                                  NO. 07-11-00135-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                   OCTOBER 4, 2012


                        ERON NEMIQUE KINLEY, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


             FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

            NO. 61,788-E; HONORABLE DOUGLAS WOODBURN, JUDGE


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


                               MEMORANDUM OPINION

      Appellant Eron Nemique Kinley entered an open plea of guilty to possession of

fifty pounds or less but more than five pounds of marijuana. 1          A jury assessed

punishment at confinement in prison for four years and a fine of $5,000. On appeal,

appellant asserts the trial court was obligated, sua sponte, to withdraw appellant’s guilty

plea and enter a plea of not guilty in the face of evidence raising a fact issue of




      1
        See Tex. Health & Safety Code Ann. § 481.121(a) (West 2010). Based on the
quantity of drug possessed, the offense is a felony of the third degree. Id. at §
481.121(b)(4).
innocence, and asserts his counsel erroneously advised him to plead guilty. We will

affirm.


                                       Background


          While unemployed and living in Paris, Tennessee, appellant was contacted by an

acquaintance, Chris Brown. Brown possessed a car rented for four days by Steve

Davis, also an acquaintance of appellant.        Brown asked appellant to drive him to

Memphis, Tennessee, in the rent car as Brown had no driver’s license.         Appellant

accommodated Brown’s request.


          The two remained in Memphis less than twelve hours. While there, Joseph

Penny, a “mutual friend” in Tucson, Arizona, called appellant and Brown and asked

them to come to Tucson. Appellant and Brown then drove to Tucson.


          While in Tucson, Brown had access to the car in the absence of appellant for

about one and a half to two hours. Brown and appellant were in Tucson only three or

four hours before departing for Tennessee.


          As appellant and Brown passed through Potter County on the return trip to

Tennessee they were stopped by a Department of Public Safety trooper. Concerning

the facts of the stop, the record is meager. Nevertheless, during the course of the stop

the record indicates a quantity of marijuana was discovered in the vehicle occupied by

appellant and Brown. Appellant was arrested and indicted.


          The case against appellant proceeded to trial on March 9, 2011.     Appellant

entered an open plea of guilty. The court found appellant guilty and released a jury
                                             2
panel.       The State presented its punishment evidence and rested.       Appellant then

testified. On direct and then cross-examination, he denied knowledge of the marijuana

found in the vehicle. The court rejected appellant’s guilty plea and ordered the case set

for trial.


         The following day, March 10, another jury panel was assembled for trial of

appellant’s case. Before beginning voir dire, the prosecutor announced to the panel

that commencement of trial that morning was delayed by “some meetings,” apparently

with appellant and his counsel. As a result, he continued, appellant intended to plead

guilty. Thus the jury selected would determine punishment only.


         After the jury was impaneled and the indictment read, appellant entered a plea of

guilty. Without reference to the proceedings of the previous day, the court admonished

appellant and accepted his plea. On the instruction of the court, the jury returned a

verdict of guilty.


         At the punishment phase, the State introduced four exhibits and rested.

Appellant presented no punishment evidence.           The jury then returned a verdict

assessing a term of confinement and a fine. Appellant filed a notice of appeal and

motion for new trial. The motion for new trial was overruled by operation of law.


                                          Analysis


         In his first issue, appellant argues the trial court was obligated to withdraw his

guilty plea, sua sponte. As we understand appellant’s argument, error occurred on the

second day of trial when he entered a guilty plea. The trial court, with knowledge of the

                                             3
testimony from the previous day, should have refused to accept the plea and sua

sponte entered a plea of not guilty for appellant.


       To support his argument appellant points us to Griffin v. State where the Court of

Criminal Appeals said, “[i]n any case where evidence is introduced which reasonably

and fairly raises an issue as to the innocence of the accused and is not withdrawn, the

defendant’s guilty plea must be withdrawn and a plea of not guilty must be sua sponte

entered by the court.” 703 S.W.2d 193, 195 (Tex.Crim.App. 1986). We disagree that

Griffin guides our disposition of this issue.


       Appellant never brought to the attention of the trial court the matters he now

contends constitute error. In Mendez v. State, the Court of Criminal Appeals explained

that once a defendant makes a valid waiver of his right to plead not guilty, “it is

appropriate that the defendant be required to take some affirmative action to don the

armor again.” 138 S.W.3d 334, 350 (Tex.Crim.App. 2004). Absent a timely request by

the defendant to withdraw his plea of guilty, he cannot complain on appeal that the trial

court failed to do it for him by acting on its own motion. Id. at 338-39, 350; Perez v.

State, 07-10-0390-CR, 2012 Tex. App. Lexis 3218, at *3-4 (Tex.App.--Amarillo Apr. 24,

2012, no pet.) (mem. op., not designated for publication); Tex. R. App. P. 33.1(a).


