                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00135-CR
                            NO. 02-11-00136-CR

ERMINIO ARROYOS, JR.                                        APPELLANT
A/K/A ERMINIO ARROYOS

                                       V.

THE STATE OF TEXAS                                               STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                       MEMORANDUM OPINION1

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                                  Introduction

      Appellant Erminio Arroyos, Jr., a/k/a Erminio Arroyos, appeals his

sentences for possession of methamphetamine and felon in possession of a

firearm. We affirm.




      1
      See Tex. R. App. P. 47.4.
                   Background Facts and Procedural History

      The State offered Appellant forty years’ confinement for his guilty pleas on

drug and weapons charges.2 Under the local rules, the deadline for accepting

plea bargain offers expired the Thursday before trial.3

      After the deadline passed without his accepting the State’s offer,

Appellant’s two cases were consolidated and tried to a jury. The jury returned

guilty verdicts in both cases, and having found that Appellant’s criminal history

and pleas of true to enhancement paragraphs qualified him as a habitual

criminal, the jury assessed his punishment at ninety-nine years’ confinement in

each case.    The trial court sentenced Appellant accordingly and ordered the

sentences to run concurrently.

      Appellant’s court-appointed appellate counsel filed a motion for new trial,

charging that trial counsel’s representation on the punishment issue was

constitutionally deficient. The trial court denied the motion after a hearing.

      On appeal, Appellant concedes that he is not entitled to have his

convictions reversed, only his sentences. He asks for one of three remedies: a

new punishment trial, a “proper” hearing on his motion for new trial, or an order


      2
        The State offered thirty years’ confinement on the drug charge and forty
on the weapons charge. The offenses appear to have arisen from the same
criminal episode. The sentences, therefore, would have run concurrently. See
Tex. Penal Code Ann. § 3.03(a) (West Supp. 2011). The parties’ briefs refer only
to the forty-year offer; for the rest of this opinion, so will we.
      3
       355th (Tex.) Dist. Ct. Loc. R. 4.6 (Hood County).


                                          2
reinstating the State’s original forty-year plea bargain offer or instructing the trial

court to sentence Appellant to forty years’ confinement in accordance with that

offer.

                           Trial Counsel’s Representation

         In two issues, Appellant faults his trial counsel’s representation during the

punishment phase for failing to investigate mitigating circumstances in the case

and for not “properly” conducting plea negotiations on his behalf.

Standard of Review

         To establish ineffective assistance of counsel, an appellant must show by

a preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009);

Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).                 When

analyzing a trial court’s ruling on a motion for new trial based on ineffective

assistance of counsel, we review Strickland’s standards through the prism of an

abuse of discretion standard, meaning we defer to the trial court’s resolutions of

questions that turn on evaluations of witness credibility. See Kober v. State, 988

S.W.2d 230, 233 (Tex. Crim. App. 1999).           Our role as an appellate court is

limited to viewing the evidence in the light most favorable to the trial court’s ruling

and ensuring that the standards used to determine whether counsel was


                                           3
ineffective were properly applied. See Villareal v. State, 935 S.W.2d 134, 138

(Tex. Crim. App. 1996).

      In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of the case.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The issue is

whether counsel’s assistance was reasonable under all the circumstances and

prevailing professional norms at the time of the alleged error. See Strickland,

466 U.S. at 688–89, 104 S. Ct. at 2065. Review of counsel’s representation is

highly deferential, and we indulge a strong presumption that counsel’s conduct

fell within a wide range of reasonable representation.     Salinas v. State, 163

S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 63 (Tex.

Crim. App. 2001). A reviewing court is rarely in a position on direct appeal to

fairly evaluate the merits of an ineffective assistance claim. Salinas, 163 S.W.3d

at 740; Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on

direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d

at 63). To overcome the presumption of reasonable professional assistance,

“any allegation of ineffectiveness must be firmly founded in the record, and the

record must affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting

Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to

simply infer ineffective assistance based upon unclear portions of the record.

Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).


                                        4
       The second prong of Strickland requires a showing that counsel’s errors

that were identified under the first prong were so serious that they deprived

Appellant of a fair trial, that is, one with a reliable result. See Strickland, 466 U.S.

at 687, 104 S. Ct. at 2064. In other words, an appellant must show there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome. Id. The ultimate focus of our inquiry must be on the fundamental

fairness of the proceeding in which the result is being challenged. Id. at 697, 104

S. Ct. at 2070.

       Ineffective assistance of counsel may properly be raised in a motion for

new trial. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). In order

to obtain a hearing on a motion for new trial when the basis of the motion is

ineffective assistance of counsel, the movant 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 the trial would have been different.

