      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00182-CR



                                   Anthony O’Neal, Appellant

                                                  v.

                                   The State of Texas, Appellee


       FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
            NO. 66992, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Following his plea of guilty to the offense of murder, appellant Anthony O’Neal was

convicted of that offense and sentenced to life imprisonment, which, the district court ordered, would

be served consecutively following another life sentence that O’Neal had received upon his prior

conviction for the offense of aggravated sexual assault with a firearm. In a single issue on appeal,

O’Neal asserts that the district court abused its discretion in denying his motion for new trial, which

was based on O’Neal’s claim that his guilty plea was involuntary and should be withdrawn. We will

affirm the judgment of the district court.


                                         BACKGROUND

               O’Neal was charged with murdering Paul Caldera by shooting him with a firearm.

Prior to trial, O’Neal had signed a judicial confession and a “waiver of jury and agreement

to stipulate upon a plea of guilty.” The waiver indicated that O’Neal understood the charges against
him, the consequences of pleading guilty, and the rights he was waiving by pleading guilty. The

waiver further indicated that O’Neal was mentally competent, had discussed the facts of the offense

with counsel, and was satisfied with the investigation of the facts and the representation provided

by counsel. The waiver also included the following statement: “My decision to enter a plea of guilty

before the court is my free and voluntary decision made with knowledge of the facts of the case

for and against me and represents my free choice between the courses of action available to me.”

In addition to being signed by O’Neal, the waiver was also signed by counsel, the prosecutor, and

the district court.

                Prior to accepting O’Neal’s guilty plea, the district court admonished O’Neal on the

consequences of his plea and asked him numerous questions relating to whether he understood those

consequences. Because the district court’s admonishments and O’Neal’s responses are relevant to

our inquiry into the voluntariness of his plea, we reproduce most of the exchange below:


        THE COURT:             Sir, are you Anthony Wayne O’Neal?

        THE DEFENDANT: Yes, ma’am.

        THE COURT:             How old are you?

        THE DEFENDANT: Forty-one.

        THE COURT:             Are you a United States citizen?

        THE DEFENDANT: Yes, ma’am.

        THE COURT:             Mr. O’Neal, do you read, write and speak the English
                               language?

        THE DEFENDANT: Yes, ma’am.



                                                  2
THE COURT:          You’re in court this morning because you’re charged by
                    indictment with the offense of murder.

THE DEFENDANT: Yes, ma’am.

THE COURT:          You understand, sir, that that is a first-degree felony. It
                    carries a range of punishment of not less than 5 nor more than
                    99 years or life in the Institutional Division of the Texas
                    Department of Criminal Justice. And it may include a fine of
                    up to $10,000.

THE DEFENDANT: Yes, ma’am.

THE COURT:          Do you understand that today’s your trial?

THE DEFENDANT: Yes, ma’am.

THE COURT:          Are you ready to proceed?

THE DEFENDANT: Yes, ma’am.

THE COURT:          Mr. O’Neal, I have papers in front of me that I understand you
                    signed. Did you read and understand all of these papers?

THE DEFENDANT: I didn’t actually read them, but he told me what they were.

THE COURT:          You’ve been over them with your attorney?

THE DEFENDANT: Yes, ma’am.

THE COURT:          And you were able to talk to him about what’s contained in
                    these papers?

THE DEFENDANT: Yes, ma’am.

THE COURT:          And he answered any questions that you might have about
                    these documents?

THE DEFENDANT: Yes, ma’am.

THE COURT:          Do you understand, Mr. O’Neal, that you have the right to
                    have a jury trial?


                                      3
THE DEFENDANT: Yes, ma’am.

THE COURT:       You can have 12 people come in and listen to the evidence,
                 and the jury can decide if you’re guilty or not guilty. Do you
                 want a jury trial?

THE DEFENDANT: No, ma’am.

THE COURT:       Do you understand what you’re giving up?

THE DEFENDANT: Yes, ma’am.

THE COURT:       Also, sir, you have an absolute right to remain silent, and you
                 do not have to make any statements in these proceedings.

THE DEFENDANT: Yes, ma’am.

