Affirmed and Memorandum Opinion filed September 5, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00672-CR

ROCKY CHRISTOPHER BURNETT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Cause No. 10CR3812

M E M O R A N D U M O P I N I O N

Appellant Rocky Christopher Burnett pleaded guilty to felony theft and was 

sentenced to seven years’ confinement. On appeal, he argues that his guilty plea 

was involuntary. We affirm. 

BACKGROUND

From July 3, 2009 to September 4, 2010, the appellant made several 
unauthorized charges on a credit card that belonged to his mother’s employer; over 

that 14-month period, the appellant spent more than $120,000 on the card. On 

December 16, 2010, the appellant was indicted for the second degree felony of 

theft of property valued between $100,000 and $200,000.

The appellant signed a document titled “Written Plea AdmonishmentsWaivers-Stipulations” on February 22, 2012. That document explained that the 

appellant was charged with a second degree felony and that, if convicted, he would 

face punishment of “[a] term of not more than 20 years or less than 2 years in the 

Institutional Division of the Texas Department of Criminal Justice[] and in 

addition, a possible fine not to exceed $10,000.00.” A handwritten notation states 

that there is no agreed recommendation on punishment and that the issue would be 

determined by the trial court.

The document expressly notes the appellant’s knowledge of the possible 

consequences of his plea and his satisfaction with his attorney’s performance:

Comes now the Defendant, joined by counsel, and states that I 

understand the foregoing admonishments from the Court and am 

aware of the consequences of my plea. I further state that I am 

mentally competent, [and] that my plea is freely and voluntarily made. 

. . . I am totally satisfied with the representation provided by my 

attorney who provided fully effective and competent representation . . 

. . I completely understand all of the written waivers, stipulations and 

motions herein stated in connection with the plea, and each was done 

freely, voluntarily, and intelligently.

These sentiments are reiterated immediately above the appellant’s signature, in a 

paragraph titled “Guilty Plea,” which provides:

Understanding and agreeing to all of the above, I freely and 

voluntarily plead GUILTY and confess my GUILT to having 

committed each and every element of the offense alleged in the 

indictment or information by which I have been charged in this cause 
and I agree and stipulate that the facts contained in the indictment or 

information are true and correct and constitute the evidence in this 

case.

On June 20, 2012, the trial court sentenced the appellant to seven years’ 

confinement; this appeal followed. On July 5, 2012, the appellant’s trial counsel 

filed a motion to withdraw as counsel of record, citing conflicts that had arisen 

between the appellant and himself. By July 16, 2012, the appellant had retained a 

new attorney, and he filed a motion for new trial on July 20, 2012, alleging that his 

guilty plea had been rendered involuntary by the ineffective assistance of his trial 

counsel.

On appeal, the appellant argues that (1) his guilty plea should be nullified as 

involuntary because he “was not made aware that a prison sentence was even a 

remote possibility,” and (2) his trial counsel rendered ineffective assistance for 

failing to inform him “about even a remote possibility of prison time.”

Because both arguments rely on the allegation that the appellant’s trial 

counsel misinformed the appellant about the consequences of his plea, we analyze 

them together to determine whether the appellant’s guilty plea was rendered 

involuntary by the ineffective assistance of his trial counsel.

ANALYSIS

No plea of guilty or nolo contendere shall be accepted by the court unless it 

appears that the defendant is mentally competent and the plea is voluntary. Tex. 

Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2012). “It is a due process 

violation for a trial court to accept a guilty plea without an affirmative showing 

‘spread on the record’ that the guilty plea was intelligently and knowingly made.” 

Fuller v. State, 253 S.W.3d 220, 229 (Tex. Crim. App. 2008) (quoting Boykin v. 

Alabama, 395 U.S. 238, 242 (1969)). “The record must ‘affirmatively disclose that 
a defendant who pleaded guilty entered his plea understandingly and voluntarily.’” 

Fuller, 253 S.W.3d at 229 (quoting Brady v. United States, 397 U.S. 742, 747 n.4 

(1970)). 

In considering the voluntariness of a guilty plea, the court should examine 

the record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 

1998). A record that indicates that the trial court properly admonished the 

defendant provides a prima facie showing that the guilty plea was made voluntarily 

and knowingly. Id.; Chapa v. State, No. 14-12-00900-CR, __ S.W.3d __, 2013 

WL 3757081, at *2 (Tex. App.—Houston [14th Dist.] July 18, 2013, no pet. h.). A 

defendant may still raise the claim that his plea was not voluntary; however, the 

burden shifts to the defendant to demonstrate that he did not fully understand the 

consequences of his plea such that he suffered harm. Martinez, 981 S.W.2d at 197; 

Chapa, 2013 WL 3757081, at *2. This is a heavy burden, and it is especially so 

when an appellant attests to the voluntariness of his plea at his original plea 

hearing. See Chapa, 2013 WL 3757081, at *2; Arreola v. State, 207 S.W.3d 387, 

391 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

However, a guilty plea is not knowing or voluntary if made as a result of 

ineffective assistance of counsel. Ex parte Moussazadeh, 361 S.W.3d 684, 689 

(Tex. Crim. App. 2012). When a defendant enters a plea on advice of counsel and 

subsequently challenges the voluntariness of that plea based on ineffective 

assistance, the voluntariness of the plea depends on whether counsel’s advice was 

within the range of competence demanded of attorneys in criminal cases and, if 

not, whether there is a reasonable probability that, but for counsel’s errors, the 

defendant would not have pleaded guilty and would have insisted on going to trial. 

Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (citing Hill v. 

Lockhart, 474 U.S. 52, 59 (1985)); Chapa, 2013 WL 3757081, at *2. Such a 
challenge must be affirmatively supported by the record. Tabora v. State, 14 

S.W.3d 332, 336 (Tex. App.—Houston [14th Dist.] 2000, no pet.); see Thompson 

v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). 

The appellant’s claim for ineffective assistance rests on an affidavit signed 

by the appellant. In relevant part, it states:

2. On or about September 27, 2010, my mother, Joan Burnett, and 

I retained the counsel of attorney Paul H. LaValle (“Paul”). From the 

beginning of Paul’s representation until the day that I was sentenced, 

Paul informed us that we would get probation.

3. Throughout the duration of Paul’s representation, Paul was [sic] 

emphatically told us that there was no possibility that we would go to 

jail. Paul constantly assured us, and even family members that we 

were only going to receive probation. Specifically, Paul told this to 

my step-father David Evans, my aunt Denise Burnett, Eaven 

Morrison, and my wife Brittney Burnett.

4. On or about February 22, 2012, my mother and I were in Court 

for my plea agreement hearing. After speaking with our attorney and 

probation officer in the court, Paul came back and told me I would 

receive probation. To prove what he had been telling us all along Paul 

showed me a document which showed me the specifics of the 

probation to which I was being granted. In particular the probation 

document showed things such as the duration of probation, 

community service requirements, drug testing requirements, and that I 

would get 10 years probation.

5. In reliance on Paul H. LaValle, I pled guilty only thinking that I 

was going to be given probation. Based on Paul’s representations, at 

no time was I told that there was even a that [sic] I had probation.

6. On or about June 20, 2012, we were in Court for sentencing. 

Having already been told that we had received probation, I believed 

that the hearing was just a formality. Once Judge Wayne Mallia 

sentenced me to jail time, I was more than shocked. I never would 

have pled guilty had I known that the judge could sentence me to jail 

time.
The affidavit was attached to the appellant’s motion for new trial; there was no 

hearing on the motion. This is insufficient to support the appellant’s allegations 

for two reasons. 

First, affidavits themselves are not evidence; an affidavit attached to a 

motion is merely “a pleading that authorizes the introduction of supporting 

evidence.” Stephenson v. State, 494 S.W.2d 900, 909 (Tex. Crim. App. 1973); 

Jackson v. State, 139 S.W.3d 7, 20 (Tex. App.—Fort Worth 2004, pet. ref’d). To 

constitute evidence, an affidavit must be introduced as evidence in a hearing before 

the trial court. Stephenson, 494 S.W.2d at 909-10; Jackson, 139 S.W.3d at 20. 

Unless an affidavit or other document in the clerk’s record has been offered and 

admitted into evidence, it cannot be considered on appeal. Webber v. State, 21 

S.W.3d 726, 731 (Tex. App.—Austin 2000, pet. ref’d) (citing Stephenson, 494

S.W.2d at 909-10). In the present case, the affidavit was not admitted into 

evidence, and therefore, the record contains no evidence in support of the 

appellant’s claims. See Webber, 21 S.W.3d at 731; see also Wright v. State, 178 

S.W.3d 905, 916-17 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (rejecting 

the appellant’s argument that the court could consider a DVD attached to the 

appellant’s motion for a hearing and new trial).

Second, the allegations contained in the appellant’s affidavit do not rebut the 

prima facie showing that he entered his plea voluntarily and knowingly. See 

Martinez, 981 S.W.2d at 197; Chapa, 2013 WL 3757081, at *2. Standing alone, a 

defendant’s claim that he was misinformed by counsel is not enough for a 

reviewing court to hold that the plea was involuntary. Tabora, 14 S.W.3d at 336 

(citing Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.—Houston [1st Dist.] 

1996, pet ref’d)). Likewise, a plea is not rendered involuntary because the 

defendant did not receive the punishment he hoped for, even if his expectation was 
the result of something the defendant claims his lawyer told him. Nicholas v. 

State, 56 S.W.3d 760, 771 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) 

(citing Heiligmann v. State, 980 S.W.2d 713, 715 n.4 (Tex. App.—San Antonio 

1998, no pet.). Without affirmative support in the record, the allegations contained 

in the appellant’s affidavit are insufficient to support a claim of ineffective 

assistance. See Thompson, 9 S.W.3d at 813. Accordingly, we cannot conclude 

that the ineffective assistance of his trial counsel — if it existed — rendered the 

appellant’s plea involuntary.

We overrule both of the appellant’s issues.

CONCLUSION

Having overruled both issues raised by the appellant, we affirm the 

judgment of the trial court.

/s/ William J. Boyce

Justice

Panel consists of Justices Boyce, Jamison, and Busby.

Do Not Publish — Tex. R. App. P. 47.2(b).