DANIEL EDWARD MURRAY, Appellant v. THE STATE OF TEXAS, Appellee

DISMISS in part and AFFIRM in part; Opinion issued December 6, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00716-CR
No. 05-09-00717-CR
............................
 
DANIEL EDWARD MURRAY, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 366-80248-05 and 366-80173-06
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OPINION
 
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice Fillmore
 
 
        Daniel Edward Murray pleaded guilty to possession of child pornography, indecency with a child, and aggravated sexual assault of a child. The trial court sentenced Murray to ten years' imprisonment on the possession of child pornography offense and to thirty years' imprisonment on the combined aggravated assault of a child and indecency with a child offenses.   See Footnote 1  In two points of error, Murray asserts the trial court erred by denying his motion to suppress and that he received ineffective assistance of counsel. The State requests we modify the written judgments in the aggravated sexual assault of a child and indecency with a child convictions to reflect the trial court sentenced Murray to thirty years' imprisonment for the combined offenses. We dismiss the appeal of the indecency with a child conviction for lack of jurisdiction. In all other respects, we affirm the trial court's judgments.
Background
 
        Following an outcry by his niece, Murray was charged in one indictment with two counts of aggravated sexual assault of a child and two counts of indecency with a child. In a separate indictment, Murray was charged with five counts of possession of child pornography. At his trial counsel's suggestion, Murray sought treatment at the Sante Healing Center. The State subsequently subpoenaed records from Sante regarding its treatment of Murray. Murray moved to suppress the State's use of the records, arguing the records were not properly obtained by the State and were privileged. The trial court denied the motion to suppress.
        Murray then pleaded guilty pursuant to a plea agreement to one aggravated sexual assault of a child offense and one indecency with a child offense. Pursuant to a second plea agreement, Murray also pleaded guilty to one possession of child pornography offense. The State dismissed four possession of child pornography offenses, one aggravated sexual assault of a child offense, and one indecency with a child offense. The trial court orally sentenced Murray in accordance with the plea bargains-a combined thirty years' imprisonment on the aggravated sexual assault of a child offense and the indecency with a child offense and ten years' imprisonment on the possession of child pornography offense. However, the trial court entered written judgments sentencing Murray to thirty years' imprisonment on the aggravated sexual assault of a child offense, twenty years' imprisonment on the indecency with a child offense, and ten years' imprisonment on the possession of child pornography offense.         After the court of criminal appeals granted Murray the right to file out of time appeals, Murray filed a motion for new trial alleging he received ineffective assistance of counsel. After a hearing, the trial court denied the motion, and Murray brought this appeal.
Jurisdiction
 
        Although not raised by either party, we may sua sponte address our jurisdiction over the merits of this appeal. State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996), overruled on other grounds by State v. Medrano, 67 S.W.3d 892, 903 (Tex .Crim. App. 2002); Tex. Vital Care v. State, 323 S.W.3d 602 (Tex. App.-Texarkana 2010, no pet.).   See Footnote 2  The record reflects the trial court found Murray guilty of both aggravated sexual assault of a child and indecency with a child and orally assessed a combined thirty-year sentence for both offenses. The trial court's written judgments reflect a thirty-year sentence on the aggravated sexual assault of a child conviction and a twenty-year sentence on the indecency with a child conviction. However, the trial court's oral pronouncement controls over the written judgments. Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004).
        When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense must be pronounced. Tex. Code Crim. Proc. Ann. art. 3.03 (West 2005); Matney v. State, 99 S.W.3d 626, 628 (Tex. App.-Houston [1st Dist.] 2002, no pet.). A single sentence pronounced for more than one conviction does not meet the requirements of article 3.03. Robinson v. State, 553 S.W.2d 371, 372 (Tex. Crim. App. 1977), overruled on other grounds by Almanza v. State, 686 S.W.2d 157, 172-73 (Tex. Crim. App. 1984) (op. on reh'g). The court of criminal appeals has used the doctrine of carving to presume that the one sentence assessed for more than one conviction applies to the first count of the indictment. Id.; see also Parks v. State, 553 S.W.2d 114, 116 (Tex. Crim. App. 1977); Harmon v. State, 889 S.W.2d 521, 523 (Tex. App.-Houston [14th Dist.] 1994, pet. ref'd).
        Because this reasoning results in finding a proper sentence was assessed only on the aggravated sexual assault of a child conviction, we conclude no proper sentence exists for the indecency of a child conviction. Robinson, 553 S.W.2d at 372; Matney, 99 S.W.3d at 628.   See Footnote 3  Therefore, we must dismiss any appeal relative to the indecency with a child conviction for lack of jurisdiction. Robinson, 553 S.W.2d at 372; see also Thompson v. State, 108 S.W.3d 287, 291 (Tex. Crim. App. 2003) (concluding court of appeals could properly dismiss portion of appeal for which there was no valid judgment while simultaneously addressing merits of portion of appeal over which it had jurisdiction); White v. State, 543 S.W.2d 130, 132 (Tex. Crim. App. 1976). We will consider the points of error raised by Murray in this appeal only as to the convictions for aggravated sexual assault of a child and possession of child pornography.
 
Motion to Suppress
 
        In his first point of error, Murray asserts the trial court erred by denying his motion to suppress because the records from Sante were privileged under rule of evidence 509(b). We apply a bifurcated standard of review to the trial court's ruling on a motion to suppress evidence. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We afford almost total deference to the trial court's determination of historical facts and apply a de novo review to the trial court's application of the law to the facts. Hubert, 312 S.W.3d at 559; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial court is the sole trier of fact and the judge of witness credibility and the weight to be given to witness testimony. Valtierra, 310 S.W.3d at 447. When, as here, the trial court does not make explicit findings of fact, the appellate court must view the evidence in the light most favorable to the trial court's ruling and assume the trial court resolved any issues of historical fact or credibility consistently with its ultimate ruling. Hubert, 312 S.W.3d at 560. The trial court's evidentiary ruling “will be upheld on appeal if it is correct on any theory of law that finds support in the record.” Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006). In determining whether the trial court's decision is supported by the record, we generally consider only evidence adduced at the suppression hearing because the ruling was based on it rather than evidence introduced later. Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007); Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).
        There is no physician-patient privilege in criminal proceedings in Texas. Tex. R. Evid. 509(b). However,
a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding.
 
Id. Murray argues he sought treatment at Sante for drug or alcohol abuse and, therefore, all statements he made while at Sante were inadmissible. The State responds that the Sante records show Murray sought treatment for sexual issues, not alcohol or drug abuse.
        The only evidence presented at the hearing on the motion to suppress was the Sante records. Murray entered Sante on September 7, 2003. He told Sante that he quit using drugs after his high school graduation and, other than an occasional social drink, quit using alcohol in 2000. The records contain many statements by Murray acknowledging his past drug and alcohol use and that he was drinking heavily at the time of the alleged offenses. However, his “stated goals for treatment” when he was admitted to Sante were (1) learn why I still have pedophilic thoughts; (2) learn how to manage these thoughts since they probably never go away entirely; and (3) reduce shame by talking about these issues in a safe and therapeutic setting. Murray made numerous statements while at Sante that he was seeking treatment to address his attraction to minor girls. His primary goals on discharge from Sante were (1) to be able to live a normal life; (2) to establish and learn how to maintain recovery from the urges to fantasize about young girls; and (3) to feel good about himself and not experience the extreme low self-esteem that he had been living with for years. Further, Sante's treatment plan for Murray related to sexual issues, not drug or alcohol abuse.
        In Foreman v. State, 995 S.W.2d 854 (Tex. App.-Austin 2000, pet. ref'd), the defendant sought treatment for pedophilia and the depression that resulted when his family learned about the pedophilia. During the treatment, the defendant told the counselor about sexually abusing his niece. The defendant objected to the counselor testifying at trial about the statements, asserting the statements were inadmissible under rule of evidence 509(b).
        The defendant had previously sought treatment for drug and alcohol abuse. Id. at 856. However, there was no evidence he was seeking treatment for substance abuse during the subsequent admission. Id. The Austin Court of Appeals noted the defendant's “prior history of substance abuse was one factor considered in the doctor's overall examination, but was not a primary or even a major concern.” Id. Because the defendant did not seek treatment for substance abuse, rule 509(b) did not preclude the admission of the statements at trial. Id. at 857.
        Similarly, in this case, the records from Sante overwhelmingly establish Murray sought treatment for his sexual issues. Although the Sante records contain Murray's statements and counselor notations concerning Murray's past substance abuse, the treatment focused on Murray's sexual issues. Therefore, the trial court did not err by concluding rule 509(b) did not bar the admission of the Sante records. See id.; Tatum v. State, 919 S.W.2d 910, 913 (Tex. App.-Fort Worth 1996, no pet.) (“The record in this case clearly indicates that, irrespective of his assertion that beer is the root of his problems, appellant sought counseling as a sex offender and not for alcohol or drug abuse. . . . Accordingly, the exclusion of evidence provided by Rule [509(b)] does not apply to the statements appellant made during this sex-offender counseling.”). We overrule Murray's first point of error.
Ineffective Assistance of Counsel
 
