Opinion
NO. 14-16-00701-CR NO. 14-16-00702-CR
02-08-2018
JONATHAN SCOTT GUEVARA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court Harris County, Texas
Trial Court Cause Nos. 1443448 & 1443449
MEMORANDUM OPINION
Appellant Jonathan Scott Guevara was charged with intoxication manslaughter and intoxication assault in conjunction with a fatal car accident. See Tex. Penal Code Ann. §§ 49.07, 49.08 (West 2011). Appellant pleaded guilty to both offenses. After a pre-sentence investigation (PSI) hearing, the trial court sentenced appellant to twelve years and five years of confinement, respectively, to run consecutively. The trial court denied appellant's motion for new trial, which alleged various grounds of ineffective assistance of counsel (IAC), but ordered that his sentences run concurrently.
The trial court initially certified that the cases are not plea-bargain cases and appellant has the right of appeal. Appellant filed his appellate brief. The State filed a motion to dismiss contending that the certifications were incorrect because there was a plea bargain and the trial court had not given permission to appeal. After the clerk of our court directed that the trial court review the record and, if needed, correct its certifications, the trial court certified the cases are plea-bargain cases, but the trial court has given permission to appeal, and defendant has the right of appeal. We denied the State's motion to dismiss.
Appellant raises four issues on appeal. As a cross-point, the State continues to assert that this court should dismiss the appeals. As an initial matter, we overrule the State's cross-point. We also overrule appellant's issues and affirm.
I. BACKGROUND
On or about September 30, 2014, at approximately 11:00 p.m., appellant was attempting to pass another vehicle on a two-lane road and collided head-on with a vehicle traveling in the opposite direction. The driver of the other vehicle died at the scene, and the passenger of the other vehicle suffered serious bodily injuries. Appellant fled the scene of the accident. A passerby followed appellant and directed police to him. Appellant was transported to and treated at the hospital for his injuries. Blood initially was drawn without a warrant at approximately 1:03 a.m. the next day. Testing reflected a blood-alcohol concentration (BAC) level of 0.104. After police obtained a warrant for appellant's blood, blood again was drawn at approximately 3:21 a.m. Testing reflected BAC levels of 0.070 and 0.076, respectively.
Appellant was charged with intoxication manslaughter, intoxication assault, and failure to stop and render aid (FSRA). Intoxication manslaughter is a second-degree felony, with a punishment range of two to twenty years. Tex. Penal Code Ann. § 49.08(b); see Tex. Penal Code Ann. § 12.33(a) (West 2011). Intoxication assault is a third-degree felony, with a punishment range of two to ten years. Tex. Penal Code Ann. § 49.07(c); see Tex. Penal Code Ann. § 12.34(a) (West 2011). Failure to stop and render aid is a second-degree felony, with a punishment range of two to twenty years, where the circumstances of the accident involve a death. Id. § 12.33(a); Tex. Transp. Code Ann. § 550.021(c)(1)(A) (West 2011 & Supp. 2017). Both the complaints for intoxication manslaughter and for intoxication assault alleged that appellant used and exhibited a deadly weapon, namely, a motor vehicle, during the commission of the offense. The State filed a motion to cumulate the intoxication-manslaughter and intoxication-assault cases. See Tex. Penal Code Ann. § 3.03(b)(1) (West 2011 & Supp. 2017).
On November 2, 2015, appellant entered a plea of guilty to two of the charged felony cases: intoxication manslaughter and intoxication assault. Appellant signed written plea admonishments for these cases, which stated that he was waiving his right to appeal and that he was freely and voluntarily pleading guilty. The State filed a document in each case containing "Plea Information," which states "WOAR PSI judge to decide deadly weapon paragraph." Appellant signed a "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession" in each case, in which he agreed to waive his right to a trial by jury. These documents indicate that appellant intended to enter a plea of guilty "WOAR-PSI-Judge to decide deadly weapon paragraph" and that he waived his right of appeal should the trial court accept his plea bargain. In these documents, appellant swore that he had fully discussed his case with his trial counsel. In each case, appellant also signed a document entitled, "Advice of Defendant's Right to Appeal," which advised him that, if he pleaded guilty and accepted the recommended punishment, he could not appeal without the trial court's permission, and if he waived his right to appeal, he could not appeal. On that same day, the FSRA case was dismissed.
The record does not contain a transcript of the plea hearing. The plea admonishments in both cases indicate that appellant waived his right to have a court reporter record his plea.
The trial court reset the intoxication-manslaughter and intoxication-assault cases for a PSI hearing. Appellant subsequently filed a motion to withdraw his guilty pleas. The trial court denied appellant's motion. The trial court held the PSI hearing, and appellant testified. The trial court sentenced appellant to twelve years of confinement in the intoxication-manslaughter case and to five years of confinement in the intoxication-assault case. The trial court entered a deadly-weapon finding in each case. The trial court ordered that appellant's sentences run consecutively.
