Opinion
NO. 14-16-00173-CR
06-01-2017
ERIC LLOYD SHELTON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 412th District Court Brazoria County, Texas
Trial Court Cause No. 69746
MEMORANDUM OPINION
Appellant Eric Lloyd Shelton, a former educator, pleaded guilty to improper relationship with a student and attempt to commit an improper relationship with a student. Appellant raises a single issue on appeal, contending his pleas were involuntary due to ineffective assistance of counsel. Appellant argues his trial counsel was ineffective because, prior to acceptance of the plea offer, counsel failed to: (1) explain to appellant that he was required to admit to being a "sex offender" in order to comply with the conditions of his community supervision; (2) inform appellant that count five of the indictment failed to allege an offense and that he could file a motion to set it aside; and (3) inform appellant that he could move to dismiss count four based on the State's selective prosecution. Appellant asks us to reverse and remand for a new trial. We affirm.
I. BACKGROUND
Appellant was a high school basketball coach and teacher at Sweeny High School. He was indicted for committing five sex offenses against two students. The indictment alleged that appellant sexually assaulted the first complainant, who was between the ages of 14 and 17, by causing his mouth to contact her vagina (count one) and by causing his penis to penetrate her mouth (count two). The indictment further alleged that, while he was an educator at Sweeny High School, he committed the offense of improper relationship with a student by engaging in deviate sexual intercourse with the first complainant, a student at Sweeny High School, by causing his genitals to contact her mouth (count three) and by placing his mouth in contact with her genitals (count four). Finally, count five alleged that appellant, while he was an educator at Sweeny High School, attempted to commit the offense of improper relationship with a second complainant, a Sweeny High School student, by kissing her and having her remove his clothing. Counts one through four alleged second-degree felonies, and count five alleged a third-degree felony.
As part of a plea bargain, the State dismissed counts one, two, and three, and appellant pleaded guilty to counts four and five. The State recommended a sentence of: ten years in prison, probated for ten years; a $500 fine; completion of 500 hours of community service; 90 days in the county jail; placement on the sex-offender caseload; and permanent relinquishment of appellant's teaching certificate. Under the plea bargain, appellant's placement on the sex-offender caseload required appellant to comply with "Sex Offender Special Conditions of Community Supervision" (the "conditions"). The conditions required appellant to participate in a sex-offender treatment program. To participate in the program, appellant had to acknowledge his responsibility for the improper-relationship offenses (counts four and five). The trial court accepted appellant's plea, found appellant guilty, and assessed concurrent sentences pursuant to the State's recommendation.
With new counsel, appellant moved for a new trial alleging that his plea was involuntary as a result of ineffective assistance of counsel. The trial court held a hearing. The trial court heard testimony from appellant, appellant's counsel, and Glenda Pigrenet, the probation officer who supervises the sex-offender caseload.
Appellant testified that, prior to pleading guilty, he was not informed that he would have to say he is a "sex offender" to comply with the conditions, or that he could file a motion to set aside count five. Appellant testified that had he known this information, he would have rejected the State's plea offer and pursued trial. Counsel testified to advising appellant to admit to the offenses to which he pleaded guilty, "be truthful about what he did," but, per the conditions, appellant would "not have to admit [appellant] was a sex offender per se." Counsel also testified to his opinions about the motion to set aside count five.
The testimony further showed that appellant informed counsel that sex-offender registration and prison time were "deal breakers." Appellant never mentioned that any other condition, such as having to utter the term "sex offender," would also be a deal breaker. Although convictions on counts one and two would have required appellant to register as a sex offender, the negotiated plea did not.
The trial court denied appellant's motion for new trial and issued findings of fact and these conclusions of law:
[T]he challenge to ineffective assistance of counsel for failing to advise [appellant] that he would have to utter the words 'I am a sex offender' is premature as it is based solely on something that might or might not ever become an issue, or even if it did become an issue, that this alone would result in a Motion to Revoke being filed.Appellant timely appealed.
. . .
Mr. Gonzalez' total advice was within the range of competence demanded of attorneys in criminal cases as it pertains to claims of ineffective assistance of counsel.
. . .
[There] was no reasonable probability that, but for counsel's alleged errors, the [appellant] would not have plead[ed] guilty and would have insisted on going to trial.
. . .
[I]t is not in the interest of justice to grant a new trial.
II. STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court's ruling on a motion for new trial for an abuse of discretion, "reversing only if the judge's opinion was clearly erroneous and arbitrary." Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). We view the evidence in the light most favorable to the court's ruling, must not substitute our judgment for that of the trial court, and must uphold the ruling if it was within the zone of reasonable disagreement. Id.; Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). If there are two permissible views of the evidence, then the factfinder's choice between them cannot be clearly erroneous. Riley, 378 S.W.3d at 457. Therefore, a trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support its ruling. Id.; Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).
Claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986) (adopting Strickland test for ineffective assistance of counsel claims under the Texas Constitution). Under Strickland, the defendant must prove by a preponderance of the evidence that (1) his counsel's performance was deficient and (2) the deficient performance resulted in prejudice. See Strickland, 466 U.S. at 687. To demonstrate deficient performance, the defendant must establish that counsel's representation fell below an objective standard of reasonableness. Id. at 688. To demonstrate prejudice, the defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. When the claim of ineffectiveness is predicated on an involuntary plea of guilty, prejudice is shown if the defendant establishes that, but for his counsel's advice, he would have pleaded not guilty and insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985). Judicial review of counsel's performance must be highly deferential and avoid the distorting effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (citing Strickland, 466 U.S. at 689).
The Hill Court also explained:
In many guilty plea cases, the "prejudice" inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example . . . . where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the "prejudice" inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.474 U.S. at 59; see also Miller v. State, ___S.W.3d___, No. PD-0891-15, 2017 WL 1534213, at *4 (Tex. Crim. App. Apr. 26, 2017) (comparing and contrasting the prejudice prongs in Strickland and Hill).
III. ANALYSIS
A. Counsel's explanation of the State's plea offer did not fall below an objective standard of reasonableness.
In his first sub-issue, appellant contends that counsel's performance was deficient when counsel failed to fully and accurately explain the plea offer. Specifically, counsel did not explain that appellant would have to admit he is a "sex offender" to comply with the conditions. Appellant also argues that counsel failed to explain that if appellant refused to admit he is a "sex offender" he would risk revocation of his community supervision. We construe appellant's argument as a complaint about counsel's failure to explain that appellant would have to utter the term "sex offender" when he admits he committed the offenses during sex-offender treatment.
Defense counsel's duty includes "fully" explaining the terms of plea offers to the defendant to ensure that defendant's guilty plea is made voluntarily. See State v. Williams, 83 S.W.3d 371, 374 (Tex. App.—Corpus Christi 2002, no pet.) (citing Texas and federal cases imposing duty on counsel to inform defendants, and explain terms, of plea offers). For example, if the State offers deferred adjudication to the defendant under a plea bargain, counsel should explain the meaning of the term "deferred adjudication." See id. (holding that, while counsel informed defendant of State's offer of deferred adjudication, counsel's failure to explain what deferred adjudication meant fell below an objective standard of reasonableness); see also Ex parte Lemke, 13 S.W.3d 791, 795 (Tex. Crim. App. 2000) (holding that defense counsel's failure to inform a criminal defendant of State's plea offer is an omission that falls below an objective standard of professional reasonableness); Ex parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999) (holding that counsel's advice that sentences in plea offer would run concurrently when, in fact, they ran consecutively, fell below an objective standard of professional reasonableness).
As part of the plea bargain, appellant signed and reviewed a written document entitled "Sex Offender Special Conditions of Community Supervision." The second condition required appellant to participate in a sex-offender treatment program where he would have to acknowledge his responsibility for the offenses:
Defendant shall attend and participate in a sex offender treatment program to be conducted by [a] sex offender treatment provider, namely __________, and obey all rules, regulations and policies of the designated program until successful completion and/or further orders of the court. Program participation is defined as attendance at all meetings . . . acknowledgment of responsibility for the defendant's offense, and progress toward responsible treatment goals.(emphasis added).
Appellant testified that he was aware that sex-offender treatment was a required part of his community supervision. Appellant has not contended that he misunderstood his duty to acknowledge responsibility for his offenses. Counsel testified that he advised appellant that the sex-offender conditions and treatment program were a "nightmare" and involved polygraphs, classes, counseling, and meetings with people who were sex offenders. Counsel testified to advising appellant that, according to the plea bargain, appellant had to admit to the offenses to which he pleaded guilty and "be truthful about what he did." Counsel fully explained the plea bargain's second condition.
Counsel's advice that the second condition did not require appellant to "admit to being a sex offender per se" was not a failure to fully or accurately explain the plea offer. The second condition does not state that appellant must admit to being a "sex offender" or utter the phrase "I am a sex offender." Under the second condition, there would be no legal basis for the State to file, or the trial court to grant, a motion to revoke probation based on the appellant failing to admit he was a "sex offender," so long as he took responsibility for counts four and five. Therefore, the trial court did not abuse its discretion in finding that counsel's advice was within the range of competence demanded of attorneys in criminal cases. Appellant has failed to satisfy the first Strickland prong on this sub-issue, and accordingly, we need not discuss whether counsel's performance prejudiced appellant. We overrule appellant's first sub-issue.
