                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                      No. 06-14-00055-CR



              JUAN FLORES-ALONZO, Appellant

                               V.

               THE STATE OF TEXAS, Appellee



On Appeal from the Criminal District Court No. 2 of Dallas County
                     Dallas County, Texas
                  Trial Court No. F-1260857-I




          Before Morriss, C.J., Moseley and Burgess, JJ.
                  Opinion by Justice Burgess
                                                 OPINION
         In Dallas County, 1 Texas, Juan Flores-Alonzo was charged with continuous sexual abuse

of a child, but he waived his right to a jury trial and entered a plea of “no contest” to the lesser-

included charge of aggravated sexual assault of a child under fourteen years of age. After

hearing testimony and the arguments of counsel, the trial court found Alonzo guilty, sentenced

him to fifteen years’ confinement, and imposed a $5,000.00 fine. Alonzo’s motion for new trial

was overruled by operation of law.

         On appeal, Alonzo contends that (1) the trial court violated his due process and statutory

rights by failing to admonish him that his no-contest plea was legally equivalent to a guilty plea;

(2) the trial court violated his due process and statutory rights by finding him guilty without a

clearly expressed plea accompanied by a strong factual basis; (3) his counsel rendered ineffective

assistance by advising him that he might not be deported as a result of his plea of no contest;

(4) he was entitled to a hearing on his motion for new trial; and (5) the judgment should be

modified to reflect the correct plea.

         We modify the judgment to reflect Alonzo’s plea of no contest and affirm the trial court’s

judgment, as modified, because we find that (1) Alonzo failed to demonstrate that he did not

fully understand the consequences of his plea; (2) sufficient evidence supports his plea; (3) the

advice provided by Alonzo’s trial counsel was within the range of competent assistance; and

(4) Alonzo was not entitled to a hearing on his motion for new trial.

1
 Originally appealed to the Fifth Court of Appeals in Dallas, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).
Because this is a transfer case, we are required to apply the precedent of the Dallas Court of Appeals to the extent it
differs from our precedent. See TEX. R. APP. P. 41.3.

                                                          2
I.      Did the Trial Court Err By Accepting Alonzo’s Guilty Plea Without Properly
        Admonishing Him?

        In his first point of error, Alonzo contends that his plea was involuntary because the trial

court accepted it without admonishing him that a no-contest plea is generally the legal equivalent

of a guilty plea.

        A plea of nolo contendere or no contest has the same legal effect as a plea of guilty

except that such plea may not be used as an admission in any civil suit. TEX. CODE CRIM. PROC.

ANN. art. 27.02(5) (West 2006). Yet, a trial court is not required to admonish the defendant that

a plea of no contest has the same legal effect as a plea of guilty. See TEX. CODE CRIM. PROC.

ANN. art. 26.13 (West Supp. 2014) (identifying admonishments that must be given to defendants

pleading nolo contendere). When, as here, the record indicates that the trial court properly

admonished a defendant, a prima facie showing exists that the defendant entered a knowing and

voluntary plea.     See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998)

(per curiam). Although a defendant may still raise the claim that his plea was involuntary, he

bears the burden of “demonstrat[ing] that he did not fully understand the consequences of his

plea such that he suffered harm.” Id. (citing Ex parte Gibauitch, 688 S.W.2d 868 (Tex. Crim.

App. 1985)).

        Prior to entering his plea, the trial court explained to Alonzo that he was charged with

continuous sexual abuse of a child and that the applicable punishment range was twenty-five

years to life in prison without the possibility of parole. However, in exchange for Alonzo’s

agreement to waive his right to a jury trial and enter a plea of no contest, the State agreed to

reduce the charge to aggravated sexual assault of a child under fourteen years of age, which has a
                                                 3
punishment range of five to ninety-nine years or life in prison. The trial court informed Alonzo

that by virtue of this agreement, he would become eligible for parole after serving half of his

sentence.

         The trial court further explained to Alonzo that:

         [p]art of the agreement also is you will waive your right to a jury trial and the
         evidence will be presented to me. I will hear the evidence from the State, I’ll hear
         evidence from you and then I’ll make a decision.
                 If the State cannot prove their case beyond a reasonable doubt then I will
         find you not guilty. If the State does prove your guilt beyond a reasonable doubt
         then I could either defer a finding of guilt and place you on probation for up to 10
         years or I could find you guilty and sentence you to prison anywhere within that
         five to 99 year or life range.

