      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00263-CR




                                     Charles Lugo, Appellant

                                                  v.

                                   The State of Texas, Appellee



 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
        NO. 04-223-K368, HONORABLE BURT CARNES, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Following a hearing on the State’s motions to adjudicate, the trial court rendered

judgments convicting appellant Charles Lugo on two counts of sexual assault of a child. See Tex.

Penal Code Ann. § 22.011 (West Supp. 2009). The court assessed punishment at twenty years’

imprisonment on each count and ordered that the sentences be served consecutively. In two issues,

appellant contends that the trial court abused its discretion by failing to conduct a hearing on his

motion for new trial and that his pleas of true at the adjudication hearing were involuntary. We

affirm the judgments.

               The indictment in this cause alleged four counts of sexual assault of a child. The

record reflects that the complainant was a fifteen-year-old girl, a classmate of appellant’s daughter,

with whom appellant had sexual intercourse on the four dates alleged. On April 25, 2005, appellant

pleaded guilty to counts one and two pursuant to an agreement under which appellant would receive
five years deferred adjudication community supervision on those counts and counts three and four

would be disposed of under section 12.45. See id. § 12.45 (West 2003); see also Tex. Code Crim.

Proc. Ann. art. 42.12, § 5(a) (West Supp. 2009). On May 31, 2005, the trial court accepted the

agreement and entered deferred adjudication orders conforming to it.

                The State filed motions to adjudicate on January 27, 2006. The motions alleged that

appellant violated the conditions of his supervision by going to a place where alcoholic beverages

are possessed, sold, or used on January 4 and 14, 2006. At a hearing on May 23, 2006, appellant

pleaded true to the alleged violations.

                The State’s only witness at the adjudication hearing was Candace Bell, who testified

that she was a friend of the complaining witness and a former classmate of appellant’s daughter.

Bell testified that on the two nights in question, she saw appellant at Graham Central Station, a

nightclub where alcoholic beverages are sold and consumed. In his own testimony, appellant

acknowledged going to the club but offered an explanation for both occurrences. Appellant testified

that on January 4, he had taken a friend to the club and was about to drive away without going inside

when he received a call on his cell phone. The caller was the friend’s girlfriend, who said there was

an emergency. Appellant testified that he went inside the club to find his friend and give him the

cell phone. As for the January 14 incident, appellant testified that he went to the club because they

were offering a free buffet. He denied drinking on either occasion. During his testimony, appellant

was asked by his attorney, “If the Court is willing and feels like it’s in the interest of society for you

to be placed on a regular probation, do you feel like you could work that?” The State objected to the

question, correctly pointing out that ordinary community supervision was not a legal option.



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See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(H) (West Supp. 2009). At the conclusion of the

hearing, the trial court adjudicated appellant guilty and imposed sentence as described.

               On May 12, 2008, the court of criminal appeals granted appellant habeas corpus relief

in the form of an out-of-time appeal. The attorney appointed to represent appellant in this appeal

filed a motion for new trial supported by appellant’s statement under penalty of perjury (which we

will hereafter refer to as appellant’s affidavit). The primary allegation in the motion was that

appellant’s counsel at the adjudication hearing rendered ineffective assistance in that he failed to

investigate the relevant facts and law, failed to interview prospective defense witnesses, and

erroneously advised appellant that he would be eligible for ordinary community supervision if he

were adjudicated guilty. More specifically, the motion alleged:


       Counsel failed to contact appellant for three months following his appointment, and
       first interviewed appellant on the day before the adjudication hearing was first set.
       At subsequent meetings, counsel told appellant that, due to family matters, he had not
       had time to prepare for the adjudication hearing.

       Appellant told counsel that his probation officer, Elle Eddy, advised him that it was
       acceptable for him to enter establishments that served alcohol so long as they had a
       food menu and he did not consume any alcohol. Appellant also told counsel that
       employees of Graham Central Station could confirm the free buffet on January 14,
       and that appellant’s three roommates heard Eddy tell appellant that he could be
       around alcohol so long as he did not consume it.

       On the day of the hearing, counsel told appellant that the State’s only witness was
       going to be the probation officer supervisor, who did not testify. When counsel
       learned that Candace Bell was going to testify, he asked appellant who she was.

       Appellant told counsel that he did not want to go forward with the hearing because
       he believed that counsel was unprepared. Counsel told appellant that it was best “to
       get this over with.”




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       Counsel advised appellant to admit that he had entered Graham Central Station and
       to explain why he had done so. Counsel told appellant that even if the court were to
       adjudicate him guilty, there was a chance that the court would place him on regular
       community supervision. Appellant pleaded true based on this erroneous advice.


On July 2, 2008, the trial court signed an order denying the motion for new trial without a hearing.

               By his first issue, appellant urges that the trial court abused its discretion by refusing

to conduct a “live hearing” on the motion for new trial. The order states that the court overruled the

motion for new trial after considering “the motion, the State’s response, the affidavits of [appellant’s

adjudication hearing counsel] and the defendant, and the Court’s personal recollection of the hearing

on the State’s motion to adjudicate guilt.” Appellant contends that under the circumstances, he was

entitled to a hearing at which his attorney at the adjudication hearing could be questioned and the

veracity of counsel’s affidavit could be challenged.1

               A trial court abuses its discretion if it fails to hold a hearing on a motion for new trial

raising matters that are not determinable from the record. Holden v. State, 201 S.W.3d 76, 763 (Tex.

Crim. App. 2006) (citing Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993)). A trial court

may, however, rule on the motion based on sworn pleadings and affidavits without oral testimony;

live testimony is not required. Id. (citing Rivera v. State, 89 S.W.3d 55, 58-59 n.9 (Tex. Crim. App.