Smith v. State, 286 S.W.3d 333, 335, 344–45 (Tex. Crim. App. 2009).

Mitigation

       In his first issue, Appellant claims that his trial counsel (Counsel) failed to

sufficiently investigate relevant facts that might have mitigated punishment,

specifically:     his birth defect; his mother’s psychological issues; and


                                           5
circumstances surrounding his brother’s death, which occurred early in

Appellant’s life.

       The record does not support this claim, though, because even if it showed

that Counsel failed to investigate these facts, there is little, if anything, in the

record to show that these facts exist. For instance, there is no evidence in the

record to indicate what psychological issues, if any, his mother may have had––

let alone how they might have affected Appellant or might have been germane to

the issue of his punishment for these specific offenses.

       In his second issue, addressed below, Appellant faults the trial court for not

allowing him to develop evidence on his mother’s mental health at the hearing on

his motion for new trial.    But there is nothing in the record to suggest that

Appellant made any attempt to comply with rule of evidence 103 or that the trial

court denied Appellant the opportunity to make an offer of proof.4 See Tex. R.

Evid. 103. “In order to preserve error regarding a trial court’s decision to exclude

evidence, the complaining party must comply with Rule of Evidence 103 by

making an ‘offer of proof’ which sets forth the substance of the proffered

evidence.” Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). Only

then can the appellate court determine whether the exclusion was erroneous or

harmful. Id. at 890; see Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App.

       4
       “Error may not be predicated upon a ruling which . . . excludes evidence
unless a substantial right of the party is affected, and . . . the substance of the
evidence was made known to the court by offer, or was apparent from the
context within which questions were asked.” Tex. R. Evid. 103(a).


                                          6
1998); Bundy v. State, 280 S.W.3d 425, 428–29 (Tex. App.—Fort Worth 2009,

pet. ref’d). Because Appellant presented no evidence and made no bill on the

issue of his mother’s mental health and how it might have affected him in some

manner relevant to mitigating his punishment, we are left with nothing but bare

suggestions in Appellant’s brief that his mother’s mental condition may have had

some effect. But absent more substance in the record, we can only speculate as

to what her condition might have been, how it might have affected him, and how

it might be considered mitigating.

      Similarly, given the record—or lack thereof—before us, we can only

speculate about what mitigating weight, if any, should be credited Appellant’s

apparently having suffered a birth defect and the loss of a sibling. Although the

record indicates the existence of these two facts—specifically, that Appellant was

born with spina bifida and that his brother passed away early in Appellant’s life—

again, there is no showing of how these facts affected Appellant and how they

might be germane to the issue of his punishment for unlawfully possessing drugs

and weapons.

      Allegations of ineffectiveness must be firmly founded in the record.

Thompson, 9 S.W.3d at 813.           Because the allegations of ineffectiveness

Appellant presents in his first issue are not, we overrule his first issue. See id.;

see also Mata, 226 S.W.3d at 432 (holding that it is inappropriate for appellate

courts to infer ineffective assistance of counsel).




                                          7
Plea Negotiations

         In his third issue, Appellant complains that despite knowing that Appellant

wanted to accept a plea bargain offer rather than go to trial, Counsel did not give

him a chance to accept the offer, tell him it would expire, or convey his

acceptance to the State.

         Appellant testified at the hearing that when he first received the State’s

offer, he told Counsel that it “was too much,” and that if the State would have

lowered it, he would have accepted “right away.” He also testified that Counsel

never returned to tell him that the State would not reduce the offer from forty

years.

         Counsel, however, testified that he communicated to Appellant that the

State’s offer was final:

         Q     [by appellate counsel] And he [Appellant] also, would you
         agree, expressed that he didn’t want to be pulled into court in the
         last minute and find out that there was no other offer, that that was
         it?

         A    No, that was--that was--that was conveyed to him, that there
         was no other offer. That was the offer.

         Q     When was that conversation?

         A     It would have been sometime prior to the trial, I’m thinking,
         when I’m down talking to him about making sure he has clothing
         and--and--and what witnesses we need to call, that we would have
         had that conversation at that time.




                                          8
      Appellant testified that he wrote to Counsel twice and that Counsel never

answered his letters, but he admitted that he never wrote to Counsel to tell him

specifically that he wanted to accept the offer of forty years.

      Appellant further testified as follows:

      Q      [by appellate counsel] If [Counsel] had come back to you
      and said, “40 years is best. We’re going to do that,” what would your
      intention be then?