The trial court also reminded Alonzo that there was no agreement regarding “what will happen at

the end of the trial.” Alonzo said he understood the terms of the agreement, and he entered a

plea of no contest. After Alonzo entered his plea, the court stated that it would “proceed on the

plea of No Contest.” The court continued, “There is no admission of guilt. The State has the full

burden of proof beyond a reasonable doubt.” 2

         On direct examination of Alonzo by his trial counsel, the following exchange occurred:

                 Q         Mr. Flores[-]Alonzo, you’ve been listening to Judge Stephens,
         correct?

                  A        Yes.

                Q      And you understand everything that he’s explained to you, thus far,
         this morning?


2
 When a defendant enters a guilty or no-contest plea, “[t]he State . . . is not required to prove the defendant’s guilt
beyond a reasonable doubt; the supporting evidence must simply embrace every essential element of the charged
offense.” Staggs v. State, 314 S.W.3d 155, 159 (Tex. App.—Houston [1st Dist.] 2010, no pet.). Thus, although it
does not bind the State to a higher burden of proof on appeal, the trial court essentially required the State to present
more evidence than was legally required to satisfy it that Alonzo was, in fact, guilty.
                                                           4
       A       Yes, sir.

        Q      And the things that he’s explained to you are the things that you
and I discussed at length this morning and also yesterday; is that right?

       A       Yes.

         Q      It wasn’t until yesterday morning that the district attorney assigned
to this case actually made this offer to allow you to plead No Contest to the lesser
included offense and come to Judge Stephens to see what the result will be,
correct?

       A       Yes, sir.

      Q       And I’ve made you no guarantees or promises as to the outcome of
what will happen by pursuing the case in this manner; is that right?

       A       Yes, sir.

        Q       I’ve explained to you the advantages and disadvantages of coming
in front of Judge Stephens. I’ve also explained the advantages and disadvantages
of going to trial on the original charge of Continuous Sexual Abuse; is that right?

       A       Yes, sir.

       Q       And ultimately it’s my understanding that this is your free and
voluntary decision to handle the case in this way; is that right?

       A       Yes, sir.

       Q       I did not pressure you, force you, threaten you or coerce you to
handle the case in this manner, did I?

       A       Yes, sir.

       Q       I did force you?

       A       No, sir. No.

        Q      Okay. I did not force you, correct? I did not threaten you; is that
correct?

                                         5
               A       No, sir.

               Q       I did not promise you anything?

               A       No, sir.

        Based on the record, Alonzo failed to demonstrate that he did not fully understand the

consequences of his plea. See Martinez, 981 S.W.2d at 197. Accordingly, we overrule this point

of error.

II.     Does Sufficient Evidence Support Alonzo’s Plea?

        In his second point of error, Alonzo argues that the trial court erred in accepting his plea

because it was not supported by a strong factual basis.

        “When a defendant waives his right to a jury trial and enters a no contest plea on a non-

capital offense, the proceeding is no longer bifurcated with separate guilt-innocence and

punishment phases.” Rohr v. State, No. 08-12-00219-CR, 2014 WL 4438828, at *1 (Tex.

App.—El Paso Sept. 10, 2014, no pet.) (citing Gomez v. State, 399 S.W.3d 604, 606 (Tex.

App.—Dallas 2013, pet. ref’d)); Saldana v. State, 150 S.W.3d 486, 489 (Tex. App.—Austin

2004, no pet.). “The evidence is admitted at the unitary proceeding both to substantiate the

defendant’s plea and to allow the trial court to determine an appropriate sentence.” Rohr, 2014

WL 4438828, at *1.

        “The entry of a valid guilty plea has the effect of admitting all material facts alleged in

the formal criminal charge.” Id. (citing Ex parte Williams, 703 S.W.2d 674, 682 (Tex. Crim.

App. 1986); McGill v. State, 200 S.W.3d 325, 330 (Tex. App.—Dallas 2006, no pet.)). “With




                                                 6
one exception not applicable here, a plea of nolo contendere or ‘no contest’ has the same legal

effect as a guilty plea.” Id. (citing TEX. CODE CRIM. PROC. ANN. art. 27.02(5) (West 2006)).

