                         NUMBER 13-10-00085-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

                     EX PARTE RICHARD MARTINEZ

                     On appeal from the 94th District Court
                          of Nueces County, Texas.


             MEMORANDUM OPINION ON REHEARING
               Before Justices Garza, Vela, and Perkes
        Memorandum Opinion On Rehearing by Justice Rose Vela
        On April 28, 2011, we dismissed this case for want of jurisdiction. Afterwards,

applicant, Richard Martinez, filed a motion for rehearing, which we granted on July 14,

2011.    We withdraw our original opinion and judgment and substitute the following

opinion and judgment in its place. Martinez was indicted for attempted sexual assault.

See TEX. PENAL CODE ANN. § 15.01(a) (West 2011), § 22.011(a) (West 2011). Pursuant

to a plea-bargain agreement, he pleaded guilty, and the trial court sentenced him to six

years’ imprisonment, but suspended the sentence and placed him on community
supervision for six years.             While on community supervision, Martinez filed a

post-conviction application for writ of habeas corpus.1 After an evidentiary hearing, the

trial court denied relief. In three issues, Martinez argues: (1) he is actually innocent of

the offense; (2) his plea was involuntary; and (3) he received ineffective assistance of

counsel. We affirm.

                                       I. PROCEDURAL HISTORY

        On September 27, 2007, a Nueces County grand jury indicted Martinez for

attempted sexual assault. The indictment recited, in relevant part, that Martinez "with

the specific intent to commit the offense of Sexual Assault of [P.D.T.], [did] an act, to-wit:

BY REMOVING [P.T.D.'s] CLOTHES AND SPREADING HER LEGS, which amounted to

more than mere preparation that tended but failed to effect the commission of the offense

intended, . . . ."

        On January 17, 2008, Martinez pleaded guilty to the offense before Judge Bobby

Galvan. During the plea hearing, Judge Galvan admitted the Judicial Confession and

Stipulation, which included a statement from the victim, P.T.D., in which she stated, in

relevant part:

            My ex-boyfriend, Richard Martinez, Jr., had been living with me . . . up until
            he assaulted me on 05/27/2007. On that day my phone rang at about
            3:00 a.m. When Richard answered it no one was there. . . . A second
            call came a couple of minutes later and Richard had me answer the phone.
            When I did a male voice said hello. Richard then took the phone from me
            and when he got on it the caller hung up. Richard then became angry.
            He started to go through the house looking for a number to match the
        1
          The writ application was on the preprinted form for filing an application for writ of habeas corpus
under article 11.07 of the Texas Code of Criminal Procedure. See TEX. R. APP. P. 73.1(a). Writs filed
pursuant to article 11.07 are returnable only to the Texas Court of Criminal Appeals. See TEX. CODE CRIM.
PROC. ANN. art. 11.07, § 3(a) (West Supp. 2011). At the habeas hearing, the parties agreed to treat the writ
application as if it had been filed pursuant to article 11.072 of the Texas Code of Criminal Procedure.
Therefore, we have jurisdiction of this appeal. See id. art. 11.072, § 8 (West 2005).
                                                     2
        second call. He then calmed down and he got upset again when he asked
        me to have sex with him and I said no. He told me that I couldn't tell him
        no. He said that I was his girlfriend and that's what I was for. He then
        ripped off my panties and got on top of me. (I since put the panties in a zip
        lock bag and I gave them to Detective Rodriguez) He held me down with
        his elbows on my shoulders. I was wriggling so that he could not control
        me and hold me down. I started to try to fight him and I got off the bed.
        He then grabbed my t-shirt and forced me back on the bed. He pulled the
        shirt off of me. He then held me down to where I was pinned on the bed.
        He then slapped me in the face. He pushed my legs apart and was trying
        to penetrate me but couldn't. I kept trying to get away. When I finally did
        I went to the closet to get some clothes so that I could leave but Richard
        stopped me and told me "you're not fucking going anywhere!" I started to
        yell for help hoping someone would here [sic] and call the police. I kept
        trying to get clothes. Richard kept me from doing that. I finally got in the
        closet and I got my phone and called my mom, who was out of town, and
        asked her to get me some help. Richard kept looking at the door thinking
        the police were going to show up. I got a wrap that I keep on the sofa and
        wrapped it around myself. Richard took that from me also and he kept
        telling me that I wasn't going to leave him. I knew I wasn't going to get out
        so I started screaming louder. Richard told me to quit screaming or he
        was going to get in trouble. Richard then started to plead with me to get
        quiet. When I didn't Richard put his hand over my mouth to where I
        couldn't breathe. He stopped and I was able to get my breath. He then
        did it again. He tried to force me into the bathroom and into the closet. I
        was trying to get dressed to leave and he forced me on the bed and held a
        pillow over my face. He held it there long enough to where I think I
        blacked out for a couple of seconds. When I came to I saw Richard go to
        the door and he saw an officer outside the door but the officer never
        knocked. I got my keys and I was able to get my cell phone from Richard
        after struggling with him for it. When I got outside the officer came to me
        and I told him what had happened but I didn't make a report. I went to my
        mom's house and my aunt, . . . was there. Richard called me three times
        but I didn't talk to him. He then showed up at my mom's house and was
        knocking on the doors. I called 911 and the police came. Richard was
        arrested. I am in fear that when he gets out of jail he will come after me
        again. . . .