2002)). “It has long been held that a trial court may decide a motion for new trial based on sworn

pleadings and affidavits admitted in evidence without hearing oral testimony.” Id. (quoting Scaggs




  1
    Counsel’s affidavit was submitted to the trial court in appellant’s post-conviction habeas corpus
proceeding. See Tex. Code Crim. Proc. Ann. art. 11.07, § 3(d) (West Supp. 2009). After appellant
was granted the out-of-time appeal and the motion for new trial was filed, counsel for the State wrote
a letter to the trial court asking that the affidavit be considered in response to the motion.

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v. State, 18 S.W.3d 277, 281 (Tex. App.—Austin 2000, pet. ref’d)). In Holden, the court of criminal

appeals refused to adopt a per se rule that a trial court must hear live testimony whenever there is a

factual dispute in the affidavits and a party asks for testimony. Id. at 764. The court stated that

“such a procedure is not always in error,” necessarily implying that there are circumstances in which

it would be error. Id. at 762. The trial court’s decision to conduct a hearing on the basis of affidavits

alone is reviewed for an abuse of discretion. Id. at 764.

                Both parties have briefed the question of whether the trial court abused its discretion

by conducting a hearing without live testimony. This question is beside the point, however, because

the trial court did not conduct a hearing. The court’s order states that no hearing was held. Although

the court purported to rely on the contents of appellant’s and counsel’s affidavits, these documents

were not in evidence. See Scaggs, 18 S.W.3d at 281 (stating that trial court may decide motion for

new trial based on sworn pleadings and affidavits admitted in evidence). Allegations made in a

motion for new trial or a supporting affidavit are not self-proving and must be offered in evidence

at a hearing. Rouse v. State, No. PD-1533-08, 2009 Tex. Crim. App. LEXIS 1737, at *22 (Tex.

Crim. App. Dec. 9, 2009); see McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985)

(stating that motion for new trial may be resolved exclusively on basis of affidavit, but hearing is

required to introduce affidavit into evidence). The order overruling appellant’s motion for new trial

states that “[h]ad a hearing been held . . . , the Court would have limited the evidence admitted

during the hearing to witness affidavits pursuant to Texas Rule of Appellate Procedure 21.7.”

(Emphasis added.) The question in this cause is not whether the trial court abused its discretion by




                                                   5
conducting a hearing limited to affidavits only, but whether the trial court abused its discretion by

overruling appellant’s motion for new trial without conducting a hearing of any kind.

                Appellant’s motion for new trial raised matters not determinable from the record,

namely that appellant’s counsel at the adjudication hearing failed to adequately prepare for the

hearing, failed to interview or call defense witnesses, and erroneously advised appellant that he

would be eligible for ordinary community supervision if he were adjudicated guilty. But in order

to obtain a hearing on a motion for new trial alleging ineffective assistance of counsel, the defendant

must allege sufficient facts from which a trial court could reasonably conclude both that (1) counsel

failed to act as a reasonably competent attorney and (2) but for counsel’s failure, there is a reasonable

likelihood that the outcome of the trial (here, the adjudication hearing) would have been different.

Smith v. State, 286 S.W.3d 333, 340-41 (Tex. Crim. App. 2009). In this case, appellant’s motion for

new trial was inadequate with respect to the prejudice prong.

                Appellant did not allege that he would not have pleaded true and would not have

testified at the adjudication hearing but for counsel’s alleged deficiencies. In any event, there is no

reasonable likelihood that the trial court would not have adjudicated appellant guilty on the basis of

Bell’s testimony alone, nor is it reasonably likely that the trial court would have elected to continue

appellant’s deferred adjudication community supervision if Eddy had testified that she advised

appellant that he was permitted to enter establishments serving alcoholic beverages or if other

witnesses had confirmed appellant’s testimony regarding the reasons he entered the nightclub on the

nights in question. In reaching this conclusion, we do not rely on the statements made in counsel’s

affidavit, which is not in evidence. We do consider the record from appellant’s original guilty plea,



                                                   6
which reflects that the trial court expressed strong reservations about the plea bargain placing

appellant on deferred adjudication supervision, and that appellant’s sexual relationship with the

complainant began at a nightclub not unlike the club at which appellant was seen in January 2006.

As for the sentences imposed by the court after adjudicating appellant guilty, only the trial court

could know the factors that influenced the punishment decision or how counsel’s alleged

deficiencies, if true, might have affected that decision. See Smith, 286 S.W.3d at 344. We presume

that the court knew that the facts alleged in the motion for new trial would not have influenced its

ultimate normative judgment regarding the proper punishment. Id. at 345. Issue one is overruled.

               By his second issue, appellant contends that his pleas of true at the adjudication

hearing were involuntary. Although appellant did not raise this issue in his motion for new trial, he

now contends that his attorney’s failure to properly advise him regarding the effect of the pleas of

true and counsel’s erroneous advice regarding the availability of regular community supervision

rendered the pleas involuntary.

               Appellant relies in part on facts alleged in his affidavit in support of the motion for

new trial. As we have already explained, that affidavit is not in evidence. The only evidence before

us relevant to this contention is counsel’s reference to the possibility of regular community

supervision during the adjudication hearing. Even if we assume from this that counsel was unaware

of the fact that appellant was not eligible for regular community supervision, there is no evidence

that counsel misled appellant in this respect or that appellant would not have pleaded true had he

known that regular community supervision was not an available option. Issue two is overruled.




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              The judgments of conviction are affirmed.




                                           __________________________________________

                                           Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: January 12, 2010

Do Not Publish




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