                                   NO. 07-05-0242-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                FEBRUARY 13, 2006
                          ______________________________

                                VINCENT GENE SMITH,

                                                               Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

            FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY;

                NO. 0887758D; HON. JAMES R. WILSON, PRESIDING
                       _______________________________

                                     Opinion
                         _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Vincent Gene Smith appeals his conviction for aggravated sexual assault of a child.

The conviction was based on his open plea of guilty and his judicial admission to the

veracity of the allegations in the indictment. He was sentenced to 45 years imprisonment.

His sole issue involves the effectiveness of his trial counsel. The latter was purportedly

ineffective because he allowed appellant to plead guilty even though he (counsel) thought

appellant not guilty of the charged offense. Nowhere in his brief does appellant contest his
guilt. Nor does he cite us to admissible evidence of his innocence. Similarly absent is

argument suggesting that appellant was not advised by counsel of his (appellant’s) options

or the strength or weakness of the evidence indicating guilt. Again, appellant simply posits

that an attorney who may subjectively believe that his client is not guilty of the charged

offense fails to provide reasonable representation if the client nonetheless decides to plead

guilty after conversing with his attorney. We overrule the issue.

       Though appellant cited to various authorities throughout his brief, none addressed

the specific contention before us. This may be so because it is well recognized that

attorneys have the duty to “exercise independent professional judgment and render candid

advice.” TEX . DISCIPLINARY R. PROF’L CONDUCT 2.01, reprinted in TEX . GOV’T CODE ANN .,

tit. 2, subtit.G app. A (Vernon 2005) (TEX . STATE BAR R. art. X, §9). So too must he

provide his client “straightforward advice expressing [his] honest assessment.” Id. cmt 1.

And, while such “advice often involves unpleasant facts and alternatives that a client may

be disinclined to confront,” he remains obligated to provide it. Id.

       Simply put, an attorney is an advisor whose duty it is to foster his client’s ability to

arrive at informed decisions. And, this is no less true than in a criminal proceeding. No

one can deny that in such a setting, counsel must represent his client irrespective of his

personal views regarding the accused’s guilt. Gomez v. State, 704 S.W.2d 770, 771-72

(Tex. Crim. App. 1985). Nor can it be denied that when discussing the nature of an

accused’s plea, counsel’s duty is restricted to advising his client since the decision to plea

is actually that of the client. Ex parte Wilson, 724 S.W.2d 72, 73-74 (Tex. Crim. App.

1987). With this said, we turn to the record before us.



                                              2
        While counsel said that he did not believe appellant to be guilty of aggravated

sexual assault of a child, he also opined that the jury looked “grim.” So too were both he

and appellant taken aback when the victim appeared at trial to testify. They had not

expected that. Thereafter, they discussed the circumstances, and counsel opined that he

believed if appellant pled guilty and sentencing was left to the trial judge, then appellant

would have a greater likelihood of being placed on community supervision. So too did he

tell appellant that the trial court also had the option of assessing punishment anywhere

from five to 99 years imprisonment. After this discussion, appellant signed the judicial

confession admitting to his commission of the crime, pled guilty, and told the trial court that

his plea was uninfluenced by “any hope or promise of reward” or by “fear” or “persuasion.”

He also admitted that his plea was freely and voluntarily given and that he was satisfied

with his counsel’s representation. Given this, we cannot say that trial counsel was

ineffective simply because he allowed appellant to decide whether to plead guilty while

harboring doubts as to appellant’s actual guilt.1

        Accordingly, the judgment of the trial court is affirmed.



                                                                    Brian Quinn
                                                                    Chief Justice

Publish.




        1
         To the extent that appellant may also be arguing that his counsel was ineffective because he did not
receive com m unity supervision, we cite Flore s v. S tate, 18 S.W .3d 796 (Te x. App.–Aus tin 2000, no pet.).
The re we are told that counsel is not ineffective simply because he advised the defendant to plead guilty under
the expectation that the court would either probate the sentence or impose a lighter sentence than that
impos ed. Id. at 800.

                                                       3
