                                NUMBER 13-13-00663-CR

                                COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

JESSICA KATHLEEN ORELLANA,                                                       Appellant,

                                              v.

THE STATE OF TEXAS,                                                              Appellee.


                     On appeal from the 24th District Court
                          of Victoria County, Texas.


                         MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Benavides and Perkes
             Memorandum Opinion by Justice Benavides

       By three issues, appellant Jessica Orellana complains that the trial court erred in

accepting her plea of guilty.   She states the trial court abused its discretion by not holding

a hearing on her motion for new trial, that her plea was involuntary due to her

incompetence, and that she received ineffective assistance from her trial counsel. We
affirm.

                                    I.       BACKGROUND

          Orellana was charged by indictment with aggravated assault with a deadly

weapon, a second degree felony.          See TEX. PENAL CODE ANN. § 22.02 (West, Westlaw

through Chapter 46 2015 R.S.).            The State had also included an enhancement

paragraph for a prior felony conviction in the indictment.     See Id. at § 12.42. The victim

was Robert Longoria, her child’s father.      Orellana pleaded guilty to aggravated assault

with a deadly weapon on October 2, 2013.           See id. § 22.02.   In exchange for her plea

of guilty, the State waived the enhancement paragraph.         On October 31, 2013, the trial

court held a sentencing hearing and heard testimony from both Longoria and Orellana.

Additionally, a pre-sentence investigation report was prepared and the information

contained in report was admitted into evidence.

          On April 18, 2013, Orellana and her child’s father, Robert Longoria, got into an

argument when he arrived at her home to drop off their daughter. Longoria testified that

Orellana threatened him at her home when he had dropped off their daughter, so he left

to return to his home. Shortly thereafter, Orellana and a friend, Johnny Akin, showed up

at Longoria’s home.       Longoria had just arrived and was standing outside his home.

Longoria testified that Akin charged at him and they got into a physical altercation. While

Akin and Longoria were still fighting, Longoria stated he felt a burning sensation in his

buttocks. He turned and saw Orellana standing nearby holding a knife.           Longoria was

stabbed again in the arm and neck during the scuffle.         At one point, Orellana held the

knife to Longoria’s throat.   Orellana’s two young children were in the vehicle at the time

of this altercation.   She was detained and arrested a short time later.

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       While she was in jail awaiting her court hearings, Longoria testified that he went to

visit Orellana.   During a visit, Orellana told Longoria that she had stabbed him.

Orellana also told Stephen, a co-worker who came to visit her, that she had stabbed

Longoria.

       The trial court sentenced Orellana to eight years in the Texas Department of

Criminal Justice—Institutional Division.     Orellana filed a motion for new trial, but a

hearing was never conducted on the motion. This appeal followed.

                                II.   MOTION FOR NEW TRIAL

       By her first issue, Orellana argues that the trial court committed error by not holding

a hearing on her motion for new trial.

       A.     Standard of Review and Applicable Law

       Appeals courts review “a trial court’s denial of a motion for new trial under an abuse

of discretion standard.”   Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).

We do not substitute “our judgment for that of the trial court; rather, we decide whether

the trial court’s decision was arbitrary or unreasonable.”   Id. 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.”      Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim.

App. 2009).

       The “purpose of a hearing on a motion for new trial is to: (1) ‘decide whether the

cause shall be retried’ and (2) ‘prepare a record for presenting issues on appeal in the

event the motion is denied.’”     Id. (citing State v. Gonzalez, 855 S.W.2d 692, 695 (Tex.

