Opinion issued March 10, 2016




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-14-00895-CR
                           ———————————
                  LAMAR MARCELL HUNTER, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 10th District Court
                         Galveston County, Texas
                      Trial Court Case No. 12CR1921


                         MEMORANDUM OPINION

      Appellant, Lamar Marcell Hunter, without an agreed punishment

recommendation from the State, pleaded guilty to the felony offense of aggravated
sexual assault of a child,1 and the trial court assessed his punishment at confinement

for twenty years. In his sole issue, appellant contends that the trial court erred in

denying his motion for new trial because he received ineffective assistance of

counsel, which rendered his guilty plea involuntary.2

      We affirm.

                                        Background

      After a Galveston County Grand Jury issued a true bill of indictment, accusing

appellant of committing the felony offense of aggravated sexual assault of a child,

he, while represented by counsel, pleaded guilty to committing the offense. In

connection with his plea, appellant signed written admonishments that stated, “[i]f

convicted, [he would] face the following range of punishment: . . . A term of life or

any term of not more than 99 years or less than 5 years in the Institutional Division

of the Texas Department of Criminal Justice and in addition, a possible fine not to

exceed $10,000.00.” By signing the plea papers, appellant indicated that he was



1
      See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (Vernon Supp. 2015).
2
      In his first stated issue, appellant contends that the trial court’s certificate of his right
      to appeal is defective and erroneously limits his appeal to error in the punishment
      hearing. See TEX. R. APP. P. 25.2(d) (requiring record to contain “trial court’s
      certification of the defendant’s right to appeal under Rule 25.2(a)(2)”). However,
      an “Amended Trial Court’s Certification of Defendant’s Right of Appeal,” which
      correctly indicates appellant’s right to appeal, has since been filed with this Court.
      See TEX. R. APP. P. 25.2(f), 34.5(c), 37.1. Thus, appellant’s first stated issue has
      been resolved, and we will address only appellant’s ineffective-assistance claim in
      this opinion.


                                               2
“aware of the consequences of [his] plea,” his plea was made “freely and

voluntarily,” he was “totally satisfied with the representation provided by [his]

attorney who provided fully effective and competent representation,” and he

understood that he was making an “open plea to the court.” The trial court and

appellant’s trial counsel also signed the plea papers, affirming that they believed that

appellant executed his plea “freely and voluntarily” and “he [was] aware of the

consequences of his plea.” Following a sentencing hearing, the trial court found

appellant guilty of the offense and sentenced him to confinement for twenty years.

      Subsequently, appellant filed a motion for new trial, arguing that he was

denied effective assistance of counsel during his plea proceeding because he “was

not informed by his trial counsel of the legal requirements to [obtain] deferred

adjudication from the [t]rial [c]ourt.” Specifically, appellant asserted that he was

only “eligible for deferred adjudication” if the trial court made “a finding in open

court that placing [him] on community supervision [was] in the best interest of the

[complainant].” (Emphasis omitted.) And, according to appellant, his trial counsel

“failed to illicit any facts” at sentencing that would have supported such a finding.

      At the motion-for-new-trial hearing, appellant testified that he met with his

trial counsel “over a dozen times” prior to pleading guilty. Appellant explained that

he discussed “strategy” with trial counsel, and their “ultimate goal” “was to try to




                                           3
get [appellant] probation.”3 Because trial counsel felt that “a trial by jury” “wouldn’t

go well” for appellant, he recommended that appellant “plead guilty and go ahead”

with a pre-sentence investigation (“PSI”). Trial counsel told appellant that “if

everything [went] well” and “the [c]ourt [had] mercy upon” him, he would obtain

deferred adjudication. However, trial counsel also explained that “if [things] didn’t

go well,” appellant could receive “prison time.” Appellant ultimately pleaded guilty

because of “the possibility of probation,” although he knew at the time of his plea

that he was “taking a chance,” and he “hope[d] that maybe” the trial court would

defer adjudication of his guilt.

      The trial court admonished appellant about the range of punishment,

explaining that he could receive “five to 99 [years] or life” and “up to a $10,000

fine.” Appellant knew that “there [were] no restriction[s] on what the [trial] [j]udge

could do” and the trial court “could sentence [him] to probation[] [or] to life in

prison.” And appellant was “well aware” of this when he pleaded guilty. Appellant

also knew that the complainant “wanted [him] in prison” and her family did not want

him to be placed on community supervision.

      Appellant further testified that his trial counsel never explained to him that

“the [trial] [c]ourt was required to find that it[] [would be] in the [complainant’s]



3
      We note that, throughout the motion-for-new-trial hearing, the terms “probation”
      and “deferred adjudication” are used somewhat interchangeably.