      A      Then I would have probably signed, sir.

      Q      You would have accepted the offer?

      A      I probably would have.

      On cross-examination, Appellant testified as follows:

      Q     [by the State]   And your testimony here when asked if you
      would have taken the 40-year plea bargain offer, your answer was
      you probably would have taken the deal?

      A     I would have tooken [sic] it, sir, because my family came down
      here especially for--

      Q     I understand that’s what you’re saying on cross, but on direct
      examination, did you say, even today, that you probably would have
      taken it?

      A      I would have tooken [sic] the 40.

      Counsel testified that Appellant rejected the State’s offer, that he

communicated Appellant’s rejection of the offer to the State, and that the State

would not reduce the offer:

      Q      . . . The plea bargain offer in these cases was 40 years and 30
      years.

      A      Yes.


                                          9
      Q    And since the 40-year case, that’s a bigger number than 30,
      40 was the one that was most important, is that right?

      A      That’s correct.

      Q      And you explained that to the defendant.

      A      I did.

      Q      And he didn’t want to accept that offer.

      A      No, he did not.

      Q    And you communicated with the DA’s office that the defendant
      wanted a better offer.

      A      Yes, I did.

      Q      And you didn’t get one.

      A      No.

      Counsel also testified that Appellant persisted in rejecting the offer past the

deadline until the day of trial.

      Q     Okay.      You went to speak to [Appellant] the Wednesday
      before trial.

      A      To the best of my recollection.

      Q      And he did not tell anyone that he wanted to take the 40
      years.

      A      He did not.

      Q     And you told him that if he wanted to accept the--if he wanted
      to accept that offer, he needed to tell you.

      A      I do not recall whether I told him that or not.

      Q      But you know that that’s the case. I mean that’s what--


                                          10
A     I do.

Q     And, in fact, there’s a plea deadline on Thursday.

A     I know that.

Q   And that’s why it would be important to talk to him on
Wednesday.

A     Yes.

Q     Find out what he wants to do.

A     Yes.

Q     And [Appellant] never told you he wanted to take 40 years.

A     He did on the day of trial.

Q     Okay. And at that point, the--the offer was--was withdrawn,
correct, or is past the plea deadline?

A     Yes, it was past the plea deadline.

Q     So it doesn’t really matter at that point.

A     And I told him that, yes. I said, “This is a little bit too late.”

      ....

Q     . . . [D]id the defendant repeatedly state he did not want to
take 40 years, 40 years was too much?

A   That’s what--that’s--that seemed to be his stance, from my
memory, all throughout, until the day of trial.




                                    11
         Counsel directly contradicted the allegations in Appellant’s motion-for-new-

trial affidavit that Counsel failed to communicate with him about the plea bargain

offer:

         Q     Okay. There was [sic] some things in this affidavit that the
         defendant has sworn to. He says that he asked you to speak to his
         family and--and then discuss the plea bargain, come back and
         discuss the plea bargain offer with him. Is that true?

         A     Yes.

         Q      And but then the defendant says here that you never did that.
         Is that--is that true or false, that you never--

         A     I--I’m sorry. Is that statement true or false, or did I do that?

         Q     Is--is--did--did you ever come back and talk with him about the
         plea bargain after you spoke with his family?

         A     Yes.

         Q     All right. So if he said that you didn’t, that’s just not true.

         A     That’s correct.

         Q      All right. And he says in this affidavit that you spoke with him
         on November 19th and then he never heard from you again. That’s
         not true, is it?

         A     No, it’s not true.

         Q      It’s just false. Okay. If the--if the defendant had told you that,
         in a timely manner, that he wanted to take the--the 40 years, you
         would have communicated that to my office, would you not have?

         A   I urged him to take that offer, and I definitely would have
         communicated that to the DA’s office.

         Q     And you’ve practiced in this court a long time.

         A     I have.


                                             12
      Counsel testified that it was his usual practice to visit clients in jail the

Wednesday before trial:

      Q     . . . And in the course of you encouraging defendants to
      accept the plea bargains that you think are reasonable, do you tell
      them that they have to tell you that they want to accept the plea
      bargain offers in a timely fashion?

      A      I don’t know that I actually ever made a statement like that,
      that “You have to tell me in a timely fashion.” I mean, you know,--

      Q      Well,--

      A    --I kind of tell them how it has to be done and when it has to
      be done.

      Q      And--and when does it have to be done?

      A      Well, it always has to be done at--at five o’clock on a Thursday
      prior to the trial setting.

      Q     And--and that’s what you communicate to your clients so that
      they can accept the offers, if that’s what they want to do?