Appellant, with new counsel, timely filed a motion for new trial, alleging his previous trial counsel's IAC. The trial court ordered that appellant's prior trial counsel provide an affidavit in response to appellant's allegations. The trial court held a hearing "by affidavit." The trial court denied the motion for new trial, but revisited its cumulation decision and ordered that appellant's sentences run concurrently.
Appellant argued that his original trial counsel provided IAC, rendering his guilty pleas involuntary because: (1) counsel advised appellant that only the trial court could grant him community supervision where the court was prohibited from doing so because of the deadly-weapon finding, (2) counsel failed to present any evidence or argument to support a negative deadly-weapon finding, (3) counsel failed to advise appellant of the court's ability to cumulate the intoxication-manslaughter and intoxication-assault sentences, and (4) counsel failed to move to suppress the blood-sample evidence taken without a search warrant.
Appellant requested that the trial court enter findings of fact relating to the motion for new trial. The trial court denied that request. The trial court signed its order denying appellant's motion for new trial on August 26, 2016. On that same day, the trial court sua sponte entered judgment nunc pro tunc in both cases. The trial court ordered that the date of judgment entered be changed from June 21, 2016 to June 22, 2016. The trial court also ordered that the "appeal waived paragraph" be removed. The deleted "appeal waived paragraph" had stated: "Appeal waived. No permission to appeal granted."
In each case, the trial court's certification of defendant's right of appeal dated November 2, 2015, states that the case is not a plea-bargain case, and defendant has the right of appeal. Appellant timely filed a notice of appeal in both cases.
After appellant filed his brief, the State filed a motion to dismiss the appeals, arguing that the record reflected that appellant pleaded guilty to intoxication manslaughter and intoxication assault pursuant to a charge-bargain agreement whereby the State agreed to dismiss the third charge for FSRA. The State contended that, under rule 25.2, appellant only could appeal issues raised in written motions ruled upon before trial or matters on which the trial court had given permission to appeal. According to the State, because the record reflected neither circumstance, the appeals should be dismissed. Appellant filed a response, arguing that "it is not entirely clear from the record" whether the third charge against him was dismissed as part of a plea bargain, the record did not show he waived his right of appeal, and the trial court implicitly granted him permission to appeal. The clerk issued a letter to the trial court stating that appellant's cases "may be charge-bargain cases" and requested that the court review the record, correct the certification if necessary, and file a supplemental clerk's record containing any corrected certification.
The trial court submitted another certification of defendant's right of appeal dated July 19, 2017, in each case, which stated that the case is a plea-bargain case, but the trial court has given permission to appeal, and defendant has the right of appeal. The supplemental record contains the trial court's findings of fact on the correction letter in both cases. The trial court found that:
• appellant pleaded guilty to intoxication manslaughter and intoxication assault with the handwritten recommended punishment of "WOAR-PSI-judge to decide deadly weapon paragraph";
• the State dismissed the third charge of FSRA because appellant "was convicted in another case 1443448/49";
• appellant signed the plea papers that stated, "I waive any right of appeal should the court accept the foregoing plea bargain agreement between myself and the prosecutor";
• the waiver of the right to appeal was not mentioned in any of the plea paperwork and was not discussed during the plea hearing;
• the judgments in both cases initially stated, "APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED," and the court issued nunc pro tunc judgments deleting this notation;
• appellant's affidavit in support of his motion for new trial asserted that his trial counsel "told [him] that the State would drop the Failure to Stop and Render Aid charge and the deadly weapon allegation";
• appellant's trial counsel told appellant's wife that he planned to file a petition for writ of habeas corpus and that "part of the plea bargain is that you give away the right to appeal";
• the court certified that the cases were not plea-bargain cases and appellant had the right to appeal them, and appellant filed his notices of appeal;
• this court issued a letter that directed the trial court to correct the certifications if necessary because "there may be plea bargain cases" and stated that a defendant in a charge-bargain case could only appeal matters raised by a pretrial motion or when given permission by the trial court; and
• the trial court held a hearing on July 17, 2017, and "orally decided that there was a charge bargain in these cases but because the waiver of the right to appeal was not a part of that
charge bargain, the defendant would receive permission to appeal from this Court."
We denied the State's motion to dismiss, and the State filed its brief.
II. ANALYSIS
Appellant raises four issues on appeal: (1) his previous counsel rendered IAC making appellant's decision to plead guilty unknowing and involuntary, (2) the trial court erred in denying appellant's motion for new trial based on IAC, (3) the trial court erred in denying appellant's request to call previous counsel to testify at the hearing on the motion for new trial, and (4) the trial court erred in denying appellant's request to make findings of fact.
As a cross-point, the State continues to assert that this court should dismiss the appeals. We first consider our jurisdiction.
A. Jurisdiction
Texas Rule of Appellate Procedure 25.2 governs the perfection of appeals in criminal cases and requires that the trial court certify an appellant's right to appeal. See Tex. R. App. P. 25.2; Grice v. State, 162 S.W.3d 641, 645 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd). Rule-25.2 requirements recited in a trial court's certification must be true and supported by the record. See Dears v. State, 154 S.W.3d 610, 613-15 (Tex. Crim. App. 2005); Waters v. State, 124 S.W.3d 825, 826 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd).