        Nevertheless, Article 1.15 of the Texas Code of Criminal Procedure permits the court to

render a conviction only after the admission of sufficient evidence establishing a defendant’s

guilt, even if he has entered a plea of guilty or no contest. TEX. CODE CRIM. PROC. ANN. art. 1.15

(West 2005); Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). However, “[when a

defendant waives his right to a jury trial and enters a plea of guilty or no contest, the State is not

required to prove the defendant’s guilt beyond a reasonable doubt.” Rohr, 2014 WL 4438828,

at *2 (citing McGill, 200 S.W.3d at 330); see Ex parte Martin, 747 S.W.2d 789, 792–93 (Tex.

Crim. App. 1988) (op. on reh’g). Rather, “Article 1.15 only requires substantiation of the plea.”

Rohr, 2014 WL 4438828, at *2 (citing Menefee, 287 S.W.3d at 14). “‘By its plain terms it

requires evidence in addition to, and independent of, the plea itself to establish the defendant’s

guilt.’” Id. (quoting Menefee, 287 S.W.3d at 18).

        We are, therefore, required to determine “whether the evidence embraces each essential

element of the offense charged.” Id.; see Menefee, 287 S.W.3d at 13; Stone v. State, 919 S.W.2d

424, 427 (Tex. Crim. App. 1996); McGill, 200 S.W.3d at 331. “If the State fails to introduce

sufficient evidence under Article 1.15’s standard, the trial court is not authorized to convict.”

Rohr, 2014 WL 4438828, at *2 (citing Menefee, 287 S.W.3d at 14). “A conviction rendered

without sufficient evidence to support the no contest or guilty plea constitutes non-constitutional

trial error.” Id.




                                                  7
       The amended indictment alleged that Alonzo intentionally or knowingly committed

aggravated sexual assault of J.F., a child under the age of fourteen, by causing his mouth to

contact J.F.’s sexual organ. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii), (a)(2)(B) (West

Supp. 2014). J.F. testified that when she was nine or ten years old, she and her family moved to

a house on Mountain Lake Street, in Dallas County, Texas, where they lived for three years. She

testified that Alonzo touched her in a sexual manner on several occasions. Once, while J.F. and

Alonzo were in his room, Alonzo touched her chest, pulled down her shorts, put her hand on his

penis, and placed his penis between her buttocks. Several times, Alonzo touched the surface of

her vagina with his hands.

       The incident in question happened one night after J.F. had fallen asleep. J.F. testified that

she awoke when someone entered her room, turned on the light, got onto her bed, pulled her

shorts and underwear down, spread her legs, and put his tongue “in between” her vagina.

According to J.F., she kept her eyes closed the entire time, but J.F.’s sister and Alonzo were the

only other people home, and she believed it was Alonzo because she did not think “anyone else

would do that.” J.F. recalled that this incident occurred while they lived on Mountain Lake

Street. Thus, when the charged offense occurred, she was between nine and thirteen years old.

The trial court noted that JF “wasn’t the best witness” and, by her own admission, J.F. lies, but

the court found her testimony credible because there was “no evidence . . . that she has ever lied

to get somebody in trouble.” Based on her testimony, he found sufficient evidence to prove

Alonzo guilty of the offense to which he pled no contest.




                                                8
         Here, there is evidence that Alonzo contacted J.F.’s vagina with his mouth at a time when

J.F. was under the age of fourteen.                  The manner in which the act occurred is strong

circumstantial evidence that it was done knowingly and/or intentionally.                              The evidence

introduced by the State is sufficient under Article 1.15 to support the trial court’s finding of

guilty because it substantiates or embraces each essential element of the offense for which

Alonzo was being tried. 3 See Menefee, 287 S.W.3d at 13–14. Therefore, we overrule this point

of error.

III.     Did Alonzo’s Trial Counsel Render Ineffective Assistance?

         In his third point of error, Alonzo contends that his trial counsel provided ineffective

assistance when he advised Alonzo that he might not be deported if he entered a plea of no

contest.

         Strickland v. Washington, 466 U.S. 668 (1984), established the standard of review

applicable to ineffective assistance of counsel claims. To prevail on such a claim, an appellant

must prove by a preponderance of the evidence (1) that his counsel’s representation fell below an

objective standard of reasonableness and (2) that the deficient performance prejudiced the

defense. Strickland, 466 U.S. at 689; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App.

