                                 Fourth Court of Appeals
                                          San Antonio, Texas
                                    MEMORANDUM OPINION
                                              No. 04-13-00805-CR

                                      EX PARTE Santos GUEVARA

                    From the 216th Judicial District Court, Gillespie County, Texas
                                       Trial Court No. 4704-A
                           Honorable N. Keith Williams, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice
                  Jason Pulliam, Justice

Delivered and Filed: March 4, 2015

AFFIRMED

           Appellant Santos Guevara filed an application for writ of habeas corpus in the trial court

pursuant to article 11.072 of the Texas Code of Criminal Procedure, claiming he received

ineffective assistance of counsel relative to the State’s motion to adjudicate. After a hearing, the

trial court denied Guevara’s application. On appeal, Guevara contends the trial court erred in

denying his application. We affirm the trial court’s order denying Guevara’s application.

                                                 BACKGROUND 1

           In 2008, Guevara pled no contest to the offense of felony theft. The trial court deferred a

finding of guilt and placed Guevara on probation for a period of two years. Subsequently, the


1
 Guevara has several appeals pending in this court, and they are all somewhat related in that they involve Guevara
and the same essential facts. It appears some of the documents relevant to, and filed in, the underlying cause of this
appeal were placed in the clerk’s record for appeal number 04-13-00883-CR. The State has requested that we take
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State filed a motion to adjudicate, claiming Guevara violated certain conditions of his probation.

Specifically, the State alleged Guevara: (1) committed the offense of assault, violating the

condition that he commit no offense against the laws of Texas; (2) possessed and consumed alcohol

and assaulted an individual, violating the condition that he avoid injurious or vicious habits; and

(3) was on the premises of Red Baron’s Bar, violating the condition that he avoid persons or places

of disreputable or harmful character.

         The first allegation — the assault violating Texas law — was struck by the State at the

hearing. The hearing then proceeded on the other two allegations. Ultimately, Guevara pled true

to allegations two and three based on a plea agreement with the State. The trial court adjudicated

Guevara guilty of the previous theft charge and sentenced him to confinement for two years in a

state jail facility. However, the trial court probated the sentence for a period of five years. Guevara

did not file an appeal.

         In 2013, more than four years after the adjudication and imposition of probation, Guevara

filed an application for writ of habeas corpus under article 11.072 of the Texas Code of Criminal

Procedure. In the application, Guevara claimed he received ineffective assistance of counsel with

regard to the State’s motion to adjudicate. The trial court denied the application, and Guevara

perfected this appeal.

                                                    ANALYSIS

         In his brief, Guevara lists four issues under “Issues Presented,” asserting the trial court

erred in: (1) denying his application because the evidence established he was inadequately


judicial notice of the contents of the clerk’s record in appeal number 04-13-00883-CR, which is on file in this court.
An appellate court may take judicial notice of its own records in the same or related proceedings involving the same
or nearly the same parties. Reynolds v. State, 548 S.W.2d 733, 734 n.1 (Tex. Crim. App. 1977); Huffman v. State, 479
S.W.2d 62, 68 (Tex. Crim. App. 1972), overruled on other grounds by Ex parte Castellano, 863 S.W.2d 476 (Tex.
Crim. App. 1993); Ex parte Sotelo, 878 S.W.2d 179, 191 (Tex. App.—Fort Worth 1993, pet. ref’d). Accordingly, we
accede to the State’s request and take judicial notice of the documents in the clerk’s record in appeal number 04-13-
00883-CR.

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informed of the status of his case, and a significant portion of the evidence upon which his

revocation was based should have been removed from the record before the revocation hearing;

(2) finding the parking lot of a certain bar was a place of disreputable or harmful character because

there was no evidence to support the finding; (3) concluding he failed to establish ineffective

assistance of counsel; and (4) finding he knowingly and voluntarily entered a plea of true to the

motion to adjudicate. However, a review of the substantive argument within Guevara’s brief

establishes his only complaint on appeal is that he received ineffective assistance of counsel with

regard to the motion to adjudicate. Specifically, he contends his counsel was ineffective in that

she failed to: (1) properly investigate the State’s allegations; (2) adequately communicate with

Guevara; and (3) cause the State’s motion to adjudicate to be properly “revised to fit the parameters

of the ‘deal.’” According to Guevara, these mistakes by counsel caused him to plead true to

allegations that were not in fact true, and that but for counsel’s ineffectiveness, he would have

proceeded to a full hearing rather than pleading true.