A defendant who accepts punishment under a plea agreement has a limited right of appeal under rule 25.2(a)(2); he only may appeal pretrial rulings on written motions or "after getting the trial court's permission to appeal." Tex. R. App. P 25.2(a)(2); Ex parte Cox, 482 S.W.3d 112, 117 (Tex. Crim. App. 2016) (defendant "waives the right to appeal" when he accepts plea-bargain offer (citing Tex. R. App. P. 25.2(a)(2)). There are two basic types of plea bargains—sentence bargains and charge bargains. Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003). Sentence-bargaining involves a situation in which a defendant agrees to enter a plea of guilty in exchange for the State's binding or non-binding recommendation to the trial court regarding punishment. Id. Charge-bargaining involves questions of whether a defendant "will plead guilty to the offense that has been alleged or to a lesser or related offenses, and of whether the prosecutor will dismiss, or refrain from bringing, other charges." Id. Rule 25.2(a)(2) applies to charge-bargain cases. Kennedy v. State, 297 S.W.3d 338, 340-42 (Tex. Crim. App. 2009).
Based on our review of the full record of the trial court proceedings, see Dears, 154 S.W.3d at 613, 615, appellant and the State entered into a charge bargain whereby appellant agreed to enter guilty pleas in the intoxication-manslaughter and intoxication-assault felony cases without an agreed recommendation and with the judge to decide the deadly-weapon paragraphs, and the State agreed to dismiss the related third felony case of FSRA. The trial court's first certification of the right of appeal in each case therefore was inaccurate and defective. See id. at 615. The trial court's second certification of the right to appeal in each case states that the case is a plea-bargain case, but the trial court has given permission to appeal, and appellant has the right of appeal. The trial court's second certification, as confirmed by the supplemental record, indicates that the trial court has given appellant permission to appeal, and accordingly this court has appellate jurisdiction. See Murray v. State, 261 S.W.3d 255, 257 & n.1 (Tex. App.—Houston [14th Dist.] 2008) (citing Tex. R. App. P. 25.2(a)(2)(B)), aff'd, 302 S.W.3d 874 (Tex. Crim. App. 2009).
Nevertheless, the State asserts that appellant's cases should be dismissed because appellant is bound by his signed waivers of appeal. The State relies on Jones v. State, 488 S.W.3d 801 (Tex. Crim. App. 2016). In Jones, the defendant agreed to enter a guilty plea, without an agreed recommendation on sentencing, in exchange for the State abandoning one of two enhancements, thereby reducing the mandatory minimum sentence. 488 S.W.3d at 807-08. The Court of Criminal Appeals held that, where consideration was given by the State for the waiver, the defendant knowingly and intelligently waived his appeal and he had no right of appeal. Id. (applying Ex parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009)).
Jones is distinguishable because it involved circumstances where the trial court had certified that the defendant had waived the right of appeal, see id. at 803, instead of where the trial court did not certify that the defendant waived his right of appeal but rather certified that the trial court granted permission to appeal. Moreover, the Court of Criminal Appeals consistently has held that a trial court's permission to appeal controls over a defendant's previous waiver of appeal contained in preprinted plea papers. Ex parte De Leon, 400 S.W.3d 83, 90 (Tex. Crim. App. 2013); Willis v. State, 121 S.W.3d 400, 403 (Tex. Crim. App. 2003). Although appellant entered into a charge bargain and signed plea paperwork containing waivers of appeal, the record reflects that the trial court subsequently granted him permission to appeal. See Tex. P. App. P. 25.2(a)(2)(B). We overrule the State's cross-point.
B. IAC and involuntariness of guilty pleas
The right to effective assistance of counsel does not entitle a defendant to errorless or perfect representation. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). To prove IAC, appellant must show: (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 688-92 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). When contesting the voluntariness of a guilty plea, satisfaction of the second Strickland prejudice prong entails a demonstration of a "'reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999) (quoting Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997)); Nicholas v. State, 56 S.W.3d 760, 769 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd).
We consider the totality of the circumstances in determining whether counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Unless appellant proves both Strickland prongs, we must not find counsel's representation to be ineffective. Lopez, 343 S.W.3d at 142.
There is a strong presumption that trial counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). It is not sufficient that an appellant show his counsel's actions or omissions during trial were merely of questionable competence. Lopez, 343 S.W.3d at 142-43. Instead, in order for an appellate court to find counsel ineffective, counsel's deficiency must be affirmatively demonstrated in the trial record and the court must not engage in retrospective speculation. Id. at 142. We will not second-guess the strategy of appellant's trial counsel through hindsight. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Navarro v. State, 154 S.W.3d 795, 799 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd) (citing Blott, 588 S.W.2d at 592). If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been grounded in legitimate strategy, we will defer to counsel's decisions and deny relief on an IAC claim on direct appeal. Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007).
