Affirmed and Memorandum Opinion filed May 10, 2012.




                                           In The

                           Fourteenth Court of Appeals
                                  ___________________

                                   NO. 14-10-01173-CR
                                   NO. 14-11-00165-CR
                                   NO. 14-11-00166-CR
                                   NO. 14-11-00167-CR
                                   NO. 14-11-00168-CR
                                   NO. 14-11-00169-CR
                                   NO. 14-11-00170-CR
                                   NO. 14-11-00171-CR
                                  ___________________

                      NATHAN LUKE BALDRIDGE, Appellant

                                             V.

                           THE STATE OF TEXAS, Appellee


                        On Appeal from the 239th District Court
                               Brazoria County, Texas
                            Trial Court Cause No. 61,623


                         MEMORANDUM OPINION

       Appellant pleaded guilty without an agreed recommendation on punishment to three
counts of aggravated sexual assault of a child and five counts of indecency with a child.
The trial court sentenced appellant to confinement for fifteen (15) years in the Institutional
Division of the Texas Department of Criminal Justice on each of the three counts of
aggravated sexual assault, to run consecutively. On each of the five counts of indecency
with a child, the trial court sentenced appellant to confinement for ten (10) years in the
Institutional Division of the Texas Department of Criminal Justice, the sentences to run
concurrently with each other and the three fifteen-year sentences. Appellant filed a notice
of appeal and motion for new trial, claiming ineffective assistance of counsel. The trial
court conducted a hearing and denied the motion for new trial. Appellant then brought
this appeal.

                                     BACKGROUND

       The complainant in each count was appellant's niece, S.G. The sexual abuse began
when S.G. was six or seven years old and continued until she was approximately eighteen.
Appellant is approximately ten years older than S.G.

       Trial counsel was initially retained to represent appellant and his brother on a charge
of burglary of a building. Appellant's brother was a co-defendant in that case. Appellant
was then charged with sexual assault of S.G. Appellant pleaded guilty without an agreed
recommendation on punishment to the charge of burglary and was sentenced to two years
in a state jail facility.   As noted above, he also pleaded guilty without an agreed
recommendation on punishment to all eight counts of sexual abuse and was sentenced by
the trial court.

       In his sole issue, appellant complains he received ineffective assistance from his
trial counsel. Specifically, appellant complains of the following:


       his plea was involuntary in that it was based on trial counsel's advice he was eligible
       for probation;


       trial counsel failed to object to the opinion of future dangerousness contained in the
       pre-sentence investigation report;


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       trial counsel failed to provide mitigating evidence during the sentencing hearing;


       trial counsel failed to object to the State's introduction of a probable cause affidavit
       containing hearsay admissions by appellant of extraneous offenses committed
       outside the State of Texas; and


       trial counsel failed to object to the State's improper closing argument during the
       sentencing hearing.

                                    STANDARD OF REVIEW
       When, as here, the trial court has already rejected the merits of appellant's
ineffective-assistance claim by denying his motion for new trial, we must consider his
arguments in light of that ruling. Rodriguez v. State, 329 S.W.3d 74, 81 (Tex. App. --
Houston [14th Dist.] 2010, no pet.). See also Charles v. State, 146 S.W.3d 204, 207–08
(Tex. Crim. App. 2004), superseded by statute on other grounds by Tex. R. App. P.
21.8(b), as recognized in State v. Herndon, 215 S.W.3d 901, 905 n. 5 (Tex. Crim. App.
2007); My Thi Tieu v. State, 299 S.W.3d 216, 223 (Tex. App. -- Houston [14th Dist.] 2009,
pet. ref'd). Accordingly, when analyzing the trial court's decision to deny a new trial based
on ineffective assistance of counsel, we view the relevant legal standards through an
abuse-of-discretion standard. See Ramirez v. State, 301 S.W.3d 410, 415 (Tex. App. --
Austin 2009, no pet.). We do not substitute our judgment for that of the trial court; rather,
we decide whether the trial court's decision was arbitrary or unreasonable. Charles, 146
S.W.3d 208. Thus, a trial court abuses its discretion in denying a motion for new trial only
when no reasonable view of the record could support the trial court's ruling. Id.

       Claims of ineffective assistance of counsel are reviewed under the standard set forth
in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under
Strickland, an appellant must prove that his trial counsel's representation was deficient and
that the deficient performance was so serious that it deprived appellant of a fair trial.