THE COURT:       Do you understand that you can require the State to bring their
                 witnesses into court to testify against you, and you and your
                 attorney have the right to confront and cross-examine those
                 witnesses?

THE DEFENDANT: Yes, ma’am.

THE COURT:       Mr. O’Neal, you signed papers telling me that you want to
                 give up all of those rights. Is that what you want to do? Give
                 up your right to a jury trial.

THE DEFENDANT: Oh, yes, ma’am. Yes, ma’am.

THE COURT:       Give up your right to remain silent.

THE DEFENDANT: Yes, ma’am.

THE COURT:       And give up your right to confront and cross-examine the
                 witnesses.

THE DEFENDANT: Yes, ma’am.

THE COURT:       That is what you want to do, sir?

THE DEFENDANT: Yes, ma’am.


                                   4
THE COURT:       [Counsel], you concur in those waivers?

[COUNSEL]:       I do, ma’am.

....

THE COURT:       I’ll approve the waivers. Mr. O’Neal, I have another paper
                 that is a judicial confession. Do you understand that when
                 this piece of paper is admitted into evidence, you’ve given the
                 evidence against yourself in this case?

THE DEFENDANT: Yes, ma’am.

THE COURT:       Also, sir, I have a document that is entitled a Disclosure of
                 Plea Recommendation. And I understand that you have no
                 agreements with the State regarding the outcome or what the
                 punishment’s going to be in this case.

THE DEFENDANT: Yes, ma’am.

THE COURT:       Is that true?

THE DEFENDANT: Yes, ma’am.

THE COURT:       Do you have—if you do have agreements with the state in this
                 case, Mr. O’Neal, I don’t know about them and I’m not bound
                 by them.

THE DEFENDANT: Yes, ma’am.

THE COURT:       Do you understand that?

THE DEFENDANT: Yes, ma’am.

THE COURT:       Do you understand that this leaves the full range of
                 punishment available to the court?

THE DEFENDANT: Yes, ma’am.

THE COURT:       Also, sir, there is—the State has filed a motion to accumulate
                 sentences in this case. Do you understand that?

THE DEFENDANT: Not actually.

                                    5
THE COURT:            Pardon?

(Sotto voce discussion between the defendant and his attorney)

THE DEFENDANT: Yes, ma’am.

THE COURT:            You understand that the state has filed a motion to
                      accumulate. They’re asking that these—this sentence—any
                      sentence in this case be accumulated or stacked with the
                      sentence that you received in a case out of McLennan
                      County?

[COUNSEL]:            We understand, Your Honor.

THE COURT:            Do you understand that, sir?

THE DEFENDANT: Yes.

THE COURT:            I’m just telling you that the State’s motion has been filed. I’m
                      taking no action on it at this point, but you understand it has
                      been filed?

THE DEFENDANT: Yes, ma’am.

THE COURT:            All right. And you understand what that would mean?

THE DEFENDANT: Yes, ma’am.

THE COURT:            Also, sir, this is a case that alleges a deadly weapon, a
                      firearm.

THE DEFENDANT: Yes, ma’am.

THE COURT:            And do you understand what a plea of guilty and a finding of
                      guilty would mean regarding any possibility for parole in this
                      case?

THE DEFENDANT: Yes, ma’am.

THE COURT:            All right. Understanding all those things, do you still want to
                      proceed?

THE DEFENDANT: Yes, ma’am.

                                         6
THE COURT:            Mr. O’Neal, do you believe that you are mentally competent?

THE DEFENDANT: Yes, ma’am.

THE COURT:            Do you understand what we’re doing?

THE DEFENDANT: Yes.

THE COURT:            Have you been able to talk with your attorney about the
                      allegations in this indictment?

THE DEFENDANT: Yes, ma’am.

THE COURT:            Have you also been able to talk to him about the facts of this
                      case and any possible defenses that you might have?

THE DEFENDANT: Yes, ma’am.

THE COURT:            Have you been satisfied with the representation that he’s
                      provided for you in this case?

THE DEFENDANT: Yes, ma’am.

THE COURT:            [Counsel], do you believe your client is mentally competent?