"A guilty plea resulting from ineffective assistance of counsel is not knowing and voluntary." Nichols v. State, 494 S.W.3d 854, 856 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd). However, as is the case here, "[a]n accused who attests when he enters his plea of guilty that he understands the nature of his plea and that it is voluntary has a heavy burden on appeal to show that his plea was involuntary." Labib v. State, 239 S.W.3d 322, 332 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
In his first issue, appellant challenges his original trial counsel's conduct in representing appellant, arguing that counsel's IAC made appellant's decision to plead guilty unknowing and involuntary. Appellant attacks trial counsel's: (1) failure to advise appellant regarding the legal effects of the deadly-weapon allegations on the trial court's ability to assess probation, (2) failure to present any evidence or argument against the deadly-weapon findings at the sentencing hearing despite permitting appellant to admit the allegations, (3) failure to present sufficient information in appellant's motion to withdraw plea, and (4) failure to move to suppress appellant's blood-test result taken without his consent and without a warrant.
In his second issue, appellant contends that the trial court erred in denying appellant's motion for new trial. Where an appellant asserts IAC in a motion for new trial, we review the trial court's denial of the motion for abuse of discretion. Parker v. State, 462 S.W.3d 559, 562 (Tex. App.—Houston [14th Dist.] 2015, no pet.). This standard requires that we show great deference to the trial court, reversing only if the decision was clearly erroneous and arbitrary. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). An "appellate court must not substitute its own judgment for that of the trial court and must uphold the trial court's ruling if it is within the zone of reasonable disagreement." Id. We view the evidence in the light most favorable to the trial court's ruling and reverse only if no reasonable view of the record could support its holding. Id. at 457-58; Parker, 462 S.W.3d at 562. Where no express findings are made on a ruling on a motion for new trial, we must "impute implicit factual findings that support the trial judge's ultimate ruling on that motion when such implicit factual findings are both reasonable and supported in the record." Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005).
See supra n.2.
Where appropriate, we consider appellant's first and second issues together.
1. Failure to advise regarding deadly-weapon findings and probation
In his affidavit accompanying the motion for new trial, appellant alleged his counsel told him that if he wanted to get probation, the only way he could receive it was from the judge, and that if he pleaded guilty and "took a PSI" the judge would be able to give him probation. Appellant asked trial counsel if he was sure, and counsel told him "it was a 'sure thing'" and "would allow [him] to get probation." According to appellant, trial counsel did not explain to him what it meant for the trial court to withhold its findings on the deadly-weapon allegations.
According to trial counsel's affidavit, appellant's "only concern" was "his fear that he may go to prison." The State's plea offers all involved imprisonment, ranging from a high of eighteen to a low of ten years. Trial counsel discussed with appellant that an open plea meant the trial court could sentence him to the full range of punishment. Trial counsel informed appellant that, if the trial court did not make a deadly-weapon finding, then appellant was eligible for probation. Trial counsel stated he never told appellant that trial counsel would have "no problem" getting appellant probation or that it was a "sure thing." Trial counsel discussed with appellant his eligibility for probation from a jury regardless of the deadly-weapon finding. However, due to the facts (road rage, racing, multiple drugs and alcohol in appellant's system), trial counsel believed that a jury would likely send him to prison whereas a judge would be less shocked and more likely to grant probation. Trial counsel "discussed all sentencing possibilities . . . , the effect of an open plea, affirmative finding, the length of possible sentences and stacking or running concurrently."
A jury that imposes confinement on a defendant can recommend he be placed on probation instead, and the judge shall suspend the imposition of the sentence. Tex. Code Crim. Proc. art. 42.12 § 4(a) (West 2015) (now codified at Tex. Code Crim. Proc. art. 42A.055(a)). Under section 3(a) of article 42.12, a trial judge has broad authorization to place a defendant pleading guilty on probation whenever the judge deems it "in the best interest of justice, the public, and the defendant." Ivey v. State, 277 S.W.3d 43, 48 (Tex. Crim. App. 2009); see Tex. Code Crim. Proc. art. 42.12, § 3(a) (West 2015) (now codified at Tex. Code Crim. Proc. art. 42A.053(a)).
A judge cannot give probation to a defendant on a guilty plea where it is shown that a deadly weapon was used or exhibited in the offense and, on an affirmative finding, the trial court shall enter the finding in the judgment. Tex. Code Crim. Proc. art. 42.12 § 3g(a)(2) (now codified at Tex. Code Crim. Proc. art. 42A.054(b)-(d)). In Guthrie-Nail v. State, 506 S.W.3d 1 (Tex. Crim. App. 2015), which was decided prior to appellant's guilty pleas and PSI hearing, however, the Court of Criminal Appeals held that "a trial judge ha[s] the discretion to decline to make a deadly-weapon finding even after finding the defendant guilty of an offense in which use of a deadly weapon was a charged or necessary element." Id. at 6 (guilty-plea on conspiracy to commit capital murder involving firearm (discussing Hooks v. State, 860 S.W.2d 110 (Tex. Crim. App. 1993)); see also id. (noting "that result renders our treatment of the [probation] statute the same for trial judges as for juries").
