                                         In The

                                  Court of Appeals
                      Ninth District of Texas at Beaumont
                             ____________________
                                  NO. 09-11-00685-CR
                             ____________________

                        PAUL AHRICK BEST SR., Appellant

                                            V.

                     THE STATE OF TEXAS, Appellee
_____________________________________________________________________

                  On Appeal from the 253rd District Court
                          Liberty County, Texas
                         Trial Cause No. CR28089
_____________________________________________________________________

                             MEMORANDUM OPINION

       Paul Ahrick Best Sr. pleaded guilty to aggravated assault with a deadly weapon,

enhanced, and the trial court sentenced Best to life in prison. Best filed a motion for new

trial, which the trial court denied after a hearing. In two appellate issues, Best contends

that his trial counsel rendered ineffective assistance.     We affirm the trial court’s

judgment.

                                   Factual Background

       Best was intoxicated when he drove his vehicle onto the shoulder of the road and

struck Matthew Kline’s disabled vehicle. Kline suffered serious injuries. The State

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charged Best with intoxicated assault and driving while intoxicated, third or more, but

later re-indicted Best to allege aggravated assault (Count I), intoxicated assault (Count

II), and driving while intoxicated, third or more (Count III). Only Counts II and III

contained an enhancement paragraph. However, the State filed a notice of intent to seek

an enhanced punishment.

       At the plea hearing, the State proceeded only on Count I enhanced by a prior

conviction. The trial court advised Best that aggravated assault with an enhancement is a

first-degree felony punishable by five to ninety-nine years or life in prison.       Best

acknowledged that he understood the charge and the range of punishment, reviewed the

plea papers with his attorney, and understood the plea papers. Best pleaded “guilty” to

Count I and “true” to the enhancement and confirmed that he had not been coerced,

threatened, or forced to plead guilty and had not been promised anything in exchange for

his plea. Best signed plea admonishments that identified the punishment range and

included acknowledgments that he understood the admonishments and the consequences

of his plea, his plea was freely and voluntarily made, and he was satisfied with his

attorney’s representation.

       At sentencing, Best explained that he has struggled with substance abuse and

driven while intoxicated on numerous occasions. He testified that he was intoxicated and

caused the accident, but feels much regret and remorse. He testified that he is now trying

to make the right choices. Best’s brother Jeffrey and Best’s wife Yvette testified that


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Best has been sober since the accident. Yvette testified that Best has diabetes, high blood

pressure, and post-traumatic stress disorder resulting from a work-related explosion. She

testified that the Social Security Administration declared Best disabled and that Best

takes numerous prescription medications.

       Tanya Childress, who conducted the presentence investigation, testified to the

probation conditions that would apply to Best should he be granted probation. Childress

testified that Best’s criminal history shows that he was previously a poor candidate for

probation. She explained that Best has a lengthy criminal history, including offenses for

driving while intoxicated, a sex offense, and probation that ended in revocation.

       The State argued that Best was not a candidate for probation and should be

sentenced to no less than forty years in prison.        Best’s counsel, Walter Fontenot,

encouraged a lengthy probation. Fontenot argued that probation terms are stringent and

would force Best to “walk a straight and narrow line.” He urged the trial court to have

compassion on Best and to avoid imposing a lengthy incarceration. The trial court noted

the chances that Best had previously received and opined that, given Best’s criminal

history, a lengthy incarceration was necessary to protect society.

       At the hearing on Best’s motion for new trial, Yvette and Jeffrey testified that

several people would have testified on Best’s behalf at the sentencing hearing. Yvette

testified that Fontenot never explained the importance of how the community viewed

Best. Fontenot testified that he asked Best, in writing, to provide names of character


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witnesses, but that he never received any names. He also testified that Best failed to

provide medical records. Yvette admitted seeing some of Fontenot’s requests, but she

testified that she never compiled a list of character witnesses or talked to people about

testifying at sentencing. She explained that she told Fontenot that other people wanted to

testify, but Fontenot said these witnesses were not needed. Jeffrey testified that Fontenot

said testimony from Jeffrey, Yvette, and Best’s brother David would be sufficient. David

testified that he did not attend the sentencing hearing, but he thought Best would be

placed on probation and had no idea Best faced a life sentence. Yvette testified that she

did not know she needed to bring several witnesses to the sentencing hearing.