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Strickland, 466 U.S. at 687. The same standard of review is applied whether the alleged
acts or omissions constituting ineffective assistance of counsel occurred in the
guilt/innocence phase or the punishment phase of trial. Hernandez v. State, 988 S.W.2d
770, 772-74 (Tex. Crim. App. 1999). To establish the first prong, an appellant must show
that counsel's performance fell below an objective standard of reasonableness. Strickland,
466 U.S. at 688. Regarding the second prong, an appellant must demonstrate prejudice.
Id. at 692. In the context of a guilty plea, a defendant satisfies the second prong by
showing that, but for counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203
(1985); Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009). In reviewing
ineffective assistance of counsel errors that occur during the punishment phase, we
determine whether there is a reasonable probability that the punishment assessed would
have been less severe but for counsel's deficient performance. Strickland, 466 U.S. at
694.

       Failure to make the required showing of either deficient performance or sufficient
prejudice defeats the claim of ineffectiveness.        Strickland, 466 U.S. at 697.       A
defendant's failure to satisfy one prong negates the need to consider the other prong.
Strickland, 466 U.S. at 697, 104 S.Ct. 2052; Williams v. State, 301 S.W.3d 675, 687 (Tex.
Crim. App. 2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 3411, 177 L.Ed.2d 326 (2010).

                                     INVOLUNTARY PLEA
       The record reflects appellant pleaded guilty without a plea bargain. Appellant
argues his plea was involuntary because it was based on trial counsel's advice that he was
eligible for probation and that the trial court would not stack his sentences.

       The written admonishments in the record show appellant was advised of the correct
punishment range. Appellant initialed his guilty plea and signed the admonishments.
Appellant also signed a document entitled "PLEA AGREEMENT" for the three offenses of
sexual assault. That document recites the correct range of punishment and states "plea
                                              4
open." Likewise, appellant signed a document entitled "PLEA AGREEMENT" for the
five offenses of indecency with a child. That document also recites the correct range of
punishment and states "open plea." The record of the plea hearing reflects the trial court
advised appellant:

      THE COURT: Do you understand that in Cause No. 61623 that if there were
      a trial by jury and there were a finding of guilt, that in that case a jury would
      at least have the option to place you or recommend that you be placed on
      probation?

      THE DEFENDANT: Yes, sir.

      THE COURT: Do you understand that?

      THE DEFENDANT: Yes, sir.

      THE COURT: And do you understand that if you plead open to the Court,
      which is I understand this plea to be, you're basically saying I want the Judge
      to assess the punishment, which would be me. Under that set of
      circumstances, do you understand that I cannot place you on probation?

      THE DEFENDANT: Yes, sir.

      THE COURT: Understanding that, do you still want to plea open to the
      Court?

      THE DEFENDANT: Yes, sir.

      ...

      THE COURT: . . . [A]re you pleading guilty freely and voluntarily?

      THE DEFENDANT: Yes, sir.

      THE COURT: Has there been any threat, force, fraud, unlawful persuasion,
      illegal coercion or inducements of any kind used to make you plead guilty?

      THE DEFENDANT: No, sir.

      THE COURT: In Cause No. 61623, are you pleading guilty to the three
      counts of sexual assault of a child and five counts of indecency with a child
      because you are guilty and for no other reason?

                                             5
THE DEFENDANT: Yes, sir.

THE COURT: . . . I have before me documents that are titled Defendant's
Affidavit of Admonitions, Waivers, Judicial Confession, Statements, Plea,
Probation and Appeal - Felony Less Than Capital, these documents here, sir.
Did you read them and understand them?

THE DEFENDANT: Yes, sir.

THE COURT: Did you discuss them with your attorney?

THE DEFENDANT: Yes, sir.

...

THE COURT: My understanding of the plea agreements in these cases is
there is no recommendations that are going to be given the Court. You're
pleading open to the Court. I'm going to order a presentence investigation,
and I'm going to assess your punishment. The only agreement, as I
understand it, that you've reach with the State is you will -- based on your
pleas, I'll make a finding of guilt in both of these cases. Is that your
understanding?

THE DEFENDANT: Yes, sir.

...

THE COURT: Now, Mr. Baldridge, you do know I'm going to be the one to
assess the punishment?

THE DEFENDANT: Yes, sir.

