Opinion filed September 30, 2010




                                           In The


   Eleventh Court of Appeals
                                         __________

                                    No. 11-10-00020-CR
                                        __________

                           MEHRAN KHAMISSI, Appellant

                                              V.

                             STATE OF TEXAS, Appellee


                          On Appeal from the 368th District Court

                                   Williamson County, Texas

                             Trial Court Cause No. 08-827-K368


                           MEMORANDUM OPINION

       Mehran Khamissi appeals from an adjudication of guilt for the offense of engaging in
organized criminal activity. The trial court sentenced him to two years confinement in the Texas
Department of Criminal Justice, State Jail Division. We affirm.
                                       Background Facts
       Appellant originally pleaded guilty to the offense of engaging in organized criminal
activity. The trial court deferred adjudication and placed appellant on community supervision
for four years. The State filed a motion to adjudicate alleging three violations of appellant’s
community supervision. The State alleged that appellant violated his community supervision by
committing the offenses of assault and terroristic threat and by violating his curfew. The trial
court held a hearing on the State’s motion to adjudicate. Appellant pleaded true to the allegation
that he committed the offense of assault and not true to the allegations that he committed the
offense of terroristic threat and that he violated his curfew. The State waived the terroristic
threat and violation of curfew allegations and proceeded on the assault allegation. At the
hearing, the State offered the judgment of guilt from the assault case. In that cause, appellant
entered a plea of nolo contendere, and the trial court found him guilty and placed him on
community supervision for two years. At the hearing on the motion to adjudicate, the State also
presented testimony from the complaining witness in the assault case. The trial court found the
allegation to be true and adjudicated appellant guilty.
         Appellant filed a motion for new trial asserting that his plea of true to the assault
allegation contained in the motion to adjudicate was not freely and voluntarily given, that he
received ineffective assistance of counsel, and that the trial court’s finding that he violated his
community supervision by committing an assault was based on perjured testimony. Initially, the
trial court did not hold a hearing on appellant’s motion for new trial, and it was overruled by
operation of law. In his appeal, appellant asserted that the trial court abused its discretion in
failing to conduct a hearing on the motion for new trial. This court abated the appeal and
remanded this cause back to the trial court for it to conduct a hearing on appellant’s motion for
new trial. The trial court held a hearing and denied appellant’s motion for new trial.
                                                      Issue on Appeal
         Appellant asserts that the trial court erred in failing to grant his motion for new trial.1
                                                   Standard of Review
         We review a trial court’s denial of a motion for new trial under an abuse of discretion
standard. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). An abuse of
discretion occurs when the trial court acts in an unreasonable or arbitrary manner or when it acts
without reference to any guiding principles.                   Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim.
App. 2007). We are mindful of the fact that the trial court is the sole arbitrator of the credibility
of the witnesses and evidence offered. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App.
2004). We will not substitute our judgment for that of the trial court but, instead, will review the
evidence in the light most favorable to the ruling to determine if the trial court abused its
discretion. Webb, 232 S.W.3d at 112.