       Moreover, the law of Texas does not require a trial judge, when confronted with

evidence that might raise an issue of fact as to a defendant’s guilt, to conduct a sua

sponte proceeding for withdrawing a guilty plea and entering a plea of not guilty for the

defendant. Mendez, 138 S.W.3d at 350. Rather, when a defendant has knowingly



                                                4
waived his right to plead not guilty and entered a guilty plea, it is his obligation to timely

seek withdrawal of his plea. Id. 2


       Because appellant did not complain in the trial court of the error he now alleges,

and even had he complained the duty he envisions is not that of the trial court, we

overrule appellant’s first issue.


       In his second issue, appellant argues his guilty plea was “involuntary because it

was based upon the erroneous advice of trial counsel.”            We will assume for this

discussion that counsel did in fact advise appellant to plead guilty. But aside from the

following colloquy at the March 9 proceeding, the record does not inform us of the

substance of any legal advice appellant received.


       Q. [Appellant’s Counsel]: Before we came here today, Eron, I talked to
       you about the facts and the law in this case. Is that correct?
       A. [Appellant]:       Yes, sir.
       Q.    I explained to you about the law of parties and how--and the law
       around possession. Is that correct?
       A.     Yes, sir.
       Q.     And it was your decision to plead guilty to the charge?
       A.     After you explained it, yes, sir.

       2
          In Mendez, evidence of innocence appeared during the trial on punishment to
a jury after a guilty plea. In the present case, the argument is the trial court was aware
of evidence supporting an issue of fact on innocence from testimony to the court in the
March 9 proceeding. No evidence of innocence was offered before the jury during the
March 10 trial on punishment. Appellant had the right to plead not guilty which he
chose to waive after admonishments. Whether evidence of innocence appears in a
proceeding prior to a guilty plea, as here, or, as in Mendez, appears after the plea
through punishment evidence, we think is a distinction without a difference. In either
situation, we believe Mendez instructs that a defendant must affirmatively and timely
move to withdraw his guilty plea while the trial court is not obligated to sua sponte
withdraw the guilty plea and enter a plea of not guilty.
                                              5
      To successfully attack a guilty plea, an appellant must show that deficiencies in

trial counsel’s representation rendered the plea unknowing and involuntary. Rodriguez

v. State, 899 S.W.2d 658, 666 (Tex.Crim.App. 1995).       A guilty plea based on the

erroneous advice of counsel is not voluntary and knowing. Ex parte Battle, 817 S.W.2d

81, 83 (Tex.Crim.App. 1991). The two-pronged test of Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to challenges of guilty pleas

based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 57-59, 106

S.Ct. 366, 88 L.Ed.2d 203 (1985); Ex parte Adams, 707 S.W.2d 646, 649

(Tex.Crim.App. 1986).


      The first prong of the Strickland test requires that a defendant prove counsel

made such serious errors that he did not function as the “counsel” guaranteed by the

Sixth Amendment. Strickland, 466 U.S. at 687. Appellant must show that counsel’s

performance was unreasonable under prevailing professional norms and that the

challenged action was not sound trial strategy. Id. at 689-90. The second Strickland

prong requires that a defendant demonstrate “a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on going to

trial.” Lockhart, 474 U.S. 52 at 59. “Reasonable probability” means probability of a

degree sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694.


      Our review of counsel’s performance is highly deferential and a strong

presumption exists that counsel’s conduct fell within a wide range of reasonable

professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001); see

Strickland, 466 U.S. at 689 (noting there are countless ways to provide effective

                                           6
assistance in any given case).         To overcome the presumption of reasonable

professional assistance, any allegation of ineffectiveness must be firmly rooted in the

record.   Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999).             In the

majority of cases, the record on direct appeal is inadequate to show that counsel’s

conduct fell below an objectively reasonable standard of performance. See Rylander v.

State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003) (“We have previously stated that the

record on direct appeal will generally not be sufficient to show that counsel’s

representation was so deficient as to meet the first part of the Strickland standard as the

reasonableness of counsel's choices often involves facts that do not appear in the

appellate record”).    Thus, the better course is to pursue the claim in habeas

proceedings. Mitchell, 68 S.W.3d at 642. Absent evidence of counsel’s reasons for the

challenged conduct, we will not conclude the challenged conduct constituted deficient

performance unless the conduct was so outrageous that no competent attorney would

have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001).


      For his conclusion that trial counsel provided erroneous advice rendering his plea

involuntary, appellant cites Ex parte Battle. But Ex parte Battle was a habeas corpus

proceeding where the record included the affidavit testimony of trial counsel explaining

his strategy.   817 S.W.2d at 82, 83-84. Here, on direct appeal, we have no such

evidence.


      On this record, we conclude appellant has not overcome the presumption that

trial counsel exercised reasonable professional judgment in advising appellant.




                                            7
Therefore he has not satisfied the first prong of the Strickland test. 3    We overrule

appellant’s second issue.


                                      Conclusion


      Having overruled appellant’s two issues, we affirm the judgment of the trial court.




                                               James T. Campbell
                                                   Justice




Do not publish.




      3
            We need not examine both Strickland prongs if one cannot be met.
Blumenstetter v. State, 135 S.W.3d 234, 242 (Tex.App.--Texarkana 2004, no pet.)
(citing Strickland, 466 U.S. at 697).

                                           8
