Javier Barrios Guerra pleaded guilty without a plea bargain to first degree murder. The trial court found the offense was committed with a deadly weapon and sentenced Guerra to confinement for life in the Texas Department of Criminal Justice, Institutional Division. Guerra's sole issue on appeal is that his plea was involuntary due to ineffective assistance of counsel.

In his brief, Guerra charges that defense counsel's actions induced him to enter a plea without recommendation. Specifically, he alleges defense counsel failed to diligently investigate his defense of temporary insanity. Guerra's brief sets forth his testimony from the hearing on his motion for new trial concerning the failure of defense counsel to discuss temporary insanity with him but does not indicate where in the record we might find evidence that such a defense was feasible. Defense counsel testified he spoke with Guerra's family, and Deacon Trevino, whom Guerra met with before the incident occurred. Counsel found "absolutely no history of mental illness" and no indication that Guerra was "out of character" when he met with Trevino. When admonishing Guerra, the trial court specifically questioned him about his state of mind at the time of the offense. Guerra said, "Yes" when asked if he was competent and of sound mind at the time of the offense on May 19, 2001. Guerra testified at the hearing he never had any mental health problems, his other criminal charges never involved sanity issues, and he never told his attorney he needed a mental exam. Guerra also testified he had graduated from high school and had successfully held a number of jobs including that of a machine operator and running his own shop. The record before this court contains no evidence Guerra was temporarily insane at the time of the murder. Thus there has been no showing the defense of temporary insanity was viable.

Guerra also argues that "Counsel's belief that a new Judge would be more lenient than a jury" lead to his pleading guilty without a recommendation. Guerra testified that when he pleaded guilty he expected to get thirty years. He said defense counsel told him the judge was going to be lenient and he would probably get thirty years. Guerra testified that counsel told him for this type of case, people get thirty or thirty-five years, that the most he could get was thirty or thirty-five years, and that counsel never told him he would get more than that. The record reflects the trial court fully admonished Guerra about the range of punishment and Guerra indicated he understood.

Defense counsel testified that Guerra did not want to go before a jury and wanted to take responsibility. According to defense counsel, he informed Guerra of all his options but did not make a recommendation. Counsel testified he informed Guerra there were some issues that could be raised in a jury trial that could mitigate punishment but Guerra wanted to take responsibility. At that point, counsel felt they did not need to go to a jury. Counsel testified he did not tell Guerra the judge would be lenient. Counsel did not recall telling Guerra he would more than likely get thirty years. Counsel said he told Guerra that under the circumstances, if they went to trial, the best they could do was thirty years. Counsel testified he told Guerra what the full range of punishment was and may have told him that sixty years is the equivalent of a life sentence. Counsel testified they discussed the fact that Guerra would first be eligible for parole in thirty years whether he was sentenced to life or sixty years. No plea bargain was ever offered.

The evidence regarding Guerra's understanding of the punishment range is conflicted. The trial court resolved that conflict when it denied the motion for new trial and we cannot say the trial court abused its discretion. See Waldie v. State, 923 S.W.2d 152, 155 (Tex. App.--Beaumont 1996, no pet.). Further, to establish ineffective assistance, Guerra must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Considering the nature of the murder and the number of eyewitnesses, we are unable to say an open plea of guilty could not be reasonable trial strategy. Id.

We apply a strong presumption that counsel's actions fell within the wide range of reasonable professional assistance. See Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997). Guerra has not met his burden to show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. Id. Issue one is overruled and the judgment of the trial court is AFFIRMED.

PER CURIAM

Submitted on November 6, 2002

Opinion Delivered November 13, 2002

Do not publish

Before Walker, C.J., Burgess, and Gaultney, JJ.