[COUNSEL]:            I do, ma’am.

THE COURT:            Mr. O’Neal, to the charge of murder alleged to have occurred
                      in Bell County, Texas, on August the 22nd of 2010, how do
                      you plead, sir? Are you guilty or not guilty?

THE DEFENDANT: Not guilty.

[COUNSEL]:            Not guilty?

(Sotto voce discussion between the defendant and his attorney)

THE COURT:            Sir, you have the choice of pleading guilty or not guilty.
                      When you plead guilty, you’re telling me that you did commit
                      this offense. When you plead not guilty, you’re telling me
                      that you did not commit this offense. Do you understand the
                      difference?


                                        7
THE DEFENDANT: Yes, ma’am.

THE COURT:            All right. It’s up to you how you plead. Do you plead guilty
                      or not guilty?

(Sotto voce discussion between the defendant and his attorney)

                      All right. You’re pleading not guilty, sir?

[COUNSEL]:            I assume that to be the case, Your Honor.

THE DEFENDANT: Could I have a minute with my lawyer?

THE COURT:            Sure. You may.

(Sotto voce discussion between the defendant and his attorney)

                      We’re going to take a recess for just a few moments.

(Recess from 10:04 a.m. to 10:27 a.m.)

                      66992, State of Texas versus Anthony O’Neal. We’re in the
                      presence of the defendant and the attorneys. Mr. O’Neal, you
                      had asked me for an opportunity to confer—to talk with your
                      attorney. Have you been able to do that?

THE DEFENDANT: Yes, ma’am.

THE COURT:            Do you want to proceed? Do you want to go forward at this
                      time?

THE DEFENDANT: Yes.

THE COURT:            All right. When we recessed, sir, you had pled not guilty to
                      the charge of murder as alleged in the indictment. Is that
                      what you wish to plead?

THE DEFENDANT: No, ma’am. I’m changing it.

THE COURT:            What is your plea, sir?

THE DEFENDANT: Guilty.


                                         8
THE COURT:      Are you pleading guilty freely?

THE DEFENDANT: Yes, ma’am.

THE COURT:      Are you pleading guilty voluntarily?

THE DEFENDANT: Yes, ma’am.

THE COURT:      Has anyone promised you something in order to get you to
                plead?

THE DEFENDANT: No, ma’am.

THE COURT:      Has anyone threatened you, or forced you, or done something
                to you to make you plead guilty?

THE DEFENDANT: No, ma’am.

THE COURT:      Mr. O’Neal, did you commit this offense?

THE DEFENDANT: Yes—yes, ma’am.

THE COURT:      Pardon?

THE DEFENDANT: Yes, ma’am.

THE COURT:      [Counsel], do you concur in your client’s plea?

[COUNSEL]:      I do, ma’am.

THE COURT:      Mr. O’Neal, have you had all your questions and concerns
                addressed by [counsel]? Have you had time to talk with him
                this morning?

THE DEFENDANT: Yes, ma’am.

THE COURT:      And are you telling me that you’re guilty of this offense, sir?

THE DEFENDANT: Yes, ma’am.

THE COURT:      At this time I find the defendant is competent, he understands
                the nature and consequences of his plea, his plea is free and
                voluntary.

                                   9
               The State then proceeded to offer O’Neal’s judicial confession into evidence. Before

admitting it, the district court again admonished O’Neal, “When this piece of paper comes

into evidence, sir, you have given evidence against yourself.” O’Neal responded, “Yes, ma’am.”

The district court then asked O’Neal, “Do you understand that?” O’Neal nodded his head in the

affirmative and responded, “Yes, ma’am.” The district court further inquired, “Is that what you

want to do?” O’Neal again responded, “Yes, ma’am.” The district court then found the evidence

sufficient to support a finding of guilt but withheld such a finding, ordered a presentence

investigation report, and reset the case for sentencing.

               At the punishment hearing, defense counsel advised the district court that O’Neal

wanted to withdraw his guilty plea at that time. Counsel explained:


       But [O’Neal] does want to advise the court he is requesting permission to withdraw
       his plea because he felt that the consequences were not explained to him adequately
       for him to make an informed decision. My memory says I know that I explained to
       him in detail in the conference room, and I’m almost—I’m very positive that the
       court explained to him the last hearing we had in this courtroom.