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          Appellant asserted in his second issue on appeal that the trial court abused its discretion in refusing to conduct a
hearing on appellant’s motion for new trial. Because this court abated the appeal and ordered the trial court to hold a hearing on
the motion for new trial, that issue is now moot.
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                                              Analysis
       A. Recantation of victim testimony.
       A new trial shall be granted when material evidence favorable to the accused has been
discovered since trial. TEX. CODE CRIM. PROC. ANN. art. 40.001 (Vernon 2006). The retraction
of a witness’s trial testimony is considered to be newly discovered evidence. Keeter v. State, 74
S.W.3d 31, 37 (Tex. Crim. App. 2002). In order to be entitled to a new trial under this statute, a
defendant must show that: (1) the newly discovered evidence was unknown to him at the time of
trial; (2) his failure to discover the new evidence was not due to his lack of due diligence; (3) the
new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching;
and (4) the new evidence is probably true and will probably bring about a different result in a
new trial. Keeter, 74 S.W.3d at 36-37. The trial court determines the credibility of the witnesses
and whether the new evidence is probably true. Id. at 37. The “probably true” requirement
means that the whole record presents no good cause to doubt the credibility of the witness whose
testimony constitutes the new evidence. Id. at 38 (quoting Jones v. State, 711 S.W.2d 35, 36
(Tex. Crim. App. 1986)). The trial court acts within its discretion in disbelieving a recantation as
long as the record provides some basis for disbelieving the testimony. Id.
        Rocio Espinoza testified at the hearing on the motion to adjudicate appellant’s guilt. She
testified that she and appellant were in a relationship when he came to her house and began
assaulting her. He slapped her on the left side of her face, grabbed her one-handed by the neck,
slammed her against the wall, and struck her on the left thigh with a plastic hanger. Espinoza
testified that some of the things she told the police officer investigating the alleged assault were
not true. She further testified that she was not scared of appellant and that she was at the trial
because she wanted to be there.
       At the hearing on the motion for new trial, Espinoza testified that the statements that she
told the police regarding the assault were not true. She said that appellant did not hit her on her
face, strike her with a clothes hanger on her left thigh, grab her by the throat, hold her against the
wall, or threaten to shoot her if she called the police. She further testified that the testimony she
gave at the hearing to adjudicate was not true. She testified that she lied about appellant
assaulting her because she was mad at appellant for still being in contact with an old girlfriend.
Espinoza testified that no one was pressuring her to change her testimony.
       Appellant argues that he should be entitled to a new trial based on Espinoza’s recantation.
We disagree. The evidence fails to show that Espinoza’s recantation was probably true. In fact,

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the trial court stated that it found Espinoza’s testimony to be untruthful. It is not unreasonable
for the trial court to find that Espinoza was not credible. At the adjudication hearing, she
testified that she lied to the police about some things during the investigation of the assault.
Then, at the hearing on the motion for new trial, she changed her testimony by stating that she
lied to the police about the whole assault and that she lied to the court at the hearing on the
motion to adjudicate. “[I]t is impossible to know with any certainty which of the complainant’s
statements are true.” Ex parte Tuley, 109 S.W.3d 388, 401 (Tex. Crim. App. 2002) (citing Ex
parte Elizondo, 947 S.W.2d 202, 216 n.1 (Tex. Crim. App. 1996) (Womack, J., dissenting)
(pointing out the weakness of the testimony of a recanting witness whose testimony is always the
“last time I was on the witness stand I didn’t tell the truth”)). The trial court did not abuse its
discretion in not finding Espinoza’s recantation credible.
       B. Voluntariness of Plea.
       A plea must be entered knowingly, intelligently, and voluntarily. Boykin v. Alabama, 395
U.S. 238, 243 (1969); Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). For a plea
to be voluntary, it must be the expression of the defendant’s own free will and must not be
induced by threats, misrepresentations, or improper promises. Brady v. United States, 397 U.S.
742, 755 (1970); Kniatt, 206 S.W.3d at 664. In determining the voluntariness of a plea, we
consider all the relevant circumstances surrounding it. State v. Collazo, 264 S.W.3d 121, 127
(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). A defendant’s sworn representation that his
guilty plea is voluntary “constitute[s] a formidable barrier in any subsequent collateral
proceedings.” Id. (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)).
       Appellant asserts in his motion for new trial that his plea of true to the allegation that he
committed an assault was involuntary because he only pleaded true as a result of the prosecutor’s
threat to file perjury charges against him. Pursuant to a plea bargain, appellant entered a plea of
no contest to an assault charge out of Travis County. The trial court in that cause found
appellant guilty of the assault. The State used that conviction to support its allegation of assault
in the motion to adjudicate.
       Mike Luna testified that he represented appellant in the assault charge out of Travis
County, as well as in the motion to adjudicate that is the subject of this appeal. He testified that,
in discussing the case with the prosecutor, he was given the impression that, if appellant pleaded
not true to the assault allegation, the State would file perjury charges against him. Luna also
testified that, during plea negotiations, the prosecutor informed him that the State would drop the