Crim. App. 1993) (plurality opinion)).   A trial judge would abuse his discretion by failing

to hold a hearing “if the motion and accompanying affidavits (1) raise matters not

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determinable from the record and (2) establish reasonable grounds showing that the

defendant could potentially be entitled to relief.”    Hobbs v. State, 298 S.W.3d 193, 199

(Tex. Crim. App. 2009).          The “second requirement limits and prevents ‘fishing

expeditions.’”    Id.   However, a defendant is “not entitled to a hearing on his motion for

new trial unless he ‘establishes the existence of ‘reasonable grounds’ showing that the

defendant ‘could be entitled to relief.’”   Id. In order to show “reasonable grounds”, a

defendant must “as a prerequisite to obtaining a hearing and as a matter of pleading,

[show that] the motion for new trial…[is] supported by affidavit, either of the accused or

someone else” specifically setting out the factual basis for the claim.      Garcia v. State,

291 S.W.3d 1, 9 (Tex. Crim. App.—Corpus Christi 2008, pet. ref’d). However, affidavits

that are “conclusory in nature and unsupported by facts do not provide the requisite notice

of the basis for the relief claimed; thus, no hearing is required.”    Smith, 286 S.W.3d at

339.

       B.        Discussion

       Orellana filed a motion for new trial alleging she was not competent when she

signed the plea memorandum, her plea was not voluntary due to medication she was

taking at the time of her plea, and she received ineffective assistance of trial counsel.

Although Orellana’s motion was timely filed with the trial court, it did not have affidavits

attached to it by either Orellana or another person or any additional documentation that

provided any type of evidence to the trial court.     Due to the lack of evidence and only the

conclusory statements made in Orellana’s motion, the trial court did not abuse its

discretion in not holding a hearing on her motion.         In order to establish grounds not

determinable from the record or grounds showing possible entitlement to relief, Orellana

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needed to file affidavits in support of her motion for new trial.   See Hobbs, 298 S.W.3d

at 199. She did not. Because there was no factual support for her motion for new trial

claims, the statements made within the motion were conclusory in nature and not

supported by facts.     See Smith, 286 S.W.3d at 339. Without the proper support for her

motion or a showing of good cause for the lack of affidavits, the trial court was not required

to hold a hearing on her motion for new trial. Therefore, the trial court did not abuse its

discretion.    Orellana’s first issue is overruled.

                                III.   VOLUNTARINESS OF PLEA

       By her second issue, Orellana claims her plea was not voluntarily given because

she was not competent to enter a plea.

       A.       Standard of Review and Applicable Law

       The Texas Code of Criminal Procedure provides that a trial court may accept a

guilty plea only if the defendant enters it freely and voluntarily.   See TEX. CODE CRIM.

PROC. ANN. art. 26.13(b). “Voluntariness of a plea is determined by the totality of the

circumstances.”     Lee v. State, 39 S.W.3d 373, 375 (Tex. App.—Houston [1st Dist.] 2001,

no pet.). It is a “due process violation for a trial court to accept a guilty plea without an

affirmative showing ‘spread on the record’ that the guilty plea was intelligently and

knowingly made.”        Fuller v. State, 253 S.W.3d 220, 228 (Tex. Crim. App. 2008). The

record must “affirmatively disclose that a defendant who pleaded guilty entered his plea

understandingly and voluntarily.”       Id. (citing Brady v. United States, 397 U.S. 742

(1970)).      The Court of Criminal Appeals has also held that “the admonishments

embodied in Article 26.13(a) are not constitutionally required because their purpose and

function are to assist the trial court in determining that a guilty plea is knowingly and

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voluntarily entered.”   Id.; see Carranza v. State, 980 S.W.2d 653, 656 (Tex. Crim. App.

1998) (en banc).

         In Texas, a “defendant is incompetent to stand trial if he does not have ‘sufficient

present ability to consult with [his] lawyer with a reasonable degree of rational

understanding” or “a rational as well as factual understanding of the proceedings against

him.”    Fuller, 253 S.W.3d at 228 (citing TEX. CODE CRIM. PROC. ANN. article 46B.003). A

competency hearing is “not required unless the evidence is sufficient to create a bona

fide doubt in the mind of the judge whether the defendant meets the test of legal

competence.”      Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999).       Evidence

is “sufficient to create a bona fide doubt if it shows ‘recent severe mental illness, at least

moderate retardation, or truly bizarre acts by the defendant.’”       Id. (citing McDaniel v.

