                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-11-00180-CR
                           ____________________

                     CULLEN ASHTON TODD, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________            ______________

                    On Appeal from the 221st District Court
                         Montgomery County, Texas
                       Trial Cause No. 10-05-04679-CR
________________________________________________________             _____________

                          MEMORANDUM OPINION

      Cullen Ashton Todd pleaded guilty to theft from an elderly individual. The

trial court found the evidence sufficient to find Todd guilty, but deferred further

proceedings and placed Todd on community supervision for two years. The State

subsequently filed a motion to adjudicate. Todd filed a petition for habeas corpus

on grounds that his guilty plea was involuntary and, after a hearing, the trial court

denied Todd’s petition. At a subsequent revocation hearing, Todd pleaded “not

true” to the State’s allegations. After hearing evidence, the trial court revoked

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Todd’s community supervision and sentenced Todd to two years in state jail. On

appeal, Todd challenges the denial of his petition for habeas corpus and the trial

court’s failure to issue findings of fact and conclusions of law. We affirm the trial

court’s order.

                                   Habeas Corpus

      In issues one and two, Todd contends that the trial court abused its discretion

by denying his application for writ of habeas corpus because his trial counsel

rendered ineffective assistance, which made his guilty plea involuntary. We review

a trial court’s denial of an application for writ of habeas corpus for abuse of

discretion. Ex parte Klem, 269 S.W.3d 711, 718 (Tex. App.—Beaumont 2008, pet.

ref’d). We consider the entire record and review the facts in the light most

favorable to the trial court’s ruling. Id. We afford almost total deference to the trial

court’s determination of historical facts supported by the record, especially those

findings that are based on an evaluation of credibility and demeanor. Id. We afford

the same deference to the trial court’s rulings on application of law to fact

questions when resolution of those questions turns on an evaluation of credibility

and demeanor. Id. We review the determination de novo when resolution of those

questions turns on an application of legal standards. Id. A guilty plea is considered

voluntary if the defendant was made fully aware of the direct consequences of his

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plea. Id. at 719. When attacking a guilty plea on the basis of ineffective assistance

of counsel, the defendant must show that counsel’s alleged deficiencies resulted in

the plea being unknowingly and involuntarily made. Id. at 718.

      Todd was charged with stealing a television, valued at $500 to $1500, from

his grandfather. At the habeas corpus hearing, Todd’s grandmother testified that

the television cost approximately $500. She testified that, today, the same

television costs under $500 and she did not believe it could be sold for $500 or

more. Todd testified that he told defense counsel that the television’s value was

$400 to $450 and that the offense should be a misdemeanor, not a felony.

According to Todd, counsel stated that the offense could not be reduced and that

two years of deferred adjudication was a good deal. Todd testified that, based on

this advice, he chose to accept the plea and felt he had no other choice. Todd

feared that he would receive a greater sentence if he chose not to accept the offer.

When he pleaded guilty, Todd believed his attorney had done a good job, but he

later changed his mind after speaking with his family.

      Defense counsel testified that she was told the television cost less than $500,

which she explained would change the range of punishment. Counsel testified that

the State had a receipt for the television that showed a purchase price of $587.80.

Counsel explained that she wanted the State to consider reducing the offense to a

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misdemeanor and placing Todd on deferred adjudication, but the prosecutor would

not do so in light of the receipt provided by the complainant. Counsel testified that

she was still able to obtain deferred adjudication for Todd and that, although

deferred adjudication can last up to five years for a state jail felony, Todd only

received two years. She testified that she would never ask a trial court to accept a

plea that she believed to be involuntary.

       On appeal, Todd contends that he could not be convicted of a state jail

felony if the television was worth less than $500. Todd argues that defense counsel

based her advice on a receipt for the original purchase price of the television, rather

than the television’s fair market value. According to Todd, defense counsel

rendered ineffective assistance by failing to sufficiently investigate the facts of the

case before advising Todd to plead guilty and that, consequently, his guilty plea

was involuntary.

      “An attorney advises a client based upon an evaluation of numerous factors

and considerations.” Ex parte Niswanger, 335 S.W.3d 611, 616 (Tex. Crim. App.

