      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-13-00013-CR



                                   Jerry Anderson, Appellant

                                                 v.

                                  The State of Texas, Appellee


            FROM THE COUNTY COURT AT LAW NO. 4 OF TRAVIS COUNTY
        NO. C-1-CR-12-214313, HONORABLE MIKE E. DENTON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               On the Court’s own motion, we withdraw the previous opinion and judgment dated

February 11, 2015, and substitute the following opinion and judgment in their place.

               Appellant Jerry Anderson pleaded nolo contendere to the misdemeanor offense of

assault-family violence and was sentenced to 90 days’ confinement in the Travis County jail. See

Tex. Penal Code § 22.01; Tex. Fam. Code § 71.004. On appeal, Anderson asserts that (1) the trial

court abused its discretion in denying his motion for new trial, and (2) he received ineffective

assistance of counsel. We will affirm the trial court’s judgment.


                                        BACKGROUND

               On August 26, 2012, an officer with the Austin Police Department responded to a

disturbance call. The officer met with Melissa Patlan, who was Anderson’s live-in girlfriend. Patlan
told the officer that Anderson had kicked and punched her. The officer arrested Anderson, who was

subsequently charged with assault-family violence.

               Trial counsel was appointed to represent Anderson. Anderson entered into a plea

bargain with the State in which he agreed to plead nolo contendere in exchange for a sentence of

90 days in jail. The trial court found Anderson guilty and sentenced him in accordance with the plea

agreement. Anderson then filed a motion for new trial arguing that his plea was involuntary because

he suffered from mental health issues at the time of his plea. After holding a hearing at which

Anderson was represented by new counsel, the trial court denied the motion.


                                           DISCUSSION


Motion for new trial

               In his first point of error, Anderson argues that the trial court should have granted his

motion for new trial in the interest of justice because Anderson produced credible evidence “that he

was experiencing anxiety that led to an inappropriate plea.”1 We review a trial court’s denial of a

motion for new trial for abuse of discretion. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App.

2014). We do not substitute our judgment for that of the trial court. Id. Instead, we decide whether

the trial court’s decision was arbitrary or unreasonable. Id. A trial court abuses its discretion in

denying a motion for new trial if no reasonable view of the record could support its ruling. Id. In

addition, we “view the evidence in the light most favorable to the trial judge’s ruling and presume


       1
           As a preliminary matter, the State contends that Anderson has insufficiently briefed this
issue and therefore presents nothing for review. We will assume, without deciding, that Anderson’s
brief is sufficient to bring the issue before us. See Tex. R. App. P. 38.1(i).

                                                  2
that all reasonable factual findings that could have been made against the losing party were made

against that losing party.” Id. While a trial court “has discretion to grant or deny a motion for new

trial ‘in the interest of justice,’” the court “does not have authority to grant a new trial unless the

first proceeding was not in accordance with the law.” State v. Herndon, 215 S.W.3d 901, 907

(Tex. Crim. App. 2007). Therefore, a trial court “cannot grant a new trial on mere sympathy, an

inarticulate hunch, or simply because he personally believes that the defendant is innocent or

‘received a raw deal.’” Id.

                In this case, the clerk’s record reveals that the plea waiver and stipulation form

that Anderson signed contains the admonishments required by Texas Code of Criminal Procedure

article 26.13(a).2 In addition, in the judgment of conviction the trial court expressly found that it had

“admonished the Defendant as required.” “A finding that a defendant was duly admonished creates

a prima facie showing that a guilty plea was entered knowingly and voluntarily.” Martinez v. State,

981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). Therefore, Anderson bears the burden

of showing “that he did not fully understand the consequences of his plea such that he suffered

harm.” Id.

                At the hearing, the only evidence Anderson presented in support of his claim of an

involuntary plea was his own testimony. Anderson testified that he had a history of anxiety problems

and that he had been seeing a counselor at the Veteran’s Administration. Anderson also stated that

he was worried that spending time in jail could cause him to lose his apartment, his car, and his job.


        2
         These admonishments include statements informing Anderson of the consequences of his
plea, such as the range of punishment attached to the offense and the fact that the prosecutor’s
recommendation is not binding on the court. See Tex. Code Crim. Proc. art. 26.13(a).

                                                   3
However, Anderson and his trial counsel both testified that Anderson was actively involved in the

plea negotiations and that he accepted the plea bargain in order to get out of jail as quickly as

possible. Moreover, Anderson himself confirmed that his plea was voluntary; when Anderson’s

attorney asked him at the motion hearing, “Were you feeling like you were under pressure to make

a plea?” and, “Did you feel any kind of coercive nature of being there at the court to make a plea?”,

Anderson answered both questions “No.”

               The fact that Anderson was motivated by a desire to avoid lengthy incarceration

is not a legal ground for granting a new trial. See Herndon, 215 S.W.3d at 907 (“[T]he trial court

does not have discretion to grant a new trial unless the defendant shows that he is entitled to one

under the law.”). Viewing the record in the light most favorable to the trial court’s ruling, we

conclude that the trial court did not abuse its discretion in denying Anderson’s motion for new trial.

See Bell v. State, 256 S.W.3d 465, 468 (Tex. App.—Waco 2008, no pet.) (“At a hearing on a

motion for new trial, a trial court as finder of fact is free to believe or disbelieve the testimony of

any witness, even if the testimony is uncontroverted.”) (citing Keeter v. State, 74 S.W.3d 31, 38

(Tex. Crim. App. 2002)). We overrule Anderson’s first point of error.


