outrageous that no competent
attorney would have engaged in it. See Goodspeed, 187 S.W.3d at 392. Whatever
trial counsel’s reasons for pursuing the chosen course, in the absence of a record

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identifying these reasons, we must presume they were made deliberately as part of
sound trial strategy. Because we are unable to conclude that trial counsel’s
performance fell below an objective standard without evidence in the record, we
conclude that appellant has failed to meet the first prong of the Strickland test as to
this complaint. See id.

      As to appellant’s counsel’s alleged failure to inform appellant that he was
not eligible for probation, or that the trial court would be required to make a
finding of family violence, there is no evidence before this court that appellant’s
counsel failed to inform appellant as to either matter. Rather, we have only
appellant’s unsupported allegations. On this record, appellant has failed to prove
that his trial counsel failed to render effective assistance. See Rodriguez v. State,
425 S.W.3d 655, 668–69 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (court
cannot speculate when record is silent as to discussions appellant and his attorney
had regarding appellant’s choice to plead guilty).

      We overrule appellant’s sole issue on appeal and affirm the trial court’s
judgment.




                                        /s/       Kem Thompson Frost
                                                  Chief Justice



Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




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