IN THE

TENTH COURT OF APPEALS

No. 10-09-00002-CR

UDEZE ZEBULON AKUCHIE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 06-02145-CRF-272

MEMORANDUM OPINION

Udeze Akuchie appeals from the imposition of a sentence of incarceration for 

two years in the Texas Department of Criminal Justice – Institutional Division based on 

a plea of guilty to aggravated assault with a deadly weapon as a lesser-included offense 

of aggravated robbery. See TEX. PEN. CODE ANN. §22.02 (Vernon 2005). There was no 

agreement as to punishment. Akuchie complains that the trial court erred by denying 

his motion for new trial because he received ineffective assistance of counsel in that his 

trial counsel failed to notify him of a plea bargain offer, because his plea was 

involuntary due to his trial counsel’s promise to him that he would receive a sentence of 
Akuchie v. State Page 2

a deferred adjudication community supervision rather than incarceration, and because 

he had been promised community supervision he also received ineffective assistance of 

counsel. Because we find that the trial court did not err by denying Akuchie’s motion 

for new trial, we affirm the judgment of the trial court.

Ineffective Assistance of Counsel

To prevail on an ineffective-assistance claim, Akuchie must prove (1) counsel’s 

representation fell below the objective standard of reasonableness; and (2) there is a 

reasonable probability that, but for counsel’s deficiency, the result of the proceeding 

would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 

2052, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 

1999).

Akuchie’s first allegation of ineffective assistance is that he received ineffective 

assistance of counsel by his counsel’s failure to convey a plea bargain offer made by the 

State to him. The State contends that Akuchie has waived this complaint by pleading 

guilty to the lesser-included offense. Waiver of all nonjurisdictional defects that 

occurred before a guilty plea entered without the benefit of an agreed sentencing 

recommendation, other than the voluntariness of the plea, occurs when the judgment of 

guilt was rendered independent of, and is not supported by, the claimed error. Young v. 

State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000). Akuchie does not contend that his 

plea was involuntary on this basis. We must then determine whether there is a direct 

nexus between the alleged ineffective assistance of counsel and Akuchie’s plea of guilty.
Akuchie v. State Page 3

A claim of ineffective assistance may or may not have a direct nexus with a 

defendant’s guilt or innocence. Martinez v. State, 109 S.W.3d 800, 803 (Tex. App.—

Corpus Christi 2003, no pet.). Here, there is no evidence that Akuchie would have 

pleaded not guilty had it not been for his counsel’s alleged ineffectiveness in not 

conveying a plea bargain offer. Therefore, we find that, regarding the allegation of 

ineffective assistance of counsel for any failure to convey a plea bargain offer, the 

judgment of guilt rendered by the trial court was rendered independent of, and is not 

supported by, the alleged ineffective assistance of counsel. See Young, 8 S.W.3d at 666-

67. As such, by pleading guilty without an agreed punishment recommendation, 

Akuchie has waived any complaint of ineffective assistance regarding his trial counsel’s 

failure to convey the State’s offer of a plea bargain to him for purposes of this direct 

appeal. See Martinez, 109 S.W.3d at 803. 

Voluntariness of Plea

Akuchie complains that the trial court erred in denying his motion for new trial 

because his plea was involuntary. Akuchie contends that his trial counsel promised 

him that in exchange for waiving his right to a jury trial and pleading guilty to a lesserincluded offense he would receive deferred adjudication community supervision. He 

further contends that his trial counsel was ineffective for erroneously advising him that 

he would receive probation, and but for such erroneous advice, he would have not 

waived his right to a jury trial and would have instead chosen to go to trial on the 

greater offense.
Akuchie v. State Page 4

A guilty plea, to be consistent with due process of law, must be entered 

knowingly, intelligently, and voluntarily. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. 

Crim. App.), cert. denied, 127 S. Ct. 667, 166 L. Ed. 2d 514 (2006). To be “voluntary,” a 

guilty plea must be the expression of the defendant’s own free will and must not be 

induced by threats, misrepresentations, or improper promises. Id. (citing Brady v. United 

States, 397 U.S. 742, 755, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970)). An involuntary guilty 

plea must be set aside. Boykin v. Alabama, 395 U.S. 238, 244, 89 S. Ct. 1709, 1713, 23 L. 

Ed. 2d 274 (1969); Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975). To 

determine whether a plea is voluntary, we consider the record as a whole. Williams, 522 

S.W.2d at 485.

When the record indicates that the trial court duly admonished the defendant, 

this presents a prima facie showing that defendant’s plea was voluntary. Martinez v. 

State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); Jackson v. State, 139 S.W.3d 7, 14 (Tex. 