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other two allegations in the motion to adjudicate if appellant pleaded true to the assault
allegation. When Luna discussed the plea offer with appellant, he told appellant that, if he
entered a plea of not true to the assault allegation, he could be prosecuted for perjury. Luna also
told appellant that, if he pleaded true and had the other two allegations dismissed, he might
receive a lighter sentence than if he pleaded not true.
       Robert McCabe, the prosecutor, testified that Luna told him that appellant intended to
plead not true to the assault allegation. McCabe testified that he was surprised because he had
the judgment of guilt for the assault. McCabe testified that he told Luna, “So, Mr. Luna, he’s
going to get up there and perjure himself.” McCabe said that he did not tell Luna that he would
prosecute appellant for perjury if he pleaded not true. He testified that he offered the following
plea agreement: in exchange for appellant’s plea of true to the assault allegation, the State would
dismiss the other two allegations in the motion to adjudicate.
       We conclude that appellant’s plea was voluntary. Appellant entered a sworn plea of true.
When asked by the trial court if he was pleading true because the allegation of assault was true
and for no other reason, appellant answered, “Yes.” The record supports several reasons why
appellant’s plea was voluntary. First, the State was ready to prove up the assault allegation.
Espinoza was ready to testify as to the events of the assault, and the State was prepared to enter
the judgment from the assault case into evidence. Second, appellant knew that, if he pleaded true
to the assault allegation, the State would dismiss the other two allegations and that the trial court
might give him a lighter sentence based on that plea.
       Moreover, the trial court could have disbelieved Luna’s testimony that the prosecutor
threatened to file perjury charges if appellant pleaded not true. The trial court is the sole judge of
the credibility of the witness. Charles, 146 S.W.3d at 208. It may choose to believe all, some,
or none of the testimony presented. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App.
1997). The trial court is in the best position to determine the weight to be given contradictory
testimonial evidence because that determination turns on an evaluation of credibility and
demeanor. Id. The trial court did not err in finding that appellant’s plea of true was voluntary.
       C. Ineffective Assistance of Counsel.
       To prevail on a claim of ineffective assistance of counsel, an appellant must show that his
lawyer’s performance fell below an objective standard of reasonableness and that there is a
reasonable probability that the result of the proceeding would have been different but for
counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 693-94 (1984). The

                                                  5
defendant must prove objectively, by a preponderance of the evidence, that his counsel’s
representation fell below professional standards. Mitchell v. State, 68 S.W.3d 640, 643 (Tex.
Crim. App. 2002). The second prong requires the defendant to show a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). In the plea context, a
defendant must show that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial. Ex parte Briggs, 187 S.W.3d 458, 469 (Tex. Crim. App. 2005);
Starz v. State, 309 S.W.3d 110 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). The only
required duty of counsel when a plea of guilty is entered is that counsel should ascertain if the
plea is entered voluntarily and knowingly. Butler v. State, 499 S.W.2d 136, 139 (Tex. Crim.
App. 1973); Starz, 309 S.W.3d at 118. A guilty plea based on erroneous information conveyed
by trial counsel to the defendant is involuntary. Fimberg v. State, 922 S.W.2d 205, 208 (Tex.
App.—Houston [1st Dist.] 1996, pet. ref’d).
          Appellant argues that he received ineffective assistance of counsel because his counsel
gave him erroneous advice that he could be prosecuted for perjury if he pleaded not true to the
assault allegation. Appellant testified at the hearing on the motion for new trial that his plea of
true was not voluntary because it was based on this erroneous advice. However, he also testified
that the State’s agreement to dismiss the other two allegations in exchange for his plea of true to
the assault allegation influenced his decision to plead true. Appellant also testified that the
possibility of receiving a harsher sentence if he pleaded not true and the State proved the
allegation to be true and the fact that Espinoza was present to testify regarding the allegation of
assault influenced his decision to plead true. The record indicates that appellant would have
pleaded true even without the threat of prosecution for perjury. Appellant has not proven that his
plea of true was based on erroneous information from his counsel.
          Moreover, as discussed above, the trial court was free to disbelieve the testimony of Luna
and appellant. The trial court’s denial of the motion for new trial supports the conclusion that the
trial court did not find the testimony of Luna and appellant credible. The trial court did not
abuse its discretion in denying appellant’s motion for new trial. We overrule appellant’s issue on
appeal.




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                                           Conclusion
       The judgment of the trial court is affirmed.




                                                        RICK STRANGE
                                                        JUSTICE


September 30, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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