      Fontenot testified that he implemented the following trial strategy:

      Admit what you did, admit that you had a prior criminal record dating back
      when you were a teenager, admit all of those things. Yes, I did it, I’m sorry,
      I committed an offense . . . in 2008. I haven’t had one drop of liquor since
      that time. I have been a model citizen since that time. I have tried to work,
      in spite of my injury. I have tried to do everything that I could to make
      atonement for what happened to that -- to the person who was injured in the
      accident. That was my strategy, hoping that the -- that Judge Cain would
      take all of that into consideration, especially his sobriety since the date of
      the incident. And hopefully, it was my strategy not to try to color over
      anything, but to admit it and -- then the old saying in television -- plead to
      the mercy of the Court.

According to Fontenot, he told Best six months in custody and ten years of probation

would be optimal. He tried to convince the State to be amenable to probation, but

Fontenot testified that the prosecutor would only recommend incarceration. Fontenot

testified that he was unaware that Best was ineligible for probation once he pleaded guilty


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to aggravated assault with a deadly weapon, but he believed the trial court could grant

probation in the interest of justice.

          Fontenot testified that, before the State amended its indictment against Best, the

State offered a plea bargain that included a twenty-year punishment cap.            Fontenot

testified that Best rejected this offer. Best testified that he believed the offer was part of

the process of receiving probation. Best, Yvette, Jeffrey, and David testified that they

believed Best would receive six months in jail and ten years of probation if he pleaded

guilty.     David testified that Fontenot never mentioned the possibility of a lengthy

sentence. Yvette testified that Fontenot said, “‘The DA wants some flesh, so we’re going

to have to give them a pound of flesh[]’” and “‘The worst case scenario is six months in

county jail, 10 years’ probation.’”

          Fontenot denied promising Best that he would receive probation. He testified that

he told Best the State wanted incarceration and that the only way to obtain probation was

through the trial judge. He told Best that the trial judge would give him a fair hearing

and had been known to grant probation even when the State did not offer probation.

Yvette testified that she was unaware that the range of punishment included a life

sentence. Jeffrey testified that Fontenot mentioned a wide range of punishment, but did

not guarantee probation. Best admitted that Fontenot never promised probation, but he

explained that probation was the only punishment discussed and he was never told that




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the State wanted incarceration or was not agreeable to probation. He testified that he did

not know he faced the possibility of life in prison.

                                   Ineffective Assistance

       In issues one and two, Best presents three complaints to support his contention that

Fontenot rendered ineffective assistance. First, Best complains that Fontenot did not

conduct discovery, investigate or mitigate Best’s potential punishment, or interview

individuals in the community. Reasonably competent counsel must advance his client’s

best defense in a reasonably competent manner, which includes the duty to promptly

investigate the circumstances of the case and explore avenues that may lead to relevant

facts. Ex parte Briggs, 187 S.W.3d 458, 467 (Tex. Crim. App. 2005). Counsel’s failure

to investigate or present witnesses is a basis for establishing ineffective assistance only

when it is affirmatively shown that the presentation of that evidence would have

benefited the defendant. Garrett v. State, 998 S.W.2d 307, 314 (Tex. App.—Texarkana

1999, pet. ref’d).

       The record contains conflicting evidence regarding Fontenot’s efforts to procure

witnesses for the sentencing hearing. As sole judge of the weight and credibility of the

evidence, the trial court could choose to believe Fontenot’s testimony that Best did not

respond to his requests for a witness list or provide medical records. See Alexander v.

State, 282 S.W.3d 701, 706 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (“At a

hearing on a motion for new trial, the trial court is the sole judge of the credibility of the


                                              6
witnesses and the weight to be given their testimony.”).         Moreover, the trial court

indicated at sentencing that the decision to impose a life sentence was largely based on

Best’s criminal history, and the trial court reiterated this opinion at the hearing on Best’s

motion for new trial. The trial court made this decision even after hearing testimony

regarding Best’s physical health, sobriety, and life changes. Best has not affirmatively

shown that additional evidence would have benefitted him. See Garrett, 998 S.W.2d at

314.

       Second, Best contends that had Fontenot conducted an investigation, the need to

accept the State’s initial plea offer would have been apparent. When a defendant pleads

guilty to less favorable terms and claims that counsel’s ineffective assistance caused him

to forgo a more favorable earlier plea offer, we consider whether the defendant would

have accepted the offer pursuant to the terms earlier proposed. Missouri v. Frye, 2012

U.S. LEXIS 2321, 132 S.Ct. 1399, 1410, 182 L.Ed.2d 379 (2012). A defendant who

shows a reasonable probability that he would have accepted the earlier plea offer must

then show a reasonable probability that neither the State nor the trial court would have

prevented the offer from being accepted or implemented. Id.

