### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00783- CR

Edw ard Donovan Cornelison , Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 27TH JUDICI AL DISTRICT NO. 697 36, H ONO RAB LE JO E CARROLL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Edwar d Donovan Cornelison pleade d g uilty to theft of aluminum valued at under $20,000. See Tex. P enal Code § 31.03( e)( 4)(F )(i). The trial court a cce pted Cornelison’s plea, convicted him of the offe nse alleg ed, and sente nced him to twenty months’ confineme nt in a state jail fac ility

. On appea l, Cornelison asser ts that his g uilty plea was invol u n t ar y beca use he

rec eived inef

fec tive assistance of counse l. We affirm the tria l court’s judg ment.
DISCUSSIO N I n h is sole issue on appea l, Cornelison argues that his g uilty plea was involuntary beca use hi s trial counsel failed to advise him that he c ould not be convicted of theft of aluminum. Specifica lly , Cornelison asser ts that theft of a luminum i s “an of fense applicable [onl y ] t o those in the metal re cy cling business,” and be cause Cornelison was not employ ed or involved in the m etalrec y cling business, he could not be convicted of this offense. T here fore , acc ording to Cornelison, his counsel was de ficient for advising Cornelison to plead g uilty

. When a defe ndant challeng es the voluntariness of a g uilty plea on the basis of ineffe ctive assista n ce o f co unsel, the voluntariness of his plea depends on (1) whether counsel’s advice was within the rang e of competenc e demande d and, if not, (2) whether there is a rea sonable probabi l i t y t h at, but for the ineffe ctive assistance , the defe ndant would not have pleade d g uilty and would have insisted on g oing to trial. See Ex parte Nisw anger , 335 S

. W

. 3 d 611, 615 (Tex. C rim. App. 2011); see also Strickland v. W ashington , 466 U.S. 668, 687–88 (1984) (establis h i n g t es t fo r d etermining when counsel is ineffe ctive). To demonstrate that trial counsel’s advice was defic ient—and there fore not within the rang e of competenc e demande d—the defe ndant must prove by a prepondera

nce of t h e ev i d en ce that the counsel’s advice “fe ll below an objective standard of

rea sonablene ss.” Ex parte Ali , 368 S.W .3d 827, 833 (Tex. App.—Austin 2012, pet. ref ’d) (interna l quotations omitted). Our revie w of counsel’s perf ormanc e must be highly defe rential; we presume that counsel makes all signific ant decisions in the ex er cis e of rea sonable judgme nt. Strickland , 466 U.S. at 689.

I n this case , Cornelison was convicted of theft of aluminum valued at less than $20,000. Section 31.03(e) (4) of the Penal Code provides, in rele vant part , t h at a t h ef t is a state jail felony

if: (F ) the va lue of the pr operty stolen is less than $20,000 and the prope rty stolen is: (i) aluminum; (ii) bronze; 2(iii) copper ; or (iv) bra ss.
Tex. Penal Code § 31.03(e) (4)( F)

. Nothing in the lang uag e of section 31.03 indicates that the above provision applies only

to persons involved in metal re cy cling businesses. Neve rtheless, Cornelison asser ts that the most rec ent amendment to section 31.03 of the Penal Code indicates th at t h e l egi slature intended subsection 31.03(e) (4)( F) to apply only to those involved in the metal rec y cling business. See Act of May 31, 2011, 82d L eg ., R.S., ch. 1234, § 21, 2011 Tex. Gen. L aws 3302, 3311. This amendment added “brass” to the l ist o f metals that, if stolen, would enhanc e a theft to a state jail felony

. See id. Cornelison argues t h at t h e “bill amending t h e t h eft subsection was part of a compre hensive series of laws aimed at regulating met al re cy cl i ng businesses,” that the majority of that series of laws was aimed at reg istering and regulating metal rec y cling businesses, and that there fore section 31.03(e) (4)( F) should be understood to apply only to those involved in the metal rec y cling business. See id. at 3302–08 (ame nding Occ upations Code to require metal re cy cling businesses to reg ister business and repor t purcha ses of re g ulated metals).

“Unde r the c anons of statutory construction, we are to construe a s tatute ac cording to its plain lang uag e, unless the languag e is ambi g uous or the interpre tation would lead to absurd

r e s u lt s th a t th e le g is la

tu r e c o u ld n o t h a

v e in te n d e d

. ” Ta

p p s v . S ta te , 2 9 4 S. W. 3 d 1 7 5 , 1 7 7 ( T e x. Cr im

. App. 2009) (interna l quotations omitted). Nothing in the lang uag e of the section 31.03 i n d i cates that subsection (e) (4)( F) applies only to those involved in metal rec y cling businesses. Fur thermore , Cornelison does not asser t that the statutory lang uag e is ambig uous or leads to an absurd result.

3The plain lang uag e of the statute makes clea r that conviction for theft o f aluminum is not limit ed to those involved in metal rec y cling businesses, an d we n ee d not look to the leg islative history of the statute to discern the leg isl at ure’ s intent. See Nguyen v. State , 359 S.W .3d 636, 642 (Tex. Crim. App. 2012) (no t i n g that if statute is clea r and unambig uous, “our analy sis ends because the L eg islature must be under stood to mean what it has expressed” ) (inter nal quotations omitt ed). Given our conclusion that a conviction for theft of aluminum is not limit ed to those involved in metal rec y cling businesses, Cornelison’s trial counsel was not def i ci en t for failing to advise Cornelison that h e could not be convicted for this offe nse. There fore , Cornelison has failed to satisfy the first prong o f h i s ineffe ctive-a ssistance-of -counse l claim, and thus he has not shown that his g uilty plea was involuntary based o n i n ef fec tive assistance of counsel. See Nisw anger , 335 S.W .3d at 615. We overr ule Cornelison’s sole appe llate issue.
CONCLUSION Having overr

uled Cornelison’s only issue on appea l, we aff irm the trial court’s judgme nt of conviction.

__________________________________________ Scott K. Field, Just ice Be fore Chief J ustice Jones, J ustices Goodwin and F ield Affir med Filed: August 14, 2014 Do Not Publish 4