Michael Alan Stuart v. State of Texas--Appeal from 175th Judicial District Court of Bexar County

No. 04-00-00567-CR
Michael Alan STUART,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th District Court of Bexar County, Texas
Trial Court No. 1999-CR-3784-B
Honorable Mary Rom n, Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: December 26, 2001

AFFIRMED

A jury found Appellant Michael Alan Stuart guilty of possession of a controlled substance in the amount of more than one gram but less than four grams of cocaine. The trial court sentenced appellant to ten years imprisonment and fined him $5,000.00. Appellant argues that the trial court erred in denying his motion for new trial because he was denied effective assistance of counsel. We affirm the judgment of the trial court.

Ineffective Assistance of Counsel

The test for ineffective assistance of counsel is the same under the state and federal constitutions. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). As such, we measure a claim of ineffective assistance of counsel against the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Hernandez, 726 S.W.2d at 55-57. To prevail on a claim of ineffective assistance of counsel, appellant must show: (1) trial counsel's performance was deficient, in that counsel made such serious errors he was not functioning effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree that the appellant was deprived of a fair trial. Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988); see Strickland, 466 U.S. at 687; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Chetwood v. State, 31 S.W.3d 368, 370 (Tex. App.--San Antonio 2000, pet. ref'd). Prejudice, in this context, is demonstrated when the defendant shows a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Holland, 761 S.W.2d at 314. Whether this standard has been met is to be judged by "the totality of the representation," not by isolated acts. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). Further, there is a strong presumption that the actions of counsel were within the broad range of reasonable professional assistance. Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000), cert. denied, 121 S. Ct. 2196 (2001).

Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Additionally, the Strickland test is applied without the benefit of hindsight, and the allegations will be sustained only if they are firmly rooted and affirmatively established in the record. See Brown v. State, 974 S.W.2d 289, 291-92 (Tex. App.--San Antonio 1998, pet. ref'd).

A. Alleged Failure to Inform of Plea-Bargain Offer

Appellant contends that his trial counsel rendered ineffective assistance by failing to inform him of the State's plea-bargain offer, and as such, the trial court should have granted him a new trial. The granting or denying of a motion for new trial lies within the sound discretion of the trial court. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993); Hernandez v. State, 28 S.W.3d 660, 663 (Tex. App.--Corpus Christi 2000, pet. ref'd). At a hearing on the motion for new trial, the trial judge is the trier of fact and the sole judge of the credibility of the witnesses. See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); Escobedo v. State, 6 S.W.3d 1, 8 (Tex. App.--San Antonio 1999, no pet.).

An accused is entitled to effective assistance of counsel during the plea bargaining process. Randle v. State, 847 S.W.2d 576, 580 (Tex. Crim. App. 1993); Hernandez, 28 S.W.3d at 664. A defendant has the right to be informed of plea bargain offers as part of his participation in the decision-making process surrounding his defense. Ex parte Wilson, 724 S.W.2d 72 ,74 (Tex. Crim. App. 1987); Hernandez, 28 S.W.3d at 664. If a defendant's attorney fails to inform him of proffered plea bargains, the attorney's omission falls below an objective standard of reasonableness. Ex parte Lemke, 13 S.W.3d 791, 796 (Tex. Crim. App. 2000); Ex parte Wilson, 724 S.W.2d at 74; Hernandez, 28 S.W.3d at 664.

During the hearing on the motion for new trial, appellant called two assistant district attorneys as witnesses. The first assistant district attorney, Jeff Mulliner, testified that he had offered to dismiss the possession charge in exchange for a plea of guilty to the charge of escape. He had informed appellant's attorney that this offer would only be valid for one day. Mulliner testified that the offer had not been accepted. The second assistant district attorney, Loretta Hewitt, testified that she had offered to dismiss the escape charge and recommend ten years probation with regard to the possession charge in exchange for a plea of guilty and a fine. Hewitt testified that appellant's attorney had informed her that while appellant would plead guilty to the escape charge, he would not agree to plead guilty to the drug charge. According to Hewitt, appellant's attorney had represented to her that appellant did not want to plead guilty to a drug charge which could scare investors of his company. Hewitt had conveyed this offer to appellant's attorney on a Thursday morning and had withdrawn it by the afternoon.

Appellant introduced two affidavits signed by appellant's attorney into evidence during the hearing on the motion for new trial. The first affidavit, signed by the attorney on September 20, 2000, states that he has no recollection of Hewitt's offer and that he never conveyed that offer to appellant. The second affidavit, signed by the attorney on October 24, 2000, states that he did not accept Mulliner's offer "at the time it was made, and [he] never conveyed that plea agreement offer to [appellant], although [appellant] was present in court at the time." Additionally, appellant testified that his attorney had never informed him of these two offers and that he would have accepted them had he known.

