Sandra Marie Montes v. The State of Texas--Appeal from 66th District Court of Hill County

IN THE

TENTH COURT OF APPEALS

No. 10-94-278-CR

SANDRA MARIE MONTES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 66th District Court

Hill County, Texas

Trial Court # 29,723-A

O P I N I O N

Sandra Montes appeals from the court's denial of her post-conviction application for a writ of habeas corpus. See Tex. Const. art. I, 12; Tex. Code Crim. Proc. Ann. art. 11.23 (Vernon 1977). She sought relief from restraints resulting from probation arising out of a conviction for felony theft. See Tex. Penal Code Ann. 31.03(a) (Vernon 1989). She claims that the court erred by denying her habeas corpus relief based on ineffective assistance of counsel at trial. She contends that her trial attorney rendered ineffective assistance because the court refused to authorize payments for an expert witness to assist him and because her no-contest plea was not freely and voluntarily entered. We will affirm.

Montes was charged with theft of $26,403 from her employer TU Electric (TUE). Evidently, the charges were based on an audit conducted by TUE after Montes resigned her position as a cashier. Although the court initially refused to appoint an attorney to represent her, it relented when, according to an affidavit of the judge submitted with the State's response to her application for a writ of habeas corpus, "it became apparent that [she] was not going to retain an attorney." See Tex. Code Crim. Proc. Ann. art. 26.04(a). Her appointed attorney then requested the court to authorize up to $700 for a "private investigator or auditor [because] the nature of the case requires expert knowledge of TU Electric's billing system, access to computers, office relationships, and office operations." See id. art. 26.05(a). The court denied her request.

Two months later, she again requested funds for a "private investigator or auditor." In this request she only asked for $500 and named an investigator she wished to employ. At a brief hearing on her motion, she conceded that she had received "[a] couple of thousand" dollars from TUE in the previous sixty days. The court again denied the motion. According to the judge's affidavit, he denied both of her requests "because [he] had become aware that Montes had been paid several thousand dollars by T.U. Electric . . . ."

The cause was called for trial on September 14, 1993. Montes' attorney again raised the issue of her request for financial assistance, asserting that "Mrs. Montes has contended for the last several months that she really needs some type of expert accountant in this case to help her with the evidence," and that she had been unable to afford to pay for the expert assistance. Her attorney also requested a continuance. The court denied her request for a continuance and, citing the previous ruling, denied her renewed request for funds.

After denying her motions, the court elicited the details of the State's plea-bargain offer ten years' imprisonment, probated, and restitution. Her lawyer stated that Montes had been informed of the offer and had rejected it. After describing the range of punishment, the court asked Montes if she was "aware of the charge and possible range of punishment?" Montes responded, "Just what--Not the punishment, no, sir. Just--" The court then carefully explained to her the punishment range for the second-degree-felony charge she faced and asked if she wished to talk with her lawyer about the punishment. Montes requested that she be allowed that opportunity, and the hearing was recessed.

Following the recess, Montes changed her plea from not guilty to no contest. The court accepted her plea and sentenced her according to the terms of the State's offer. No appeal was taken from this judgment.

After the State filed a motion to revoke her probation, Montes instituted this habeas corpus action. In her application, she alleged that the restraint on her liberty imposed by the probation was unlawful because (1) the court's refusal to provide her with an expert witness denied her effective counsel; (2) her plea was not knowing and voluntary as it was entered only because she did not believe that she was prepared to go to trial, and (3) her counsel was not effective because he failed to ensure that her plea was knowing and voluntary. She attached her own affidavit and an affidavit from her trial attorney to the application.

The State responded, arguing that she was not entitled to an expert at the public's expense because she was not indigent at the time of her requests, that her attorney had inspected the records and had interviewed TUE experts, and that her plea was freely and voluntarily entered. Attached to the State's response was the affidavit of the trial judge referred to above, an affidavit from a TUE employee, and copies of records showing that Montes was paid $2,678.07 two months before her first request for expert assistance.

According to Montes' testimony before another judge at the evidentiary hearing held on her application for a writ of habeas corpus, she had been unemployed for the year and a half between her indictment and her plea. After the court appointed her an attorney, she claimed to have told him she was innocent of the charges and to have continued to assert her innocence up to the time of the plea. Her attorney indicated to her that the TUE records tended to establish that she was guilty of the theft, although he did not fully understand what the records showed, and suggested that she hire an expert to examine the records. Although she had obtained some estimates of the costs of an accounting expert, ranging between $500 and $1,000, Montes said she had been unable to afford to hire one. According to her, she decided to plead guilty "[b]ecause what [her lawyer] advised [her] that he, basically, wasn't prepared. . . . [H]e, basically, couldn't defend [her] because he didn't understand the records either." Thus, she concluded, she did not have any alternative to pleading no contest, even though that was not what she wanted to do.

On cross-examination, she admitted signing the stipulation of evidence, in which she confessed to the crimes alleged in the indictment. She also conceded that she had received a check for $2,678.07 from TUE in May before the September trial setting. However, she claimed that the money was used to pay accumulated bills.

Finally, Montes placed the affidavit from her trial attorney into evidence, and the State offered into evidence both of the affidavits attached to its response, with the supporting exhibits. At the conclusion of the hearing, the court denied the habeas corpus relief she sought.

The decision on Montes' application for relief by habeas corpus is entrusted to the trial court; we act only as a court of review. See id. art. 11.05; Ex parte Twyman, 716 S.W.2d 951, 952 (Tex. Crim. App. 1986). Montes had the burden to prove facts that would entitle her to relief. See Ex parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993). She is required to carry her burden by a preponderance of the evidence. See Ex parte Adams, 768 S.W.2d 281, 287-88 (Tex. Crim. App. 1989). The court's ruling is comparable to a jury's resolution of factual disputes. See id. at 288. Thus, the trial court is the judge of the credibility of the witnesses and of the evidence presented. See Ex parte Shutter, 868 S.W.2d 383, 387 (Tex. App. Houston [1st Dist.] 1993, pet. ref'd). We evaluate the record created at the habeas hearing to determine if the court abused its discretion in denying the relief sought. See id.

In her first point, Montes argues that she was denied effective assistance of counsel because she was not provided an expert to assist in the preparation of her defense. We conclude that the habeas court did not abuse its discretion in rejecting this claim because she has failed to present sufficient evidence to demonstrate by a preponderance of the evidence that an expert was necessary to her defense. She did not introduce the records of the audit at the hearing, nor did she offer the statement of facts from the prior cause into evidence at the habeas hearing. Her trial attorney characterized the issue in the case as "fairly complicated," but did not claim in his affidavit that an accounting expert was necessary to his preparation. He stated that he needed the services of an investigator because there was a number of potential witnesses to interview. He does not state, however, that he did not understand the facts of the case because of the lack of an accounting expert. On the state of this record, we cannot conclude that the trial court abused its discretion in denying Montes relief on the theory of ineffective assistance based on inadequate preparation. See Ex parte Adams, 768 S.W.2d at 288; Ex parte Shutter, 868 S.W.2d at 387. Point one is overruled.

In point two, Montes claims that her no-contest plea was involuntary because it was based on the fact that her lawyer was unprepared. Again, however, we believe that the habeas court could have reasonably concluded that she failed to establish by a preponderance of the evidence that her attorney was, in fact, unprepared to go to trial. Her attorney's affidavit does not indicate that he was not ready for the trial. The only proof she offered was her own unsupported statements to that effect. The court was not required to credit her statements. See id. Thus, we overrule point two.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed January 12, 1995

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