       ....

       Mr. O’Neal did plea. He was admonished by the court. He was advised of the
       possible punishment range. And I would further advise the court that Mr. O’Neal
       was not presented to this court on this case until he had concluded a matter in
       Williamson County, Texas, wherein in the month of October, he pled guilty to
       aggravated sexual assault with a firearm, was convicted and sentenced to life in
       prison in that case. And so when he got here, he’d already been through the court.
       He’d already received a life sentence. He already knew the ramifications of that. And
       I simply reiterated that this is the same or similar sentence. So my concern now is,
       Your Honor, at this moment, Your Honor, is that, Mr. O’Neal wants to withdraw a
       plea that he fully understands, he’s just not comfortable with.


The State responded as follows:


                                                 10
       Obviously, Your Honor—and I think the court will recall the proceedings back on
       October 31st, they were fairly lengthy. Mr. O’Neal was admonished fully, not only
       as to the range of punishment but also in regard to the motion to accumulate
       sentence—sentences. The court took a great deal of time explaining to Mr. O’Neal
       all the ramifications of that plea.

       And as [counsel] points out, it had not been very long since Mr. O’Neal had entered
       a plea to a first-degree felony with a guaranteed life sentence. So he knew what he
       was doing. There’s not any question about him not knowing the range of punishment
       and that kind of thing. So he’s pled guilty. It’s time for sentencing as far as the
       State’s concerned.


The district court then gave O’Neal an opportunity to explain why he wanted to withdraw his plea.

O’Neal claimed that counsel was lying and that counsel had not adequately explained to him the

consequences of his plea. O’Neal also asserted that “I’m not no murderer” because he “didn’t have

no intent to kill nobody.” The district court denied O’Neal’s request to withdraw his plea at that time

and continued the punishment hearing. After hearing evidence, the district court found O’Neal guilty

of murder, made an affirmative finding that a deadly weapon had been used in the commission of

the offense, sentenced O’Neal to life imprisonment, and granted the State’s motion to cumulate that

sentence with the life sentence that O’Neal had already received for his prior conviction for the

offense of aggravated sexual assault.

               Subsequently, O’Neal filed a pro se motion to withdraw his guilty plea, which the

district court treated as a motion for new trial. The district court granted a hearing on the motion.

At the hearing, the district court heard testimony from O’Neal, who was now represented by different

counsel, and O’Neal’s trial counsel. O’Neal, in his testimony, claimed that he was not mentally

competent at the time of his plea because, at that time, he was taking medication for depression. He

also asserted that he had pleaded guilty out of fear that if he did not do so, the “mafia” would


                                                  11
retaliate against him. Moreover, according to O’Neal, trial counsel had not adequately explained to

him the consequences of his guilty plea. In particular, O’Neal focused on his lack of understanding

of the State’s motion to cumulate sentences:


       Q.      All right. Did you understand that the sentence in this case would be stacked
               upon the sentence in the McLennan County case?

       A.      No, because when I—when I—when the judge asked me to—when I plead
               guilty, and we went in the back room right there, he told me that he had
               already talked to the DA about getting this ran concurrent. He said I wasn’t
               going to receive a life sentence. We went right there in the back room right
               there.

       Q.      You did not believe you were going to receive a life sentence?

       A.      No, sir, because he say I already had a life sentence and whatever time I get
               here was going to be ran concurrent with the time in McLennan County.

       Q.      If you had known this sentence was going to be stacked upon the McLennan
               County sentence, would you entered a plea of guilty in this case?

       A.      No, sir. Cause initially I said no when the judge asked me.

       ....

       Q.      At what point did you realize you had entered a plea of guilty and you wanted
               to withdraw that plea of guilty?

       A.      Right after when the judge gave me—said the life—said the life sentence be
               ran consecutive.

       Q.      So is the truth of the matter the fact that you want a new sentence in this case
               because you don’t like that you got life stacked upon the McLennan County
               case?

