                                    NO. 12-14-00182-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

STEPHEN ALBRO, JR.,                             §      APPEAL FROM THE 217TH
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      ANGELINA COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Stephen Albro, Jr. appeals his conviction for burglary of a habitation, for which he was
sentenced to imprisonment for twenty years. In two issues, Appellant argues that the trial court
abused its discretion in overruling his motion for new trial because he received ineffective
assistance of counsel. We affirm.


                                         BACKGROUND
       Appellant was charged by indictment with burglary of a habitation and pleaded “guilty”
without an agreed punishment recommendation. After reviewing the presentence investigation
report (PSI) and conducting a punishment hearing, the trial court sentenced Appellant to
imprisonment for twenty years. Appellant filed a motion for new trial, in which he argued he
received ineffective assistance of counsel. The trial court conducted a hearing on Appellant’s
motion and considered testimony from Appellant’s trial counsel. Ultimately, Appellant’s motion
for new trial was overruled by operation of law. This appeal followed.


                            INEFFECTIVE ASSISTANCE OF COUNSEL
       In his first issue, Appellant argues that his trial counsel was ineffective because he (1)
failed to prepare Appellant for his sentencing hearing, (2) failed to review the PSI sufficiently
with him, (3) led Appellant to mistakenly believe he had been offered community supervision,
(4) failed to make Appellant aware that an enhancement notice had been filed, which increased
the potential range of punishment from that of a second degree felony to that of a first degree
felony,1 (5) failed to call numerous witnesses at his punishment hearing, and (6) failed to keep
Appellant sufficiently informed with regard to the plea process. In his second issue, Appellant
contends that the trial court erred in not granting his motion for new trial on this basis.
Standard of Review and Applicable Law
        The granting or denying of a motion for new trial lies within the sound discretion of the
trial court. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). We reverse “only
when the trial judge’s decision was so clearly wrong as to lie outside that zone within which
reasonable persons might disagree. Id. at 695 n.4. We may not substitute our judgment for that
of the trial court, but rather must decide whether the trial court’s decision was arbitrary or
unreasonable. Id.
        At a hearing on a motion for new trial, a trial court, as finder of fact, is free to believe or
disbelieve the testimony of any witness, even if the testimony is uncontroverted. Bell v. State,
256 S.W3d 465, 468 (Tex. App.–Waco 2008, no pet.). Thus, we must defer to the trial court in
assessing the witnesses’ credibility in a motion for new trial. Id., see also Camilo v. State, No.
06-08-00164-CR, 2009 WL 348564, at *1 n.3 (Tex. App.–Texarkana Feb. 13, 2009, no pet.)
(mem. op., not designated for publication).                 Because the trial judge is prohibited from
commenting on the evidence in ruling on a motion for new trial, reviewing courts may impute
implicit factual findings that support the trial judge’s ultimate ruling in denying a motion for new
trial when such findings are both reasonable and supported by the record. See Shamin v. State,
443 S.W.3d 316, 321 (Tex. App.–Houston [14th Dist.] 2014, pet. ref’d).
        Claims of ineffective assistance of counsel are evaluated under the two step analysis
articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984).
The first step requires the appellant to demonstrate that trial counsel’s representation fell below
an objective standard of reasonableness under prevailing professional norms. See Strickland,
466 U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or
omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell


        1
           Appellant argues that as a result of his trial counsel’s misinforming him, his waiver of jury trial and
“guilty” plea were not made freely and voluntarily.


                                                        2
below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500
(Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any
portion of trial counsel’s representation, but will judge the claim based on the totality of the
representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
       To satisfy the Strickland standard, the appellant also is required to show prejudice from
the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex.
Crim. App. 1999). To establish prejudice, an appellant must prove that but for counsel’s
deficient performance, the result of the proceeding would have been different. See Strickland,
466 U.S. at 694, 104 S. Ct. at 2068.
       In any case considering the issue of ineffective assistance of counsel, we begin with the
strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994).      We must presume counsel’s actions and decisions were reasonably
professional and were motivated by sound trial strategy. See id. Appellant has the burden of
rebutting this presumption by presenting evidence illustrating why his trial counsel did what he
did. See id. Appellant cannot meet this burden if the record does not affirmatively support the
claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012).
       A record that specifically focuses on the conduct of trial counsel is necessary for a proper
evaluation of an ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.–
Houston [1st Dist.] 1994, pet. ref’d). Before being condemned as unprofessional and
incompetent, defense counsel should be given an opportunity to explain his or her actions. See
Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Thus, absent a properly developed
record, an ineffective assistance claim must usually be denied as speculative, and, further, such a
claim cannot be built upon retrospective speculation. Id. at 835.
“Guilty” Plea Based on Misinformation
       Appellant first contends that his trial counsel caused him to mistakenly believe that the
prosecutor would offer community supervision if he waived his right to a jury trial and pleaded
“guilty.” Appellant argues that, as a result, his trial counsel was ineffective because he did not
require the State to honor any offer of community supervision or inform the trial court that the
State had retracted its offer. This, Appellant urges, caused his “guilty” plea to have been
involuntarily made.