THE COURT: And you understand that at least in Cause No. 61623,[1] the
only option I'm going to have is to sentence you to the Texas Department of
Criminal Justice Institutional Division?

THE DEFENDANT: Yes, sir.

THE COURT: Prison?

THE DEFENDANT: Yes, sir.


1
    All eight counts of sexual assault proceeded under trial court cause number 61623.
                                              6
       THE COURT: Is that what you want to do?

       THE DEFENDANT: Yes, sir.

       THE COURT: Are you sure?

       THE DEFENDANT: Yes, sir.

       THE COURT: Okay.

       [THE STATE]: For the record, on Cause No. 61623, those offenses would
       fall under the penal code provision allowing for the Court to stack if the
       Court chooses. The State has filed a motion asking the Court to stack those
       offenses. So, I just want to make sure the defendant and his attorney are
       aware of that fact on the record.

       [DEFENSE COUNSEL]: I am aware of what the State has filed, Judge.

       THE COURT: All right. Mr. Baldridge, are you satisfied with your
       attorney's representation of you at this time up to this point?

       THE DEFENDANT: Yes, sir.

       Defense counsel testified at the hearing on appellant's motion for new trial.
According to her, it was appellant's decision to request a pre-sentence investigation ("PSI")
report and have the judge determine his sentence. She explained the consequences to him,
such as the victim would not come to court to testify. Defense counsel testified there was
never a plea offer. Regarding probation, counsel stated it was discussed that the trial court
could consider probation on its own, but he was not necessarily entitled to it because it was
a 3(g) offense. Counsel testified she believed the statute was not mandatory and the trial
court could consider probation. According to counsel, "It was Mr. Baldridge's decision
not to testify, not -- he didn't want to have a trial. That was his decision from the very
outset of this case."

       Appellant testified at the hearing on his motion for new trial that defense counsel
told him "that by pleaing [sic] they would not stack." However, he then claimed that he
was not aware the State had filed a motion to stack. Appellant testified defense counsel

                                             7
advised him of a plea offer of fifteen years. When questioned further about the plea offer,
the following exchange occurred:

       [Appellate counsel]: Now, you said you had a 15-year offer. What did she advise
you on that 15-year offer?

       [Appellant]: She advised me that if I was to do the PSI and -- investigation report,
that she told me that the Judge was lenient and that I would get a lesser sentence.

       [Appellate counsel]: Where you aware that the State had filed motions to stack
each of those counts?

       [Appellant]: No, sir.

       ...

        [Appellate counsel]: Were you informed that you could get probation through the
Court on this case?

       [Appellant]: Yes, sir.

       [Appellate counsel]: By who?

Appellant named his defense counsel and the probation officer. Appellant testified that
was "a motivation" to plead guilty. According to appellant, he believed he would get less
than fifteen years and that his maximum sentence could be twenty years. Appellant
claimed he was not advised the Court could stack and he thought his sentence would be
around two or three years. Appellant also stated defense counsel "told me I could make
parole in five years."

       However, on cross-examination appellant agreed that the State was not making any
particular offer on his plea of guilty.       Appellant testified he remembered being
admonished that the judge would assess punishment and that he said he understood.
Appellant then testified he did not remember the judge admonishing him that the only
option the judge had was to sentence appellant to prison or that he would not be eligible for

                                             8
probation. Appellant stated he remembered the State making the Court aware that a
motion to stack had been filed. Appellant also remembered the Court asking if he were
satisfied with his attorney's representation and that he answered affirmatively. Further:

       [The State]: Okay. Why did you think you would only get two or three
       years in this case?

       [Appellant]: 'Cause when [defense counsel] came to me with the 15 years, I
       asked her if the D.A. would go any lower and she said no. And then she
       explained the PSI to me saying that the Judge would take it lower than that
       because he's very lenient.

       [The State]: So, then, in essence, she was giving you her professional
       advice that the Judge would give you a lower number:

       [Appellant]: Correct.

       [The State]: And you relied on that advice?

       [Appellant]: Correct.

       To support his claim of ineffective assistance, appellant relies upon being
misinformed by counsel that he was eligible for probation, his testimony that he thought a
plea offer had been made, and his testimony that he was unaware a motion to stack had
been filed. Appellant's testimony regarding his awareness of a the motion to stack was
equivocal.   Trial counsel testified at the motion for new trial hearing that there was no
plea offer. Accordingly, the record does not establish trial counsel was deficient in any
respect other than misinforming appellant that the trial court could grant probation.

