Mallett v. State, 152-01.

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation65 S.W.3d 59
Docket NumberNo. 152-01.,152-01.
PartiesFidel MALLETT, Appellant, v. The STATE of Texas.
Decision Date19 December 2001
OPINION

KEASLER, J., delivered the opinion of the Court joined by KELLER, P.J., and WOMACK, HERVEY, HOLCOMB, and COCHRAN, J.J.

Finding counsel to be ineffective, the Thirteenth Court of Appeals reversed Fidel Mallett's conviction despite there being nothing in the record to reveal counsel's motivation for his decisions. Since the record is silent, we presume that counsel's decisions were based on reasonable professional judgment, and we reverse the appellate court's judgment.

Facts and Procedural History

Corpus Christi Freightliner hired Mallett to paint a truck for $800. After examining the finished product, the company's general manager decided that the paint job was "rough" and asked Mallett to go back over the truck with some clear coat. In retaliation, Mallett broke into the company's garage a few days later with a friend.

Mallett and his companion stole several air wrenches, a welder, a cut-off saw, and a blue money bag. They also took a pick-up truck and the tractor portion of an eighteen-wheeler. The pair made their getaway by driving the vehicles through a fence surrounding the company's shop area. Some time later, Nueces County Constable Oscar Mendoza saw Mallett speeding in the rig and pulled him over. As Mendoza stopped his car behind the vehicle, Mallett put the rig in reverse and backed over the officer's car. The rig forced the police car several yards back and landed Mendoza in a field. Mallett then managed to separate the rig from the police car and began to grind the gears of the semi-tractor. Fearing that Mallett was preparing to reverse and ram his car again, Mendoza fired several shots at the rig, but Mallett drove away.

The State charged Mallett in one indictment with four offenses: the aggravated assault of Officer Mendoza; criminal mischief for damaging the rig by driving it into the police car; burglary of a building with intent to commit theft for his breaking into the business; and theft for taking the rig. Mallett entered an open plea and the trial judge sentenced him to concurrent terms of confinement. Mallett then filed a pro se letter with the trial court requesting a new trial and claiming his plea was involuntary. The same day, Mallett's attorney filed a motion for new trial. At the hearing on the motion, Mallett was not present and Mallett's lawyer did not make any arguments.

On appeal, Mallett argued, among other alleged errors, that trial counsel provided ineffective assistance. The Court of Appeals agreed, finding five instances of deficient performance and concluding that Mallett was harmed.1

We granted the State's petition for discretionary review to decide whether the appellate court erred in finding counsel's performance deficient when the record provides no explanation for the motivation behind counsel's decisions. We also granted review to determine if the Court of Appeals conducted a proper prejudice analysis.

Ineffective Assistance of Counsel— Legal Background

To prevail on a claim of ineffective assistance of counsel, an appellant must establish that his lawyer's performance fell below an objective standard of reasonableness and that there is a "reasonable probability" the result of the proceeding would have been different but for counsel's deficient performance.2 A reasonable probability is a probability sufficient to undermine confidence in the outcome.3 The purpose of this two-pronged test is to judge whether counsel's conduct so compromised the proper functioning of the adversarial process that the trial cannot be said to have produced a reliable result.4

The review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within a wide range of reasonable professional assistance.5 When the record is silent on the motivations underlying counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel's conduct was reasonable.6 We explained in Thompson v. State that in order to defeat Strickland's presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness."7 In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions.8

Analysis

I.

The appellate court first criticized counsel for not moving to withdraw Mallett's guilty plea after he testified that he did not intend to drive over Officer Mendoza's car.9 Mallett testified as follows:

Defense Counsel: Okay. And if—Why did you—Why did you—Why did you back up your—that truck over Officer Mendoza?

Mallett: I panicked. I didn't know what to do.

Defense Counsel: You realize you could have killed him?

Mallett: Now I do, but at the moment, no.

Defense Counsel: You didn't have any intent to do that—

Mallett: No, I didn't.

Defense Counsel:—to hurt him? You just panicked?

Mallett: Yes.

* * *

Prosecutor: You didn't intentionally do all this?