Ineffective assistance of counsel

               In his second point of error, Anderson argues that he received ineffective assistance

of counsel. Specifically, Anderson contends that trial counsel “seems to have failed to ask about

treatment for mental illness before the plea was taken” and that “this is probably ineffective

assistance of counsel because an inquiry into his mental health might have led to a different outcome

at the plea hearing.”

                                                  4
                When a defendant challenges the voluntariness of a plea on the basis of ineffective

assistance of counsel, the voluntariness of his plea depends on (1) whether counsel’s advice was

within the range of competence demanded and, if not, (2) whether there is a reasonable probability

that, but for the ineffective assistance, the defendant would not have pleaded and would have

insisted on going to trial. See Ex parte Niswanger, 335 S.W.3d 611, 615 (Tex. Crim. App. 2011);

see also Strickland v. Washington, 466 U.S. 668, 687–88 (1984) (establishing test for determining

when counsel is ineffective); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986)

(adopting Strickland standards). Under the first prong, to demonstrate that trial counsel’s advice

was deficient—and therefore not within the range of competence demanded—the defendant must

prove by a preponderance of the evidence that counsel’s advice “fell below an objective standard of

reasonableness.” Ex parte Ali, 368 S.W.3d 827, 833 (Tex. App.—Austin 2012, pet. ref’d) (internal

quotations omitted). This objective standard is based upon “prevailing professional norms.”

Strickland, 466 U.S. at 688. Our review of counsel’s performance must be highly deferential; we

presume that counsel makes all significant decisions in the exercise of reasonable judgment. Id. at 689.

                Although a defendant may raise an ineffective-assistance-of-counsel claim for the first

time on appeal, Cannon v. State, 252 S.W.3d 342, 347 n.6 (Tex. Crim. App. 2008) (citing Robinson

v. State, 16 S.W.3d 808, 810 (Tex. Crim. App. 2000)); Blevins v. State, 18 S.W.3d 266, 270 (Tex.

App.—Austin 2000, no pet.) (“[T]he court of criminal appeals has made it clear that a defendant’s

inaction at trial will not waive the right to make an ineffective-assistance-of-counsel claim on

appeal.”) (citing Robinson), “rarely will the trial record contain sufficient information to permit a

reviewing court to fairly evaluate the merits of such a serious allegation.” Bone v. State, 77 S.W.3d



                                                   5
828, 833 (Tex. Crim. App. 2002). This is because the record must affirmatively demonstrate

ineffective assistance, and, “[i]n the majority of instances, the record on direct appeal is simply

undeveloped and cannot adequately reflect the failings of trial counsel.” Thompson v. State,

9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999).

                In support of his claim of ineffective assistance of counsel, Anderson’s sole evidence

is that the plea form that Anderson and his trial counsel signed contains the following statement:


        I have (not) been committed to a mental institution (nor do I) (but I do not) presently
        have mental or emotional problems, and I believe that I am competent to stand trial
        and the attorney for the defendant herein acknowledges that counsel believes the
        defendant is competent and able to assist counsel in the preparation of the defense
        and that the defendant appears to be sane and competent.


None of the alternatives indicated by parentheses were circled. According to Anderson, this

statement’s presence on the plea form indicates that “the local judiciary has set a standard of practice

that requires questioning a defendant about any treatment for mental illness,” and thus trial counsel’s

failure to “ask that question would fall below the expected standard of practice.”

                Anderson has not carried his burden to show by a preponderance of the evidence

that his trial counsel’s assistance fell below an objective standard of reasonableness. Anderson did

not raise his claim of ineffective assistance of counsel in his motion for new trial. As a result,

Anderson’s trial counsel was not afforded an opportunity to explain his actions, and “we will not find

him to be deficient unless the challenged conduct was so outrageous that no competent attorney

would have engaged in it.” Nava v. State, 415 S.W.3d 289, 308 (Tex. Crim. App. 2013) (internal

quotation marks omitted). Based on the record before us, we conclude that there is no evidence



                                                   6
suggesting that counsel had any reason to believe that Anderson was suffering from mental illness.

See Purchase v. State, 84 S.W.3d 696, 700–01 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d)

(declining “to hold that counsel must always ask a defendant about his psychiatric history, even

when there are no indicators of possible incompetency”); see also Barnett v. State, 344 S.W.3d 6,

17 (Tex. App.—Texarkana 2011, pet. ref’d) (“Counsel is not required . . . to always investigate a

defendant’s psychiatric history to meet the effective-assistance-of-counsel standard.”) (footnote

omitted). Because Anderson has not shown that his trial counsel’s assistance was deficient, we need

not reach the second Strickland prong. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App.

2009) (“An appellant’s failure to satisfy one prong of the Strickland test negates a court’s need to

consider the other prong.”). We overrule Anderson’s second point of error.


                                         CONCLUSION

               Having overruled both of Anderson’s points of error, we affirm the judgment of

conviction.



                                              __________________________________________

                                              Scott K. Field, Justice

Before Chief Justice Rose, Justices Pemberton and Field

Affirmed

Filed: March 13, 2015

Do Not Publish




                                                 7