      A      That’s true.

      And although Counsel candidly admitted that he could not state with

certainty that he followed his usual practice in this specific case, he testified that

he communicated with Appellant often through Appellant’s sister:

      Q     [by appellate counsel] Okay. So you said that it is your
      general practice to go to the jail the Wednesday before trial to meet
      with your client.

      A      That’s right.

      Q      But in this case, I mean you’re saying that’s your usual
      practice, but you can’t say for sure whether you did it or not.




                                         13
      A     This was a strange case because his sister was visiting him
      like every week, and she--and she called me every week, so the
      communication was--was--was a lot of times through his sister of
      what was going on in this case.

             ....

      Q   Can you say for sure in this specific case if you went to the jail
      Wednesday before trial or not?

      A      No.

      In order to satisfy Strickland’s first prong, an appellant must overcome the

strong presumption of adequate representation by a preponderance of the

evidence   and      the   record   must   “affirmatively   demonstrate   the   alleged

ineffectiveness.” Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813. The

record in this case shows a conflict in the testimony between Appellant and

Counsel. Because the trial court’s resolution of that conflict is neither arbitrary

nor unreasonable, we defer to that resolution. See Kober, 988 S.W.2d at 233.

      Further, Appellant’s testimony wavered between probably taking the

State’s offer and definitely taking it. Given the record before us, we hold that

Appellant has not met his burden of proof under Strickland’s first prong and that

the trial court acted within its discretion to deny Appellant’s motion for new trial.

See Strickland, 466 U.S. at 687, 104 S. Ct. 2064; Davis, 278 S.W.3d at 352;

Salinas, 163 S.W.3d at 740. Accordingly, we overrule the third issue.




                                          14
                      Hearing on the Motion for New Trial

      In his second issue, Appellant contends that “the trial court abused its

discretion by constructively denying a hearing on his motion for new trial.”

Appellant claims that the trial court constructively denied him a hearing because

the trial court sustained the State’s objections to certain testimony Appellant

attempted to offer on the grounds that it was irrelevant to the matters raised in

Appellant’s motion for new trial.

      We do not accept the premise that the trial court “constructively” denied

Appellant a hearing on his motion for new trial. He argues that “no reasonable

reading of the record in this case supports the trial court’s decision not to order a

new trial” and “[a]ny reasonable jurist, under the same circumstances and with

the same information available to the trial court, would have determined that

[Appellant] clearly demonstrated by a preponderance of the evidence that trial

counsel was ineffective.”       But if Appellant “clearly demonstrated by a

preponderance of the evidence that trial counsel was ineffective,” he was not

constructively denied a hearing. Moreover, to the contrary, the record shows that

the trial court conducted a full evidentiary hearing on the matters urged in

Appellant’s motion for new trial and sustained the State’s relevancy objections

only when the questioning strayed from those matters.

      For instance, Appellant complains that the trial court cut off his questioning

on the issue of how his brother died; whether Appellant had any health

conditions; what disease he had and how it affected him; his family’s


                                         15
psychological history; and whether Counsel spoke to Appellant about Appellant’s

health, brother’s death, and mother’s mental health issues. But in neither the

motion for new trial nor its attached affidavit is there any mention of his birth

defect, his brother’s death, or his mother’s mental health.

      A new-trial motion must be supported by an affidavit specifically setting out

the factual basis for the claim. Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim.

App. 2009). If the affidavit is conclusory, is unsupported by facts, or fails to

provide requisite notice of the basis for the relief claimed, no hearing is required.

Id. Motions for new trial are required to have sworn affidavits attached to prevent

fishing expeditions. McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App.

1985). A trial court need not grant a hearing on matters not sufficiently detailed

in a motion for new trial to put the trial court on notice that reasonable grounds

exist to support granting a new trial. See Jordan v. State, 883 S.W.2d 664, 665

(Tex. Crim. App. 1994).

      Here, the trial court granted a hearing on the issues raised in Appellant’s

motion that were supported by facts in the affidavit. It limited the hearing to

matters supported by facts raised in the affidavit. We hold, therefore, that the

trial court did not abuse its discretion by sustaining relevancy objections and

thereby limiting the hearing in this case to the matters urged and supported by

facts set out in the motion that was heard. We overrule Appellant’s second

issue. See id.




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                                Conclusion

      Having overruled all of Appellant’s issues, we affirm the trial court’s

judgments.




                                               LEE GABRIEL
                                               JUSTICE

PANEL: GARDNER, McCOY, and GABRIEL, JJ.

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

DELIVERED: May 3, 2012




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