1999). Strickland’s two-pronged test applies to plea agreements. See Hill v. Lockhart, 474 U.S.
3
 Citing Holland v. State, 761 S.W.2d 307, 322 (Tex. Crim. App. 1988), Alonzo contends that, “a strong factual basis
is absent when an issue about innocence may be reasonably and fairly raised.” However, the cited portion of
Holland does not relate to the presence or absence of a strong factual basis, but rather states that a trial court must
sua sponte withdraw a defendant’s guilty plea only when the evidence adduced, if believed, negated the defendant’s
guilt as a matter of law. Holland, 761 S.W.2d at 322 (citing Fairfield v. State, 610 S.W.2d 771, 778 (Tex. Crim.
App. 1981)). Here, Alonzo argues that in the presentence investigation report (PSI), he “strongly disagree[d] with
the allegations,” but that did not occur until after he heard all the evidence, his plea was accepted, and he was found
guilty. The evidence Alonzo points to in support of his argument relates to the credibility of the witnesses and the
strength of the State’s case. Because the record fails to raise evidence that, if believed, would negate Alonzo’s guilt,
Holland is inapplicable, and the trial court did not err by failing to reject Alonzo’s guilty plea.
                                                           9
52, 58 (1985); Ex parte Pool, 738 S.W.2d 285, 286 (Tex. Crim. App. 1987). The voluntariness

of a plea agreement depends (1) on whether counsel’s advice was within the range of competent

representation demanded of attorneys in criminal cases and, if not, (2) on whether there is a

reasonable probability that, but for counsel’s errors, appellant would not have entered his plea

and would have insisted on going to trial. Hill, 474 U.S. at 59; Ex parte Morrow, 952 S.W.2d

530, 536 (Tex. Crim. App. 1997), overruled in part on other grounds by Taylor v. State, 109

S.W.3d 443 (Tex. Crim. App. 2003).

       In Padilla v. Kentucky, 559 U.S. 356, 360–74 (2010), the United States Supreme Court

held that “advice regarding deportation is not categorically removed from the ambit of the Sixth

Amendment right to counsel” and that “counsel must inform her client whether his plea carries a

risk of deportation.” The Court noted that “informed consideration of possible deportation can

only benefit both the State and noncitizen defendants during the plea-bargaining process.” Id. at

373. The Court held that Padilla’s counsel, who explicitly told Padilla that he would not have to

worry about immigration consequences prior to entry of his guilty plea, rendered constitutionally

ineffective assistance. The Court then remanded the case to give Padilla the opportunity to

demonstrate prejudice under Strickland; that is, whether a reasonable probability existed that, but

for counsel’s deficient advice, the result of the proceeding would have been different. See id. at

374.

        In this case, Alonzo argues that he received ineffective assistance of counsel pursuant to

Padilla because his trial counsel’s “advice was inadequate concerning mandatory deportation.”

Padilla is applicable here because the United States Code provides that any resident or

                                                10
temporary alien within the United States that is convicted of an aggravated felony, such as sexual

abuse of a minor, “shall, upon the order of the Attorney General, be removed.” 8 U.S.C.

§ 1101(a)(43)(A) (2014); see U.S.C. § 1227(a)(2)(A) (2008). The record, however, does not

reflect that Alonzo was unaware of the potential immigration consequences that he faced should

he be convicted on his plea of no contest; in fact, it reveals that his counsel and the trial court

expressly discussed the matter with him.

       Alonzo testified that he was born in Mexico and that he had a green card that was valid

until 2016 or 2017. On direct examination, Alonzo’s trial counsel questioned him regarding his

knowledge of the possible immigration consequences of pleading no contest:

              Q       Before we proceeded with this plea before Judge Stephens I
       explained to you the potential immigration consequences in this case, did I not?

               A      Yes, sir.

             Q       That if you’re found not guilty, obviously, you won’t have any
       consequences, there will be no punishment and there shouldn’t be any
       immigration consequences, correct?

               A      Yes, sir.

                Q      However, I explained to you that if the Judge places you on
       probation for this offense or if he sentences you to time in the penitentiary that in
       all likelihood your green card would be revoked, possibly immediately?

               A      Yes, sir.