The State presented one witness, Ronald Tisdale, who was a prisoner in the Bexar County Adult Detention Center at the same time as appellant. Tisdale had written two letters to the "175th Judicial District Prosecutor's Office" informing it that he possessed information vital to appellant's allegation of ineffective assistance of counsel. Tisdale had mailed the first letter prior to appellant filing the motion for new trial. At the motion for new trial hearing, Tisdale testified that appellant had known about the State's offer of ten years probation before trial and that appellant had refused the offer. Tisdale also testified that appellant's attorney had agreed to sign the affidavits relied on by appellant in exchange for appellant agreeing not to sue his attorney for malpractice. On cross-examination, Tisdale admitted that appellant had told him this information after the trial. Tisdale also admitted that the State had promised to inform the Parole Board of his cooperation in exchange for his testimony.

Because the trial court conducted a hearing on appellant's motion for new trial, we do not apply the Strickland test for determining whether counsel was ineffective in a de novo manner. State v. Kelley, 20 S.W.3d 147, 151 (Tex. App.--Texarkana 2000, no pet.). Instead, we are required to review the trial court's denial of the motion for new trial under an abuse of discretion standard. Id. Under an abuse of discretion standard, the trial court is the sole judge of the credibility of the testifying witnesses, and we may not substitute our judgment for that of the trial court. Lewis, 911 S.W.2d at 7. The trial court does not abuse its discretion in denying a motion for new trial where there is conflicting evidence on a fact issue. See id. Even if this court would have reached a different result, as long as the trial court's ruling is within the "zone of reasonable disagreement," we may not intercede. Gutierrez v. State, 945 S.W.2d 287, 290 (Tex. App.--San Antonio 1997, no writ.). A trial court abuses its discretion only when no reasonable view of the record could support the trial court's ruling when the facts are viewed in the light most favorable to the trial court's conclusion. See id.

In this case, the trial court was presented with conflicting evidence as to appellant's knowledge of the plea bargain. After evaluating the credibility of the witnesses, the trial court denied the motion for new trial. Given the narrow standard by which we are constrained to review the trial court's ruling, we conclude that the trial court did not abuse its discretion. Appellant's first issue is overruled.

B. Representation During the Punishment Phase

In his second issue, appellant argues that the trial court erred in denying appellant's motion for new trial, because the evidence presented in the hearing on the motion proved that appellant was denied effective assistance of counsel during the punishment phase of the trial. During this phase of the trial, the State presented witnesses who testified about appellant's involvement in the deaths of Richard King and Penelope Vaudrin. Both King and Vaudrin died from cocaine overdoses. The State also called appellant's ex-wife, Sheri Stuart, who testified that appellant was violent. Appellant argues that his counsel should have called witnesses to rebut this evidence of extraneous acts. Appellant presented these witnesses during the motion for new trial hearing. Indeed, these witnesses gave favorable testimony at the hearing. John C. Sparks, M.D., testified that appellant was being treated for depression, and that many individuals suffering from bi-polar disorder self-medicate by using cocaine. John Giordano, a therapist, testified that appellant had been diagnosed as suffering from a bi-polar disorder and that many people who are bi-polar self-medicate by using cocaine. Chet Michael Fazand, an employee of appellant's company, testified that appellant had been very concerned about Richard King's drug use and had tried to help King overcome his addiction. Fazand also testified that appellant was not violent and had a good character. Stephanie Crober, another employee, testified that Sheri Stuart had harassed appellant constantly. She also testified that appellant was good with his children and was not violent. Melanie Hutzler testified that she has known appellant for four to five years and Sheri Stuart for eleven years. In all that time, she had never seen appellant commit a violent act against Sheri, but she had witnessed Sheri attack appellant. She also testified that Sheri Stuart had threatened her, appellant, and two others with a handgun, and had fired that gun into the floor of appellant's home.

Even if appellant's attorney had called these witnesses during the punishment phase, these omissions did not prejudice appellant. The trial court, not the jury, was the trier of fact during punishment. During the hearing on the motion for new trial, the trial court heard the testimony of these additional witnesses and contemplated whether this additional evidence would have caused it to mitigate appellant's punishment. The trial court obviously determined that the testimony from these witnesses would not have made a difference in the sentencing. Macri v. State, 12 S.W.3d 505, 510 (Tex. App.--San Antonio 1999, pet. ref'd). As such, even if the omissions of appellant's trial counsel constituted ineffective assistance of counsel, appellant did not meet the second prong of the Strickland test. Therefore, the trial court did not abuse its discretion by denying appellant's motion for new trial. Appellant's second issue is overruled.

Conclusion

Having overruled appellant's issues, we affirm the judgment of the trial court.

Alma L. L pez, Justice

DO NOT PUBLISH