State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003)).          However, “evidence of mental

impairment alone does not require that a special jury be empaneled where no evidence

indicates that a defendant is incapable of consulting with counsel or understanding the

proceedings against him.” Moore, 999 S.W.2d at 395.

         B.     Discussion

         During the hearing where Orellana pleaded guilty, the trial court used both written

and oral admonishments to apprise Orellana of her rights.       The trial judge asked her if

she freely and voluntarily waived her rights, to which she responded “yes”. The written

plea admonishments tracked article 26.13 exactly.      See TEX. CODE CRIM. PROC. ANN. art.

26.13.    Under proper admonishments by the trial court, there is a prima facie showing

the plea was given freely and voluntarily.      See Lee, 39 S.W.3d at 375.       Additionally,

there was nothing in the record from the plea hearing that showed that Orellana was

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incompetent at the time her plea was given.       Orellana was asked if she understood all

the written admonishments she signed, one of which included an agreement she was

competent. She stated “yes”. The trial court had the opportunity to observe Orellana

during her court appearances, as well as ask her trial counsel and counsel for the State

if they both felt Orellana was competent to plead guilty.      Both answered affirmatively.

From reading the record and admonishments Orellana signed herself, there is no

indication Orellana was incompetent at the time of the plea or sentencing hearing. We

overrule Orellana’s second issue.

                        IV.    INEFFECTIVE ASSISTANCE OF COUNSEL

       By her third issue, Orellana alleges that her trial counsel was ineffective because

he did not determine if Orellana was competent, failed to assert defensive issues, and

because he advised her to plead guilty.

       A.     Standard of Review and Applicable Law

       In order to succeed on a claim for ineffective assistance of counsel, Orellana must

“establish that counsel’s performance (1) was deficient, and (2) prejudiced [her] defense”

under Strickland v. Washington.      Chapa v. State, 407 S.W.3d 428, 431 (Tex. App.—

Houston [14th Dist.] 2013, no pet.); see Strickland v. Washington, 466 U.S. 668, 687

(1984).     To show trial counsel was deficient, “the defendant must prove by a

preponderance of the evidence that counsel’s representation objectively fell below the

standard of professional norms.”     Chapa, 407 S.W.3d at 431. To establish prejudice,

“the appellant must show there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would be different.”    Id.   Additionally,

“before the defendant is entitled to a hearing on his motion for new trial alleging ineffective

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assistance of counsel, a defendant must allege sufficient facts from which a trial court

could reasonably conclude both that counsel failed to act as a reasonably competent

attorney and that, but for counsel’s failure, there is a reasonable likelihood that the

outcome of his trial would be different.   Id. In order to do this, the “appellant’s motion

and supporting affidavits must provide reasonable grounds to satisfy the prejudice prong

of Strickland.” Id.

       B.     Discussion

       Orellana alleges that her trial counsel was ineffective for three reasons: (1) he

stood silent while the trial court accepted Orellana’s guilty plea before telling her she had

the right to remain silent; (2) he should have requested a competency hearing when

Orellana stated she has been to a psychiatric hospital in Houston; and (3) Orellana’s

testimony at the punishment hearing raised defensive issues trial counsel should have

properly investigated.

              1.      Plea of Guilt

       Orellana’s argument complaining about her trial counsel standing silent as the trial

court accepted her plea of guilt is perplexing.   However, in reviewing the recording from

the plea hearing, the trial court did properly admonish Orellana on her right to remain

silent prior to approving the orders found in the plea memorandum. All of her rights

included in article 26.13 of the Code of Criminal Procedure were found within the plea

memorandum which was signed by Orellana, her trial counsel, counsel for the State, and

the trial court. Her trial counsel stood silent as the judge admonished Orellana of her

rights before accepting the plea, answering when the court directed questions at him,

such as his opinion of her competence.      Orellana’s trial counsel’s actions would not fall

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below the standard of professional norms in a similar situation.           On this argument,

Orellana fails to satisfy the first prong of the Strickland standard.   Strickland, 466 U.S. at

667.