        In his second point of error, Murray argues the trial court erred by denying Murray's motion for new trial on the ground he received ineffective assistance of counsel. Specifically, Murray asserts trial counsel was ineffective by (1) failing to perform an independent investigation; (2) disclosing Murray's treatment at Sante to the State without Murray's permission; (3) failing to timely arrange for Murray to be interviewed or treated by a forensic psychologist; and (4) failing to properly prepare for trial.   See Footnote 4  The trial court held a hearing on the motion for new trial, and both Murray and counsel testified. Murray also called Thomas Eubanks, an independent investigator who assisted counsel on the case.
Relevant Facts
 
        Murray testified that after his arrest, he hired counsel to try the case. They discussed his relationship and contact with the complainant and possible treatment and evaluation. Murray told counsel that at the time he was a social drinker, but had a history of heavy drinking and had a blackout in October 1998. After they discussed Murray's alcohol use and visits to sexually-oriented chat rooms on the internet, counsel recommended that Murray seek treatment at Sante. According to Murray, Sante provided treatment for alcohol, sexual, drug, and gambling addiction as well as for eating disorders. Murray testified he did not have an alcohol addiction problem at the time he went to Sante and admitted that he told the nurse at Sante that he was there because of this case. He further testified the “reason I was sent to Sante was to show that in this whole scheme of things here, I went and got some help for sexual addiction. And that was pretty much what it was all about, was the sexual addiction.”
        Murray testified that counsel said the treatment at Sante would be brought up if Murray was found guilty in order to seek leniency based on his seeking help for a sexual addiction. Murray understood the Sante treatment was related to the punishment phase of the trial. According to Murray, prior to disclosing the treatment at Sante to the State, counsel did not tell Murray that he was going to reveal the treatment and Murray did not authorize counsel to disclose the treatment.
        To Murray's knowledge, counsel did not investigate the case. Murray also testified that three weeks before the trial date, he discussed with counsel the possibility of seeing a forensic psychologist. Murray contacted Dr. Steve Finestein, but was told there was a “problem” due to the short period of time remaining before trial.
        Murray testified he was not guilty of the charged offenses. He pleaded guilty because comments made by counsel during the plea bargain negotiations made him feel like he did not have a good defense. Further, he lost confidence in counsel because he had not seen a “professional doctor” and counsel made comments that indicated he thought Murray was guilty of the charged offenses as well as other offenses. Finally, the State indicated that if he forced the complainant to testify, it would seek to “stack” the sentences on the five possession of child pornography offenses, giving him a potential sentence of one hundred years. Murray admitted he testified at the plea hearing that he had no concerns about counsel's representation.         Murray admitted the State's plea offer was originally forty-five years' imprisonment and that he received a thirty-year sentence. Murray testified that he was not aware the State dismissed one aggravated sexual assault of a child offense and four possession of child pornography offenses.
        Eubanks testified he was a self-employed consultant who has an office in counsel's office. He also works for other attorneys. He worked on Murray's case and had a list of family members that had been provided by Murray. He talked to the family members and confirmed the facts to which they could testify. He remembers discussions relating to hiring a psychologist.
        Counsel testified he graduated in December 1973 from St. Mary's University School of Law and was licensed to practice law in April 1974. He was hired to represent Murray in this case to the best of his abilities. Counsel testified the Collin County District Attorney's Office has an informal discovery process through which he reviewed the State's file in this case several times. There was no indication the complainant was going to recant her allegations. He does not recall whether he or Eubanks talked to the witnesses, but indicated there was some “workup” he did on the witnesses in his file. He agreed to pass the trial date for over four years because he believed it was in Murray's best interest to delay trial.
        Counsel testified he and Murray discussed Murray's use of alcohol and contact with the complainant. Due to blackouts, Murray could not remember whether the conduct alleged by the complainant happened. Although counsel had not had any previous dealings with Sante, he recommended Murray seek treatment at Sante. He talked to other members of the criminal defense bar and learned Sante had done “some very good work” for their clients and the treatment had provided a means for “possible mitigation if there was a situation where that was something we could use at time of trial, or time or hearing, or whatever.” Based on his discussions with Murray, counsel believed that treatment by Sante was appropriate for Murray and was in Murray's best interest. In counsel's experience, the Collin County District Attorney would not consider probation as an option for Murray unless he sought treatment. The treatment at Sante provided a source for “possible mitigation,” and counsel believed “at the end of the day it did mitigate [Murray's] case.”
        Although the record is not clear about the timing of, or participants in, the discussion, counsel recalled discussing whether to hire a psychologist or a computer expert. The decision was made not to do so, but counsel was unable to recall the reason for the decision. He thought the treatment at Sante “might lead us as to what might be required next.” He ultimately referred Murray to Dr. Finestein before trial.
        Counsel had no independent recollection of telling the State about Murray's treatment at Sante. The prosecutor, however, stipulated the State learned about the treatment from counsel. Counsel admitted the Sante records would not have been helpful to Murray at trial. However, there were indications the State had a strong case without the Sante records, and counsel believed the State would have gone to trial without the Sante records. Counsel testified he was also ready to go to trial.
        Counsel testified the State's offer in return for a guilty plea was originally forty-five years' imprisonment, and Murray faced up to life in prison in connection with the charged offenses. Counsel negotiated a thirty-year prison term and preserved Murray's right to appeal the trial court's ruling on the motion to suppress. Based on his experience with the district attorney and Collin County juries, counsel believed this was a reasonable offer for the charged offenses.
Applicable Law
 