               Q     And knowing that, that these immigration consequences exist, it’s
       my understanding that you still want to continue with this plea of No Contest
       before Judge Stephens and handle your case this way, right?

               A      Yes, sir.


                                                11
The trial court also admonished Alonzo that he would “in all probability” be deported if his no-

contest plea resulted in a conviction or community supervision. Alonzo repeatedly indicated that

he understood the warnings of his counsel and the trial court and that he wished to proceed with

his plea of no contest.

       Despite failing to use the word “mandatory,” as urged by Alonzo on appeal, the language

used by his trial counsel and the trial court informed Alonzo that he faced almost certain

deportation if convicted. Therefore, Alonzo failed to prove, by a preponderance of the evidence,

that his counsel’s advice was outside the range of competent representation demanded of

attorneys in criminal cases.

       Yet, even if the admonishments by Alonzo’s trial counsel were deficient, Alonzo still

failed to demonstrate that any such deficient performance prejudiced his plea decision. In cases

examining ineffective assistance claims arising out of guilty or no contest plea agreements,

courts have reviewed four factors to determine whether a defendant was prejudiced by his

counsel’s actions:    “(1) whether there is evidence of the applicant’s guilt, (2) whether the

applicant had any factual or legal defenses, (3) whether immigration status was his primary

concern, and (4) how the plea deal compared to the penalties risked at trial.” Ex parte Obi, 446

S.W.3d 590, 597 (Tex. App.—Houston [1st Dist.] 2014, no pet.). With respect to the fourth

factor, the appellate court “consider[s] the circumstances of the plea deal compared to the

penalties the applicant risked by going to trial” and reviews three additional factors:

“(1) evidence concerning the likelihood of success at trial, (2) evidence presented by the

applicant that some other plea deal would have helped him avoid negative immigration

                                              12
consequences, and (3) evidence presented by the applicant regarding the likelihood of obtaining

probation if convicted at trial.” Id. at 599.

       A.      Evidence of Guilt

       In the present case, as discussed in our analysis of the previous point of error, the State

introduced sufficient evidence for the trial court to find Alonzo guilty. This factor weighs

against a finding of prejudice.

       B.      Factual or Legal Defenses

       Alonzo’s counsel believes that the State would have had difficulty proving beyond a

reasonable doubt the original charge of continuous sexual abuse because the evidence of multiple

sexual acts was dependent upon the testimony of J.F., her mother, and therapist. The trial court

recognized that J.F. had lied in the past and noted that she “wasn’t the best witness.” In a family

law proceeding, J.F.’s mother denied that any abuse had occurred. J.F.’s therapist was given

immunity in exchange for her testimony because she failed to report J.F.’s allegations of abuse.

Attacking the witnesses’ credibility would have been Alonzo’s primary defensive strategy had

the case proceeded to trial on guilt or innocence. This factor weighs in favor of a finding of

prejudice.

       C.      Immigration Status of Primary Concern

       Alonzo submitted an affidavit to the trial court in support of his motion for new trial.

Alonzo’s affidavit makes no mention of his immigration status. ‘“[F]ailure to express concerns

about immigration consequences after receiving repeated warnings’” weighs against a finding of




                                                13
prejudice. Id. at 598 (quoting Ex parte Murillo, 389 S.W.3d 922, 930 (Tex. App.—Houston

[14th Dist.] 2013, no pet.).

           D.       Plea Deal Compared to Penalties Risked at Trial

           Alonzo was originally charged with continuous sexual abuse, a first degree felony, with a

punishment range of twenty-five to ninety-nine years confinement, or life, and no possibility of

parole. See TEX. PENAL CODE ANN. § 21.02(h) (West Supp. 2014); see also TEX. GOV’T CODE

ANN. § 508.145(a) (West Supp. 2014). By waiving a jury trial and entering a plea of no contest

to the lesser charge of aggravated sexual assault of a child, the applicable punishment range was

reduced to five to ninety-nine years, or life in prison. By virtue of the plea agreement, Alonzo

became eligible for deferred adjudication community supervision and became eligible for parole

after serving only one-half of his sentence. See TEX. PENAL CODE ANN. § 12.32 (West 2011),

§ 22.021(e) (West Supp. 2014). Further, Alonzo faced deportation regardless of whether he

received deferred adjudication community supervision under the plea agreement charge or was

convicted at trial of the original charge; therefore, he cannot show that he was prejudiced by

failing to receive the Padilla admonitions. 4 See Obi, 446 S.W.3d at 600; Enyong v. State, 369

S.W.3d 593, 600–02 (Tex. App.—Houston [1st Dist.] 2012, pet. granted) (concluding that

deportation consequence was “truly clear” for conviction of misdemeanor assault of family

member), vacated on other grounds, 397 S.W.3d 208 (Tex. Crim. App. 2013). This factor

weighs against a finding of prejudice.