                                           4
best interest” for him to be placed on community supervision to obtain deferred

adjudication. This information would have been “significant” to him because “if

[he] wasn’t going to get probation, [he] would have put [his case] in the hands of the

jury.” Thus, if appellant had known “the factual findings [that] the [trial] [c]ourt

legally was required to make before [it could] put [him] on deferred [adjudication],”

he would have “chose[n] not to plea.”

        Nicole Hunter, appellant’s wife, testified that she was present during

conversations between appellant and trial counsel, and their “goal” was for appellant

to obtain deferred adjudication. This was also Hunter and appellant’s own personal

goal.    The “best” strategy to achieve deferred adjudication, according to trial

counsel, was for appellant to plead guilty “and go in front of the [trial] [j]udge.”

However, Hunter was also aware that there was a “possibility that [appellant would]

go to the penitentiary.” And she was not privy to “any discussions” between trial

counsel and appellant “about the [j]udge . . . hav[ing] to make a factual finding” that

placing appellant on community supervision “was in the [complainant’s] best

interest.”

        Trial counsel testified that he met with appellant “a dozen times” during the

course of his representation, and during the meetings, he explained to appellant

“what could happen to [him] if he was convicted.” They also discussed “what would

happen if [appellant was] to go to trial,” “what could happen if [he pleaded guilty



                                          5
and] went [through] a PSI,” and all of the “potential outcomes” of his case, such as

obtaining deferred adjudication or “prison time.” According to trial counsel, it was

“clear” to appellant that he could receive “prison time or probation,” and appellant

did not mistakenly believe that he was “guarantee[d]” deferred adjudication if he

pleaded guilty. In fact, appellant knew that it was possible that he could be sentenced

to “five to 99 years or life in prison,” knew “he was pleading guilty without an

agreement from the State,” and knew “that it was entirely up to the [trial] [j]udge

to . . . place him on deferred community supervision or . . . send him to the

penitentiary.” However, it was appellant’s “goal” to obtain deferred adjudication,

even though he knew that the complainant’s family “was extremely opposed to [him]

receiving any type of probation.” Ultimately, trial counsel “recommended” that

appellant “plea[d] guilty,” “have a PSI,” and “go to the [j]udge” for sentencing. Trial

counsel and appellant discussed the fact that “a family [was] involved” in this case,

as the complainant is appellant’s cousin, and it would be in the “best interest” of

appellant, his wife, and his family for appellant to plead guilty. Also, “maybe more

importantly so,” it would be in the complainant’s “best interest” for appellant to

plead guilty because she then would not be subjected to “a full-blown trial with [a]

jury,” which “would be quite traumatic” for her. At the time of appellant’s plea, the

complainant “was in school,” “had a[] child,” and “was moving on with her life.”




                                          6
As trial counsel explained, “[W]hy mess that up? Why put her through the trauma

of going through a full-blown trial, if her life had to some extent turned around”?

      Trial counsel did admit that, prior to appellant entering his guilty plea, he

never spoke with him about the “specific” factual finding the trial court had to make

for appellant to obtain deferred adjudication. However, trial counsel explained that,

during the sentencing hearing, he elicited testimony about the “possibility” of the

families of appellant and the complainant “reuniting and healing,” and this testimony

was “something the [trial] [c]ourt could have taken into consideration” when

deciding what was in the complainant’s “best interest” and whether appellant should

obtain deferred adjudication. Thus, “there [is] testimony in the record” upon which

“the [trial] [c]ourt could have found” that it was in the “best interest” of the

complainant that appellant obtain deferred adjudication.

      After hearing the evidence, the trial court denied appellant’s new-trial motion,

explaining,

      When we had the sentencing hearing, I am very confident [appellant]
      fully understood the full range of punishment. Probation was argued
      for[, but] the fact [that] th[e] specific finding [of the complainant’s best
      interest was] not . . . discussed and [it] making a difference . . . is not at
      all credible. [Appellant] simply made a bad choice. . . .

      ....

      . . . [Appellant] simply chose a wrong goal here of getting probation.
      And based on th[e] facts [of the case], there was absolutely no way in
      Heaven I was ever going to give [him] probation.



                                            7
                                Standard of Review

      To prove a claim of ineffective assistance of counsel, appellant must show

that (1) his trial counsel’s performance fell below an objective standard of

reasonableness and (2) there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068

(1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel’s performance,

we look to the totality of the representation to determine the effectiveness of counsel,

indulging a strong presumption that counsel’s performance falls within the wide

range of reasonable professional assistance or trial strategy. See Robertson v. State,

187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006). Appellant has the burden of

establishing both Strickland prongs by a preponderance of the evidence. Jackson v.

State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). “An appellant’s failure to

satisfy one prong of the Strickland test negates a court’s need to consider the other

prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see also

Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

      Because appellant presented his ineffective-assistance claim to the trial court

in a motion for new trial and received a hearing on his motion, we analyze his issue



                                           8
under an abuse of discretion standard as a challenge to the denial of his motion.