                                        Standard of Review

       An applicant seeking post-conviction habeas corpus relief must prove his claims by a

preponderance of the evidence. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011);

Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). When we review a trial court’s

decision denying habeas relief, we view the facts in the light most favorable to the trial court’s

ruling. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled in part on

other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). In our review, we

afford almost total deference to the trial court’s findings of fact that are supported by the record,

especially when the fact findings are based on the credibility and demeanor of a witness. Ex parte

Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006) (quoting Ex parte White, 160 S.W.3d

46, 50 (Tex. Crim. App. 2004)). We afford this same deference to the trial court’s application of
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the law to the facts if the application turns on issues of credibility and demeanor. Peterson, 117

S.W.3d at 819. In both of these instances, we apply an abuse of discretion standard. See Ex parte

Garcia, 353 S.W.3d 785, 787–88 (Tex. Crim. App. 2011) (adopting abuse of discretion standard

articulated in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) (en banc)); see Ex parte

Skelton, 434 S.W.3d 709, 717 (Tex. App.—San Antonio 2014, pet. ref’d). However, if the

resolution of the ultimate issues turns upon the application of the law absent any evaluation of

credibility or demeanor, we use a de novo standard of review. Peterson, 117 S.W.3d at 819; see

Skelton, 434 S.W.3d at 717.

                      Applicable Law — Ineffective Assistance of Counsel

       To determine whether to grant habeas corpus relief for ineffective assistance of counsel,

i.e., whether trial counsel’s representation was so inadequate as to violate a defendant’s right to

counsel under the Sixth Amendment, Texas courts apply the two-pronged Strickland test.

Martinez, 330 S.W.3d at 900; see Strickland v. Washington, 466 U.S. 668, 687; Thompson v. State,

9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Under the two-pronged Strickland test, a defendant

must prove by a preponderance of the evidence that trial counsel’s performance was deficient and

that this deficient performance prejudiced his defense. Ex parte Nailor, 149 S.W.3d 125, 130

(Tex. Crim. App. 2004); Thompson, 9 S.W.3d at 812; Skelton, 434 S.W.3d at 717. The allegations

of ineffectiveness “must be firmly founded in the record.” Nailor, 149 S.W.3d at 130 (quoting

Thompson, 9 S.W.3d at 813). A claim that counsel was ineffective is analyzed under the “totality

of the representation” standard. Nailor, 149 S.W.3d at 130; Thompson, 9 S.W.3d at 813.

Moreover, our review of trial counsel’s representation “is highly deferential” and we must presume

“counsel’s actions fell within the wide range of reasonable and professional assistance.” Nailor,

149 S.W.3d at 130 (quoting Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)). The



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“ultimate focus of inquiry must be on the fundamental fairness of the proceeding.” Martinez, 330

S.W.3d at 901 (quoting Strickland, 466 U.S. at 696).

       To meet the first prong of the Strickland test, Guevara must establish by a preponderance

of the evidence that his trial counsel’s representation was “deficient,” that is, the representation

fell below an objective standard of reasonableness based on prevailing professional norms and the

circumstances of the case. See Strickland, 466 U.S. at 690; Martinez, 330 S.W.3d at 900. We will

not second-guess counsel’s tactical decision unless those decisions were “so outrageous that no

competent attorney would have engaged in it.” Ex parte Harrington, 310 S.W.3d 452, 459 (Tex.

Crim. App. 2010).

       To meet the second prong of the Strickland test, Guevara must show he was prejudiced by

counsel’s deficient performance. See Strickland, 466 U.S. at 687; Martinez, 330 S.W.3d at 900–

01. In other words, he must show there is a reasonable probability that, but for his attorney’s

deficient representation, the result of the proceeding would have been different — in this case, that

he would not have pled true to the allegations in the State’s motion to adjudicate. See Ex parte

Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (en banc), overruled in part on other

grounds by Taylor v. State, 109 S.W.3d 443 (Tex. Crim. App. 2003). A reasonable probability is

a probability sufficient to undermine confidence in the outcome of the proceeding. Thompson, 9

S.W.3d at 812–13. We evaluate prejudice based on the overall context of the record. See Ex parte

Menchaca, 854 S.W.2d 128, 133 (Tex. Crim. App. 1993).