App.—Fort Worth 2004, pet. ref'd). Defendants who previously admitted their pleas 

were voluntarily and knowingly made carry a heavy burden on appeal to prove 

otherwise. Labib v. State, 239 S.W.3d 322, 332 (Tex. App—Houston [1st Dist.] 2007, no 

pet.); Acosta v. State, 160 S.W.3d 204, 211 (Tex. App.—Fort Worth 2005, no pet.). 

It is undisputed that Akuchie received proper admonishments by the trial court 

regarding the range of punishment available to the trial court during the punishment 

hearing and that Akuchie testified that he understood that range of punishment. There 

was discussion of the first two years of incarceration being mandatorily served day-forday, which Akuchie also affirmed that he understood. Akuchie also affirmed that he 
Akuchie v. State Page 5

was pleading guilty voluntarily and that he had not been coerced or promised anything 

in exchange for his plea. It is further undisputed that Akuchie signed a document 

entitled “Defendant’s Plea of Guilty, Waiver, Stipulation and Judicial Confession” that 

also contained the proper admonishments regarding the range of punishment and a 

statement that Akuchie was pleading guilty voluntarily and with no promises of any 

kind. Additionally, Akuchie signed a written plea agreement which contained as the 

first handwritten element that the plea would be “open” and there would be no cap as 

to punishment recommended by the State. Further, after the judge announced his 

sentence, Akuchie was given the opportunity to address the trial court before the court 

formally sentenced Akuchie. Akuchie did address the trial court to apologize to the 

victim. Further, the trial court stated that the option of a deferred adjudication

community supervision sentence was seriously considered but ultimately rejected, and 

neither Akuchie nor his trial counsel said anything in response.

If counsel conveys erroneous information to a defendant, a plea of guilty based 

on that misinformation is involuntary. Ex parte Griffin, 679 S.W.2d 15, 17-18 (Tex. Crim. 

App. 1984); McGuire v. State, 617 S.W.2d 259, 261 (Tex. Crim. App. 1981). However, 

Akuchie’s claim that he was misinformed by counsel, standing alone, is not enough to 

render his plea involuntary. Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.—Houston 

[1st Dist.] 1996, pet. ref'd). The corroboration of Akuchie’s claims of promised 

probation by Akuchie’s father is also insufficient. Id. In cases in which a guilty plea has 

been held to have been involuntary, the record has contained confirmation by counsel 

of the misinformation or documents properly in evidence augmenting the defendant’s 
Akuchie v. State Page 6

testimony that reveal the misinformation and show its conveyance to the defendant. 

See, e.g., Griffin, 679 S.W.2d at 15; Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 

1980); Murphy v. State, 663 S.W.2d 604, 610 (Tex. App.—Houston [1st Dist.] 1983, no 

pet.). Akuchie has not made either showing. We find that Akuchie has not met his 

burden to show that his plea was involuntary.

Ineffective Assistance of Counsel – Erroneous Advice

In considering an ineffective-assistance claim, we indulge a strong presumption 

that counsel’s actions fell within the wide range of reasonable professional behavior. 

Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771 

(Tex. Crim. App. 1994). To overcome this presumption, a claim of ineffective assistance 

must be firmly demonstrated in the record. Thompson, 9 S.W.3d at 814. It is critical that 

the necessary record be obtained in the trial court to rebut the Strickland presumption 

that counsel’s conduct was strategic for purposes of appeal. Thompson, 9 S.W.3d at 814; 

McCullough v. State, 116 S.W.3d 86, 92 (Tex. App.—Houston [14th Dist.] 2001, pet. 

ref'd.). When the record is silent as to counsel’s reason for failing to act in some 

manner, the presumption that counsel acted reasonably is not rebutted. See Thompson, 9 

S.W.3d at 814. 

We believe the same to be true for instances where trial counsel is accused of 

erroneously advising a defendant. In this case, there is no response, either by affidavit 

or live testimony, as to whether the trial counsel agreed or disagreed that there was a 

conveyance of erroneous information. As such, we do not find that the record is 

sufficient to determine that Akuchie received ineffective assistance of counsel based on 
Akuchie v. State Page 7

an alleged promise of probation in exchange for his plea. Akuchie has cited no 

authority in support of his position where the trial counsel’s actions were not addressed 

directly by trial counsel or demonstrated indirectly by demonstrative evidence in the 

motion for new trial or at the hearing on the motion and a claim of ineffective assistance 

of counsel was sustained. Akuchie’s sole issue is overruled.

Conclusion

We find that the trial court did not err by denying Akuchie’s motion for new trial 

on the basis of ineffective assistance of counsel or that his plea was involuntary. We 

affirm the judgment of the trial court.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed March 10, 2010

Do not publish

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