                                                3
        In his affidavit2 filed in support of his motion for new trial, Appellant acknowledges that
he was aware of the plea agreement’s statement that his punishment would be imprisonment for
ten years. But he argues he was “told” that if he waived his right to a jury trial and testified
against his codefendants, the prosecutor would recommend community supervision in return for
his cooperation. Appellant does not identify in his affidavit who made this statement to him.
But assuming arguendo that Appellant intended to attribute the statement to his trial counsel, we
note that counsel testified he made no such representation to Appellant.
        Appellant’s affidavit further states he “thought” he would be offered community
supervision if he waived his right to a jury trial and pleaded “guilty.” However, Appellant’s trial
counsel and the prosecuting attorney testified that no offer of community supervision was made
or would ever be made. A letter from Appellant to his trial counsel was introduced into evidence
as well. In that letter, Appellant acknowledged that community supervision was not available to
him. Furthermore, at the plea proceeding, Appellant acknowledged to the trial court that he
signed written admonishments and was pleading “guilty” of his own free will. He further
acknowledged that there was no agreement concerning his punishment and that he understood
that the court could assess his punishment at imprisonment for as many as twenty years.
        There is no evidence of record that Appellant’s trial counsel persuaded Appellant to plead
“guilty” based on what he anticipated the trial court’s sentence would be. Instead, there is only
Appellant’s vague affidavit testimony that he was “told” the prosecutor would offer or
recommend community supervision if he pleaded “guilty.”
        In its evaluation of the evidence presented in conjunction with Appellant’s motion for
new trial, the trial court was entitled to believe Appellant’s trial counsel’s and the prosecutor’s
respective testimonies that no offer of community supervision was or would be made and that
Appellant was aware of that fact. See Bell, 256 S.W.3d at 468. Therefore, we conclude that
Appellant has failed to demonstrate the State made an offer of community supervision or that his
trial counsel caused him to believe any such offer existed.




        2
           Appellant was not present in court for the hearing on his motion for new trial. His attorney “waiv[ed the
need for] his presence” at the hearing, and the court conducted the hearing in his absence.


                                                         4
Misinformation about Enhancement
         Appellant next contends that his trial counsel was ineffective because he failed to
adequately convey to him that his prior felony conviction for murder and aggravated robbery3
could be used against him to enhance the range of punishment he faced to that of a first degree
felony. In his affidavit, Appellant correctly notes that he was admonished at the plea proceeding
that the range of punishment for the offense in this case (burglary of a habitation) was two to
twenty years. However, he also states he was never told that his prior conviction could or would
be used to enhance the punishment range to that of a first degree felony. Appellant’s mother
corroborated his testimony. She testified that Appellant was not made aware that the range of
punishment he was facing had been increased by virtue of the enhancement notice filed by the
State.
         Yet Appellant’s trial counsel testified that he spent considerable time with both Appellant
and his mother explaining to them that the previous conviction would be used to enhance the
range of punishment and that they understood the enhancement’s effect on the case. Moreover,
at the punishment hearing, the trial court addressed the matter of the enhancement notice and
asked Appellant if he was aware of it and the effect it would have on the range of punishment.
Appellant’s trial counsel responded that he and Appellant were aware. There is no indication
from the record that Appellant disagreed with his trial counsel’s assessment.
         There was ample evidence presented at the hearing on Appellant’s motion to permit the
trial court reasonably to conclude that Appellant was aware of the enhancement and increased
range of punishment before proceeding with the sentencing hearing. Therefore, we conclude that
Appellant has not shown his trial counsel failed to explain that his prior conviction could be used
to increase the range of punishment in this case.
Inadequate Preparation for Sentencing Hearing
         Appellant next argues that his trial counsel was ineffective by not adequately reviewing
the PSI with him or preparing him for the punishment hearing. In his affidavit, Appellant states
that his trial counsel spent only three to four minutes with him prior to the sentencing hearing
         3
            When he was a juvenile, Appellant was found to have engaged in delinquent conduct involving murder
and aggravated robbery and was committed to the Texas Youth Commission (TYC). He was later transferred to the
to the Pardons and Parole Division of the Texas Department of Criminal Justice and placed on parole for the
remaining twenty-seven years of his thirty year determinate sentence. For enhancement purposes here, an
adjudication by a juvenile court that a child engaged in delinquent conduct constituting a felony offense for which
the child is committed to the Texas Juvenile Justice Department under Texas Family Code, Section 54.04(d)(2), is a
final felony conviction. See TEX. PENAL CODE ANN. 12.42(f) (West Supp. 2014).