The Judicial Confession and Stipulation also included a letter from P.T.D. in which she

stated, in relevant part:

       Detective Rodriguez,

                                             3
              As per my voice mail message a few days ago, I have changed my
       mind on pressing charges against Richard Martinez, Jr. He said that he
       was sorry and I feel like things may have been blow[n] out of proportion
       while emotions were high. I hope that you can understand that everyone
       could use forgiveness.

             Please let me know who (DA) I need to speak to in order to give
       pardon to Mr. Martinez.

              I know longer feel in danger and would like to leave the law out of his
       life. He is a good person. Sometimes we all need a break.

       On February 15, 2008, trial counsel filed a motion for new trial, alleging Martinez

"has acquired additional evidence which is vital to the issue of guilt or innocence" and he

"did not voluntarily enter his plea of guilty." During the new-trial hearing, trial counsel

introduced two exhibits: (1) a marriage license obtained by Martinez and P.D.T., dated

October 12, 2007; and (2) P.D.T.'s affidavit of non-prosecution dated October 2, 2007.

In her affidavit, P.D.T. stated, in relevant part:

             For approximately one month I have been living with Richard
       Martinez. We are considering marriage and are very close at this time. In
       May of this year, Richard and I had a big argument. I left the apartment
       and went to my mothers [sic]. He would not leave me alone and I got
       upset. I called the police and I told the police he had attempted to assault
       me. I was very upset and blew things out of proportion and probably
       exaggerated the overall incident. As a result, Richard was arrested and
       charged with an assault. Several days later, I went to the police
       department and I will [sic] still very upset. I told the officer that he had
       attempted to sexually assault me but truthfully that was exaggeration.

             Since his release from custody Richard and I have met and we have
       worked out our differences. We have been living together approximately
       one month. We are seriously talking about marriage. I do not wish to
       pursue these charges. I have previously contacted the police officer and
       advised him I did not want the charges filed. I also spoke to the Victims
       Advocate at the police department and advised them I did not want these
       charges filed. I also wrote them a letter confirming my wishes.


                                               4
                I was advised on October 1st that Richard had been indicted. I did
         not intend for this to happen and I do not wish to prosecute nor will I testify
         against him.

                I am signing this statement on my own free will. I am not being
         pressured, threatened or in any way forced to sign this statement. I
         voluntarily came to Richard's lawyer's office and asked to sign the
         statement so my wishes could be made clear to the District Attorney's
         Office. I will also contact the Victims Advocate at the District Attorney's
         Office to schedule a meeting if necessary.

         After hearing evidence and argument, Judge Galvan denied the motion for new

trial.

         On December 11, 2009, habeas counsel filed an application for writ of habeas

corpus in which he complained: (1) Martinez received ineffective assistance of trial

counsel; (2) his plea was involuntary; and (3) he was actually innocent of the offense.