        When, as here, a defendant asserts ineffective assistance of counsel in a motion for new trial, we review the trial court's denial of the motion for an abuse of discretion. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004), superseded in part on other grounds by Tex. R. App. P. 21.8(b), as recognized in State v. Herndon, 215 S.W.3d 901, 905 n.5 (Tex. Crim. App. 2007). In conducting our review, we do not substitute our judgment for that of the trial court. Id. We are required to view the evidence in the light most favorable to the trial court's ruling and presume all factual findings that could have been made against the losing party were made against that party. Id. The trial court abuses its discretion in denying a motion for new trial “only when no reasonable view of the record could support the trial court's ruling.” Id.
        To be entitled to a new trial based on an ineffective assistance of counsel claim, a defendant must show by a preponderance of the evidence that counsel's performance was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex parte Lane, 303 S.W.3d 702, 707 (Tex. Crim. App. 2009). The first prong requires the defendant to show counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687-88; Lane, 303 S.W.3d at 707. The second prong requires the defendant to show that there is a reasonable probability that, but for his counsel's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 694; Lane, 303 S.W.3d at 707. In the context of a guilty plea, a defendant satisfies the second prong of the test by showing that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009). A defendant's failure to satisfy one prong negates a trial court's need to consider the other prong. Strickland, 466 U.S. at 697; Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009), cert. denied, 130 S. Ct. 3411 (2010).
        In determining whether a defendant has met his burden, we consider the totality of representation and the particular circumstances of each case. Lane, 303 S.W.3d at 707. We strongly presume counsel's conduct fell within the wide range of reasonable professional assistance and do not judge counsel's actions in hindsight. Strickland, 466 U.S. at 689; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The fact that another attorney might have pursued a different strategy at trial is not sufficient to prove counsel was ineffective. Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004).
Failure to Investigate
 