In his motion for new trial, appellant argued, because there was enough evidence to establish that his vehicle was used as a deadly weapon, the trial court was prohibited from granting him probation under section 3(g) and only the jury could grant him probation under section 4. That is, his guilty pleas were rendered involuntary due to trial counsel's ineffectiveness in advising him that only the trial court could (and would) suspend appellant's sentence and place him on probation. However, this argument failed to take into account that a trial court on a guilty plea can decline to enter a deadly-weapon finding under Guthrie-Nail and therefore can assess probation. See id. Further, trial counsel's affidavit indicated that he advised appellant regarding his eligibility for and the availability of probation both from the jury and the trial judge and that he did not promise that appellant would receive probation. See Nicholas, 56 S.W.3d at 769 ("Nothing compels the trial court to accept as true appellant's version of events simply because he has said so. Where there is conflicting evidence, as there is here, we cannot say that the trial court abused its discretion in denying appellant's motion for new trial on a claim of ineffective assistance of counsel." (citing Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001))). Appellant did not establish deficient performance, and we cannot conclude that the trial court abused its discretion in denying his motion based on this sub-argument. We overrule appellant's second issue on this sub-argument.
See Tyra v. State, 868 S.W.2d 857, 860 (Tex. App.—Fort Worth 1993) ("[T]he intentional, reckless, or negligent operation of a motor vehicle, while intoxicated, resulting in death or serious bodily injury, will support a finding that the vehicle is a deadly weapon."), aff'd, 897 S.W.2d 796 (Tex. Crim. App. 1995).
On appeal, appellant asserts instead that trial counsel performed deficiently and appellant's guilty pleas were rendered involuntary because counsel failed to inform appellant that by admitting the deadly-weapon allegations were true and not contesting the allegations he would face "an additional potential impediment to receiving community supervision, since it would give the trial court the discretion to make an affirmative deadly weapon finding." However, appellant has not cited, and we have not located, any authority that requires this particular warning as a prevailing professional norm at the time of his pleas. According to trial counsel, the State's best plea offer was ten years of imprisonment. After the prosecutor proposed that the parties agree to an open plea bargain and have the trial court reserve the deadly-weapon findings until sentencing, trial counsel discussed this option with appellant. Trial counsel said he explained that appellant could receive probation "if no deadly weapon finding was made," but he informed appellant that the judge could choose from the full range of punishment and did not make any promises regarding probation. The record reflects that, as discussed, pursuant to the open plea agreement, the trial judge withheld making the deadly-weapon determinations until the end of appellant's PSI hearing.
We are not persuaded otherwise by appellant's reliance on a concurring opinion that was issued after appellant entered his pleas, where that concurrence reasserts the authoring justice's dissent in Guthrie-Nail. See Ex parte Sanchez, 475 S.W.3d 287, 289-90 (Tex. Crim. App. 2015) (Yeager, J., concurring). Nor are we convinced by appellant's reliance on Cardenas v. State, 960 S.W.2d 941 (Tex. App.—Texarkana 1998, pet. ref'd), where the court of appeals concluded that trial counsel's representation in connection with a nolo contendere plea for an offense of indecency with a child was ineffective. Cardenas was a case where there was no possibility of probation under Texas law, trial counsel did not address whether he informed the defendant that he could receive probation, and the record indicated that counsel filed a motion requesting probation and requested such prohibited probation from the trial court at the sentencing hearing. Id. at 945-46. Here, trial counsel averred that he informed appellant probation was possible if the trial court did not make a deadly-weapon finding, which is consistent with Texas law. Further, counsel filed a motion for probation and, at the sentencing hearing, requested that the trial court not find the deadly-weapon allegations true and grant appellant probation.
While not ultimately successful in obtaining probation, advocating an open plea, where the trial court would not determine the deadly-weapon issues until sentencing thereby leaving probation on the table, and advising the client about that option, under circumstances where the State only offered imprisonment and trial counsel had reason to believe the judge would be more inclined than a jury to find probation, falls within the wide range of reasonably professional representation. See Lopez, 343 S.W.3d at 142. Under the totality of the circumstances, we cannot conclude that appellant has overcome the strong presumption otherwise. We also overrule appellant's first issue on this sub-argument.
"A plea is not rendered involuntary simply because the defendant did not receive the punishment he hoped for, even if his expectation was the result of something the defendant claims his lawyer told him." Nicholas, 56 S.W.3d at 771.
2. Failure to present evidence or argument against deadly-weapon findings
In his second sub-argument in his motion for new trial and on appeal, appellant contends trial counsel rendered IAC based on his lack of investigation and failure to present evidence and argument at the PSI hearing to dispute the allegations that appellant used his vehicle as a deadly weapon. Appellant again faults trial counsel for permitting him to admit to the deadly-weapon allegations in the plea papers.
According to trial counsel, his investigation revealed that appellant had been "partying" for two days prior to the accident, appellant admitted ingesting drugs in addition to alcohol, and appellant knew of no favorable witnesses for his defense. Trial counsel also stated that the case involved "road rage" and "racing" facts.