On January 14, 2010, Judge Galvan held a hearing on the writ. During the hearing,

Martinez testified he pleaded guilty to attempted sexual assault and is currently on

probation for that offense. With respect to the facts of the offense, he explained he and

his fiancee, P.D.T., lived together and that early one morning while they were having

"consensual compassion," he answered her telephone. He discovered the caller was

P.T.D.'s ex-boyfriend, who told him "some disturbing things." After speaking to him,

Martinez was under the impression that P.T.D. and her ex-boyfriend were having a sexual

relationship. Martinez threw the phone into the toilet, and he and P.D.T. argued with

each other until about 5:30 a.m. when she went to her mother's house. Later, P.T.D. told

the police Martinez had assaulted her. Martinez testified he is innocent of the offense.

When habeas counsel asked him, "What is her motive to lie to the police and say you

assaulted her?," he said:

                                               5
          I feel now that I know the whole story myself. I feel that she was trying to
          cover up her—her side of the story by betraying me because I found out she
          had—she was pregnant. She showed me a sonogram after the fact that
          she filed this against me, after the fact of filing two affidavits and saying it's
          truly overexagerated[sic].

He stated the sonogram showed P.T.D. "was pregnant with twins and I don't make any

twins."

          Martinez testified that after he was released on bond, P.T.D. "did recant and I

forgave her."      Afterwards, they obtained a marriage license but never got married.

Martinez maintained P.T.D. made two recantations concerning the offense.                       One

occurred in a letter, which was part of the State's stipulation of evidence introduced at the

plea hearing.       The other occurred in a sworn affidavit that was introduced at the

motion-for-new-trial hearing.        When defense counsel asked Martinez, "Now, these

affidavits, what do you understand them to say—to mean?," he said,

          [B]etween me and her [P.T.D.], I finally had closure of where she had made
          up the story, because obviously, she said something. But at the end, I
          finally discovered that she really didn't mean to say this. She really didn't.
          In there it says . . . [s]he truthfully overexagerated[sic] and made up things.
          She says it in that form because she doesn't want to, you know,—I guess
          her pride doesn't say she's wrong, but she still admitted that she was wrong.

          Martinez testified he "was expecting for the charge to be dropped" and that "[t]here

is a possibility that I made bruises on her [P.T.D.'s] arm because she was overreacting

and attacking me and I was just holding—while we're standing, holding her to try to

control her. Those bruises are not from pinning her down and trying to rape her."

          After the hearing, Judge Galvan denied all requested relief. This appeal followed.




                                                  6
                                            II. DISCUSSION

 A. Actual Innocence

        By issue one, Martinez argues he demonstrated he is actually innocent of the

offense of attempted sexual assault.

        1. Standard of Review

        "[T]o prevail on a writ of habeas corpus, the proponent must prove his allegations

by a preponderance of the evidence." Ex parte Cummins, 169 S.W.3d 752, 757 (Tex.

App.—Fort Worth 2005, no pet.); see Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim.

App. 1995); Ex parte Adams, 707 S.W.2d 646, 648 (Tex. Crim. App. 1986). In Ex parte

Garcia, 353 S.W.3d 785 (Tex. Crim. App. 2011), the court of criminal appeals explained

that,

        In an article 11.072 habeas case, however, the trial judge is the sole finder
        of fact. There is less leeway in an article 11.072 context to disregard the
        findings of a trial court. Because the court of appeals and this Court are
        truly appellate courts in the article 11.072 context, it makes sense as a
        matter of logic that the Guzman v. State standard[2] would control.

Id. at 787–88 (citations omitted).

        "An appellate court reviewing a trial court's ruling on a habeas claim must review

the record evidence in the light most favorable to the trial court's ruling and must uphold

that ruling absent an abuse of discretion." Kniatt v. State, 206 S.W.3d 657, 664 (Tex.

Crim. App. 2006). In a habeas case, the trial court can "believe or disbelieve any of the

witnesses. . . ." Id.

        The court of criminal appeals recognizes two types of "actual innocence" claims:

(1) a Herrera claim, "which involves a substantive claim in which applicant asserts his
        2
            See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
                                                    7
bare claim of innocence based solely on newly discovered evidence"; and (2) a Schlup

claim, which "is a procedural claim in which applicant's claim of innocence does not

provide a basis for relief, but is tied to a showing of constitutional error at trial." Ex parte

Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002) (citing Schlup v. Delo, 513 U.S. 298

(1995); Herrera v. Collins, 506 U.S. 390 (1993)) (other citations omitted). The two claims

require an applicant to meet different burdens in order to obtain relief. Id.