       The record reflects appellant was not eligible for probation from the trial court and
was misinformed by trial counsel on that point. See Tex. Code Crim. Proc. art. 42.12 §
3g(a)(1)(C) and (E) (West Supp. 2011). Trial counsel is charged with knowledge of the
applicable law. See Ex parte Welch, 981 S.W.2d 183, 195 (Tex. Crim. App. 1998).
Accordingly, counsel's representation fell below an objective standard of reasonableness,
satisfying the first prong of Strickland. See Aldrich v. State, 296 S.W.3d 225, 242 (Tex.
App. -- Fort Worth 2009, pet. ref'd).
                                             9
       However, the record fails to demonstrate appellant would not have pleaded guilty
had counsel accurately informed him of the law regarding probation. Trial counsel
testified that appellant did not want to have a trial. Appellant's father testified that
appellant chose not to have a trial "to save his family members grief." The record shows
appellant was correctly informed by the trial court that he was not eligible for probation
and persisted in entering his plea. Appellant was directly and repeatedly questioned by
the trial court at the plea hearing to ensure appellant understood the trial court could not
grant probation and appellant would be sentenced to prison.    The record does not support
a finding appellant's plea was involuntarily entered because of trial counsel's deficient
performance. Because the record does not establish prejudice, the second prong of
Strickland has not been met. See Freeman v. State, 125 S.W.3d 505, 511 (Tex. Crim.
App. 2003). Accordingly, we cannot say the trial court abused his discretion in denying
appellant's motion for new trial.

                              FUTURE DANGEROUSNESS

       Appellant further asserts trial counsel was ineffective for failing to object to the
opinion of a witness under Texas Rules of Evidence 701 and 702. The evidence appellant
complains of was admitted in the PSI report prepared by Community Supervision Officer
Karis McCutchen. To demonstrate ineffective assistance of counsel on the ground of
failure to object to the admission of evidence, the defendant must establish the evidence
was inadmissible. Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002). The rules of
evidence do not generally apply to the contents of a PSI. Fryer v. State, 68 S.W.3d 628,
631 (Tex. Crim. App. 2002). See also Stringer v. State, 309 S.W.3d 42, 46 (Tex. Crim.
App. 2010); and Smith v. State, 227 S.W.3d 753, 763 (Tex. Crim. App. 2007). A PSI may
contain, and a trial court may consider, evidence that is not admissible under the Texas
Rules of Evidence. Fryer, 68 S.W.3d at 631. Accordingly, counsel's failure to object to
McKutchen's opinion in the PSI does not constitute deficient representation and appellant
has not satisfied the first prong of Strickland.

                                              10
                               MITIGATING EVIDENCE

       Appellant next claims trial counsel was ineffective in failing to provide mitigating
evidence during the sentencing hearing.         Appellant asserts trial counsel could have
presented witnesses or a mitigation expert to rebut the opinions expressed by Karis
McCutchen in the PSI. Appellant further argues trial counsel failed to present any
meaningful mitigation evidence.

       The record reflects trial counsel called appellant's father, Daniel Baldridge, to
testify during sentencing. Trial counsel questioned Daniel Baldridge about erroneous
information in the PSI and to clarify that appellant's mother did not return baby pictures to
the victim out of anger. Daniel Baldridge testified that appellant felt great remorse and
chose to forego a trial "to save his family members grief."           The record does not
demonstrate what testimony other witnesses or an expert would have given, or that it would
have been favorable to appellant. Counsel's failure to call witnesses is irrelevant absent a
showing that appellant would benefit from their testimony. King v. State, 649 S.W.2d 42,
44 (Tex. Crim. App. 1983); and Hunnicutt v. State, 531 S.W.2d 618, 625 (Tex. Crim. App.
1976). Because no such showing has been made, we find the first prong of Strickland has
not been met. Accordingly, appellant has not shown the trial court abused his discretion
in denying appellant's motion for new trial.

