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Texas Court of Criminal Appeals Criminal Law No. 2066-01, 5/14/2003. Click here for the full text of this decision FACTS: The appellant pleaded guilty to two indictments for impersonating a public servant, one of which alleged that she demanded that someone open a door so that she could arrest the occupants of a room, and the other of which alleged that she told someone else to turn around and be arrested. She pleaded true to allegations of a prior felony conviction. Her written judicial confessions were received in evidence. There was no plea-bargain agreement. Her oral testimony was that she falsely claimed to be a police officer so that she could get back into a motel room where the other people were. The court found that the evidence was sufficient to prove the appellant guilty, and it set the case for “sentencing” three weeks later. When the parties returned to court, a different judge was presiding. The appellant testified that she still wanted to plead guilty and be sentenced by the court, and that she wanted probation so that she could take care of her grandmother. Her counsel asked her if she wanted to say anything else. She began by admitting “that I said I was a police officer, I am guilty of saying that,” but she denied telling anyone “to turn around and place their hands behind their back.” She told the court about being arrested, and that she told the officers she “did it to save myself because the guys were trying to rape me.” Then she related her conversation with the motel manager. After hearing arguments, the judge simply noted appellant had previously received deferred adjudication for a prior offense, her probation had been revoked for that offense, and he did not consider her to be a good candidate for probation. The court sentenced the appellant to five years’ imprisonment. After being sentenced, appellant again pleaded with the court that she did not “deserve to go back to TDC because I just said those words” and that she “didn’t know what else to say . . . at the time.” The visiting judge, however, refused to reconsider his decision. On appeal she argued that the evidence raised the defense of necessity. She claimed, “The court (unknowingly) abused its discretion in not rejecting appellant’s plea of guilty,” and that she did not receive effective assistance of counsel. The divided court of appeals affirmed. HOLDING: Affirmed. It is incorrect to read Moon v. State, 572 S.W.2d 681 (Tex. Cr. App. 1978), as requiring anything more than a decision that a guilty-pleading defendant was guilty as he pleaded, guilty of a lesser included offense, or not guilty. Whether to undertake any additional inquiry into the voluntary and knowing nature of the plea was left “solely within the province of the trial court.” Moondid not create a requirement of a review proceeding in the course of a plea of guilty. It merely recognized the obvious duty of a court to consider the evidence that is before it. The problem in this case is not the failure to provide some ” Moonreview” that Moondoes not require. It is that the visiting judge mistakenly thought that the judge who took the guilty plea three weeks earlier had found the defendant guilty as she pleaded – which would have been one of the outcomes that Moonactually requires when a court hears evidence that raises an issue of guilt. When the judge revealed his mistaken understanding by saying, “I can’t find you not guilty,” the appellant’s only response was to testify, “No, I’m guilty of saying it.” Her counsel said nothing. The appellant not only remained silent about the pendency of a decision on guilt, but she also repeatedly denied any claim of being anything short of guilty. She sought neither acquittal nor withdrawal of her plea nor conviction of a lesser offense; her only thought was to be given another probation. This, in light of the appellant’s criminal history, the sentencing judge was disinclined to do. No one contends that this decision was unreasonable or that the outcome of the trial would have been different if the judge had been reminded that the court had not yet made a finding of guilt. Because the record fails to show the presentation of her complaint to the trial court and the trial court’s ruling on it, which are prerequisites to appellate review, the court holds that the appellant may not present the claim for the first time on appeal. The court addresses whether the appellant was denied the effective assistance of counsel when her attorney did not request a Moonreview. To resolve that issue, the court would have to decide whether counsel’s performance fell below an objective standard of reasonableness and, if it did, whether there is a reasonable probability that, but for that unprofessional performance, the result of the trial would have been different. As this court has said repeatedly, appellate courts can rarely decide the issue of unreasonable performance because the appellate record rarely speaks to the strategic reasons that counsel may have considered. The court recently decided that an appellate record did not show that counsel rendered ineffective assistance by failing to ask for withdrawal of a guilty plea when the defendant’s testimony was inconsistent with guilt or by failing to take other actions, since each of these decisions could have been a reasonable strategy. The proper procedure for raising such a claim is almost always habeas corpus. In such a proceeding, the appellant could undertake to prove that 1. her counsel’s silence fell below the standard of reasonable professionalism; and 2. that the result of the trial would have been different if counsel had taken some action such as informing the court that the issues of guilt were still undecided, or requesting that the appellant be permitted to withdraw her pleas, or arguing that the appellant should have been found not guilty or guilty of lesser offenses, or asking that the adjudication of guilt be deferred while the appellant was placed on probation. OPINION: Womack, J.; Keller, P.J., Meyers, Keasler, Hervey and Cochran, JJ., join. Johnson, J., concurs in the judgment. DISSENT: Holcomb, J.; Price, J., joins. “I respectfully dissent. In each of these two felony cases, the trial court accepted appellant’s guilty plea and, without ever adjudicating her guilty or considering evidence that she was in fact not guilty, sentenced her to a term of imprisonment. The Fifth Court of Appeals affirmed. Aldrich v. State, 53 S.W.3d 460 (Tex.App. – Dallas 2001). Because I believe the trial court’s unobjected-to errors here were fundamental and of the type that could generate public disrespect or suspicion regarding the fairness and accuracy of judicial proceedings, I would, in both cases, reverse the judgments of the courts below. I would also hold that trial counsel rendered ineffective assistance in failing to object to the trial court’s errors. I would not relegate appellant to the difficult and cumbersome remedy of habeas corpus.”

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