However, an appellant cannot demonstrate prejudice and a claim for IAC fails when it is based on conclusory or speculative allegations regarding what evidence a proper investigation would have revealed. See Straight v. State, 515 S.W.3d 553, 568 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd) (citing Cooks v. State, 240 S.W.3d 906, 912 (Tex. Crim. App. 2007), and Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd)). Here, appellant does not otherwise provide or describe what evidence trial counsel should have uncovered and presented to the trial court that would have supported negative deadly-weapon findings. In his motion, appellant claimed that trial counsel could have presented "testimony from an accident reconstructionist or other expert witness," but he never described what such testimony "would have revealed" and what trial counsel then should have argued. See id. Accordingly, on this sub-argument, we conclude that appellant cannot establish he was prejudiced by any deficient performance of trial counsel and his IAC claim fails. See id. Likewise, the trial court did not abuse its discretion in denying appellant's motion for new trial on this sub-argument.
We overrule appellant's first and second issues with regard to this sub-argument.
3. Failure to present "sufficient information" in motion to withdraw plea
Next, appellant argues that trial counsel was ineffective by failing to present sufficient information to the trial court in appellant's motion to withdraw his plea. Appellant contends trial counsel performed deficiently by not expressing in the motion to withdraw that "'[a]ppellant expressed concern and reservation about his plea[s]' not having a full understanding of what his plea[s] meant." Instead, trial counsel merely stated in the motion that "[s]ubsequent to th[ese] plea[s], after further consultations with his family, Defendant informed Defense Counsel of his desire to withdraw his guilty plea[s]."
Because appellant did not include this sub-argument in his motion for new trial, the trial court did not include this topic in its order for filing affidavit, and trial counsel has not had a chance to explain his strategy regarding the motion to withdraw. Accordingly, we will not conclude that appellant received IAC unless the challenged conduct was "so outrageous that no competent attorney could have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Straight, 515 S.W.3d at 572; see Garza, 213 S.W.3d at 348. Additionally, trial counsel is not required to engage in the filing of futile motions or arguments. See Ex Parte Jones, 473 S.W.3d 850, 854 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd). Therefore, to show prejudice and prevail on this ineffectiveness claim, appellant must show that, if the missing information had been included, the trial court otherwise would have granted the motion to withdraw the plea. See Jackson, 973 S.W.2d at 957; Straight, 515 S.W.3d at 565; Nichols, 494 S.W.3d at 857.
A defendant may withdraw his guilty plea for any reason as a matter of right until judgment has been pronounced or the case has been taken under advisement. Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979). However, where the defendant decides to withdraw his guilty plea after the trial judge takes the case under advisement or pronounces judgment, the withdrawal of such plea is within the sound discretion of the trial court. Id.; Labib, 239 S.W.3d at 331; Houston v. State, 201 S.W.3d 212, 218 (Tex. App.—Houston [14th Dist.] 2006, no pet.). After a trial court has admonished the defendant, received the plea and evidence, and passed the case for a PSI, the case has been taken under advisement. Houston, 201 S.W.3d at 218. An abuse of discretion is shown only when the trial court's ruling lies outside the "zone of reasonable disagreement." Id.
In his affidavit, appellant stated that, after he entered his guilty pleas, he began researching what pleading to a "PSI" meant and was shocked it meant the trial court could assess the maximum punishment and the report would contain an uncontested version of the facts of the offense. Appellant "was concerned" because trial counsel had told him they would "continue to fight the fact that [he] was intoxicated." Appellant then informed trial counsel that he "was having second thoughts and that [he] wanted to take back his plea." According to appellant, trial counsel explained that all he had to do was file a motion to withdraw and it would be "no problem."
Trial counsel in his affidavit stated that he explained that appellant would meet with a probation officer who would prepare a PSI document. As noted above, trial counsel discussed with appellant that the trial court "could sentence him to the full range of punishment." Trial counsel averred that "[a]t no time" did he tell appellant they "could still fight the intoxication aspect of the case." To trial counsel, based on "numerous," "detailed discussions" with appellant, appellant appeared "to understand the situation and possible outcomes" and "knew full well the possibilities." Trial counsel described appellant as "attentive throughout the plea proceedings and [he] did not voice any reservation or confusion." Several days after his guilty pleas, appellant came to trial counsel's office and "expressed concern and reservation about his plea[s]." Trial counsel never told appellant that he would have "no problem" getting the trial court to allow the withdrawal of appellant's pleas.
Appellant relies on Rivera v. State, 952 S.W.2d 34 (Tex. App.—San Antonio 1997, no pet.), where the appellate court concluded that the trial court abused its discretion in denying a motion to withdraw plea where the appellant's plea was based on misinformation from his attorney and was not voluntary. According to appellant, if trial counsel only had stated that appellant expressed concern and reservation and did not have a full understanding of what his guilty pleas meant, then the trial court would have granted the motion under Rivera.