                2.     Competency Hearing

          Next, Orellana complains that trial counsel was ineffective for not requesting a

competency hearing when she stated to him that she had just left a psychiatric hospital

shortly before her plea of guilt.   During the punishment hearing, Orellana testified in her

own defense. Trial counsel elicited answers from Orellana regarding her mental status

at the time of her plea. He asked:

          Trial Counsel:      On the day that you pled, you and I had a discussion
                              and I asked, “Are you okay, feeling mentally
                              competent,” and you said you were doing all right; is
                              that correct?

          Orellana:           I told you I was okay.

          Trial Counsel:      Why is that?

          Orellana:           I just went and got some help for myself and I just got
                              released from a psychiatric hospital in Houston. For
                              two years, I wasn’t in my right mind. A couple of days
                              after that, my medicine started to work better and – My
                              medicine was working better and I wanted to believe –

          Trial Counsel:      Now, you remember the day you pled?

          Orellana:           Yes sir.

Orellana’s own statements to her trial counsel show he was aware she suffered from

some sort of psychiatric problem, but that Orellana was competent to plead guilty.

Orellana remembered the conversation she had with her trial counsel before her plea of

guilty.    Orellana was able to testify in her own defense during the punishment hearing.


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Her trial counsel told the trial court during the plea that he found her to be competent.     It

is clear from the facts surrounding the two hearings that trial counsel was aware of some

sort of mental issues, but did not feel it affected Orellana’s competency in regards to her

understanding of the current case.      Based on his questions to Orellana both of the day

she pleaded guilty and during the punishment hearing, it seems clear he did not suspect

incompetency and it would not be unreasonable for him to not request a hearing to

determine competency.         Trial counsel’s action do not fall below the standard of

professional norms and Orellana does not satisfy the first prong of the Strickland test.

See Strickland, 466 U.S. at 667

               3.     Defensive Issues

        Third, Orellana complains that her testimony at the punishment hearing raised

defensive issues that her trial counsel should have investigated and presented at trial.

Orellana had waived her right to a jury trial at the prior hearing where she pled guilty.

She now asserts that her testimony could have given her a self-defense and defense of

a third person instruction that entitles her to relief.   However, that is not the case.

        Orellana testified that Longoria had initially gone to her house and confronted her,

but left.   Orellana then stated that she and Akin travelled to Longoria’s home to damage

his property and got into a physical altercation with him there. The State cross-examined

Orellana as to why she was at Longoria’s property, and she stated she “went there to

break his mother’s back windshield.” Based on Orellana’s own testimony, she would not

be entitled to a self-defense instruction.    See TEX. PENAL CODE ANN. §§ 9.31, 9.32, 9.33.

In order to be entitled to this, Orellana could not have gone to confront the victim or be

engaged in any offense above a Class C misdemeanor.               Id.   Orellana’s trial counsel

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most likely understood that there were no defensive issues to present to a jury and

advised Orellana that pleading guilty was her best remedy, since she admitted she

stabbed Longoria.    Therefore, Orellana’s trial counsel’s actions did not fall below the

standard of professional norms.    Orellana cannot show the court that but for her claimed

deficient actions of trial counsel, the outcomes of the case would have been different, and

does not satisfy the first prong of the Strickland standard.   See Strickland, 466 U.S. at

667. We overrule Orellana’s third issue.

                                   V.      CONCLUSION

       We affirm the trial court’s judgment.




                                                        GINA M. BENAVIDES,
                                                        Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
16th day of July, 2015.




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