Donnie Lee Moore v. The State of Texas--Appeal from 238th District Court of Midland County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DONNIE LEE MOORE, )

) No. 08-02-00394-CR

Appellant, )

) Appeal from the

v. )

) 238th District Court

THE STATE OF TEXAS, )

) of Midland County, Texas

Appellee. )

) (TC# CR-25,945)

)

O P I N I O N

This is an appeal from the trial court=s judgment revoking Appellant=s community supervision and adjudicating guilt. Appellant pleaded no contest to the offense of aggravated sexual assault. Punishment was assessed at ten years= deferred adjudication and a $2,000 fine.[1] A hearing was held upon the State=s motion to revoke Appellant=s community supervision and proceed to an adjudication of guilt. At the close of the hearing, the court revoked Appellant=s community supervision, entered an adjudication of guilt, and assessed punishment at fifteen years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

On September 23, 2002, Appellant filed a motion for new trial. In this motion, Appellant asserted that he was denied effective assistance of counsel because trial counsel failed to inform him of a plea offer from the State. A hearing on Appellant=s motion for new trial was held on November 1, 2002.

At this hearing, Appellant testified that he was sentenced to fifteen years imprisonment on August 23, 2002. The next day, his appointed counsel mentioned something about a plea bargain. Counsel stated to Appellant that he thought he had told Appellant about the plea offer but he was not sure. Appellant testified that he had no knowledge of any plea bargain and he believed that he had a right to know about the plea offer prior to trial.

On cross-examination, Appellant testified that he would have seriously thought about the offer and would have discussed it with his family. He was shown his filed affidavit that he signed on August 25, 2002. In this affidavit, he stated that his only alternative in the case was to continue on probation. Appellant stated that he was not going to consider jail time at that time, as he considered that prison would be a Adeath sentence@ for him. He related in the affidavit that he was never told of a ten year plea offer by the State.

Appellant=s trial counsel testified that he was appointed to represent Appellant with regard to the motion to revoke his community supervision. Counsel recalled that a plea offer was made by Elizabeth Byer of the District Attorney=s Office around the first day of August regarding a plea to a ten year prison sentence. Counsel responded that he did not think Appellant would accept such an offer as Appellant wanted to stay on probation. Counsel testified that he mentioned the offer to Appellant on the 5th of August and Appellant refused the offer. However, during the conversation the day after trial, Appellant indicated he had not received any plea offer. This caused counsel to question whether he told Appellant of the offer. Counsel=s notes did not reflect whether or not he conveyed the offer to Appellant.

On cross-examination, counsel stated:

I think--I honestly don=t think that I stated at that point in time that there was an offer made. I think that his question to me was, >Well, what does the prosecutor want to do,= and my comment was she would agree not to have the trial for a plea of true, but she would only agree to revoking the probation and penitentiary time.

Neither Appellant nor his mother indicated that they were interested in such a plea bargain. In particular, Appellant indicated that he would not accept any time in the penitentiary.

On redirect examination, counsel clarified his testimony by stating that he never informed Appellant or his mother specifically about the ten year offer by the State.

Darlene Moore, Appellant=s mother, testified that she had been in frequent contact with her son=s trial counsel during the course of the proceedings. She stated, she had not been informed of any plea offer made by the State.

Elizabeth Byer, an assistant district attorney for Midland County stated that she was the prosecutor in Appellant=s case. She did not recall making a firm offer. She did recall a conversation where she stated that any offer had to involve penitentiary time and that trial counsel should Acome back@ with a penitentiary deal. There were no notes in her file indicating that a plea offer had been made.

II. DISCUSSION

In Issue No. Two, Appellant asserts that he did not receive effective assistance of counsel due to counsel=s failure to convey to relay, notify, or contact Appellant regarding the State=s plea offer.[2] The grant or denial of a motion for new trial is a matter entirely within the trial court=s discretion and will not be reversed unless the trial court abused its discretion. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App. 1993). An abuse of discretion occurs when the trial court=s decision is so clearly wrong as to lie outside the zone of reasonable disagreement. Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992). At a hearing on a motion for new trial, the trial court is the sole judge of witness credibility. See Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App. 1995).

Successful claims of ineffective assistance of counsel must first demonstrate that counsel was not functioning as counsel guaranteed by the Sixth Amendment in providing reasonably effective assistance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The second prong of this test requires a showing that counsel=s errors were so serious as to deprive Appellant of a fair trial, such that there arises a reasonable probability that but for counsel=s unprofessional errors, the results would have been different. Reasonable probability is a likelihood sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2052, 80 L. Ed. 2d at 698. Texas adopted this test in Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App. 1986). See also McFarland v. State, 845 S.W.2d 824, 842 (Tex.Crim.App. 1992), cert. denied, 508 U.S. 963, 113 S. Ct. 2937, 124 L. Ed. 2d 686 (1993). The constitutional right to counsel does not mean errorless representation. In order to meet the constitutional standard, counsel must provide reasonably effective assistance. Wilkerson, 726 S.W.2d at 548. In reviewing these assertions, the totality of representation is examined as opposed to focusing upon isolated acts or omissions. Ineffective assistance of counsel cannot be established by isolating or separating out one portion of the trial counsel=s performance for examination. Bridge v. State, 726 S.W.2d 558, 571 (Tex.Crim.App. 1986). In that regard, this Court, on review, will not engage in hindsighted comparisons of how other counsel, in particular, appellate counsel, might have tried the case. See Wilkerson, 726 S.W.2d at 548. A fair assessment of trial counsel=s performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances at trial, and to evaluate the conduct from counsel=s perspective at the time. Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim.App. 1991). We must indulge a strong presumption that counsel=s conduct falls within the wide range of reasonably professional assistance. The Appellant must overcome the presumption that under the circumstances at trial, the challenged action could be considered sound trial strategy. Strickland, 466 U.S. at 688-89, 80 L. Ed. 2d at 693-95, 104 S. Ct. at 2065; Stafford, 813 S.W.2d at 506. Consequently, allegations of ineffectiveness of counsel must be firmly founded by the record. Hawkins v. State, 660 S.W.2d 65, 75 (Tex.Crim.App. 1983); Mercado v. State, 615 S.W.2d 225, 228 (Tex.Crim.App. 1981). The burden is upon Appellant to establish ineffective assistance of counsel by a preponderance of the evidence. Williams v. State, 837 S.W.2d 759, 761 (Tex.App.--El Paso 1992, no pet.).