                                             Application

       Our review of Guevara’s brief shows he contends his counsel was ineffective because she

failed to: (1) properly investigate the State’s allegations in its motion to adjudicate; (2) adequately

communicate with him; and (3) take steps to see that the State revised its motion to adjudicate to

“fit the parameters of the deal.” Guevara contends that if his attorney had provided effective
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assistance, he would not have pled true to conditions two and three of the State’s motion to

adjudicate.

       The allegations in the State’s motion to adjudicate arose from an event that occurred when

Guevara, after admittedly consuming four beers at his home, traveled to Red Baron’s Bar to give

a friend a ride home. The State alleged Guevara was in the parking lot of the bar, a violation of

his probation in that he was supposed to avoid persons or places of disreputable or harmful

character, when he committed an assault. It is undisputed that the State struck the assault allegation

at the hearing. According to Guevara, he believed all references to Red Baron’s Bar were to be

struck from the motion to adjudicate as part of his deal with the State, which would mean only the

consumption of alcohol allegation would have remained if his attorney had acted effectively and

insured that the motion conformed to the deal. However, because the allegation remained, he felt

compelled to plead “true” to both allegations to avoid incarceration. Guevara contends that if only

the consumption of alcohol allegation had remained, he would not have pled “true,” but would

have taken his chances with the trial court after a full hearing, which would have permitted him to

explain why he was in the parking lot of the bar. It seems Guevara contends his decision to plead

“true” was due to his attorney’s lack of investigation, lack of communication, and failure to have

the third allegation struck from the State’s motion.

                                       Lack of Investigation

       With regard to this claim, Guevara states in his brief: “The recitation by Defendant of the

efforts made by counsel reflects that there was no investigation of anything.” Guevara provides

no additional argument or actual analysis, nor does he provide citation to the record for this

assertion. In other words, Guevara provides no substantive argument or record support for his

conclusion. “This omission is fatal because a brief must contain a clear and concise argument for

the contentions made. TEX. R. APP. P. 38.1(i); McGee v. State, 342 S.W.3d 245, 247 (Tex. App.—
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Amarillo 2011, pet. ref’d). If an appellant fails to provide an argument in support of a claim, the

matter is inadequately brief and nothing is presented for appellate review. McGee, 342 S.W.3d at

247–48. As stated by the Texas Court of Criminal Appeals, we have no obligation “to construct

and compose” a party’s “issues, facts, and arguments with appropriate citations to authorities and

to the record.” Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008). Accordingly, we

hold nothing is presented for our review with regard to Guevara’s claim that his counsel failed to

adequately investigate the State’s allegations. See id.; see also Maldonado v. State, No. 04-06-

00755-CR, 2008 WL 506195, at *5 (Tex. App.—San Antonio Feb. 27, 2008, no pet.).

       Moreover, we have reviewed the record from the writ hearing and find that even if

preserved, Guevara did not establish by a preponderance of the evidence that his counsel failed to

investigate the State’s allegations. See Nailor, 149 S.W.3d at 130 (requiring applicant to establish

ineffectiveness claim by preponderance of evidence). Numerous times, when queried about

investigative actions by his counsel — e.g., did she contact witnesses, go to the bar parking lot —

Guevara responded that to his knowledge counsel had not contacted witnesses, gone to the bar

parking lot, or taking other investigative steps. He did not present affirmative evidence that his

counsel failed to do these things; rather, he simply testified that to his knowledge she did not take

any investigative actions. Nailor, 149 S.W.3d at 130; Thompson, 9 S.W.3d at 812; Skelton, 434

S.W.3d at 717. Thus, Guevara’s allegations of ineffectiveness with regard to investigation are not

“firmly founded in the record.” Nailor, 149 S.W.3d at 130 (quoting Thompson, 9 S.W.3d at 813).