                               EXTRANEOUS OFFENSE

       Appellant asserts trial counsel was ineffective in failing to object to the State's
introduction of a probable cause affidavit containing hearsay admissions by appellant to
extraneous offenses committed outside the State of Texas. The record reflects that during
the plea hearing, State's Exhibit No. 3 was admitted with the stipulation "that if the
witnesses were present, they would testify to substantially what's contained therein."
Counsel responded, "No objection. We would agree and stipulate." State's Exhibit No.
3 is a complaint prepared by Investigator C.T. DuBois. In his affidavit, DuBois recounts


                                               11
two acts of sexual assault described by appellant in his confession. One of those acts
occurred in Arkansas, the other at Lake Jackson.

       The same two incidents are described in detail in the PSI report. Appellant argues
that "[m]aking the trial court . . . aware of additional offenses against the same complaining
witness . . ." constituted ineffective assistance of counsel. The same evidence was
admitted before sentencing. Appellant has not shown there is a reasonable probability
that the punishment assessed would have been less severe if the complaint were not
admitted. Thus, the second prong of Strickland has not been met. See Freeman, 125
S.W.3d at 511. Accordingly, the trial court's denial of appellant's motion for new trial was
not an abuse of discretion.

                          IMPROPER CLOSING ARGUMENT

       Lastly, appellant claims trial counsel was ineffective in failing to object to the
State's argument at the close of the sentencing hearing. The State argued:

              This is the type of crime that the State Legislature addressed in 2007
       with the inaction [sic] of Jessica's law and the creation of the new crime
       continuing sexual abuse of a child. The State's not asking the court to go back
       and retroactively apply that law to this crime. What the State is asking is that
       the court use any legal means at its disposal to achieve a result that is
       consistent with what the Legislature says this type of crime to be [sic]
       punished at.

              The State has filed and is asking for the court to run these sentences
       consecutively. Each one carries a penalty range of 2 to 20 years. The State is
       asking for those to be consecutively [sic] so that with the application of
       parole laws and the penalty range maximums we can achieve a result that
       would be consistent with what the state of the law is currently, what the
       community standard is.

              This court is probably well aware of jury trials that have occurred in
       this very court for instances that have been similar to this where it's not
       unusual for a life sentence - - sentences to be handed down.



                                             12
Appellant asserts the State improperly argued (1) outside the law in effect at the time of
appellant's offenses; and (2) that the community expects a specific punishment.

       "To determine whether the prosecutor made an improper argument, we must
consider the entire argument, not merely isolated sentences." Robbins v. State, 145
S.W.3d 306, 315 (Tex. App. -- El Paso 2004, pet. ref'd). The State did not argue for a
specific sentence and referenced the changes in the law as a reason appellant's sentences
should be stacked. See Cortez v. State, 683 S.W.2d 419, 410 (Tex. Crim. App. 1984) (the
State argued for a specific sentence); and Thompson v. State, 89 S.W.3d 843, 850 (Tex.
App. -- Houston [1st Dist.] 2002, pet. ref'd) (same). Taken as a whole, the argument
attempts to convince the trial court to grant the State's motion to stack. Trial counsel
could have failed to object because the argument was a proper plea to run the sentences
consecutively.

       Even if we agreed with appellant that counsel's failure to object satisfies the first
prong of Strickland, appellant must further demonstrate prejudice. There is simply no
basis for this court to conclude that there is a reasonable probability that the punishment
assessed would have been less severe. The evidence showed that when appellant's niece
was approximately six or seven years old and appellant was sixteen or seventeen, he began
sexually abusing her and the abuse continued for more than ten years. Appellant was not
given the maximum sentence the trial court could have assessed. Appellant could have
been sentenced to an additional five years for each of the three counts of aggravated sexual
assault and the trial court could have ordered all of the sentences to run consecutively. See
DeLeon v. State, 294 S.W.3d 742 (Tex. App. -- Amarillo, 2009, pet. ref'd) (1997
amendment of section 3.03(b)(2)(A) of the Texas Penal Code authorized consecutive
sentences for indecency with a child offenses). Thus, the second prong of Strickland has
not been met. See Freeman, 125 S.W.3d at 511. The trial court's decision to deny
appellant's motion for new trial is therefore not arbitrary or unreasonable.

                                      CONCLUSION
                                             13
       The trial court's implicit conclusion that counsel's representation was not
ineffective, or that the result of the proceeding would not have been different but for
counsel's performance, is supported by the record. Accordingly, we overrule appellant's
issues and affirm the judgment of the trial court.



                                                     PER CURIAM



Panel consists of Chief Justice Hedges, and Justices Seymore and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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