Biagas v. State, 177 S.W.3d 161, 170 (Tex. App.—Houston [1st Dist.] 2005, pet.

ref’d). We view the evidence in the light most favorable to the trial court’s ruling

and uphold the ruling if it is within the zone of reasonable disagreement. Wead v.

State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). We do not substitute our

judgment for that of the trial court, but rather decide whether the trial court’s decision

was arbitrary or unreasonable. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim.

App. 2007). If there are two permissible views of the evidence, the trial court’s

choice between them cannot be held to be clearly erroneous. Riley v. State, 378

S.W.3d 453, 457 (Tex. Crim. App. 2012). 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. Webb, 232 S.W.3d at 112.

      We note that trial courts are in the best position to “evaluate the credibility”

of witnesses and resolve conflicts in evidence. See Kober v. State, 988 S.W.2d 230,

233 (Tex. Crim. App. 1999). And a trial court may choose to believe or disbelieve

all or any part of the witnesses’ testimony. See id. at 234.

                          Ineffective Assistance of Counsel

      In his sole issue, appellant argues that the trial court erred in denying his

motion for new trial because his trial counsel did not provide effective assistance

when he failed to advise appellant that to obtain deferred adjudication, the trial court



                                            9
would have to specifically find that it was in the “best interest” of the complainant

to place appellant on community supervision.4 Appellant further argues that because

his trial counsel was “ignorant” of this required fact finding and improperly “advised

[him] to plead guilty” and “elect[] to have the trial [court] assess punishment,” he

entered his guilty plea involuntarily.

          To be valid, a plea must be entered voluntarily, knowingly, and intelligently.

TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (Vernon Supp. 2015); Fuller v. State,

253 S.W.3d 220, 229 (Tex. Crim. App. 2008). “Before deciding whether to plead

guilty, a defendant is entitled to the effective assistance of competent counsel.”

Padilla v. Kentucky, 559 U.S. 356, 364, 130 S. Ct. 1473, 1480–81 (2010) (internal

quotations omitted); see also Ex parte Reedy, 282 S.W.3d 492, 500 (Tex. Crim. App.

2009) (“There is no doubt that an accused has a Sixth Amendment right to the

effective assistance of counsel in guilty plea proceedings.”). A plea is not voluntarily

and knowingly entered if it is made as a result of ineffective assistance of counsel.

Ulloa v. State, 370 S.W.3d 766, 771 (Tex. App.—Houston [14th Dist.] 2011, pet.

ref’d).



4
          See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (Vernon Supp. 2015) (“A judge
          may place on community supervision under this section a defendant charged with
          an offense under Section 21.11, 22.011, or 22.021, Penal Code, regardless of the
          age of the victim, . . . only if the judge makes a finding in open court that placing
          the defendant on community supervision is in the best interest of the victim.”
          (emphasis added)).

                                               10
      To establish prejudice in the context of a guilty plea, the defendant “must

show that there is a reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going to trial.”5 Hill v. Lockhart,

474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); see also Ex parte Moussazadeh, 361

S.W.3d 684, 690–91 (Tex. Crim. App. 2012). We make the prejudice inquiry on a

case-by-case basis, considering the circumstances surrounding the plea and the

gravity of the alleged failure. Ex parte Obi, 446 S.W.3d 590, 596 (Tex. App.—

Houston [1st Dist.] 2014, pet. ref’d). We note that “[s]urmounting Strickland’s high

bar is never an easy task,” and “it is often quite difficult for [defendants] who have

acknowledged their guilt to satisfy Strickland’s prejudice prong.” Padilla, 559 U.S.

at 371 & n.12, 130 S. Ct. at 1485 & n.12.

      Here, appellant relies upon his own testimony at the motion-for-new-trial

hearing to establish that “but for [his trial] counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” See Hill, 474 U.S. at 59,

106 S. Ct. at 370; see also Jackson, 973 S.W.2d at 956 (defendant’s burden to

establish prejudice by preponderance of evidence). Specifically, appellant directs

this Court to the following portion of his testimony:



5
      Here, it is unnecessary to address the “performance component” of appellant’s
      ineffective-assistance claim. See Strickland v. Washington, 466 U.S. 668, 697, 104
      S. Ct. 2052, 2069 (1984); Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App.
      2009).

                                          11
Q.     At any point did [trial counsel] have a conversation with
       you . . . about a factual finding that the [trial] [c]ourt was
       required to find that it’s in the [complainant’s] best interest that
       you get probation?

A.     No, he hadn’t --

Q.     Okay.

A.     -- at all.

Q.     Is that significant to you?

A.     Yeah, it would be significant.

Q.     Why?

A.     Because if that was the case, . . . if I wasn’t going to get
       probation, I would have put it in the hands of the jury.