       Moreover, counsel could have reasonably determined further investigation was

unnecessary. See Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010). Guevara

admitted at the writ hearing that he told his attorney “the facts and circumstances of the situation

at Red Baron’s Bar.” Guevara also testified he told his attorney he drank alcohol as alleged in the

State’s motion, thus admitting the allegation was true. He also admitted to his attorney that he
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went to Red Baron’s Bar as the State alleged. Guevara even explained to his attorney why he went

to the bar. Given Guevara’s admissions regarding what he told his attorney about the State’s

allegations, we cannot say counsel lacked a “firm command of the facts.” See Ex parte Welborn,

785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Given the admissions, the trial court could have

concluded Guevara’s counsel made a reasonable decision that no further investigation was

necessary — Guevara admitted to consuming alcohol and being on the premises of the bar — both

violations of his deferred adjudication probation, making further investigation unnecessary. See

Harrington, 310 S.W.3d at 458. Rather, at that point, counsel’s admitted concern was keeping

Guevara from possible confinement. Accordingly, viewing the facts in the light most favorable to

the trial court’s ruling, we cannot say the trial court erred in refusing to find ineffective assistance

of counsel based on Guevara’s allegation of failure to investigate. See Peterson, 117 S.W.3d at

819.

                                     Inadequate Communication

       Guevara also contends his counsel for the motion to adjudicate failed to adequately

communicate with him. With regard to this allegation, Guevara states in the “Statement of Facts”

portion of the brief that, “The recitation of Defendant on his contact with counsel reflected sparse

contact.” He then refers the court to pages 26 through 32 of the reporter’s record. In the argument

portion of his brief, he states he pled true to inaccurate allegations “due to apparent confusion and

lack of effective communication.” He provides no record citations for this assertion.

       In the portion of the record cited by Guevara, the testimony shows that after Guevara hired

counsel for the adjudication matter, he met with her outside of the courtroom before docket call.

As noted above, Guevara told the attorney “the facts and circumstances of the situation at Red

Baron’s Bar.” Guevara admitted to the attorney he drank alcohol as alleged in the State’s motion,

thus admitting the allegation was true. He also admitted to his attorney that he went to Red Baron’s
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Bar as the State alleged, although he did not go inside. As to counsel communication with

Guevara, he testified, “[S]he explained to me what we were going to — what she was going to

represent me for and what she was going to do for me.” Counsel advised that she was going to

look at the court documents “and see what we could come up with” in an effort “to keep [Guevara]

from going to jail.” Guevara stated they talked for approximately twenty minutes, but counsel did

not ask him any questions about the case. He did not meet with her again until the actual day of

the hearing on the State’s motion.

        On the day of the hearing, Guevara stated that after they initially approached the judge, he

and his attorney went to the back of the courtroom where counsel “explained everything to me.”

She advised Guevara that under the terms of the plea agreement with the State, he would be “taken

off deferred adjudication . . . get a straight felony and . . . get another three years on top of the two

years of probation you have, plus an extra hundred hours of community service,” and take an anger

management course and a course regarding theft by check. Guevara admitted the attorney “read

everything to me. She asked me if I understood it, and I said, ‘Yes, ma’am.’” This meeting also

lasted approximately twenty minutes. However, according to Guevara’s testimony at the writ

hearing, he believed the adjudication was based on the alleged assault — despite the fact the State

dropped the allegation in open court in front of Guevara and his admission that counsel explained

and read everything to him and he admitted he understood. Moreover, the record reflects the

relevant documents were read and shown to Guevara and the assault allegation was clearly stricken

from the State’s motion. At the writ hearing, Guevara continued to insist that he misunderstood,

believing the State was proceeding on the assault allegation. He testified that if he had understood,

he would have rejected the State’s plea offer and taken his chances with the trial court, even if it

meant going to prison.



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        When queried at the writ hearing as to whether the attorney at the hearing on the motion to

adjudicate explained that Guevara might be eligible for release from deferred adjudication or the

court could consider the motion to adjudicate and the surrounding circumstances, Guevara stated

she had not. However, Guevara admitted he had only been on probation for two weeks of the two-

year term when the alleged violations occurred. We fail to see, as suggested by Guevara’s current

counsel, how he could have been released from the recently imposed term of probation. According

to Guevara, he understood he would have a felony conviction, but the attorney advised him about

the possibility of an expunction at a later date. Guevara also admitted he knew — his attorney had

advised him — that the State’s original plea offer included six months confinement in prison. His

attorney was able to negotiate a plea that did not involve incarceration.