       In this case, Martinez accompanied his claim of actual innocence with an assertion

of two constitutional errors:     (1) ineffective assistance of trial counsel; and (2) an

assertion that his guilty plea was involuntary. Thus, he has raised a Schlup claim. See

id. "[I]n a Schlup-type situation, a petitioner must show that the constitutional error

'probably resulted' in the conviction of one who was actually innocent."            Id. at 676

(quoting Schlup, 513 U.S. at 326–27). "The [Schlup] Court articulated the meaning of

"probably resulted" as follows: 'The petitioner must show that it is more likely than not

that no reasonable juror would have convicted him in light of the new evidence.'" Id.

(quoting Schlup, 513 U.S. at 327).

       In the present case, P.D.T.'s written statement (included with the Judicial

Confession and Stipulation of Evidence) to the police showed that Martinez asked her to

have sex with him. When she refused, he told her she could not tell him "no." He then

ripped off her panties, got on top of her, and held her down. When she got off the bed, he

grabbed her t-shirt and forced her back on the bed. He pulled off her t-shirt, held her

down on the bed, slapped her face, and pushed her legs apart. He tried to "penetrate"

her but could not. When she got away, she started screaming, and he put his hand over


                                               8
her mouth so tight she could not breathe. He once again forced her onto the bed. This

time, he held a pillow over her face.

       Martinez's claim that he is actually innocent of the offense of the attempted sexual

assault of P.D.T. is based upon: (1) P.T.D.'s letter to Detective Rodriguez (included with

the Judicial Confession and Stipulation); (2) her affidavit of non-prosecution; and (3) his

testimony at the habeas hearing where he testified he was "completely innocent" of the

charge of attempted sexual assault. In her letter to Detective Rodriguez, P.T.D. stated

she no longer wanted to press charges against Martinez and that she felt "like things may

have been blow out of proportion while emotions were high." This letter, however, does

not void the declarations she made in her written statement to the police in which she

implicated Martinez in the offense of attempted sexual assault. Furthermore, the letter

does not constitute evidence of Martinez's innocence.

       In P.D.T.'s affidavit of non-prosecution, she stated that when she told the police

Martinez had "attempted to assault" her, she "was very upset and blew things out of

proportion and probably exaggerated the overall incident." In addition, she stated that

when she "went to the police department[,]" she was "still very upset. I told the officer

that he had attempted to sexually assault me but truthfully that was exaggeration." We

note that in her written statement to the police, she recounted in great detail about how

Martinez attacked her and tried to sexually assault her.              In her affidavit of

non-prosecution, however, she does not state which assertions in her written statement

to the police were exaggerated.         Thus, one cannot conclude from her affidavit of

non-prosecution that Martinez did not attempt to sexually assault her. Even though she


                                              9
stated that when she told the officer that Martinez "had attempted to sexually assault me

but truthfully that was exaggeration[,]" this does not constitute a denial of the assertions,

showing he attempted to sexually assault her. She did not say she had lied to the police

about Martinez's efforts to sexually assault her, and she did not specifically deny he

attempted to sexually assault her. Consequently, her affidavit does not void her written

statement to the police, which implicated Martinez, and it does not constitute evidence of

his innocence.

       During the habeas hearing, Martinez testified he was "completely innocent" of the

allegation that he attempted to sexually assault P.D.T. He also testified that P.D.T. was

in a long-term relationship with him and had become pregnant with twins. She had

hidden this fact from him, and she had been communicating with her ex-boyfriend, who

Martinez believed was the likely father of the twins. However, in a habeas proceeding,

the trial court can "believe or disbelieve any of the witnesses. . . ." Kniatt, 206 S.W.3d at

664. We hold that Martinez has not shown that it is more likely than not that no

reasonable juror would have convicted him in the light of the evidence that he requests us

to consider.

B. Voluntariness of the Guilty Plea

       In issue two, Martinez contends the guilty plea was involuntary because: (1) "his

plea was entered into only because of the threat of incarceration for failing to comply with

pre-trial conditions"; and (2) his trial "attorney told him his only options were to plead guilty

or go to prison."




                                               10
       1. Applicable Law

       "A guilty plea constitutes a waiver of three constitutional rights: the right to a jury

trial, the right to confront one's accusers, and the right not to incriminate oneself." Id.