4
    There is no evidence that some other plea deal would have helped him avoid negative immigration consequences.
                                                         14
       In this case, the evidence supports the conclusion that Alonzo’s primary concern was

avoiding the possibility of having to serve a long, mandatory jail sentence without the possibility

of parole. The plea deal allowed Alonzo to avoid that possibility, to receive a much lighter

sentence or deferred adjudication, and to be eligible for parole after serving one-half of any

prison sentence he received. Alonzo faced presumptively mandatory deportation either way.

See Enyong, 369 S.W.3d at 600–02. Therefore, we conclude that even if the immigration

admonishments of Alonzo’s trial counsel were deficient, the factors discussed above weigh

against a finding that Alonzo was prejudiced in any way by counsel’s performance.

IV.    Was Alonzo Entitled to a Hearing on his Motion for New Trial?

       In his fourth point of error, Alonzo argues that the trial court erred by denying him a

hearing on his amended motion for new trial. Specifically, he contends that he was entitled to a

hearing “to develop his claim that he would have gone to trial before a jury but for trial counsel

providing insufficient information about the nature of the proceedings and the strength of the

defense.”

       “The purposes of a new trial hearing are (1) to determine whether the case should be

retried or (2) to complete the record for presenting issues on appeal.” Hobbs v. State, 298

S.W.3d 193, 199 (Tex. Crim. App. 2009). Such a hearing is not an absolute right. Id. A hearing

on a motion for new trial is mandatory only when: (1) it is requested; (2) the matters raised in

the motion and accompanying affidavit are not determinable from the record; and (3) the motion




                                                15
and affidavit 5 establish reasonable grounds showing that the defendant could potentially be

entitled to relief. Id. (citing Smith, 286 S.W.3d at 339; Martinez v. State, 74 S.W.3d 19, 21–22

(Tex. Crim. App. 2002); Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 2002); Edwards

v. State, 37 S.W.3d 511 (Tex. App.—Texarkana 2001, pet. ref’d)). Even if the defendant meets

the requirements for obtaining a hearing, however, the trial court is not required to allow live

testimony at the hearing. Holden v. State, 201 S.W.3d 761, 764 (Tex. Crim. App. 2006).

Instead, that decision lies within the discretion of the trial court. See id. (holding trial court did

not abuse its discretion by ruling based only on affidavits).

         We review a trial court’s denial of a hearing on a motion for new trial under an abuse of

discretion standard and reverse only if the decision was so clearly wrong as to lie outside the

zone within which reasonable persons might disagree. Gonzales v. State, 304 S.W.3d 838, 842

(Tex. Crim. App. 2010); Smith, 286 S.W.3d at 339. Absent such an abuse of discretion, an

appellate court is not justified in reversing the trial court’s judgment. Gonzales, 304 S.W.3d at

842; Smith, 286 S.W.3d at 339.

         Appellate review of the denial of a motion for new trial hearing

         is limited to the trial judge’s determination of whether the defendant has raised
         grounds that are both undeterminable from the record and reasonable, meaning
         they could entitle the defendant to relief. This is because the trial judge’s
         discretion extends only to deciding whether these two requirements are satisfied.
         If the trial judge finds that the defendant has met the criteria, he has no discretion
         to withhold a hearing. In fact, under such circumstances the trial judge abuses his
         discretion in failing to hold a hearing.


5
 The affidavit need not make a prima facie case or establish every legal element required for relief. Smith v. State,
286 S.W.3d 333, 339 (Tex. Crim. App. 2009). “But, affidavits that are conclusory in nature and unsupported by
facts do not provide the requisite notice of the basis for the relief claimed; thus, no hearing is required.” Id.
                                                        16
Smith, 286 S.W.3d at 340.