       Best testified that he did not recall much discussion regarding the State’s initial

plea offer, but he explained, “I can’t help but think that I would surely jump on that

before I would take a five to 99.” He explained that he did not understand that if he

failed to accept the State’s offer by the designated deadline, he would face the possibility


                                             7
of life in prison. However, Fontenot testified that he told Best that if he did not accept

the State’s offer, the case would be presented to the grand jury for re-indictment and that

Best would face five to ninety-nine years in prison instead of two to twenty years in

prison.     The trial court heard testimony that Best rejected the plea offer, wanted

probation, and never expressed a desire to withdraw his guilty plea at sentencing.

          The trial court could reasonably conclude that Fontenot communicated the State’s

offer to Best and explained the consequences of rejecting the offer. Even assuming,

without deciding, that counsel’s performance was deficient and Best’s testimony shows a

reasonable probability that he would have accepted the State’s offer, Best has not shown

that the State would not have withdrawn the offer or that the trial court would not have

refused to accept the offer. See Moore v. State, 295 S.W.3d 329, 332 (Tex. Crim. App.

2009) (The State may offer or withdraw a plea bargain.); see also Tex. Code. Crim. Proc.

Ann. art. 26.13(a)(2) (West Supp. 2012); Wright v. State, 158 S.W.3d 590, 593 (Tex.

App.—San Antonio 2005, pet. ref’d) (A trial court has wide discretion when deciding

whether to accept a plea bargain agreement.).         Accordingly, Best cannot establish

ineffective assistance on this basis. See Frye, 132 S.Ct. at 1410.

          Third, Best contends that Fontenot was unfamiliar with the law and failed to

advise him as to the consequences of pleading guilty and that, as a result, his plea was

involuntary.     A guilty plea is not knowingly or voluntarily made if it results from

ineffective assistance of counsel. Ex parte Moussazadeh, 361 S.W.3d 684, 689 (Tex.


                                              8
Crim. App. 2012). We consider (1) whether counsel’s advice was within the range of

competence demanded of attorneys in criminal cases; and if not, (2) whether there is a

reasonable probability that, but for counsel’s errors, the defendant would not have entered

his plea and would have insisted on going to trial. Courtney v. State, 39 S.W.3d 732,

736-37 (Tex. App.—Beaumont 2001, no pet.).

       The record contains written and verbal admonishments in which Best

acknowledged his understanding of the punishment range and the consequences of his

plea. Written admonishments signed by the defendant and the reporter’s record showing

that the defendant verbally represented to the trial court that he understood the

admonitions constitute a prima facie showing of voluntariness. Id. at 736. Best bears the

heavy burden of showing that he entered his plea without understanding the

consequences, such that he suffered harm. See id.

       The record does not indicate that Fontenot promised Best that probation would be

granted. Even so, at sentencing, the trial court heard evidence and arguments regarding

probation. The record contains the pre-sentence investigation report, evidence of the

terms that would apply to Best should the trial court grant probation, and testimony

regarding Best’s previous failed attempts at probation. The trial court heard testimony

regarding Best’s sobriety, regret, acceptance of responsibility, determination to make the

right choices, and physical condition. Nevertheless, the trial court found that a lengthy




                                            9
incarceration was needed to protect society. The trial court’s comments at sentencing

suggest that the trial court considered and rejected probation.

       Under these circumstances, and in light of the written and verbal admonishments

found in the record, Best has not sustained his burden of showing harm, nor has he

demonstrated that, but for any errors by Fontenot, he would not have pleaded guilty and

would have insisted on going to trial. See Courtney, 39 S.W.3d at 737; see also Nicholas

v. State, 56 S.W.3d 760, 771 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (“A plea

is not rendered involuntary simply because the defendant did not receive the punishment

he hoped for, even if his expectation was the result of something the defendant claims his

lawyer told him.”).     Because Best has failed to establish his claims of ineffective

assistance, we overrule issues one and two and affirm the trial court’s judgment.

       AFFIRMED.




                                                  ________________________________
                                                         STEVE McKEITHEN
                                                             Chief Justice


Submitted on November 13, 2012
Opinion Delivered December 12, 2012
Do Not Publish

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




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