                                                        5
and spent only thirty to forty-five seconds of that time reviewing the PSI with him. As a result,
according to Appellant, he did not have a complete understanding of the contents of the PSI and
was unprepared for the hearing.
       We first note that Appellant’s argument focuses on his trial counsel’s alleged failure to
prepare him for sentencing. He does not contend that the information contained in the PSI was
inaccurate or misleading. At the hearing on Appellant’s motion for new trial, his trial counsel
testified that he spent considerably more time reviewing the PSI with Appellant as well as the
letters of support and other documents he submitted for inclusion in the PSI. His trial counsel
further testified that while he did not spend an inordinate amount of time talking to Appellant
immediately prior to the sentencing hearing, he previously spent considerable time discussing the
matter with Appellant and his mother. The trial court was entitled to weigh the testimony before
it on this point and to determine that Appellant’s trial counsel sufficiently reviewed the PSI with
Appellant and adequately prepared him for the sentencing hearing. Thus, we conclude that
Appellant has not shown his trial counsel failed to adequately review the PSI with him or prepare
him for the punishment hearing.
Failure to Call Witnesses
       Appellant further argues that his trial counsel was ineffective by not calling several
witnesses who were present in the courtroom to testify at his sentencing hearing. To obtain relief
on an ineffective assistance of counsel claim based on an uncalled witness, the appellant must
show that the witness was available to testify and that his testimony would have been of some
benefit to the defense. See Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004). Here,
Appellant failed to specify what the subject matter of these witnesses’ testimonies would have
been and did not call any of them to testify at the hearing on his motion for new trial. Therefore,
there is no evidence in the record that trial counsel was ineffective for failing to call these
witnesses.
Failure to Keep Appellant Informed Regarding Plea Process
       Lastly, Appellant contends that his trial counsel was ineffective by not keeping him
adequately informed regarding the plea process. As a result, Appellant argues that he did not
make an informed decision regarding whether to waive his right to a jury trial, to accept the
State’s plea bargain offer, and to plead “guilty.” In his affidavit, Appellant states that his trial
counsel never came to the jail to meet with him, did not return his phone calls, and failed to send



                                                 6
him written correspondence regarding his case. Indeed, Appellant’s trial counsel testified that he
did not visit Appellant in jail and did not routinely correspond with him. But he denied that his
communications with Appellant were inadequate. Rather, according to Appellant’s trial counsel,
he took numerous telephone calls from Appellant. Further, he testified that he had several
conferences with Appellant’s mother that lasted up to two hours.            At those conferences,
according to Appellant’s trial counsel, he discussed the case with Appellant’s mother in great
detail.    He further testified that he spoke with Appellant at length during previous court
appearances and when the trial court allowed Appellant to be brought to the courthouse from jail
for consultation.
          Once again, the trial court was entitled to believe Appellant’s trial counsel’s testimony
that Appellant was properly and adequately informed about his case and could conclude that
Appellant made decisions concerning his “guilty” plea freely and voluntarily. Therefore, we
conclude that Appellant failed to demonstrate that his counsel did not keep him adequately
informed regarding the plea process.
Harm
          Appellant failed to meet his burden of proof under the first prong of the Strickland test.
But even had he met this burden, the outcome would not change because he also has failed to
show that, but for counsel’s alleged unprofessional errors, the result of the proceeding would
have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong v. State, 25
S.W.3d 707, 712 (Tex. Crim. App. 2000). The record indicates that Appellant was admonished
concerning an incorrect range of punishment for the offense charged in light of the enhancement
notice.     But the sentence imposed was within the range of punishment stated in the
admonishments. Moreover, the record reflects that Appellant had engaged in criminal activity a
few years after being placed on parole. Appellant’s trial counsel testified that in his presentation
of Appellant’s case, he highlighted accomplishments Appellant made during his period of
commitment along with a plan for Appellant to relocate to Houston to avoid continued exposure
to bad influences such as those that led to the instant charges. He further testified that he spent
considerable time working with Appellant’s mother on how to best present this mitigation
defense, which he described as a “good plan.” However, he conceded that as worthy as this
approach may have been, he explained to Appellant that obstacles to that plan––the more than
twenty remaining years of his parole––still loomed large.



                                                  7
         Appellant acknowledges his burden of proof, but addresses the second prong of the
Strickland test with only conclusory statements and a general assertion that the sentence
imposed would have been different had trial counsel spent more time with him or done more at
the hearing. These statements do not satisfy the second prong of Strickland. Therefore, because
Appellant failed to demonstrate that the results of the proceeding would have been different, he
has failed to meet the second prong of the Strickland test.
Summation
         Appellant failed to meet his burden of proof on either element under the Strickland test.
As a result, we hold that (1) Appellant failed to demonstrate that he received ineffective
assistance of counsel and (2) the trial court did not abuse its discretion in overruling Appellant’s
motion for new trial. Appellant’s first and second issues are overruled.


                                                   DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.


                                                                 GREG NEELEY
                                                                     Justice

Opinion delivered May 13, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)


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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                              MAY 13, 2015


                                         NO. 12-14-00182-CR


                                      STEPHEN ALBRO, JR.,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 217th District Court
                        of Angelina County, Texas (Tr.Ct.No. 2013-0614)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