Rivera is distinguishable. In Rivera, the appellant testified that his former attorney told him he had an automatic right to withdraw his plea and have a jury trial any time prior to sentencing. Id. at 35-36. The Rivera court concluded the appellant's testimony was uncontroverted and "indirectly corroborated" by his attorney's testimony; the attorney did not deny telling appellant this and admitted it was possible that his client believed he had this absolute right. Id. at 36. Here, unlike in Rivera, trial counsel controverted appellant's assertions about what he was told. Counsel explained the trial court could award "the full range of punishment," and did not tell appellant that he could still contest intoxication or that it would be "no problem" to withdraw his pleas. Moreover, all of appellant's behavior up to the time he entered his pleas supported that he understood his guilty pleas. Appellant was attentive, expressed no confusion during the plea proceedings, and appeared to understand the sentencing possibilities of his guilty pleas. Appellant apparently told trial counsel he had "second thoughts" and that he wanted to take back his guilty pleas. But we do not agree with appellant that trial counsel's statement that appellant expressed concern and reservation about his guilty pleas "indirectly corroborates" appellant's alleged lack of full understanding. The record does not reflect appellant indicated to trial counsel that he had been confused by or failed to fully understand his pleas. On this record, we cannot conclude appellant has shown that trial counsel's conduct in connection with the information he included in the motion to withdraw the pleas was "so outrageous" that no competent attorney would do the same.
Appellant also has not shown that, even if trial counsel had included this "sufficient information" in the motion to withdraw, the trial court otherwise would have granted the motion. There is no dispute that appellant's cases had been taken under advisement so the trial court had broad discretion in ruling on the motion to withdraw. See Houston, 201 S.W.3d at 218. As discussed, Rivera did not control. Finally, the same trial court that denied appellant's motion to withdraw his pleas also rejected all of appellant's grounds of IAC related to the involuntariness of his guilty pleas which he presented in his motion for new trial. See Goody v. State, 433 S.W.3d 74, 81 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd) (no prejudice shown where trial court that heard mitigation evidence trial counsel had failed to present at punishment at new-trial hearing also presided over punishment hearing). We overrule appellant's first issue as to this sub-argument.
4. Failure to file motion to suppress initial blood-test result
In his fourth sub-argument in his motion for new trial and on appeal, appellant contends trial counsel rendered IAC and appellant's guilty pleas were rendered involuntary because counsel failed to move to suppress appellant's initial blood-test result taken without his consent and without a warrant pursuant to Missouri v. McNeely, 569 U.S. 141 (2013). Appellant argues that trial counsel successfully would have been able to suppress this blood draw under established law. See State v. Villarreal, 475 S.W.3d 784, 787, 813 (Tex. Crim. App. 2014) (applying principles of McNeely in holding that warrantless, nonconsensual testing of DWI suspect's blood does not categorically fall within any recognized exception to Fourth Amendment's warrant requirement and cannot be justified under general Fourth Amendment balancing test).
A trial counsel's failure to file a motion to suppress is not per se ineffective assistance of counsel. Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)). "To prevail on an ineffective assistance claim based on counsel's failure to file a motion to suppress, appellant must show by a preponderance of the evidence that the result of the proceeding would have been different—i.e., that the motion to suppress would have been granted and that the remaining evidence would have been insufficient to support his conviction." Jones, 473 S.W.3d at 854 (citing Jackson, 973 S.W.2d at 957).
Even assuming without deciding that a motion to suppress the first blood-test result would have been granted, appellant fails to address the evidentiary impact of the additional test results from the blood drawn after the police obtained a warrant. Police were dispatched to the fatal accident just after 11:00 p.m. The second set of blood samples was drawn from appellant pursuant to warrant at approximately 3:12 a.m., which reflected BAC levels of 0.076 and 0.070, respectively. Appellant has not challenged the admissibility of these test results, which reflected his BAC levels more than four hours after the accident under circumstances where appellant had not consumed any additional alcohol in the meantime.
Appellant also entirely fails to address the other evidence tending to support his intoxication at the time of the accident, such as: the driving facts involved in the accident, which included appellant's traveling at 30 miles over the speed limit, crossing over into the opposite lane to pass despite being in a no-passing zone, and swerving and hitting the oncoming car head on; appellant's fleeing the scene; appellant's strong alcoholic breath; appellant's closing his eyes and refusing to perform the horizontal gaze nystagmus (HGN) test; appellant's inability or refusal to answer police questions; appellant's refusal to provide a blood sample; and appellant's admissions of drinking alcohol and drug use prior to the accident. Such evidence logically and sufficiently raises an inference of intoxication at the time of driving. See Kirsch v. State, 306 S.W.3d 738, 745-46 (Tex. Crim. App. 2010). Our court has found legally-sufficient evidence of intoxication while driving based on similar facts. We conclude appellant has failed to show that the remaining evidence would have been insufficient to support his convictions. Likewise, we conclude that that the trial court did not abuse its discretion in denying appellant's motion for new trial based on this sub-argument. We overrule appellant's first and second issues on this sub-argument.