        Based on the record, the trial court could have concluded there was sufficient

communication between Guevara and his counsel, i.e., Guevara did not prove by a preponderance

of the evidence that his counsel’s representation during the adjudication process fell below an

objective standard of reasonableness based on prevailing professional norms and the circumstances

of the case. See Strickland, 466 U.S. at 690; Martinez, 330 S.W.3d at 900. Based on the record,

it appears that with regard to the entire matter — particularly given that the State’s initial plea offer

included prison time — Guevara’s attorney performed responsibly, communicating to Guevara it

was her intent to ensure he was not incarcerated. Guevara admitted he knew the State had initially

requested incarceration and he advised his attorney he did not want to go to prison. At best, it

appears Guevara may have misunderstood some of counsel’s statements, but admittedly did not

ask her to explain or otherwise question her. In fact, Guevara admitted his attorney “read

everything to me . . . asked if I understood it, and I said, ‘Yes, ma’am.’” He admitted at the writ

hearing that he was questioned by the trial judge at the adjudication hearing. Before the trial court

accepted his plea of true, the judge asked if he was pleading true to “going to the bar and drinking
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four beers” because those allegations were true. Guevara admitted he was. Guevara also admitted

at the writ hearing that he remembered he was pleading true to the State’s second and third

allegations, but was admittedly confused as to whether either of those allegations concerned the

alleged assault. Guevara testified at the writ hearing that he was “confused.” He also admitted he

knew he was not supposed to consume alcohol and that any violation of his conditions of probation

could result in a revocation and imposition of punishment up to the maximum.

       Accordingly, viewing the facts in the light most favorable to the trial court’s ruling, and

considering that Guevara’s credibility with regard to his understanding and communication with

his attorney was within the trial court’s purview, we cannot say the trial court erred in refusing to

find Guevara’s counsel performed deficiently with regard to communication with her client. See

Amezquita, 223 S.W.3d at 367; Peterson, 117 S.W.3d at 819.

                                Revising the Motion to Adjudicate

       Guevara also contends his counsel was ineffective because she failed to require the State

to “revise” the motion to adjudicate “to fit the parameters of the ‘deal.’” With regard to this

allegation, Guevara appears to contend he understood his plea agreement with the State to require

the State to remove any allegation from the motion to adjudicate that dealt with “the incident at

Red Baron’s Bar.” Thus, according to Guevara, although his attorney negotiated with the State so

that the State agreed to remove the assault allegation — the first allegation in the motion — his

attorney was deficient in failing to have the State remove the third allegation in the motion — that

Guevara was on the premises Red Baron’s Bar, violating the condition that he avoid persons or

places of disreputable or harmful character.

       As noted above, the record reflects the State alleged three violations of probation. The

record suggests Guevara knew there were three allegations. It is undisputed that Guevara pled true

to two violations, and in her affidavit, which was used as evidence at the writ hearing, his
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adjudication attorney averred the State had agreed only to strike the assault allegation; the State

intended to proceed on the consumption of alcohol and the “entering the premises of a bar.” 2

Guevara admitted his attorney read everything to him and he told her he understood.

         As noted above, before the trial court accepted Guevara’s plea at the adjudication hearing,

the judge asked if he was pleading true to “going to the bar and drinking four beers” because those

allegations were true. Thus, Guevara knew he was pleading true to two violations — one of which

involved going to the bar. Guevara admitted at the writ hearing that he remembered pleading true

to the State’s second and third allegations. Thus, there is evidence in the record from the writ

hearing that despite his claim, Guevara knew there were three allegations and he pled true to two

of them. The trial court could certainly surmise, given Guevara’s admitted knowledge, that

Guevara was well aware the plea deal involved only the removal of the assault allegation — not

everything relating to Red Baron’s Bar. Thus, much like his allegation regarding the lack of

communication, we hold it was within the trial court’s discretion to find the performance by

Guevara’s attorney with regard to the adjudication was not deficient in the manner suggested by

Guevara. See Amezquita, 223 S.W.3d at 366–67; Peterson, 117 S.W.3d at 819.