Appellant points to Pigrenet's testimony in support of his assertion that he would have to admit he is a sex offender as a condition of treatment. The trial court found Pigrenet's opinions confusing as to the meaning of the phrase "admit to being a sex offender," and whether it was different than the explicit condition requiring appellant to take responsibility for his offense. Pigrenet treated the two concepts interchangeably and differently during her testimony. The trial court also expressed that her testimony was irrelevant to the determination of whether counsel erroneously advised appellant about the sex-offender conditions. We agree.
B. Counsel's performance did not fall below an objective standard of reasonableness when he did not tell appellant that he could file a futile motion.
In his second sub-issue, appellant argues that counsel's performance was deficient when he failed to advise appellant that count five of the indictment was subject to being set aside because it failed to allege an offense. Count five alleged that appellant, with the specific intent to commit the offense of improper relationship with a student, attempted to engage in sexual contact with complainant by kissing her and having her remove his clothing. Appellant asserts that kissing and undressing are not "more than mere preparation" for sexual contact.
An employee of a secondary school commits an offense if the employee engages in sexual contact with a person who is enrolled in the secondary school at which the employee works. See Tex. Penal Code § 21.12 (West 2015). "Sexual contact" is defined as any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person. Id. § 21.01(2) (West 2015). Attempt requires an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. Id. § 15.01 (West 2015).
Defense counsel has a duty to advise the defendant of "viable" legal defenses because the validity of a guilty plea depends on the defendant making a voluntary and intelligent choice among the alternative courses of action available to him. State v. Diaz-Bonilla, 495 S.W.3d 45, 53 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd). Additionally, "[c]ounsel is not required to engage in the filing of futile motions." Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Here, setting aside count five was not a viable legal defense. Kissing and undressing are sufficient to allege the offense of attempt to commit sexual contact and appellant has not cited case law showing otherwise.
At least one court upheld a conviction for less. In Farris v. State, Farris alleged that the evidence was insufficient to support his conviction for attempt to commit indecency with a child. 506 S.W.3d 102, 106 (Tex. App.—Corpus Christi 2016, pet. ref'd). Farris "acknowledged" the complainant upon entering a bathroom; occupied the stall next to the complainant; stuck his hand and face underneath the stall's partition; and asked the complainant "do you want to do anything?" Id. at 107. The court found that appellant's "request, combined with his earlier unwanted intrusion into [complainant's] bathroom stall, supports a reasonable inference that appellant desired sexual contact with [complainant]." Id. The behavior and verbal requests in Farris were sufficient to support attempt to engage in sexual contact. It follows that appellant's actual, physical contact with complainant—kissing and undressing—is sufficient to allege this offense.
Counsel's strategy was not unreasonable. Counsel recognized the futility of a motion to set aside count five because, as he testified, "sexual contact is usually preceded by undressing and kissing." Counsel also testified that negotiating with the State was a delicate process. Counsel was concerned that, by challenging this least serious count, he would damage his ability to negotiate a favorable plea bargain on the more serious counts. Even if the trial court granted the motion to set aside, counsel testified to his predictions that the State would have pursued trial on the more serious counts. Given the evidence the State had, counsel did not think they "would have won" at trial.
On these facts and the law applicable to them, filing a motion to set aside count five was not a viable legal defense. Counsel was not obligated to file, or inform appellant about his ability to file, a futile motion. Appellant has failed to prove ineffective assistance of counsel pursuant to the first prong of Strickland. Accordingly, we need not discuss whether counsel's performance prejudiced appellant. We overrule appellant's second sub-issue.
C. Appellant has failed to show he was prejudiced by counsel's deficient performance, if any, with regard to count four.
Finally, appellant argues that counsel failed to inform him before he accepted the plea bargain that he could move to dismiss count four based on selective prosecution. Assuming without deciding counsel's performance was deficient, appellant has failed to meet his burden to show a reasonable probability that, but for counsel's alleged errors, he would not have pleaded guilty and would have insisted on going to trial. At the hearing, appellant made no statements claiming he would have rejected the State's plea offer and gone to trial if counsel informed him he could move to dismiss count four. Nor was there evidence regarding same from any other source. See Hill, 474 U.S. at 59. We overrule appellant's third sub-issue.
IV. CONCLUSION
The record supports a finding that appellant's guilty plea was voluntary. The trial court did not act unreasonably or arbitrarily in denying appellant's motion for new trial. Accordingly, we overrule appellant's sole issue on appeal and affirm the trial court's judgment.
/s/ Marc W. Brown
Justice Panel consists of Justices Boyce, Jamison, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).