       In his amended motion for new trial, Alonzo argued that his counsel was ineffective

because he failed to (a) adequately counsel Alonzo regarding the nature and ramifications of his

no contest plea, waiver of a jury trial, and the plea agreement with the State and (b) adequately

investigate the case so as to advise Alonzo of the weaknesses in the State’s case. To establish

entitlement to a hearing on his motion for new trial alleging ineffective assistance of counsel,

Alonzo must have alleged sufficient facts from which a trial court could reasonably conclude

both that counsel’s alleged acts or omissions were not within the range of competence demanded

of attorneys in criminal cases and that there was a reasonable probability that, but for counsel’s

errors, appellant would not have entered his plea and would have insisted on going to trial. Hill,

474 U.S. at 59; Ex parte Moody, 991 S.W.2d 856, 857–58 (Tex. Crim. App. 1999); Kober v.

State, 988 S.W.2d 230, 232 (Tex. Crim. App. 1999); Morrow, 952 S.W.2d at 536; Rodriguez v.

State, 899 S.W.2d 658, 666 (Tex. Crim. App. 1995).

       Alonzo’s affidavit states,

       I was originally charged with continuous sexual abuse. At the time of the
       December proceedings, the charge was reduced to aggravated sexual assault. I do
       not know the reason that the State reduced the charge. I do not know if it was
       because I agreed to give up my right to have a jury decide my case.

       I did not have enough information about the law or about the facts in deciding to
       give up my right to have a jury decide my case. I would not have pleaded no
       contest and would not have given up my right to have a jury trial if I had adequate
       information.

       I did not know that there was information available showing that Irene Meza told
       a divorce or child custody court after the alleged offense that I did not commit any
       abuse. I did not know that the school therapist failed to report the alleged offense
       and had to be given a promise of freedom from prosecution in order to testify. I
                                               17
       did not know that my daughter would say that I touched her sexual organ with my
       mouth only once. I do not believe that a jury would have convicted me of
       continuous sexual abuse or aggravated sexual assault of a child, since both
       charges require proof that I touched my daughter’s organ with my mouth.

       I did not understand that pleading “no contest” was legally the same as pleading
       guilty; I thought that “no contest” meant “not guilty,” and I never would have said
       that I was guilty. I did not know whether the State was lowering the charges from
       continuous sexual abuse to aggravated sexual assault because I said “no contest”
       instead of “not guilty.” I did not fully understand the different possibilities for
       punishment in continuous sexual abuse, aggravated sexual assault, or any lower
       offense. I was not informed about the different possibilities for probation or
       parole eligibility.

       An affidavit by Alonzo’s trial counsel was also attached to the motion for new trial. The

affidavit consists of three and one-half single-spaced pages in which counsel addresses, in detail,

each of Alonzo’s specific complaints regarding his representation. Counsel found Alonzo to be

well-spoken, he indicated that they communicated well, and counsel believed that pleading no

contest was beneficial to Alonzo.      He provided Alonzo with the relevant information and

guidance, and he believed that in waiving his rights and entering his plea, Alonzo acted

knowingly, intelligently, and voluntarily.

       Counsel’s affidavit states his belief that Alonzo understood that if he was convicted of the

original charge, he faced a minimum sentence of twenty-five years’ confinement without the

possibility of parole. Counsel further opines that Alonzo understood that if he accepted the

State’s plea agreement, he could be found not guilty and that he would be eligible for parole if

found guilty of the lesser charge. According to counsel, the plea agreement was “his only chance




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for [deferred adjudication] community supervision.” 6 The nature of the plea, the proceeding, and

the potential punishment ranges were also discussed during the trial, and Alonzo said he

understood.

          Counsel admitted that Alonzo did not consider the court records regarding his divorce

from J.F.’s mother in making his decision because counsel was unaware that a divorce decree

existed until after the first two days of the trial. 7 After the court allowed the defense to reopen its

case, counsel used the divorce decree, rather than a transcript, to question J.F.’s mother about her

denials of any abuse during the family court proceeding. Considering the numerous other

grounds upon which to attack her credibility, counsel did not “believe that this was that strong of

a defensive point.”

         As “the sole fact-finder and judge” of the credibility and weight of each piece of

evidence, whether presented “during live testimony” or “in affidavits,” the trial court is “within

its right to disbelieve” any of the “assertions upon which [the] appellant’s claims of ineffective

assistance of counsel are based,” so long as the basis for that disbelief is supported by at least

one “reasonable view of the record.” Riley v. State, 378 S.W.3d 453, 459 (Tex. Crim. App.

