                                         NO. 07-00-0494-CR
                                         NO. 07-00-0495-CR
                                         NO. 07-00-0496-CR
                                         NO. 07-00-0497-CR

                                    IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                            AT AMARILLO

                                                PANEL E

                                         JANUARY 31, 2003

                               ______________________________


                         PRINCEWILL AZUBURIKE TATA, APPELLANT

                                                    V.

                                  THE STATE OF TEXAS, APPELLEE

                            _________________________________

                FROM THE 337TH DISTRICT COURT OF HARRIS COUNTY;

NOS. 817,718, 817,719, 817,720, & 839,680; HONORABLE DON STRICKLIN, JUDGE

                              _______________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J.*


                                     MEMORANDUM OPINION1


      Following four pleas of guilty without agreed recommendations on punishment on

May 25, 2000, appellant was convicted of the charged offenses, and on August 18, 2000,

was sentenced, as follows:


      *
          John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

      1
          Tex. R. App. P. 47.4.
 aggravated robbery, No. 817,718                         25 years confinement
 robbery, No. 817,719                                    20 years confinement
 robbery, No. 817,720                                    20 years confinement
 carrying a firearm in a prohibited place,               10 years confinement
 No. 839,680


Presenting four issues, he contends (1) the trial court erred in finding him guilty of

aggravated robbery because the evidence contained in the presentence report reflected

that he was only guilty of the lesser offense; (2) trial counsel was ineffective in failing to

move that his guilty plea in cause number 817,718 be withdrawn or in failing to argue

insufficiency of the evidence to support a conviction; (3) his guilty pleas in all four cases

were involuntary where trial counsel failed to explain that under the facts that were

presented in support of cause number 817,718 he could not be found guilty of aggravated

robbery; and (4) the case must be abated and he be provided an opportunity to file an out-

of-time motion for new trial because he was denied effective assistance of counsel during

the period for filing a motion for new trial. Based upon the rationale expressed herein, we

affirm.


          Although appellant was convicted of four separate offenses, his issues all arise from

the facts of the offense charged in cause number 817,718 as reflected by the presentence

report.2 On May 27, 1999, appellant, then 16 years old, approached complainant in a mall



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          The presentence report also reflected that appellant suffers from attention deficit disorder and
several conduct disorders. Although raised in a stable family environment, he has had behavioral problems
since preschool and has been in trouble with the law since 1994. After being certified as an adult he entered
guilty pleas and was convicted of all four charged offenses.

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parking lot and demanded her purse. While asking appellant why he was “doing this,” she

observed a knife. Appellant told complainant he wanted to buy CDs. To distract appellant,

the complainant introduced herself, flattered and flirted with him, and offered to take him

inside the mall and buy the CDs for him. Appellant then dropped the knife and went with

the complainant inside a department store. Complainant, an employee of the store,

convinced appellant to wait in the shoe department while she clocked in for work. Instead,

she contacted the store’s loss prevention personnel, who called mall security.


       Appellant’s first three issues involve related arguments; thus, we will consider them

together. Restated, he first asserts that it was error to find him guilty of aggravated

robbery in cause number 817,718 because the presentence report reflected that he was

only guilty of the lesser offense because the State did not prove complainant was in fear

of imminent bodily injury or death. Then, by his second and third issues, he claims trial

counsel was ineffective for failing to withdraw his guilty plea in cause number 817,718

resulting in all four guilty pleas being involuntary because counsel failed to explain that he

could not have been found guilty of aggravated robbery under the facts presented. We

disagree.


       A robbery becomes an aggravated robbery if the actor “uses or exhibits a deadly

weapon.” Tex. Pen. Code Ann. § 29.03(a)(2) (Vernon 1994). A deadly weapon is anything

that in the manner of its use or intended use is capable of causing death or serious bodily

injury. § 1.07(a)(17)(B). The indictment in cause number 817,718 recites that appellant

did


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       intentionally and knowingly threaten and place [complainant] in fear of
       imminent bodily injury and death, and the Defendant did then and there use
       and exhibit a deadly weapon, to wit: a knife.


(Emphasis added). In McCain v. State, 22 S.W.3d 497, 503 (Tex.Cr.App. 2000), the Court

concluded that a butcher knife partially exposed to complainant was “used” in facilitating

the underlying crime and thus legally sufficient to support a conviction for aggravated

robbery. According to the presentence report, complainant observed a knife as appellant

demanded her purse. The plea proceeding also indicates that appellant knowingly plead

guilty to using a knife at the time of the robbery. Thus, the trial court did not err in finding

appellant guilty of aggravated robbery.