       A.      Yes, sir. . . .




                                                 12
On cross-examination, the State elicited the following additional testimony concerning the

sentencing issue:


       Q.      Now, you talked about the sentence being stacked. You remember the judge
               telling you about that?

       A.      No, my lawyer—my lawyer told me that they wouldn’t—they wouldn’t—they
               wouldn’t be ran consecutive.

       Q.      Do you remember the judge specifically saying that the state has filed a
               motion to accumulate sentences in this case, do you understand that?

       A.      No. He—he just told me what—

       Q.      No, no. When you were in here back on October the 31st, that judge right
               there asked you if you understood that we had filed a motion to accumulate
               sentences. Do you remember that?

       A.      No, I just did what he told me. He told me to say yes and told me to say no.

       Q.      Oh, okay. Right here where the court says there is—the state has filed a
               motion to accumulate sentences in this case, do you understand that. What
               did you say?

       A.      Not actually.

       ....

       Q.      You said not actually. And so the judge continued to talk to you. And she
               said you understand that the state has filed a motion to accumulate. They’re
               asking that this sentence, any sentence in this case, be accumulated or stacked
               with the sentence that you received in the case out of McLennan County.
               You can’t be any more plain than that, can you, Mr. O’Neal.

       A.      I just did what I was told.

       Q.      Okay. And she asked you if you understood that. And you said yes.

       A.      That’s what he told me to say, yes.



                                                 13
       Q.      And she’s saying, I’m just telling you it’s been filed. I’m not ruling on it right
               now because we still got to have a sentencing phase. And that sentencing
               phase was how much longer down the road? Do you remember when the
               sentence was pronounced? I mean, we talked about it just a minute ago.

       A.      I—I wrote [counsel], I wrote him letters and I told the lady when she came—

       Q.      Let’s try answering what I asked you. Do you remember when you were
               actually sentenced?

       ....

       A.      Yeah, yeah. December. Late December.

       Q.      But you had basically six weeks to say, I didn’t know what stack meant? I
               didn’t know what was going on. I didn’t really mean to plead guilty in
               McLennan County, right? You had that six weeks, didn’t you?

       A.      I told the lady that. The lady the judge sent with the paperwork. I told her.

       Q.      As [current defense counsel] said, really the problem was, is back on
               December 19th, you just weren’t happy with the sentence you got, right?

       A.      That—that ain’t it. That’s what—Mr. Harris told me to plead guilty. . . . I
               kept telling him back there, I say I’m not guilty. I ain’t murdered nobody.
               And he kept telling me, he said, Mr. O’Neal, I talked to the DA. He say—he
               say just do what I tell you to do. I’m your lawyer. We was right there in that
               room back there (indicating). And I just did what I was told. I ain’t never
               been in this thing before. You know, like—I—I don’t know what to do.


               Trial counsel testified that he had discussions with O’Neal concerning O’Neals rights

and also O’Neal’s desire to “try to work out some kind of plea.” In counsel’s opinion, O’Neal had

been mentally competent at the time of his guilty plea and had entered his plea freely and voluntarily.

Counsel also provided specific testimony as to his discussions with O’Neal regarding the State’s

motion to cumulate sentences:




                                                  14
        Q.      Did you, at any time, advise Mr. O’Neal that—or guarantee to Mr. O’Neal
                that his sentence in this case would serve concurrently with his sentence in
                McLennan County?

        A.      There was extensive discussion when [the prosecutor] filed the motion to
                stack. And I explained to Mr. O’Neal what that possibly could mean. But at
                the time that it was filed, the court had not ruled on it. So he was aware from
                the day he entered his plea that the state had an intention to stack. And I
                assured him that I would do all in my power to oppose that, but it would only
                be through argument. I had no other means available to me to prevent the
                court from making a ruling.

        Q.      And so in summary, you did not promise him it would be served
                concurrently?

        A.      I never—I said that would [be] the hope, but I have no way of guaranteeing
                that.

At the conclusion of the hearing, the district court denied O’Neal’s motion for new trial. This appeal

followed.