                                    Prejudiced by Counsel’s Performance

         Because we have determined the trial court was within its discretion in determining

counsel’s performance was not ineffective, we need not determine whether Guevara was

prejudiced by her performance. See Rodriguez v. State, 446 S.W.3d 520, 540 (Tex. App.—San

Antonio 2014, no pet.) (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

However, even if we were to assume that counsel was deficient in some way, we would hold



2
 Guevara makes much ado about the attorney’s use of the word “entering,” testifying he told the attorney he never
entered the bar. Yet, it is clear the allegation in the motion, which was read to Guevara by his own admission, as well
as by the trial court, was that he was on the “premises” of the bar. The State never alleged he entered the bar.

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Guevara is not entitled to relief because he failed to establish the alleged deficient performance

prejudiced him. In other words, Guevara did not establish by a preponderance of the evidence that

he would not have pled true to at least one of the State’s allegations in the motion to adjudicate.

See Morrow, 952 S.W.2d at 536. We evaluate potential prejudice based on the context of the entire

record. See Menchaca, 854 S.W.2d at 133.

       Admittedly, at certain points during the writ hearing, Guevara testified that if the State had

withdrawn all of its allegations except for the consumption of alcohol allegation — as he claims

his attorney failed to ensure — he would not have accepted the plea or pled true. In response to a

question from his attorney at the writ hearing, Guevara stated he would not have taken a felony

plea “for drinking four beers,” even though it was a violation of his probation; rather, he would

have insisted on a hearing before the court to determine whether drinking four beers was grounds

to revoke his deferred adjudication.

       However, on cross-examination, Guevara admitted he knew that consuming four beers was

a violation of the terms of his deferred adjudication probation, and that a violation could result in

revocation and confinement. Soon after this admission, the following exchange occurred:

       Q [The State]: Okay. Let me put it to you this way, Mr. Guevara: I’m trying to
       understand what you’re saying. Are you telling us today that back in ’09 when we
       did the adjudication hearing, you would rather have gone in front of the Court and
       said, “Judge, I did consume four beers and I did go to Red Baron’s Bar, and I would
       like to take my chances at a revocation hearing.”?

       A [Guevara]: I would have asked her [his attorney] to fight a different way, yes.

       Q [The State]: So what you’re saying is you would rather have risked going to
       prison for two years than taking the plea to get probation?

       A [Guevara]: No.

       Q [The State]: Well, then what are you saying?

       A [Guevara]: What I’m saying is the way I was explained that to me [sic], I would
       have had — if she would have said, “Look, Santos, we’re going to do all this, you’re
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        going to get a straight felony over four beers and not the assault charge,” then I
        would have said, “Okay, is there a different angle we can go at this and keep me
        on deferred instead of a straight felony” –

        Q [The State]: Okay.

        A [Guevara]: — “on my record?”

        Q [The State]: And if her answer was “No, the State was wanting to send you to
        prison; this is the best deal I can make,” what would you have said?

        A [Guevara]: Back then, I have no idea. I’ll be totally honest with you.”

Guevara then asserts he would have “fought it.” And then later says, “I would have had her fight

it a lot different than what she did fight.” He does not explain what he meant by fighting it

differently.

        The record establishes Guevara’s testimony with regard to whether he would have pled

true but for counsel’s alleged deficiencies is conflicting. He initially says on direct examination

that if the State’s only allegation had been he had consumed four beers in violation of the terms of

his probation, he would have not pled true. Then, on cross-examination, he wavers, specifically

stating he would not have wanted to risk two years’ incarceration in light of a plea for probation.

He then testifies not that he would not have pled true or accepted the plea, but that he would have

had his attorney “fight it a different way,” “fight it a lot different than what she did fight,” never

explaining what he expected her to do.

        Based on the conflicting testimony, we hold the trial court was within its discretion to

determine Guevara did not establish there was a reasonable probability that but for counsel’s

alleged errors he would not have pled true, insisting upon a full revocation hearing that would have

subjected him to possible incarceration. See Morrow, 952 S.W.2d at 536.




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                                          CONCLUSION

       Based on the foregoing, we hold the trial court did not err in denying Guevara’s application.

The trial court was within its discretion to determine Guevara did not establish by a preponderance

of that counsel’s performance was deficient or that Guevara was prejudiced by any alleged

deficiency. We therefore overrule Guevara’s issues and affirm the trial court’s order denying the

application for writ of habeas corpus.


                                                  Marialyn Barnard, Justice

Do Not Publish




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