(citing Boykin v. Alabama, 395 U.S. 238, 243 (1969)). Consequently, a person must

enter a guilty plea knowingly, intelligently, and voluntarily so that the plea is consistent

with due process of law. Id. (citing Boykin, 395 U.S. at 242); see TEX. CODE CRIM. PROC.

ANN. art. 26.13(b) (stating, "No plea of guilty or plea of nolo contendere shall be accepted

by the court unless it appears that the defendant is mentally competent and the plea is

free and voluntary."). "To be 'voluntary,' a guilty plea must be the expression of the

defendant's own free will and must not be induced by threats, misrepresentations, or

improper promises." Id. (citing Brady v. United States, 397 U.S. 742, 755 (1970)). In

Aguirre-Mata v. State, the court of criminal appeals said that the Boykin Court stated

"generally that state courts should make sure that a guilty-pleading defendant has a full

understanding of what the plea connotes and of its consequences." 125 S.W.3d 473,

475 (Tex. Crim. App. 2003) (internal quotes omitted). The defendant must be aware of

all the direct consequences of his guilty plea. Mitschke v. State, 129 S.W.3d 130, 135

(Tex. Crim. App. 2004). "An applicant seeking habeas corpus relief on the basis of an

involuntary guilty plea must prove his claim by a preponderance of the evidence." Kniatt,

206 S.W.3d at 664 (citing Ex parte Morrow, 952 S.W.2d 530, 535 (Tex. Crim. App. 1997)).

       2. Analysis

       Martinez states in his appellate brief that he pleaded guilty "only because of the

threat of incarceration for failing to comply with pre-trial conditions." He also states that


                                             11
his trial counsel "told him his only option was to plead guilty or go to prison." We note

that at the plea hearing, the trial court asked Martinez if he was "pleading guilty freely and

voluntarily?" To this, he said, "Yes, sir." At the new-trial hearing, trial counsel asked

him, "And the morning that we entered that [guilty] plea do you recall if I advised you that

there was a warrant issued for your arrest for noncompliance with going to a pretrial

supervision officer?" He said, "That morning, yes." Next, trial counsel asked him, "[D]o

you recall whether you were told that if we did not resolve the case that morning that you

would be going to jail?" Martinez said, "Yes." However, when trial counsel asked him,

"And do you believe you entered the plea voluntarily?," he said, "Voluntarily, yes."

         At the habeas hearing, Martinez testified that "[W]hen I pleaded [guilty], I had an

open warrant."    When the trial court asked Martinez, "You were placed on pretrial

conditions, were you not?"       Martinez said, "Yes.     And that's why I had that open

warrant." When habeas counsel asked Martinez, "[O]n the day of court, it's plead out or

you're going to jail, right?," he said, "I was put in a box and squared in the corner. I had to

use my own logical thinking." At that point, the trial court stated, "Of course, you didn't

follow pretrial conditions. And you put yourself in a position where you get locked up and

then you're trying to tell the Court, that because I got locked up, I was under duress. . . ."

       Thus, the appellate record indicates that because Martinez violated a pretrial

condition, he faced incarceration in the county jail. He put himself in that predicament.

Moreover, during the plea hearing, he told the trial court he was entering his guilty plea

freely and voluntarily. Given the record evidence, the trial court could have reasonably

concluded Martinez had entered his guilty plea voluntarily; i.e., that his guilty plea had not


                                              12
been induced by threats, misrepresentations, or improper promises.          Issue two is

overruled.

C. Ineffective Assistance of Trial Counsel

      In issue three, Martinez contends he received ineffective assistance of trial

counsel.

      1. Standard of Review

      "Defendants have a Sixth Amendment right to counsel, a right that extends to the

plea-bargaining process." Lafler v. Cooper, No. 10-209, 2012 WL 932019, at *5 (U.S.

March 21, 2012) (citing Missouri v. Frye, No. 10-444, 2012 WL 932020, at *8 (U.S. March

21, 2012)). "During plea negotiations defendants are 'entitled to the effective assistance

of competent counsel.'" Id. (quoting McMann v. Richardson, 392 U.S. 759, 771 (1970)).

"A guilty plea is not considered knowingly and voluntary if it is made because of

ineffective assistance of counsel." Ex parte Niswanger, 335 S.W.3d 611, 614-15 (Tex.