2012) (holding trial court had broad discretion to disbelieve defendant’s claim he would not have

pled guilty but for counsel’s error); Charles v. State, 146 S.W.3d 204, 208, 212 (Tex. Crim. App.

2004).    This is true even in the absence of controverting evidence, affidavit or otherwise.


6
 After having seen the evidence, he would have rather urged Alonzo to plead not guilty to the original charge
because the credibility of the State’s three primary witnesses, J.F., J.F.’s mother, and a therapist, “was suspect.”
7
 Alonzo told counsel that he was never legally married to the woman, but he failed to inform counsel that he had
been in a Dallas district court in a divorce proceeding. Alonzo remembered his “‘wife’ had tried to give him some
sort of papers, but he wasn’t sure where they were.”
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Charles, 146 S.W.3d at 210. Because claims of ineffective assistance of counsel involve mixed

questions of law and fact that often “contain[ ] ‘subsidiary questions of historical fact, some of

which may turn upon the credibility and demeanor of witnesses,’” an appellate court should

review the trial court’s rulings on the matter “for an abuse of discretion, reversing only if the trial

judge’s ruling was clearly erroneous and arbitrary[,]” such as when “no reasonable view of the

record could support the trial court’s ruling.” Riley, 378 S.W.3d at 457–58 (quoting Kober v.

State, 988 S.W.2d 230, 233 (Tex. Crim. App. 1999)).

       In his affidavit and motion, Alonzo contended that, but for counsel’s errors, he would not

have pled no contest and would have insisted on going to trial. Having heard the testimony,

issues, and arguments at trial and being the sole judge of the weight, credibility, and demeanor of

Alonzo and his counsel, the court could have reasonably found Alonzo’s contention to be

improbable because there is strong evidence from the proceedings that Alonzo’s primary concern

was avoiding the mandatory twenty-five-year prison sentence that accompanies a conviction for

continuous sexual abuse of a child. See id. at 459. While Alonzo arguably satisfies the first

prong of Strickland, based upon the testimony and affidavits, the trial court could have

reasonably determined that Alonzo failed to satisfy the second prong by failing to prove a

reasonable probability that counsel’s errors prejudiced his plea decision. See Strickland, 466

U.S. at 689; Hill, 474 U.S. at 59. Accordingly, the trial court could have reasonably concluded

that the affidavits failed to “establish reasonable grounds showing the defendant could

potentially be entitled to relief.” Hobbs, 298 S.W.3d at 199. Because one reasonable view of the

record supports the trial court’s decision, the trial court was within its broad discretion to deny

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Alonzo a hearing. Accordingly, we overrule this point of error. See Riley, 378 S.W.3d at 459;

see also Hill, 474 U.S. at 59; Moody, 991 S.W.2d at 857–58; Kober, 988 S.W.2d at 232.

V.       Modification of the Judgment to Reflect Alonzo’s Plea

         In his fifth and final point of error, Alonzo contends that the judgment should be

modified to reflect his plea of “no contest.” We agree.

         We have the authority to modify a judgment to make the record speak the truth when the

matter has been called to our attention by any source. French v. State, 830 S.W.2d 607, 609

(Tex. Crim. App. 1992). Our authority to modify incorrect judgments neither depends on the

request of any party nor turns on a question of whether a party has or has not objected in the trial

court; we may act sua sponte and may have a duty to do so. Asberry v. State, 813 S.W.2d 526,

531 (Tex. App.—Dallas 1991, pet. ref’d); see French, 830 S.W.2d at 609. Rule 43.2 of the

Texas Rules of Appellate Procedure also provides direct authority for this Court to modify a trial

court’s judgment. TEX. R. APP. P. 43.2.

         Here, the judgment incorrectly indicates that Alonzo pled “not guilty” to the alleged

offense. The record clearly establishes that Alonzo pled no contest. Accordingly, we modify the

judgment to reflect Alonzo’s plea of no contest to the offense of aggravated sexual assault of a

child.




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      As modified, we affirm the trial court’s judgment.



                                                           Ralph K. Burgess
                                                           Justice

Date Submitted:     January 9, 2015
Date Decided:       March 13, 2015

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