John Bernard Williams v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

No. 04-99-00913-CR

John Bernard WILLIAMS,
Appellant
v.
STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 99-CR-0720
Honorable Sid L. Harle, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: October 18, 2000

AFFIRMED

John Bernard Williams pled guilty to aggravated sexual assault of a child; and, pursuant to a plea agreement, the trial court sentenced Williams to five years confinement. In a single point of error, Williams asserts the trial court erred by overruling his motion for a new trial. More specifically, Williams argues he entered an involuntary plea because his attorney was ineffective. We affirm.

"The granting of a motion for new trial on the ground of ineffective assistance of counsel is a matter entirely within the trial court's discretion." Perrett v. State, 871 S.W.2d 838, 839 (Tex. App.--Houston [14th Dist.] 1994, no pet.). To determine whether the trial court abused its discretion, we employ a two-prong test. Strickland v. Washington, 466 U.S. 668, 693 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). The first prong of the Strickland test requires the defendant to show that his trial attorney's representation was deficient. To make this showing, a defendant must prove the attorney made such serious errors that he did not act as an effective counsel. See Strickland, 466 U.S. at 693; Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992). We presume counsel was effective, and the appellant must prove, by a preponderance of the evidence, that counsel was not effective. Moore v. State 694 S.W.2d 528, 531 (Tex. Crim. App. 1985). Moreover, under the second prong of the test, the defendant must demonstrate the deficiency prejudiced the defense in such a way as to deprive the defendant of a fair trial. Strickland, 466 U.S. at 687. Under this prong, the defendant bears the burden to show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Miniel, 831 S.W.2d at 322.

Williams alleges his plea was involuntary because trial counsel assured him he would receive deferred adjudication. At the motion for new trial hearing, Williams and his mother testified. Trial counsel did not testify. Williams testified he was "practically guaranteed the deferred adjudication." Williams quoted his trial counsel saying, "I want you to know we should be able to get a guaranteed deferred adjudication," and "you are an excellent candidate for deferred adjudication and we will definitely get it." Williams mother, Trina Williams, testified similarly. She said trial counsel "truly did say to us--he said that John would get deferred adjudication." When asked if trial counsel actually promised deferred adjudication, Mrs. Williams stated, "He didn't say it in those words. . . his exact words were, you should get . . ." She also testified:

He said "You will probably." He said it all. These are all the different words he used. He said "You should." He said "You probably." He said "I see no reason why you don't get deferred." He said "And you are a very good candidate for deferred adjudication."

Both Williams and his mother gave testimony that was internally inconsistent. Further, the trial court adequately admonished Williams before accepting his plea, and Williams affirmed his guilty plea was based on his guilt and for no other reasons. The resolution of this conflicting testimony is the province of the trial court and we will not substitute our judgment. See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995).

Considering the totality of the circumstances, Williams failed to prove his attorney's deficient performance by a preponderance of the evidence. By failing to rebut the presumption of effective counsel, Williams did not meet the first prong of Strickland. Because Williams did not show he received ineffective assistance of counsel, the trial court did not abuse its discretion in overruling his motion for new trial. We therefore overrule Williams's point of error and affirm the trial court's judgment.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH