                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-314-CR


THOMAS BRANDON WALLS                                            APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE

                                   ------------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

     Appellant Thomas Brandon Walls was indicted for aggravated robbery

with a deadly weapon. He entered an open plea of guilty, and the trial court

postponed sentencing pending a presentence investigation report (PSI). He was

represented by Attorney Number One.




     1
         … See Tex. R. App. P. 47.4.
      At the punishment hearing, Appellant was represented by Attorney

Number One and Attorney Number Two. At the conclusion of the punishment

hearing, the trial court sentenced Appellant to twenty years’ confinement.

Attorney Number Two filed a motion for new trial, alleging that the trial court

had abused its discretion in assessing punishment. Attorney Number One filed

a motion for new trial, alleging that the verdict was contrary to the law and the

evidence. Attorney Number Three was then substituted for Attorney Number

One, and Attorney Number Three filed a third motion for new trial, alleging that

Appellant’s plea was involuntary and that the verdict was contrary to the law

and the evidence.

      At the August 15, 2008 hearing on the motions for new trial, Appellant

and his parents testified that Attorney Number One had represented to them

that if Appellant pled guilty, he would be placed on community supervision.

They testified that Attorney Number One had told them that he had a special

relationship with the judge, that they had gone to law school together, and that

he and the judge had entered into an agreement regarding Appellant’s

punishment, provided Appellant entered a plea of guilty. Appellant and his

parents denied that Attorney Number One had told them that there was any

possibility of penitentiary time if Appellant entered a guilty plea. When asked

to explain what Attorney Number One had promised him, Appellant testified

                                       2
that Attorney Number One had told him that he could only receive deferred

adjudication community supervision if he entered a plea of guilty. Appellant

also testified that Attorney Number One had told him that he would not be able

to receive deferred adjudication if he insisted on a jury trial.

      On August 25, 2008, the trial court held a further hearing on the motions

for new trial. Attorney Number One testified that he never guaranteed either

Appellant or his parents that Appellant would receive community supervision.

He testified that he had told Appellant that he thought that Appellant had a

good chance of receiving community supervision, but Attorney Number One

denied that he had made any promises.          He also denied that he had told

Appellant that he had a special relationship with the judge. Attorney Number

Three attempted to ask Attorney Number One about disciplinary action the

State Bar had taken against him, but the trial court sustained the State’s

objection and did not allow the testimony.

      Appellant appealed to this court, arguing in one of his three issues that

the trial court erred by sustaining the State’s objection to the question about

the State Bar’s disciplinary actions against Attorney Number One. The State

confessed error, and this court abated the case, remanding it to the trial court

to allow Appellant to question Attorney Number One concerning the disciplinary




                                        3
action and to allow the trial court to reconsider its ruling in light of that

evidence.

      At the hearing on remand, Appellant called Attorney Number One’s

former paralegal to testify.    The paralegal testified that in his presence,

Attorney Number One had represented to Appellant and his parents that

Appellant would receive community supervision because of an agreement

Attorney Number One had made with the trial judge.           The paralegal also

testified that he had heard Attorney Number One tell Appellant and his parents

that Attorney Number One had a special relationship with the judge.          The

paralegal testified that his son is a former client of Attorney Number One and

that Attorney Number One had given his son a similar guarantee of community

supervision. The paralegal also admitted that he has a criminal record and has

been to the penitentiary two or three times.

      Attorney Number One admitted that he has been disciplined by the State

Bar and has received a fully probated suspension for failing to handle clients’

cases in a timely manner, refusing to return a file after he had been discharged,

and engaging in other conduct not clearly described in the abatement hearing.

Attorney Number One testified that

      the other one was . . . a guy working for me. He took some money
      from his family that they lent him to represent him. The guy was
      in jail. The court in Dallas appointed him an attorney to represent

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      him. The attorney got a really good deal for him, got it reduced to
      a misdemeanor, and pled the case out.

            And I was not aware that took place, so they said, “Well, you
      should have done a better job of supervising the people that work
      in your office.”

            I said, “You know what? You’re absolutely right. I’ll accept
      the punishment for that.” And I got rid of the paralegal that I had.

Attorney Number One explained that the disciplinary order was an agreed order,

resulting in the fully probated suspension.

      No one designated the trial judge as a witness, called the trial judge as a

witness, or moved to recuse the trial judge because the trial judge was a fact

witness. The trial judge did not voluntarily step down. The same trial judge

presided over all posttrial hearings. At the conclusion of the abatement hearing,

the trial court again denied Appellant’s motions for new trial.

      There are two remaining issues before this court: (1) whether Appellant’s

plea was entered knowingly, intelligently, and voluntarily, and (2) whether

Appellant was denied effective assistance of counsel when he entered his guilty

plea on December 13, 2007, or at the punishment hearing on June 13, 2008.

      A trial court’s ruling denying a defendant’s motion for new trial is

reviewed under an abuse of discretion standard.2 In considering a motion for



      2
     … Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App.), cert. denied,
534 U.S. 855 (2001); Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App.

                                       5
new trial, the trial court possesses broad discretion in determining the credibility

of the witnesses and in weighing the evidence to determine whether a different

result would occur upon retrial.3 We do not substitute our judgment for that of

the trial court, but rather, we decide whether the trial court’s decision was

arbitrary or unreasonable.4

      In the case now before this court, we have a swearing match contesting

whether Attorney Number One represented to Appellant that he had a special

relationship with the judge, whether an ex parte meeting occurred in which the

trial judge and Attorney Number One reached a secret agreement to guarantee

Appellant community supervision, and whether that representation induced

Appellant to enter a plea of guilty that he would otherwise not have entered.

Appellant’s parents and Attorney Number One’s paralegal testified that

Attorney Number One had made those representations to Appellant.

Appellant’s version was slightly different. He testified that Attorney Number

One had made the representations and guarantees about which his parents and




1995); Thomas v. State, 31 S.W.3d 422, 428 (Tex. App.—Fort Worth 2000,
pet. ref’d).
      3
       … Valle v. State, 963 S.W.2d 904, 908 (Tex. App.—Texarkana 1998,
pet. ref’d); Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.—Houston
[1st Dist.] 1996, pet. ref’d).
      4
          … Lewis, 911 S.W.2d at 7.

                                         6
the paralegal testified. But he also testified that Attorney Number One had told

him that he would not receive deferred adjudication if he insisted on a jury trial

instead of pleading guilty to the court. All four denied that Attorney Number

One had told them that there was any possibility of penitentiary time if

Appellant entered a guilty plea.

      Attorney Number One denied any guarantees or representations

concerning a special relationship with the judge. He testified that he had told

Appellant merely that he thought Appellant had a good chance of receiving

probation if he entered a guilty plea.

      In the instant case, Appellant was charged with aggravated robbery with

a deadly weapon, an article 42.12, section 3g offense. 5 This charge was but

one in a long string of criminal accusations beginning in Appellant’s youth.

When Appellant appeared before the trial court in the case now before this

court, he was nineteen years old. He had already been charged with eight

different offenses, including three robberies over a period of five weeks in

December 2003 and January 2004.              He successfully completed a juvenile

probation for the third robbery. In January 2005, Appellant was involved in a

car theft and later received deferred adjudication community supervision for an



      5
      … Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(1)(F) (Vernon Supp.
2009).

                                         7
unrelated possession of marijuana offense. A subsequent March 2006 robbery

charge arising from an attempted drug purchase was dismissed.

      When Appellant was seventeen, he and some companions committed two

aggravated robberies with a pistol that Appellant had obtained. In the first one,

he drove the getaway car. Several hours after the first robbery, the group

accosted another man who claimed to have no money, so they moved on to a

second mark and successfully took his money.           The second successful

aggravated robbery is the offense at issue in the instant matter.

      Appellant entered an open plea of guilty to the second successful

aggravated robbery, and at the subsequent sentencing, he admitted his

complicity in the first aggravated robbery, although he had not been charged

with that offense. He also admitted his previous crimes but assured the trial

court that he had changed his life since attending Kansas State University on

a football scholarship and begged for a lenient sentence.

      Never did Appellant claim that he was not actually guilty or that a jury

would have found him not guilty. The plea documents clearly inform him of the

entire range of punishment, and there is no suggestion that Appellant was

unable to read and understand the documents he executed. Indeed, Appellant

testified at a hearing on his motions for new trial that his lawyer had told him

that he could receive deferred adjudication only if he entered a plea of guilty.

                                       8
This is almost correct. Because aggravated robbery with a deadly weapon is

an article 42.12, section 3g offense, a trial judge could not grant Appellant

“regular” community supervision.6 He could receive only deferred adjudication

community supervision from the trial judge, as opposed to regular community

supervision, and then only if he entered a plea of guilty or nolo contendere.7

A plea of not guilty would make him ineligible for deferred adjudication

community supervision, and a jury cannot grant deferred adjudication

community supervision.8

      The trial court went beyond the written admonishments and asked

Appellant if he understood that there was no guarantee that his guilty plea

would result in probation and that the full range of punishment was available.

Appellant assured the trial court that his guilty plea was made freely and

voluntarily.

      Appellant also testified that he was “not trying to avoid some

punishment.” He explained that, although he did not want to go to prison, he

was open to “doing a little county time.” He also admitted that his prior two




      6
          … See id. art. 42.12, § 5(d).
      7
          … See id. art. 42.12, § 5(a), (d).
      8
          … See id.

                                          9
probations “didn’t really work too well” because he had “continued to commit

crimes.”

      We hold that the trial court did not abuse its discretion by denying the

motion for new trial because Appellant did not satisfy his burden to show that

his plea was involuntary as a result of Attorney Number One’s advice and did

not satisfy his burden to show ineffective assistance of counsel. We overrule

Appellant’s issues and affirm the trial court’s judgment.

      Due to the disturbing allegations in the record concerning Attorney

Number One’s conduct, however, we also order the clerk of this court to

transmit a copy of this opinion to the Office of the Chief Disciplinary Counsel

and the Office of the General Counsel of the State Bar of Texas.




                                                LEE ANN DAUPHINOT
                                                JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 29, 2009




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