In most instances, the record on direct appeal is undeveloped and cannot adequately reflect the failings of trial counsel. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). A defendant may rebutt the presumption of effectiveness by providing a record from which the appellate court may ascertain that trial counsel=s performance was not based on sound trial strategy. Parmer v. State, 38 S.W.3d 661, 666 (Tex.App.--Austin 2000, pet. ref=d). A defendant may provide that record by filing a motion for new trial and obtaining a hearing thereon based on ineffective assistance of counsel. Appellant has done so in this case and we are able to address his claim of ineffective assistance of counsel.

Failure of defense counsel to inform a criminal defendant of plea offers made by the State is an omission that falls below an objective standard of reasonableness. Ex parte Lemke, 13 S.W.3d 791, 796 (Tex.Crim.App. 2000); Randle v. State, 847 S.W.2d 576, 580 (Tex.Crim.App. 1993); Paz v. State, 28 S.W.3d 674, 676 (Tex.App. Corpus Christi 2000, no pet.). However, when conversations between a defendant=s counsel and the prosecutor do not rise to the level of an Aoffer,@ courts have declined to find counsel=s performance deficient. Harvey v. State, 97 S.W.3d 162, 167 (Tex.App.--Houston [14th Dist.] 2002, pet. ref=d). Whether conversations between counsel constituted an offer and acceptance are questions of fact for the trial court. See Rodriquez v. State, 509 S.W.2d 319, 321 (Tex.Crim.App. 1974); Harvey, 97 S.W.3d at 167.

In Harvey, the evidence indicated the prosecutor communicated a willingness to negotiate, but negotiations broke down over the key issue of jail time. The parties did not reach a tentative agreement counsel could take back to his client, as evidenced by the lack of any specific terms. Therefore, the trial court did not abuse its discretion in finding counsel was not required to inform his client. See Harvey, 97 S.W.3d at 167. The trial court could well have viewed the evidence in this case in a similar light. There was evidence before the court that a firm offer was never made due to disagreement about the assessment of penitentiary time.

However, even if there was an existing firm offer between the parties that was not conveyed to Appellant, in order to show ineffective assistance of counsel, a defendant must show that, but for counsel=s unprofessional error, the result of the proceeding would have been different. Dickerson v. State, 87 S.W.3d 632, 638 (Tex.App.--San Antonio 2002, no pet.). In the case of a plea bargain that was not relayed, this means proof that the offer would have been accepted. Id.; Paz v. State, 28 S.W.3d 674, 676 (Tex.App.--Corpus Christi 2000, no pet.). There was abundant evidence in the present case allowing the trial court to believe that Appellant would not have accepted any offer involving penitentiary time. While Appellant stated that he would have seriously considered the ten year offer, there was evidence before the court that prior to the hearing, Appellant would not have accepted any plea offer involving penitentiary time. Accordingly, we overrule Issue No. Two.

Having overruled each of Appellant=s issues on review, we affirm the judgment of the trial court.

November 4, 2004

RICHARD BARAJAS, Chief Justice

Before Panel No. 2

Barajas, C.J., Larsen and McClure, JJ.

(Do Not Publish)

[1] The original sentence was five years, but it was later extended to ten years.

[2] In Appellant=s brief, he asserted in Issue No. One that the evidence was insufficient to prove Appellant violated a term or condition of his community supervision. The State filed a motion to dismiss the appeal for lack of jurisdiction. This Court granted the motion with regard to Issue No. One in that the Code of Criminal Procedure expressly denies a criminal defendant the right to appeal from a trial court=s determination to adjudicate guilt. Tex. Code Crim. Proc. Ann. art. 42.12, ' (5)(b)(Vernon Supp.2004); Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App. 1999). Thus, we have no jurisdiction to review the trial court=s order adjudicating Appellant guilty. However, we may review all of the proceedings conducted after the adjudication of guilt on the original charge. See Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992). Therefore, an appeal may be had to challenge the assessment of punishment and pronouncement of sentence. Article 42.12, '(5)(b). In the context of an adjudication proceeding, we may only review ineffective assistance claims as they pertain to post adjudication matters. See Olowosuko, 826 S.W.2d at 942. In the present case, the complaint of ineffective assistance of counsel involves the assessment of punishment. Accordingly, we are able to address Issue No. Two.