Edmonds, Mark Julian v. State

AFFIRM and Opinion Filed May 31, 2000

In The

Court of Appeals

Jfftftl? ©tatrttt of teas at Dallas

No. 05-99-01283-CR

No. 05-99-01284-CR

MARK JULIAN EDMONDS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 195th Judicial DistrictCourt Dallas County, Texas

Trial Court Cause Nos. F97-23102-UN, F97-23103-UN

OPINION

Before Justices James, Wright, and Bridges Opinion By Justice Wright

Mark Julian Edmonds appeals his convictions for criminal trespass. Appellant was indicted for two counts of burglary of ahabitation, but pursuant to plea bargain agreements, pleaded nolo contendere to the misdemeanor offenses of criminal trespass. The trial court then assessed punishment at confinement in the Dallas County Jail for one year in each case. In asingle point of error, appellant contends that he did not receive the effective assistance of counsel. We overrule appellant's point of error and affirm the trial court's judgments.

To prevail on his claim of ineffective assistance of counsel, appellant must show (1) i counsel's performance was deficient; and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); Kober v. State, 988 S.W.2d 230,235 (Tex. Crim. App. 1999). To satisfy the prejudice prong ofStrickland, appellant must show that there is areasonable probability that, but for counsel's unprofessional errors, the result ofthe proceeding would have been different. Kober, 988 S.W.2d at 235. In the context of a nolo contendere plea, that standard requires appellant to show a reasonable probability that but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Id.; ExparteMorrow, 952 S.W.2d 530, 536 (Tex.Crim.App. 1997) (citing Hillv. Lockhart, MA U.S. 52, 56 (1985)). It is not enough for appellant to simply claim that his lawyer was ineffective because he failed to request arecord be made ofthe plea proceedings. Rivera v. State, 981 S.W.2d 336,339 (Tex. App.-Houston [14th Dist] 1998, no pet.). Appellant must show some injury resulting from counsel's failure to request atranscription ofthe proceeding. Id Here, appellant argues that he received ineffective assistance ofcounsel because counsel failed to request arecord be made ofthe plea proceedings. Appellant does not contend that his pleas were involuntary or any specific error occurred during the plea proceedings. Rather, appellant argues that counsel's failure to request areporter's record is per se ineffective because "there is no record to determine if[his] pleas were made freely and voluntarily [and] there is no way to determine if [he] was properly admonished." We disagree.

Appellant received and signed written admonishments complying with the requirements of the code ofcriminal procedure. See TEX. Code Crim. Proc. Ann. art. 26.13(a),(d) (Vernon 1989 &Supp. 2000); Kirk v. State, 949 S.W.2d 769, 771 (Tex. App.-Dallas 1997, pet. refd). The trial court's admonishments create aprima facie showing that appellant entered his pleas knowingly and voluntarily. See Kirk, 949 S.W.2d at 771. Thus, the burden shifts to appellant to show he did not understand theconsequences ofhisplea. Contrary to appellant's suggestion, appellant isnotlimited to use of the reporter's record from the plea proceeding to meet this burden. Appellant could, for example, have filed a motion for new trial and developed the record during the hearing on the motion. Appellant may also apply for a writ of habeas corpus, and use the hearing to develop the facts and circumstances of the trial and the rationale behind counsel's actions. See generally Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). Because appellant has failed to show a specific injury resulting from counsel's failure to request atranscription ofthe plea proceeding, we overrule his sole point of error.

Do Not Publish

Tex. R. App. P. 47

Fifth Court of Appeals

Case Attorney Address List

Page: 1 Date Printed: 05/31/2000

Case Number: 05-99-01284-CR Date Filed: 08/05/1999 Style: Edmonds, Mark Julian v.

The State of Texas

Trial Judge: Clements, Dariel

Trial Court Reporter: Stromberg, Peri

Trial Court: 195TH DISTRICT COURT Trial County: DALLAS

APP Deborah Farris

ATT 006843200

4136 High Summit Drive

Dallas, TX 75244

Phone 972/484-2895

Fax 972/484-2019

STA William T. (Bill) Hill, Jr.

ATT 009669000

ATTN: APPELLATE SECTION

Frank Crowley Courts Bldg., 10thFL

133 N. Industrial Blvd. LB 19

Dallas, TX 75207

Phone 214/653-3845

Fax

STA Ms. Christina O'neil

ATT 000795003

DISTRICT ATTORNEY OFFICE

133 NORTH INDUSTRIAL BLVD

LOCKBOX 19

Dallas, Tx 75207

Phone 214/653-3625 214/653-5837

Fax 214/653-3643 Court of Appeals $\it\\ Itstrtct of Stexas at Ballas

JUDGMENT

MARK JULIAN EDMONDS, Appellant Appeal from the 195th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F97- No. 05-99-01284-CR V. 23103-UN).

Opinion delivered by Justice Wright, THE STATE OF TEXAS, Appellee Justices James and Bridges participating.

Based on the Court's opinion ofthis date, the judgment ofthe trial court is AFFIRMED.

Judgment entered May 31, 2000.

Court of Appeals

Sfftftlj district of Stexas at Dallas

JUDGMENT

MARK JULIAN EDMONDS, Appellant Appeal from the 195th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F97- No. 05-99-01284-CR V. 23103-UN).

Opinion delivered by Justice Wright, THE STATE OF TEXAS, Appellee Justices James and Bridges participating.

Based on the Court's opinion ofthis date, the judgment ofthe trial court is AFFIRMED.

JudgmententeredMay 31, 2000.