Crim. App. 2011) (citing Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980)).

      "To determine whether to grant habeas corpus relief for ineffective assistance of

counsel, Texas courts apply the standard set forth in Strickland v. Washington, 466 U.S.

668 (1984), which requires the applicant to establish two components."          Ex parte

Niswanger, 335 S.W.3d at 615.       "First, the applicant must show that his attorney's

performance was deficient, meaning it 'fell below an objective standard of

reasonableness' under prevailing professional norms and according to the necessity of

the case." Id. (citing Strickland, 466 U.S. at 687-88; Ex parte Morrow, 952 S.W.2d at

536). "Because there 'are countless ways to provide effective assistance in any given


                                           13
case,' a reviewing court must be highly deferential and 'indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional assistance; that

is, the defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.'" Id. (quoting Strickland, 466

U.S. at 689).

        "Second, the applicant must demonstrate that he was prejudiced by his attorney's

performance—'there is a reasonable probability[ 3] that, but for counsel's unprofessional

errors, the result of the proceeding would have been different.'" Id. (quoting Strickland,

466 U.S. at 694). "For claims related to the entering of a plea, the applicant satisfies the

prejudice prong by showing a 'reasonable probability that, but for counsel's errors, he

would not have pleaded guilty and would have insisted on going to trial.'" Id. (quoting Hill

v. Lockhart, 474 U.S. 52, 58–59 (1985)). "Still, the applicant 'need not show that his case

would have received a more favorable disposition had he gone to trial.'" Id. (quoting

Johnson v. State, 169 S.W.3d 223, 231 (Tex. Crim. App. 2005)).

        "Counsel's function 'is to make the adversarial testing process work in the

particular case.'" Id. (quoting Strickland, 466 U.S. at 690). "Accordingly, competent

advice requires that an attorney conduct independent legal and factual investigations

sufficient to enable him to have a firm command of the case and the relationship between

the facts and each element of the offense." Id. (citing Strickland, 466 U.S. at 691). "The

applicant has the burden to prove ineffective assistance of counsel by a preponderance

of the evidence." Id. (citing Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.


        3
          "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'"
Ex parte Niswanger, 335 S.W.3d 611, 614 (Tex. Crim. App. 2011) (quoting Strickland, 466 U.S. at 694).
                                                    14
1999)).   "Allegations of ineffectiveness must be based on the record, and the

presumption of a sound trial strategy cannot be overcome absent evidence in the record

of the attorney's reasons for his conduct." Id. (citing Busby v. State, 990 S.W.2d 263,

269 (Tex. Crim. App. 1999)).      "The reviewing court must look to the totality of the

representation, and its decision must be based on the facts of the particular case, viewed

at the time of counsel's conduct so as to eliminate hindsight bias." Id. (citing Strickland,

466 U.S. at 690).

       2. Analysis

       Martinez argues trial counsel was ineffective because he "did not investigate and

failed to learn [that Martinez] and the complaining witness [P.D.T.] had entered into a

marriage license and that she was pregnant with twins." Martinez pleaded guilty to the

offense of attempted sexual assault on January 17, 2008. He and P.D.T. obtained a

marriage license on October 12, 2007. The appellate record does not show when P.D.T.

told Martinez she was pregnant with twins. Even assuming trial counsel was deficient for

failing to discover these facts, Martinez has failed to satisfy the prejudice prong of

Strickland v. Washington by showing a reasonable probability that, but for counsel's

errors, he would not have pleaded guilty and would have insisted on going to trial.

       Martinez also argues that trial counsel "failed to conduct any examination of the

scene or talk to any persons familiar with [Martinez] and [P.D.T.'s] relationship."

However, Martinez does not state what if anything trial counsel would have discovered if

he had visited the crime scene or talked to persons familiar with their relationship.

Moreover, even assuming trial counsel was deficient for failing to perform these tasks,


                                            15
Martinez has failed to satisfy the prejudice prong of Strickland v. Washington by showing

a reasonable probability that, but for counsel's errors, he would not have pleaded guilty

and would have insisted on going to trial. Issue three is overruled.

                                      III. CONCLUSION

       We affirm the trial court's order denying relief.




                                                     ROSE VELA
                                                     Justice

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

Delivered and filed the
5th day of April, 2012.




                                             16
