                                    NO. 07-04-0572-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                     MAY 5, 2006
                           ______________________________

                               GEARY BRIAN BROGDEN,

                                                                 Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

              FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                     NO. 49,464-A; HON. HAL MINER, PRESIDING
                        _______________________________

                                Memorandum Opinion
                          _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Geary Brian Brogden, appellant, appeals his conviction for assaulting a family

member and causing bodily injury. His sole issue involves the voluntariness of his guilty

plea. Purportedly, it was involuntary because his trial counsel failed to interview appellant’s

wife who was also the victim of the assault. She allegedly would have testified that she

favored leniency. Furthermore, the complaint was raised via a motion for new trial, which

motion the trial court denied. We affirm the judgment.
      According to the record, appellant was charged with assault on a family member

and causing bodily injury. The parties reached an agreement wherein appellant agreed

to plead guilty in exchange for the State recommending a prison term of five years. After

the trial court held a hearing wherein appellant pled guilty and it found the plea to be

knowing and voluntary, sentence was levied in accordance with the agreement.

Subsequently, appellant filed a motion for new trial, alleging that trial counsel was

ineffective because he failed to interview the complaining witness, i.e. appellant’s wife.

The trial court convened a hearing on that motion and subsequently denied it. Yet,

permission was granted appellant to appeal those issues raised in the motion. And, as

previously mentioned, the sole issue before us involves the voluntariness of the plea due

to counsel’s supposed ineffective assistance and the trial court’s refusal to grant a new

trial. We overrule the issue for several reasons.

       First, the record discloses that appellant was fully admonished in writing prior to

pleading guilty. Appellant further represented to the trial court that, among other things,

1) he understood the effect of his plea, 2) his plea was “freely, voluntarily, and knowingly

entered,” and 3) his trial counsel “provided fully effective and competent representation.”

These representations of appellant belie the argument he now proffers. Moreover, 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).

       Second, though the victim testified at the hearing on appellant’s motion for new trial

that she wanted her husband to get medical help, did not want anything “terrible” to happen

to him, and wanted appellant to avoid going to prison, she nonetheless said he needed to

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be held accountable. Furthermore, the district attorney testified that appellant’s wife was

informed of the plea bargain (which included the five year prison sentence), uttered no

objections to it, and was satisfied with it. So too did the victim refuse to return the impact

statement given her. Therein, she was afforded the opportunity to reveal her desires

regarding the punishment that should be levied upon her husband; yet, she opted to forego

that chance. Trial counsel also testified and denied having any record that indicated

appellant’s wife attempted to call him, though she testified otherwise. So too did trial

counsel state that he asked appellant to see if the victim would contact him given that he

purportedly was in constant communication and living with her; yet, appellant never

informed counsel that she was attempting to contact him. And, to the extent that counsel

thought the assault victim’s viewpoint was of import, he deemed it a better tack to allow her

to initially contact him. If he attempted to make the initial contact, he “was afraid [he] would

scare her off, if nothing else.” Finally, from the information he garnered via the district

attorney, trial counsel considered the victim’s views regarding punishment to be less than

certain. While she may not have wanted him to go to prison, she did not “really want him

to be on probation either,” he uttered.

       Simply put, whether the victim would have testified favorably for appellant was an

issue of fact. Though she said that she wanted her husband to avoid prison, other

evidence disclosed that she was quite “satisfied” with him receiving the prison term offered

in the plea agreement. Thus, a question of fact existed involving whether appellant

suffered any prejudice due to his counsel’s decision to have the victim contact him. See

Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (requiring the complainant to



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prove that the supposedly deficient performance prejudiced him). And, the trial court was

free to resolve it against appellant.

       Next, while it is true that defense counsel has a duty to investigate, McFarland v.

State, 928 S.W.2d 482, 501 (Tex. Crim. App.1996), nowhere does appellant argue, much

less show, that it falls outside the realm of effective trial strategy to have the victim of family

violence or an assault initially contact defense counsel as opposed to vice versa. We can

see the need for defense counsel to tread cautiously when engaging in pretrial contact with

such a person. The latter may well be on an emotional or psychological precipice and,

uninvited contact from the assailant’s representative in order to curry favor from the victim

may well trigger adverse, if not criminal, backlash. See Tex. Pen. Code Ann. §36.05

(Vernon 2003) (defining the crime of witness tampering). Thus, the trial court could well

have determined that counsel’s tack was indeed acceptable trial strategy, and that despite

her intimations otherwise, the victim never contacted trial counsel. See Thompson v.

State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (holding that the appellant must rebut the

presumption that his counsel’s actions were legitimate trial strategy).

       In sum, the trial court did not abuse its discretion in overruling the motion for new

trial. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004) (holding that the

denial of a motion for new trial is reviewed under the standard of abused discretion).

Accordingly, we affirm the judgment of the trial court.


                                                    Brian Quinn
                                                    Chief Justice

Do not publish.



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