                                    STANDARD OF REVIEW

                An appellate court reviews a trial court’s denial of a motion for new trial under

an abuse-of-discretion standard. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). An

abuse of discretion occurs when the trial court acts in an unreasonable or arbitrary manner. Id. In

reviewing the trial court’s ruling, we do not substitute our judgment for that of the trial court. Webb

v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). Rather, we view the evidence in the light

most favorable to the trial court’s ruling and uphold the ruling if it was within the zone of reasonable

disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). 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. Holden, 201 S.W.3d at 763; Charles v. State, 146 S.W.3d 204, 208


                                                  15
(Tex. Crim. App. 2004). At a hearing on a motion for new trial, the trial judge is the trier of fact

and her findings should not be disturbed unless an abuse of discretion has been demonstrated.

Tollett v. State, 799 S.W.2d 256, 259 (Tex. Crim. App. 1990); Clarke v. State, 305 S.W.3d 841, 846

(Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).

               The motion for new trial in this case concerned O’Neal’s request to withdraw

his guilty plea. A defendant may withdraw his plea as a matter of right, without assigning a reason,

until judgment is pronounced or the case is taken under advisement by the trial court. Jackson

v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979); Jagaroo v. State, 180 S.W.3d 793, 802

(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). If, on the other hand, the defendant decides to

withdraw his plea after the trial court has taken the case under advisement or pronounced judgment,

which is what occurred here, the withdrawal of such plea is within the sound discretion of the

trial court. Jackson, 590 S.W.2d at 515; Jagaroo, 180 S.W.3d at 802. To show that the trial court

abused its discretion when it refused to allow appellant to withdraw his plea, an appellant

must show that the trial court’s ruling lies outside the zone of reasonable disagreement. Jagaroo,

180 S.W.3d at 802.


                                           ANALYSIS

               In his sole issue on appeal, O’Neal asserts that the district court should have granted

his new trial on the ground that his plea was not voluntary and therefore should be withdrawn.

According to O’Neal, his plea was involuntary primarily because his trial counsel had erroneously

informed him that his sentence for murder would not run consecutively with the sentence for his

prior conviction for the offense of aggravated sexual assault. In response, the State argues that the


                                                 16
record reflects that prior to entering his plea, O’Neal was advised by counsel and admonished by the

district court that his sentences could be stacked. According to the State, this admonishment, along

with the other information and admonishments that were provided to O’Neal, demonstrate the

voluntariness of his plea.

                “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.” Kniatt v. State,

206 S.W.3d 657, 664 (Tex. Crim. App. 2006) (citing Boykin v. Alabama, 395 U.S. 238, 243 (1969)).

“Accordingly, a guilty plea, to be consistent with due process of law, must be entered knowingly,

intelligently, and voluntarily.” Id. “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 considering

the voluntariness of a guilty plea, the court should examine the record as a whole. Martinez v. State,

981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). A finding that a defendant was duly

admonished creates a prima facie showing that a guilty plea was entered knowingly and voluntarily.

Id. “A defendant may still raise the claim that his plea was not voluntary; however, the burden

shifts to the defendant to demonstrate that he did not fully understand the consequences of his

plea such that he suffered harm.” Id. A defendant who attests, when he enters his plea of guilty,

that he understands the nature of his plea and that his plea is voluntary, has a heavy burden

on appeal to show that his plea was involuntary. See Houston v. State, 201 S.W.3d 212, 217

(Tex. App.—Houston [14th Dist.] 2006, no pet.); Dusenberry v. State, 915 S.W.2d 947, 949

(Tex. App.—Houston [1st Dist.] 1996, pet. ref’d).



                                                  17
                In this case, viewing the evidence in the light most favorable to the district court’s

ruling, the record as a whole supports an implied finding by the district court that O’Neal’s plea was

voluntary. At the plea hearing, the district court admonished O’Neal that he had a right to a jury

trial, the right not to incriminate himself, the right to confront the witnesses against him, and that he

would be giving up those rights by pleading guilty. O’Neal affirmed to the district court that he

understood those rights, that he knew he would be giving them up, and that is what he wanted to do.