2011). “[C]ompetent advice requires that an attorney conduct independent legal

and factual investigations sufficient to enable him to have a firm command of the

case and the relationship between the facts and each element of the offense.” Id. at

615. Because the offense in this case was committed against an elderly individual,

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theft of property exceeding $500 was a state jail felony, while theft of property

valued less than $500 was a misdemeanor. See Tex. Penal Code Ann. §

31.03(e)(3), (f)(3)(A) (West Supp. 2012). Retail price, sale price, the owner’s

opinion of value, or expert testimony can be used to establish fair market value.

See Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991); see also Tex.

Penal Code Ann. § 31.08 (West 2011).

      The record does not support Todd’s contention that defense counsel failed to

sufficiently investigate the facts. Rather, the record indicates that Todd’s defense

counsel attempted to convince the State to reduce the charge to a misdemeanor on

grounds that the television’s value was less than $500, but the State chose to

proceed in light of the complainant’s receipt reflecting the television’s value.

Defense counsel presented the State’s plea offer to Todd and Todd accepted the

offer. When entering his plea, Todd stated that he understood the range of

punishment, had reviewed the plea papers with defense counsel, understood that he

was waiving his rights to a jury trial and to an appeal, stated that he pleaded guilty

voluntarily, and affirmed that defense counsel did a good job. The trial court

explained to Todd that if he successfully completed deferred adjudication, the case

would be dismissed and the conviction would not appear on his record, which

Todd acknowledged he understood.

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      The record demonstrates that Todd was made fully aware of the

consequences of his plea. See Klem, 269 S.W.3d at 719. Had Todd decided not to

plead guilty and proceeded to trial, he could have been convicted of theft even if

the jury determined the value of the television to be less than $500. However, had

Todd successfully completed deferred adjudication, there would have been no

conviction and the case would have been dismissed. See Taylor v. State, 131

S.W.3d 497, 500 (Tex. Crim. App. 2004) (A defendant reaps the benefit of

deferred adjudication if community supervision is successfully completed; the

proceedings are dismissed, the defendant is discharged, and the defendant is

deemed not to have a conviction for many purposes.).

      Under the circumstances of this case, we conclude that Todd has not

overcome the strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance, i.e., that counsel’s actions might be

considered sound trial strategy. See Niswanger, 335 S.W.3d at 615; see also

Guillory v. State, 99 S.W.3d 735, 740 (Tex. App.—Houston [1st Dist.] 2003, pet.

ref’d) (Appellant failed to establish that his counsel’s actions, which culminated in

the entry of a guilty plea in return for deferred adjudication community

supervision, fell below prevailing professional norms or were not the result of a




                                         6
sound trial strategy.). The trial court did not abuse its discretion by denying Todd’s

petition for writ of habeas corpus. We overrule issues one and two.

                      Findings of Fact and Conclusions of Law

      In a third issue, Todd contends that the trial court violated his due process

rights by failing to make written findings of fact and conclusions of law as

requested by Todd. When requested, the court should make specific findings as to

the basis for revocation. Whisenant v. State, 557 S.W.2d 102, 105 (Tex. Crim.

App. 1977); Reasor v. State, 281 S.W.3d 129, 136 (Tex. App.—San Antonio 2008,

pet. ref’d). The trial court’s failure to make the requested findings may require

reversal if their omission impedes appellate review of the revocation. Reasor, 281

S.W.3d at 136.

      Todd requested findings of fact and conclusions of law from the trial court

regarding its judgment adjudicating guilt. Todd subsequently filed a notice of past

due findings. The judgment states, “Defendant violated the terms and conditions of

community supervision set out in the State’s Amended Motion to Adjudicate Guilt

as follows: I, II, III, IV, V, and VI[.]” A trial court is not required to issue separate

findings if the judgment discloses the grounds for revocation found by the trial

court. Id. Because the trial court’s judgment identifies which of the State’s

allegations served as the basis for its revocation decision, we conclude that the trial

                                           7
court was not required to issue findings of fact and conclusions of law and its

failure to do so did not impede appellate review. See id. We overrule this issue and

affirm the trial court’s judgment.

      AFFIRMED.



                                             ________________________________
                                                    STEVE McKEITHEN
                                                        Chief Justice

Submitted on March 13, 2013
Opinion Delivered March 27, 2013
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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