       Appellant’s complaint that trial counsel was ineffective for failing to move that his

guilty plea to aggravated robbery be withdrawn is also without merit. To establish a claim

of ineffective assistance, a defendant must establish that (1) counsel’s performance was

deficient (i.e., fell below an objective standard of reasonableness), and (2) there is a

reasonable probability that but for counsel’s deficient performance, the result of the

proceeding would have been different, a reasonable probability being a probability

sufficient to undermine confidence in the outcome. Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To sustain a challenge of ineffective

assistance, it must be firmly founded in the record, Mercado v. State, 615 S.W.2d 225, 228

(Tex.Cr.App. 1981), and the defendant must overcome the presumption that counsel's

conduct might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771

(Tex.Cr.App. 1994).


                                               4
       Once appellant was admonished regarding his guilty pleas and evidence was

presented, the trial court ordered preparation of a presentence investigation report (PSI)

to consider in assessing punishment. See Tex. Code Crim. Proc. Ann. arts. 37.07, § 3(d)

& 42.12, § 9(a) (Vernon Supp. 2003). Once a case is taken under advisement for a PSI,

the decision to allow withdrawal of a plea is discretionary with the court. Coronado v.

State, 996 S.W.2d 283, 285 (Tex.App.–Waco 1999, no pet.). Appellant asserts that the

PSI demonstrated he was only guilty of the lesser offense of robbery.              However,

complainant’s statement that she observed a knife during the robbery supports that

appellant was guilty of aggravated robbery.        Thus, because the record supports a

conviction for aggravated robbery and appellant has not shown that the trial court would

have permitted him to withdraw his guilty plea, his ineffective claim fails.


       Appellant also contends that counsel’s failure to explain that he could not be guilty

of aggravated robbery rendered all his pleas involuntary. We disagree. A trial court

cannot accept a guilty plea unless it determines that it is freely and voluntarily given. Tex.

Code Crim. Proc. Ann. art. 26.13(b) (Vernon 1989); Burke v. State 80 S.W.3d 82, 93

(Tex.App.–Fort Worth 2002, no pet.). Proper admonishment of a defendant pursuant to

article 26.13 of the Texas Code of Criminal Procedure (Vernon Supp. 2003), constitutes

prima facie evidence that the plea was knowing and voluntary. See Martinez v. State, 981

S.W.2d 195, 197 (Tex.Cr.App. 1998) (en banc). After being properly admonished, the

burden shifts to the defendant to show that he did not fully understand the consequences

of his plea and that he suffered harm. Id.



                                              5
       During the plea proceeding appellant was properly admonished regarding all four

charged offenses and plead guilty to each. The court then went further and asked

appellant to explain in his own words what had happened and he responded:


       Beforehand I’m saying I’m guilty of the allegations and I’m waiving a right to
       a jury trial and I’m fixing to go to a presentence investigation and I’m going
       to put it in your hands or the jury’s hands for disposition.


Appellant also responded affirmatively when the court inquired if he’d had sufficient time

to consult with his lawyer prior to making his decision. Because nothing in the record

indicates that his pleas were involuntary appellant has failed to defeat the prima facie

showing of voluntariness. Issues one, two, and three are overruled.


       By his fourth issue, appellant requests that we abate the appeal and remand the

cause to allow him to file an out-of-time motion for new trial to assert that he was denied

effective assistance of counsel during the period for filing such a motion. We disagree.

We recognize that the 30-day period for filing a motion for new trial is a critical stage of a

criminal proceeding in which defendants are entitled to assistance of counsel. Jack v.

State, 64 S.W.3d 694, 696 (Tex.App.–Houston [1st Dist.] 2002, pet. granted). In Jack, the

appeal was abated because appellate counsel was not appointed until after the expiration

of the 30-day deadline in which to file a motion leaving the defendant without the benefit

of counsel during a critical stage of the proceeding. Id. at 697. Here, however, appellant

admits in his brief that his trial counsel “remained on the case for four months after

sentencing.”



                                              6
       A factor to consider in determining whether to allow an out-of-time motion for new

trial is whether the issue complained of can serve as the basis for a post-conviction writ

of habeas corpus. Pettway v. State, 4 S.W.3d 390, 391 (Tex.App.–Houston [1st Dist.]

1999, pet. ref’d). Ineffective assistance of counsel may be raised in a post-conviction

habeas proceeding. Id. Thus, we decline to suspend the operation of the Texas Rules of

Appellate Procedure and abate the appeal and remand the cause to permit an out-of-time

motion for new trial. Issue four is overruled.


       Accordingly, the judgment of the trial court is affirmed.


                                                 Per Curiam
Do not publish.




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