        Murray first asserts counsel “undertook no independent investigation of his client's situation.” Murray specifically argues that counsel could not recall if he interviewed any witnesses and referred Murray to Sante without adequately investigating the facility.
        Counsel has a duty to make reasonable investigations, and “'a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.'” Wiggins v. Smith, 539 U.S. 510, 521-22 (2003) (quoting Strickland, 466 U.S. at 690-91). Counsel has a duty to make reasonable pre-trial investigations or to make a reasonable decision that makes particular investigations unnecessary. Id. at 521. While counsel is not required to always investigate every possible lead or piece of mitigating evidence, especially if it is not likely to positively aid the defendant, counsel should put forth enough investigative effort to base a decision not to present a mitigating case on a thorough understanding of the available evidence. Ex parte Woods, 176 S.W.3d 224, 226 (Tex. Crim. App. 2005). A counsel's “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable” while “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91.
        We turn first to Murray's claim that counsel failed to interview witnesses. Counsel testified the witnesses identified by Murray were contacted to verify the facts to which they could testify. Although counsel could not recall whether he or Eubanks contacted the witnesses, counsel performed some “work up” about the witnesses that was contained in the file. Murray also complains counsel did not interview the complainant and, therefore, “had no indication of the quality of [her] testimony, one way or the other.” However, counsel reviewed the State's file and testified there was no indication the complainant was going to recant her allegations. Further, Murphy failed to offer any evidence at the hearing on the motion for new trial about what the complainant would have said, how that testimony would have benefitted Murray, or that counsel's interviewing the complainant would have influenced Murray's decision to plead guilty. See Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007) (“When challenging an attorney's failure to call a particular witness, an 'applicant must show that [the witness] had been available to testify and that his testimony would have been of some benefit to the defense.'”). Accordingly, Murray has failed to show any prejudice from counsel's failure to interview the complainant.
        Murray also asserts counsel was deficient by referring Murray to Sante without adequately investigating the facility. However, the record shows counsel discussed Sante with members of the defense bar and learned it had “done good work” for individuals with cases similar to Murray's case. Murray testified the purpose of the Sante treatment was to seek leniency at punishment if he was found guilty. Counsel testified the purpose of Murray seeking treatment at Sante was to “mitigate the case,” and, in his opinion, the treatment at Sante ultimately did “mitigate the case.” The fact that another attorney might have pursued a different strategy is not sufficient to prove counsel was ineffective. Scheanette, 144 S.W.3d at 509. Further, Murray failed to offer any evidence about what further investigation counsel should have performed or what that investigation would have revealed. Accordingly, Murray has failed to establish any prejudice from the alleged inadequate investigation. See Cooks v. State, 240 S.W.3d 906, 912 (Tex. Crim. App. 2007) (defendant failed to establish facially plausible claim of ineffective assistance of counsel when no showing of what investigation “would have revealed that reasonably could have changed the result of this case”).
Disclosure of Treatment
 
        Murray next argues that counsel disclosed the treatment at Sante to the State without Murray's authorization. Counsel testified he believed the Sante treatment would assist in “mitigat[ing] the case” and that, in his opinion, it did mitigate the outcome of the case. We cannot judge counsel's strategic decision on when to disclose the information based on hindsight. See Thompson, 9 S.W.3d at 813. Further, Murray offered no evidence at the motion for new trial hearing indicating that, but for the disclosure of the treatment and the State obtaining his treatment records, he would not have pleaded guilty and would have insisted on going to trial. Counsel testified the State had a strong case without the Sante records and, in his opinion, would have gone to trial without the records. Murray testified he pleaded guilty because he believed he no longer had a good defense, counsel thought he was guilty, and he had not seen a “professional doctor.” Further, the State told Murray it would seek to “stack” five twenty-year prison sentences for the five possession of child pornography offenses, leading to a total sentence of one hundred years. Because Murray failed to establish his decision to plead guilty was based on the disclosure of the treatment at Sante, he failed to prove he was prejudiced by counsel's disclosure of the treatment. See Hill, 474 U.S. at 59-60; Ex parte Briggs, 187 S.W.3d 458, 469 (Tex. Crim. App. 2005).
Failure to Prepare for Trial
 