When, at one point during the plea hearing, O’Neal initially pleaded “not guilty,” the district court

provided O’Neal with an opportunity to speak with trial counsel for approximately twenty minutes,

and, following that discussion, again asked O’Neal how he wanted to plead. This time, O’Neal

testified that he was pleading “guilty,” and he affirmed to the district court that he was doing so

freely and voluntarily. And, when the district court subsequently asked O’Neal if anyone had

promised him something, or threatened, forced, or done something to him to make him plead guilty,

O’Neal answered, “No, ma’am.” Only after all of the above-summarized admonishments, inquiries,

and discussions with counsel did the district court accept O’Neal’s guilty plea.

                Regarding the sentencing issue, the record reflects that O’Neal was admonished by

the district court as to the full range of punishment, including the possibility of a life sentence, and

was also admonished by the district court as to the State’s filing of a motion to cumulate sentences.

When O’Neal responded that he did “not actually” understand that a motion to cumulate had been

filed, the record reflects that there was a discussion between O’Neal and trial counsel. Following

that discussion, the district court clarified that the State was “asking that these—this sentence—any

sentence in this case be accumulated or stacked with the sentence that you received in a case out

of McLennan County.” When asked if he understood this, O’Neal answered, “Yes.” And, when the

                                                   18
district court further inquired as to whether O’Neal “understood what that meant,” O’Neal again

answered, “Yes.” Although O’Neal testified at the new-trial hearing that counsel had informed him

that his sentences would not be stacked, the district court was free to disbelieve O’Neal’s testimony

and instead credit the testimony of trial counsel, who testified that there was “extensive discussion”

between himself and O’Neal regarding the motion to cumulate and “what that possibly could mean,”

and that he had advised O’Neal that there was “no way of guaranteeing that” the sentences

would not be stacked. Moreover, even if counsel had somehow created the expectation that the

sentences would not be stacked, this would not render O’Neal’s plea involuntary. See West v. State,

702 S.W.2d 629, 633 (Tex. Crim. App. 1986) (“[T]he plea is not involuntary just because the

sentence exceeded what appellant expected, even if the expectation was raised by his attorney.”);

State v. Collazo, 264 S.W.3d 121, 127 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (“A plea

is not involuntary simply because the defendant ‘did not correctly assess every relevant factor

entering into his decision.’” (quoting Talbott v. State, 93 S.W.3d 521, 526 (Tex. App.—Houston

[14th Dist.] 2002, no pet.)).

                The district court was also free to disbelieve O’Neal’s other claims regarding the

voluntariness of his plea, including that counsel did not spend enough time explaining the

consequences of his plea with him, that O’Neal was doing nothing more at the plea hearing than

repeating what counsel had told him to say, that his plea was influenced by the medication he was

taking, and that he had pleaded guilty out of fear of retaliation by the mafia. These claims were

either contradicted by trial counsel’s testimony, or based solely on O’Neal’s self-interested testimony

at the new-trial hearing, and the district court, as the sole trier of fact, was entitled to find O’Neal’s

testimony not credible. See Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001) (no abuse

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of discretion in overruling motion for new trial “where there is conflicting evidence on an issue

of fact”); Shanklin v. State, 190 S.W.3d 154,166-67 (Tex. App.—Houston [1st Dist.] 2005),

pet. dism’d, improvidently granted, 211 S.W.3d 315 (Tex. Crim. App. 2007) (“The court may

consider the interest and bias of any witness and is not required to accept as true the testimony of the

accused or any defense witness simply because it was uncontradicted.”).

                Based on all of the evidence summarized above, we cannot conclude that the

district court abused its discretion in finding that O’Neal had failed to meet his “heavy burden”

to show that his guilty plea was involuntary and should be withdrawn, and in denying the motion

for new trial on that ground. The district court’s ruling is reasonably supported by the record

and is not outside the zone of reasonable disagreement. Accordingly, we overrule O’Neal’s sole

issue on appeal.


                                          CONCLUSION

                We affirm the judgment of the district court.




                                                __________________________________________

                                                Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Rose

Affirmed

Filed: July 10, 2013

Do Not Publish


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