Q.     Why would that have changed your mind?

A.     Because of the fact that going a route where I didn’t know I have
       any chance for probation would have changed my mind so I
       could take the chances to have probation so I could be with my
       family.

....

Q.     And ultimately, why did you plea[d] guilty?

A.     . . . [Trial counsel] said I have to plead guilty to go through the
       PSI process. And by plea[d]ing guilty, it would show mercy -- I
       show that -- plea[d]ing guilty would allow me to go through the
       PSI and the [trial] [c]ourt -- and if that’s the case, maybe the
       [c]ourt will show mercy upon me. If I apologize and say that I
       am apologetic -- and I know that I was. But knowing that was
       the opportunity, the strategy, that the possibility of probation was
       there.



                                     12
      Q.     But at no time did y’all discuss the factual findings the [trial]
             [c]ourt legally was required to make before [it] put you on
             deferred [adjudication]?

      A.     No sir.

      ....

      Q.     But if you would have known -- let me rephrase. If you would
             have known the law that you know now --

      A.     I wouldn’t have.

      Q.     You would have chosen a different course of action?

      A.     Yes, sir, I would have.

      Q.     You would have chose[n] not to plea --

      A.     Yes, sir.

      Q.     -- if you would have known that?

      A.     Yes, sir.

      Appellant’s trial counsel, however, provided a different account of the

circumstances surrounding appellant’s guilty plea. In fact, trial counsel testified that

he and appellant had discussed the fact that “a family [was] involved” in this case,

as the complainant is appellant’s cousin, and it would be in the “best interest” of

appellant, his wife, and his family for him to plead guilty. And “more importantly,”

it would be in the complainant’s “best interest” for appellant to plead guilty because

she would then not be subjected to “a full-blown trial with [a] jury,” which “would

be quite traumatic” for her. “[A] full-blown trial” would be especially “traumatic”

                                          13
because the complainant “was moving on with her life,” she “was in school,” and

she “had a[] child.” Thus, trial counsel and appellant decided not to “mess that up.”

As trial counsel explained, “Why put [the complainant] through the trauma of going

through a full-blown trial, if her life had to some extent turned around”?

      Appellant similarly testified that he had pleaded guilty “in order to absolve

[himself], and hopefully, to provide some sort of healing for the victim.” And he

confirmed that he had previously testified at the sentencing hearing: “I want the

family to heal. I want to be able to have a relationship with [the complainant] at

some point. I want her to know how sorry I am.” (Internal quotations omitted.)

      We cannot conclude on this record that the trial court abused its discretion in

denying appellant’s motion for new trial. The only evidence that appellant presented

to establish that he would have insisted on going to trial was his own testimony that

he would have “chosen a different course of action” and “would have put [his case]

in the hands of the jury” had he known that in order to obtain deferred adjudication,

the trial court had to specifically find that it was in the best interest of the

complainant that he be placed on community supervision. The trial court, however,

did not find appellant’s testimony to be credible.

      A trial court does not abuse its discretion in not believing a defendant’s

testimony. See Kober, 988 S.W.2d at 234 (trial court may choose to believe or

disbelieve all or any part of witnesses’ testimony); Ex parte Ali, 368 S.W.3d 827,



                                         14
840–41 (Tex. App.—Austin 2012, pet. ref’d) (trial court not required to believe

defendant’s statement “he would have insisted on going to trial”); Ex parte Fassi,

388 S.W.3d 881, 888 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (trial court

“free to disbelieve [defendant’s] self-serving testimony that he would not have pled

guilty if he had been aware of the immigration consequences of his plea”); Messer

v. State, 757 S.W.2d 820, 827–28 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d)

(trial court “not required to accept as true the testimony of the accused or any defense

witness” even if “it was not contradicted”).

      Simply put, here, “appellant’s ability to show he suffered prejudice arising

from [his trial] counsel’s [allegedly] deficient advice depend[ed] critically upon his

credibility.” Ex parte Hamad, No. 05-11-01599-CR, 2012 WL 604029, at *5 (Tex.

App.—Dallas Feb. 27, 2012, no pet.) (not designated for publication); see also Ex

parte Victorio, No. 05-11-01008-CR, 2012 WL 286803, at *4–6 (Tex. App.—Dallas

Feb. 1, 2012, pet. ref’d) (not designated for publication) (concluding defendant did

not meet his burden under second prong of Strickland test where trial court did not

find him credible). And the trial court specifically stated that it did not find

appellant’s evidence to be “credible.” We must defer to the trial court’s credibility

determinations. See Kober, 988 S.W.2d at 233.

      Accordingly, we hold that appellant has not met his burden under the second

prong of the Strickland test.



                                          15
      We overrule appellant’s sole issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                                Terry Jennings
                                                Justice

Panel consists of Justices Jennings, Higley, and Brown.

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




                                           16