        Murray next argues counsel was ineffective because he (1) spent his time doing nothing and making decisions without factual or professional support; (2) without adequate training, decided Murray had an “alcohol problem” and sent Murray to Sante without investigating the facility; and (3) failed to research the motion to suppress or prepare for the hearing on the motion to suppress.         Because we have already addressed counsel's decision to refer Murray to Sante, we turn to Murray's complaint counsel “spent his time doing nothing.” The evidence at the motion for new trial hearing established counsel reviewed the State's file several times; interviewed the witnesses identified by Murray, either personally or through Eubanks; discussed the case with Murray; based on his discussions with Murray, referred Murray to Sante for treatment; and considered hiring a forensic psychologist and a computer expert. Counsel testified he was ready to go to trial. Murray failed to establish that counsel did “nothing” or was not prepared to try the case.
        Murray next argues counsel failed to adequately prepare for the hearing on the motion to suppress. Specially, Murray contends counsel failed to call any witnesses in support of the motion, “put all his marbles into the success or failure of excluding the Sante record,” and failed to introduce evidence that Sante's program was for drug abuse and addiction, eating disorders, and behavioral health issues.
        The only witnesses Murray claims should have been called at the hearing on the motion to suppress are (1) Murray for the limited purpose of testifying he was sent to Sante for alcohol abuse, and (2) an unidentified person from Sante to demonstrate “the purpose of the facility as well as the purpose of the treatment undertaken.” Murray had the burden to show that either of these witnesses was available to testify and that the testimony would have benefitted him. Ramirez, 280 S.W.3d at 853. As to the witness about Sante's program, Murray failed to produce any evidence at the motion for new trial hearing that a witness was available to testify or that the testimony would have benefitted Murray. Murray was available to testify at the hearing on the motion to suppress. However, he testified at the hearing on the motion for new trial that he went to Sante after he discussed with counsel his relationship and contact with the complainant, his alcohol habit, and the time he spent in sexually-oriented chatrooms on the internet; he went to Sante for treatment for sexual addiction; Sante provided treatment for sexual addiction as well as substance abuse; and he told the nurse at Sante that he was there “because of this case.” Further, Murray's statements while at Sante contradict the claim he was seeking treatment for alcohol abuse. Viewing the evidence in the light most favorable to the trial court's ruling, we cannot say that Murray's testimony would have benefitted him at the hearing on the motion to suppress. See id.
        Finally, Murray contends counsel should have offered evidence at the hearing on the motion to suppress regarding Sante's programs. However, the “documentation Sante made available to the public, such as listed on its web site,” that Murray relies on to establish Sante provided treatment for alcohol abuse was not introduced at the hearing on the motion for new trial and, therefore, was not considered by the trial court. Further, Murray admitted Sante's programs covered areas other than alcohol and drug abuse, including treatment for sexual and gambling addiction and for eating disorders. Murray has failed to establish that offering the information from Sante's website would have benefitted him at the hearing on the motion to suppress. See Cooks, 240 S.W.3d at 912.
Failure to Timely Consult Expert
 
        Finally, Murray argues counsel failed to timely refer him to Dr, Finestein for “psychological evaluation and assistance.” However, there was no evidence at the hearing on the motion for new trial about what evaluation Dr. Finestein would have done, what assistance Dr. Finestein could have provided, or why not seeing Dr. Finestein earlier impacted Murray's decision to plead guilty. Accordingly, Murray has failed to prove counsel was ineffective by not referring Murray to Dr. Finestein earlier in the development of the case. See Ramirez, 280 S.W.3d at 853.
        The trial court concluded Murray did not meet his burden of proving by a preponderance of the evidence that counsel was ineffective. After reviewing the record, we conclude Murray has not shown the trial court abused its discretion by denying the motion for new trial. We overrule Murphy's second point of error.
        We dismiss the appeal of the indecency with a child conviction for lack of jurisdiction. In all other respects, the trial court's judgments are affirmed.
 
 
                                                          
                                                          ROBERT M. FILLMORE
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090716F.U05
 
Footnote 1 Murray failed to file a timely notice of appeal in each case. He filed applications for writs of habeas corpus, and the Texas Court of Criminal Appeals granted his requests to file out of time appeals.
Footnote 2 After the submission of this case, we notified the parties that we questioned our jurisdiction over the indecency with a child conviction.
Footnote 3 Further, based on the record, the sentence could only apply to the conviction for aggravated sexual assault of a child. See White v. State, 543 S.W.2d 130, 132 (Tex. Crim. App. 1976) (concluding record established conviction on which sentence was imposed). As charged in this case, indecency with a child was a second degree felony. See Tex. Penal Code Ann. § 21.11(a)(1), (d) (West Supp. 2010). The punishment range for a second degree felony is two to twenty years' imprisonment. Id. at § 12.33(a). A sentence of thirty years' imprisonment for indecency with a child would be illegal and void. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). Therefore, the thirty-year sentence would be a legal sentence only for the conviction for aggravated sexual assault of a child.
Footnote 4 In his brief, Murray raises the same basic complaints under various different arguments as to how counsel was ineffective. To avoid repetition, we address each of Murray's factual complaints only once.