Affirmed and Memorandum Opinion filed October 29, 2015.




                                         In The

                        Fourteenth Court of Appeals

                                  NO. 14-14-00817-CR

                     DYLAN BRADLEY CIMINERA, Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee

                       On Appeal from the 240th District Court
                               Fort Bend County, Texas
                        Trial Court Cause No. 13-DCR-063595

                    MEMORANDUM                       OPINION


      Appellant Dylan Bradley Ciminera appeals his conviction for aggravated
robbery–serious bodily injury. In a single issue appellant contends the trial court abused
its discretion in overruling appellant’s motion for new trial. We affirm.

                      FACTUAL AND PROCEDURAL BACKGROUND

      Appellant entered a guilty plea to the offense of aggravated robbery–serious
bodily injury. Appellant received the panoply of admonishments required by article
26.13 of the Code of Criminal Procedure and placed his initials next to each applicable
admonishment including a paragraph admonishing appellant that the range of
punishment for the offense was five to ninety-nine years in prison. Appellant entered his
plea without an agreed recommendation on punishment and filed a motion for deferred
adjudication community supervision.

          Prior to accepting appellant’s guilty plea, the trial court orally admonished him as
to the range of punishment. Appellant stated that he understood the range of
punishment, waived his right to a jury trial, and was not coerced into pleading guilty by
threats or promises. Appellant stated he had conferred with counsel and that he believed
counsel had “done a good job representing” him. Prior to hearing evidence on
punishment, the following colloquy occurred between the trial court and appellant:

          [THE COURT]:All right. Before proceeding to pronounce sentence in the
          case, in order to preserve the Court’s authority to consider deferred
          adjudication, understanding that, Mr. Ciminera, that just — Mr. Ciminera,
          while I’m preserving the right to consider it, that does not mean I’m going
          to automatically grant it. You understand that?
          THE DEFENDANT: Yes, your Honor.
          THE COURT: Has anybody promised you that if you pled guilty today and
          gave up all these rights I would give you deferred adjudication?
          THE DEFENDANT: No, your Honor. Mr. Levy [defense counsel] has
          made that very clear to me.

          At the punishment hearing both appellant and the complainant testified. They are
two recent high school graduates who were engaged in selling illegal drugs. Appellant
believed that the complainant “set him up” to be robbed. In retaliation appellant went to
the complainant’s home with a gun,1 and demanded money from the complainant.
During the robbery appellant hit the complainant in the face, shattering his jaw. At the

          1
              The parties dispute whether appellant pointed the gun at the complainant or left it in his
pocket.

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conclusion of the hearing, the trial court sentenced appellant to seven years in prison.

      Following his sentencing appellant filed a motion for new trial in which he
alleged he received ineffective assistance of counsel, and that he was advised by counsel
Elan Levy that if he plead guilty, “it looked like the judge would give him 10 years
deferred adjudication and 6 months in jail.”

      The trial court held a hearing on the motion for new trial. At the hearing,
appellant testified that he plead guilty because his counsel told him that if he went to
trial “with the evidence that they would basically crucify [him].” Appellant also testified
that Levy told him “there was a good chance that [he] would get deferred adjudication,
and that [appellant’s co-defendant] would not be sent to prison.” Appellant “knew there
was a possibility that [he] could get the five years,” but was confident in his lawyer’s
representation that he would get deferred adjudication and six months in county jail.
Appellant agreed that his trial counsel “worked hard” for him, answered all his and his
family’s questions, and investigated the case to the best of his ability.

      Appellant’s trial counsel also testified at the hearing on the motion for new trial.
Levy testified that he requested permission to personally write the presentence
investigation (PSI) report for appellant because he felt it would aid appellant and the
court in the assessment of punishment. Levy “spent hours” with appellant to develop
appellant’s personal and social background in addition to meeting with appellant’s
parents in an effort to properly include information in the PSI report. Levy testified that
he did not promise appellant that he would receive deferred adjudication in exchange for
his guilty plea. At the conclusion of the hearing, the trial court denied appellant’s
motion for new trial.

                                   ISSUE AND ANALYSIS

      In a single issue, appellant contends the trial court abused its discretion in


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overruling appellant’s motion for new trial. Appellant’s motion alleged that counsel
rendered ineffective assistance by misinforming appellant about the punishment he
would receive if he plead guilty.

      To establish ineffective assistance of counsel, a criminal defendant must prove by
a preponderance of the evidence that (1) his trial counsel’s representation was deficient
in that it fell below the standard of prevailing professional norms and (2) there is a
reasonable probability that, but for counsel’s deficiency, the result of the proceeding
would have been different. See Strickland v. Washington, 466 U.S. 668, 687 (1984);
Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Failure to show either
deficient performance or sufficient prejudice defeats the claim of ineffectiveness.
Strickland, 466 U.S. at 697.

      “Misinformation 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 for 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); Tabora v. State, 14 S.W.3d 332, 336 (Tex. App.—
Houston [14th Dist.] 2000, no pet.). 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. Crim. App. 1998). The court first must make a threshold
determination that counsel erroneously and incompetently advised the appellant before
the second factor, concerning prejudice to the appellant, is reached. Labib v. State, 239
S.W.3d 322, 333 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

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       At the original plea hearing, appellant testified that he understood the court was
reserving the possibility of deferred adjudication, but was not promising to grant it.
Appellant also testified that Levy made it “very clear” to appellant that the court would
not automatically assess deferred adjudication. At the hearing on the motion for new
trial, appellant testified that he “knew there was a possibility that [he] could get the five
years,” but was confident in his lawyer’s representation that he would get deferred
adjudication and six months in county jail. Appellant’s counsel testified that he did not
advise appellant that he would receive deferred adjudication in exchange for pleading
guilty.

       On appeal, appellant contends that “although he was not specifically promised
that he would receive deferred adjudication, the summary of the discussions he had with
counsel in their entirety led him to reasonably believe that he would receive probation.”
The record does not reflect that counsel erroneously and incompetently advised
appellant; therefore, appellant has failed to meet the first prong of the Strickland test.2
Accordingly, we overrule appellant’s sole issue.

       We affirm the trial court’s judgment.


                                             /s/       John Donovan
                                                       Justice



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

       2
         In cases in which courts have held a guilty plea to have been involuntary, the record contains
confirmation of the misinformation by counsel, or documents augmenting the defendant’s testimony
that reveal the misinformation and show its conveyance to the defendant. See, e.g., Ex parte Battle, 817
S.W.2d 81 (Tex. Crim. App. 1991); Ex parte Griffin, 679 S.W.2d 15 (Tex. Crim. App. 1984); Ex parte
Burns, 601 S.W.2d 370 (Tex. Crim. App. 1980); Helton v. State, 909 S.W.2d 298 (Tex. App.—
Beaumont 1995, pet. ref’d).

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