Mallett: Well—

Prosecutor: Yes or no?

Mallett:—not—Yes. I—

The Court: I'm sorry. Your answer was?

Mallett: Yes.

Prosecutor: Well, you intentionally did this or you did not? I'm confused by the answer.

Mallett: I did not intentionally try to run over Mr. Mendoza.

Prosecutor: But you intentionally jumped a fence and broke into a building and you and your buddies took two trucks. That was intentional, right?

Mallett: At the time, yes.

* * *

The Court: What did you intend to do when you backed up the big truck, the rig, onto Deputy Mendoza's car?

Mallett: I wanted to leave, Your Honor, but the truck—that was the first time I had driven a semi. And—

The Court: Well, if I understood the testimony correctly from Deputy Mendoza, you reversed the truck, you went back, you went towards the rear to where he was. Seems to me that took a lot of thinking.

Mallett: Your Honor, the gears on the semi are different from a regular car and I wasn't thinking straight. I was just trying to put it into a gear so I can leave.

The Court: Well, weren't you going forward at the time?

Mallett: I was parked.

The Court: Why were you going to leave?

Mallett: I got scared.

The Court: Of what?

Mallett: I don't know. I just got scared. I panicked.

Mallett told the trial court he was pleading guilty "because all the charges are, in fact, true," that he was pleading guilty "freely and voluntarily," and that it was his "own personal decision to plead guilty." Additionally, the trial judge warned Mallett that once his guilty plea was accepted and punishment was assessed, it would be too late to withdraw his plea. After assessing punishment the judge gave Mallett an opportunity to say why the sentences should not be imposed, and Mallett declined. The record shows appellant was properly admonished, and this establishes a prima facie case that the plea was knowing and voluntary.10

The Court of Appeals concluded that, because Mallett testified that his actions were not intentional, counsel should have asked the court to allow Mallett to withdraw his plea.11 While Mallett did testify that his actions were not intentional, he also testified that his actions were intentional. The dissent argues that Mallett could have withdrawn his plea as a matter of right before the court assessed punishment.12 But this assumes Mallett wanted to withdraw his plea, which is not supported by his equivocal testimony. Furthermore, even if Mallett's testimony was read as a protestation of innocence, all sorts of considerations may motivate a guilty plea.13

The record does not indicate why counsel did not request that Mallett's guilty plea be withdrawn. Defense counsel may have felt that he could not rebut the recitations in the record that Mallett's plea was freely and voluntarily entered. Notwithstanding, speculation on counsel's strategy is immaterial to our determination that counsel has not been proven ineffective.14 Again, when the record is silent as to why counsel failed to object, it is difficult for a defendant to overcome the first prong of Strickland.15

II.

Next, the Court of Appeals concluded that counsel erred in failing to object to the entry of judgments of conviction on counts that the prosecutor said he would abandon.16 But as the appellate court itself recognized, these counts were never actually abandoned.17 During the hearing, the following transpired:

Prosecutor: Well, I don't know how to handle this part. I think the Court is familiar there was some other "AR" numbers. One of them was a UUMV. I wrongly presumed that UUMV was the UUMV here. However, I'm told today it's an unrelated UUMV. [Defense Counsel] and I had discussed the possibility about I would no-charge it as long as the Court would consider it. And as far as the evidence to consider it, [Defense Counsel] told me his client would be willing to testify and tell you what had happened during this other UUMV, so I'd like to call the Defendant.

The Court: You're asking—

Prosecutor: For you to consider something else the Defendant may have done.

The Court: And to dismiss it under 12.45 of the Penal Code, is that what you're asking me to do?

Prosecutor: Basically, yes.

The Court: Well, the Defendant would have to enter an admission of guilt to that offense for there to be an absolute dismissal.

Prosecutor: Well, I guess from what I understand from the—from Defense Counsel, it's something for the Court to consider but the way they tell it he may—he's not necessarily guilty. It's more in the way I'll agree to no-charge it but I want the Defendant's story. It's really not a 12.45 cause I don't believe the Defendant's going to really accept full responsibility, but I think it would be interesting to ...

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