
                             NO. 07-12-00177-CR

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL B

                              OCTOBER 16, 2012
                        _____________________________


                              KELLY DON FARRAR,


                                   Appellant
                                     v.


                             THE STATE OF TEXAS,


                                    Appellee
                        _____________________________

              FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

               NO. 21,964-C; HONORABLE ANA ESTEVEZ, PRESIDING
                        _____________________________

                             Memorandum Opinion
                        _____________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
      Appellant Kelly Don Farrar pled guilty  in  2011  to  four  counts  of
endangering a child and was sentenced to twenty-four months confinement  and
a $500 fine on each count, suspended for three years.  On October 25,  2011,
the State filed a motion to revoke appellant's probation.  After a  hearing,
the court found appellant had violated his probation and  sentenced  him  to
his original punishment.  In challenging those  convictions,  he  claims  he
received ineffective assistance of counsel.   We  disagree  and  affirm  the
judgments.
      It is appellant's burden to prove that his counsel was  deficient  and
that the deficiency caused prejudice.  Strickland v.  Washington,  466  U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. State, 286  S.W.3d
333, 340  (Tex.  Crim.  App.  2009).   Furthermore,  he  must  do  so  by  a
preponderance of the evidence,  Thompson v. State, 9 S.W.3d 808,  812  (Tex.
Crim. App. 1999), and there is a strong presumption that  counsel's  conduct
falls within a wide range of reasonably professional assistance.   Robertson
v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006).
      Here, appellant alleged that counsel was ineffective  for  failing  to
convey to the State his acceptance of a plea offer prior to  the  revocation
proceeding.  The matter was addressed via a hearing upon  defense  counsel's
motion to withdraw.  According to appellant's own testimony, he was  unhappy
with his counsel because the latter allegedly failed to accept a plea  offer
of fifteen months.  The fifteen-month offer had been  relayed  from  defense
counsel to appellant, and appellant responded by directing his  attorney  to
see if he could "get a lower offer."  Counsel did as directed but  met  with
no success.  Instead, he was told by the Randall  County  District  Attorney
that the State did not want  "to  proceed  with  anything  here  in  Randall
County  until  Lubbock  County  messed  with  their  charges."   Thereafter,
defense counsel told appellant that  no  lower  offer  from  the  State  was
forthcoming, to which appellant supposedly replied that: "if fifteen  months
was the best [he] was going  to  get,  that  [he]  would  rather  take  that
than... bring it to trial and risk getting twenty-four months."
      Defense counsel  then  inquired  of  the  State,  shortly  before  the
hearing, whether the fifteen-month offer stood, and the State responded  no.
 Instead, it offered appellant a jail term of  sixteen  months.   The  offer
was rejected, and appellant opted to proceed with the revocation hearing.
      In view of the foregoing, we make  the  following  observations.   The
first pertains to the harm or prejudice aspect of the Strickland test.   The
harm alluded to by  appellant  involved  his  having  received  the  maximum
sentence of twenty-four months once the decision  to  revoke  probation  was
made.  This sentence is attributable to defense counsel, or so the  argument
goes.  Yet, he says nothing about his rejection of the  sixteen-month  offer
made by the State at the hearing.   Instead  of  accepting  it  and  thereby
avoiding the  "risk  [of]  getting  twenty-four  months"  by  submitting  to
"trial," he decided to submit to trial.  Thus, it cannot be  said  that  the
conduct attributed to his  attorney  resulted  in  the  sentence  ultimately
levied.
      Our second observation is the tenor of appellant's own testimony.   He
posits before us that his testimony was the only evidence before  the  trial
court since his counsel was never sworn as a witness.   Assuming,  arguendo,
that the proposition is correct,  it  does  him  no  good.[1]   This  is  so
because appellant's own words authorized the trial court to rule as it  did.
 Again, he testified that  he  1)  informed  counsel  to  inquire  into  the
possibility  of  a  lower  offer,  and  2)  had  been  told  both  that   no
"counteroffer" was forthcoming and that the State  would  not  proceed  with
the Randall County charges until those in  Lubbock  County  were  addressed.
The State choosing not to proceed with the  Randall  County  charges  hardly
connotes that the fifteen-month offer  remained  available   when  appellant
deigned to accept it.  Rather, it suggests the contrary.  And,  no  one  can
dispute that legal counsel is forbidden from accepting a plea offer for  his
client unless and until the client actually accepts it.  So,  if  there  was
no offer that could be accepted when appellant  finally  decided  to  accept
it, counsel's supposed failure to  accept  the  non-existing  offer  is  not
improper conduct.
      Third, as factfinder, the trial court was free to  assess  appellant's
credibility when making its decision.  See Mazratian v.  State,  961  S.W.2d
353, 358 (Tex. App.-Houston [1st Dist.]  1997,  no  pet.)  (stating  that  a
trial court possesses broad discretion in assessing the credibility  of  the
witnesses and in weighing the evidence).  Because of  that,  it  could  well
have discredited appellant's testimony that he did not reject  the  fifteen-
month offer.
      Appellant's issue is overruled, and the judgments are affirmed.

                                        Brian Quinn
                                        Chief Justice


Do not publish.
-----------------------
      [1]We think it appropriate to extend appellant's  premise  to  include
any comments uttered by the prosecutor as well for they  too  were  unsworn.
It would seem inconsistent to consider unsworn comments from the  prosecutor
when we supposedly must ignore like comments from defense counsel.


