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Aiken v. State4/23/1999
Sean Xavier Aiken appeals his conviction and the revocation of his community supervision for felony driving while intoxicated (DWI). In eight points of error, appellant contends (1) his plea of true to the allegation in the State's motion to revoke was involuntary, and (2) the indictment was fundamentally defective, rendering his conviction and punishment void. We affirm the trial court's judgment.
Pursuant to a plea bargain agreement, appellant entered a guilty plea to DWI, having been twice before convicted of DWI. In accordance with the plea bargain agreement's terms, the trial court assessed punishment at ten years' confinement and a $1000 fine, suspended the period of confinement, and placed appellant on community supervision for five years. The State subsequently moved to revoke appellant's community supervision, alleging he drove a motor vehicle without a current driver's license. Without benefit of a plea bargain agreement, appellant entered a plea of true to the allegation. The trial court revoked his community supervision and assessed punishment at five years' confinement. Appellant filed a motion for new trial, which the trial court denied following a hearing.
In his first and second points of error, appellant contends his plea of true to the State's allegation that he violated his community supervision conditions by driving without a current driver's license was involuntary because he received ineffective assistance of counsel. Appellant complains trial counsel failed to fully explain the concept of an "open" plea and he believed that, by pleading true to the State's allegation, he would remain on community supervision. We evaluate counsel's effectiveness under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hill v. Lockhart, 474 U.S. 52, 58 (1985); Myers v. State, 780 S.W.2d 441, 445-46 (Tex. App._Texarkana 1989, pet. ref'd). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. The record must affirmatively support allegations of ineffective assistance of counsel. See Smith v. State, 676 S.W.2d 379, 385 (Tex. Crim. App. 1984), cert. denied, 471 U.S. 1061 (1985); Coleman v. State, 860 S.W.2d 496, 499 (Tex. App._Dallas 1993, no pet.).
At the hearing on his motion for new trial, appellant testified that trial counsel advised him he could contest the State's allegation. Appellant explained to counsel that there was nothing to contest, but he wanted to explain the circumstances of his violation to the Court. Counsel then advised him he could " o an open plea and tell the Judge and see how that went." Counsel told appellant, but did not guarantee, that he could be "put back on" community supervision. According to appellant, an "open plea" was not explained to him. Appellant understood, though, that he could "get up to five years." From his testimony, it appears clear that appellant understood the trial court had the full range of punishment available for sentencing. At most, trial counsel advised appellant there was a possibility the trial court could reinstate his community supervision. Counsel's prediction as to punishment, however, does not render appellant's plea involuntary. See West v. State, 702 S.W.2d 629, 633 (Tex. Crim. App. 1996), withdrawn on other grounds by Domanski v. State, 725 S.W.2d 718 (Tex. Crim. App. 1987); Messer v. State, 757 S.W.2d 820, 826-27 (Tex. App._Houston [1st Dist.] 1988, pet. ref'd) (op. on reh'g). We conclude the record does not support appellant's contention that trial counsel's act
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