See Williams v. State, 525 S.W.3d 316, 321-23 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd) (hitting parked cars, refusing to cooperate with police, behaving belligerently, glassy eyes, dilated pupils, strong odor of alcohol, slurred speech, police observations, HGN test result, BAC blood-test result); Perez v. State, 495 S.W.3d 374, 382-83 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (BAC blood-test result, alcohol smell on breath, admission of prior drinking, refusal to perform field sobriety tests or provide blood sample); Wooten v. State, 267 S.W.3d 289, 295-96 (Tex. App.—Houston [14th Dist.] 2008, pet. ref'd) (high rate of speed, swerving and colliding with pedestrians and woman standing by parked car, alcohol smell on breath, slurred speech, drowsiness, BAC blood-test result, admission of prior drinking, and driving facts typical of intoxicated drivers).
Based on the foregoing, we find no merit in appellant's IAC claim, and that appellant's guilty plea was therefore knowingly and voluntarily made. See Nichols v. State, 494 S.W.3d at 861.
C. Failure of trial court to permit live testimony at new-trial hearing
Next, in appellant's third issue, he argues that the trial court erred by only permitting affidavits instead of live testimony, particularly from trial counsel, at the hearing on appellant's motion for new trial.
We review the trial court's denial of an evidentiary hearing on a motion for new trial for an abuse of discretion. Harris v. State, 475 S.W.3d 395, 404 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) (citing Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009)). The purpose of a hearing on a motion for new trial is to: (1) decide whether the case shall be retried and (2) prepare a record for presenting issues on appeal in the event the motion is denied. Id. (citing Smith, 286 S.W.3d at 338). The right to a hearing on a motion for new trial is not absolute. Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005) ("Generally, a trial court should hold a hearing if the motion and attached affidavit raise matters that are not determinable from the record that could entitle the accused to relief.").
Texas Rule of Appellate Procedure 21.7, "Types of Evidence Allowed at Hearing," provides that, with regard to motions for new trial in criminal cases, trial courts "may receive evidence by affidavit or otherwise." Tex. R. App. P. 21.7. Trial courts have authority and discretion to decide contested factual issues on affidavits. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). The trial court's determination of the credibility of the affiants is entitled to deference on appeal. See id. at 764; Harris, 475 S.W.3d at 406. Both the Texas Court of Criminal Appeals and our court hold that a trial court may rule on a motion for new trial based on sworn pleadings and affidavits without oral testimony and that live testimony is not required. Holden, 201 S.W.3d at 763-64 (discussing rule 21.7); Harris, 475 S.W.3d at 404, 406.
Appellant acknowledges Holden and Harris, but nevertheless asserts that the trial court abused its discretion by not permitting cross-examination of trial counsel. Appellant points to the audio recording of a conversation between counsel and appellant's wife approximately a week after appellant's sentencing. According to appellant, the recording directly controverts trial counsel's statements in his affidavit. Having reviewed the transcript of the conversation, we cannot agree. The fact that trial counsel did not mention his probation-eligibility discussion with appellant to appellant's wife during their conversation does not controvert counsel's statements in his affidavit that this discussion with appellant took place. Nor did trial counsel's statements to appellant's wife regarding the importance of getting the court's probation officer on appellant's side controvert counsel's statements in his affidavit that he discussed with appellant the trial court's ability to grant him probation without a deadly-weapon finding.
At the hearing, the State presented, and the trial court admitted, trial counsel's affidavit. Appellant's new trial counsel presented, and the trial court admitted, the transcript of the conversation between appellant's wife and trial counsel, as well as appellant's unsworn declaration and five affidavits from his family and friends. Appellant's new counsel argued that he "trusted" the trial court "to look at the affidavits and tell who's telling the truth." According to appellant's new counsel, the trial court also could "look at the record and see the ineffective assistance of counsel"—the "warning signs" in the plea papers, the motion to withdraw the plea, and at the sentencing hearing.
Based on the record before the trial court, and given the court's familiarity with appellant and trial counsel and with the history, facts, and issues in the case, we conclude that the trial court did not abuse its discretion by ruling on appellant's motion for new trial without permitting live testimony. See Holden, 201 S.W.3d at 764; Harris, 475 S.W.3d at 406. We overrule appellant's third issue.
D. Failure of trial court to issue written findings
In appellant's final issue, he argues that the trial court erred in denying his request to make findings of fact on the denial of appellant's motion for new trial. Under Texas Rule of Appellate Procedure 21.8, "Court's Ruling," in ruling on a motion for new trial in criminal cases the trial court "may make oral or written findings or fact." Tex. R. App. P. 21.8(b). Making findings is therefore discretionary, not mandatory. See id.; Thomas v. State, 445 S.W.3d 201, 216 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd) ("[T]here is no rule requiring a trial court to file findings of fact and conclusions of law after denying a motion for new trial."). We conclude that the trial court did not abuse its discretion in denying findings. We overrule appellant's fourth issue.
III. CONCLUSION
Having overruled appellant's issues, we affirm the trial court's judgments.
/s/ Marc W. Brown
Justice Panel consists of Justices Christopher, Brown, and Wise. Do Not Publish — TEX. R. APP. P. 47.2(b).