                                    NO. 07-08-0095-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                  AUGUST 6, 2008
                          ______________________________

                                   VICTOR GRAJEDA,

                                                          Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                 Appellee
                        _________________________________

            FROM THE 84TH DISTRICT COURT OF OCHILTREE COUNTY;

                   NO. 4168; HON. WILLIAM D. SMITH, PRESIDING

                          _______________________________


                                  Memorandum Opinion

                          ______________________________

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

       Victor Grajeda (appellant) plead guilty to driving while intoxicated without the benefit

of a plea agreement before the trial court. The court found him guilty and assessed

punishment at six years in prison. Subsequently, appellant filed a motion for new trial and

claimed ineffective assistance of counsel. A hearing was held and at the close of the

hearing, the motion was denied. Appellant now contends that 1) the trial court erred in
denying his motion for new trial and 2) he received ineffective assistance of counsel. We

affirm.

                        Issues One and Two - Motion for New Trial

          Again, through his two issues, appellant contends that he received ineffective

assistance of counsel.        This is allegedly so because 1) he was unaware of the

consequences of his guilty plea including the possibility of his imprisonment, 2) trial

counsel failed to contact or call witnesses to testify on appellant’s behalf, and 3) trial

counsel failed to introduce any evidence on appellant’s behalf except for medical records.

          We are not the first to consider appellant’s assertion of ineffective assistance. As

the record discloses, the trial court too had that opportunity via the motion for new trial.

Moreover, upon hearing evidence and argument of both appellant and prosecutor, it

decided to deny the motion. So, because appellant is effectively asking us to review the

trial court’s decision viz that motion, we recognize that the standard of review is one of

abused discretion. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006) (stating

that an appellate court reviews the trial court’s decision to deny a new trial under the

standard of abused discretion). This in turn means that to the extent the decision rests on

such matters as the resolution of conflicts within the evidence, the development of

reasonable inferences of fact from the evidence presented, and the consideration of a

witness’ credibility, we are not without limitations. Indeed, authority obligates us to defer

to the manner in which the trial court resolved those conflicts or found a witness’ testimony

credible. Id. Nor are we able to supplant our views for those of the trial court, so long as

its decision finds support in the record.



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       Simply put, if the tenor of the evidence before the trial court would allow reasonable

minds to disagree as to the ultimate facts, then the trial court’s decision fell within that zone

of reasonable disagreement. If it did that, then it did not abuse its discretion in denying

appellant a new trial. And, that is the situation here.

       First, regarding appellant’s contentions that he did not know or understand the

consequences of entering his guilty plea and that counsel did not inform him of the

possibility of being imprisoned, the trial court could well have found the testimony to that

effect incredible. As West Texans are prone to say, “this was not his first rodeo.” He had

three prior felony convictions and four misdemeanor convictions. Of those seven, five were

for operating a motor vehicle while intoxicated. The pre-sentence report tendered into

evidence also revealed that appellant had served some jail time as a result of one or more

of those convictions as well as probation. To this we add appellant’s testimony that he

spoke with two lawyers in addition to his ultimate trial attorney and that the first two lawyers

he spoke with told him that he would “not” receive probation and that he was going to go

to jail. So too is there evidence in the record indicating that appellant contradicted some

of his own testimony. The latter circumstance, coupled with his experience with the

criminal justice system, his prior convictions for driving while intoxicated, his prior terms in

jail due to one or more of those convictions, and his discussions with lawyers who told him

he was going to jail, provided the trial court with basis to discredit his allegations that he




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knew neither the effect of his guilty plea nor the possibility that he would be imprisoned.

In other words, the trial court could have legitimately chosen not to believe appellant.1

        Second, regarding the allegation about trial counsel’s failure to interview and seek

favorable witnesses or present favorable evidence, trial counsel did not testify at the

hearing. So, we are left to guess about the motives and efforts, if any, he actually had or

made with regard to the discovery of evidence favorable to appellant. This is problematic

because we generally are to presume that counsel had legitimate trial strategies for doing

what he did. Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007). And, while it

may be that counsel and appellant did not speak about the existence of favorable

evidence, that does not necessarily mean that counsel made no effort to find any.

        Third, and most importantly, appellant had to show not only that trial counsel erred

but also that the errors caused him to suffer prejudice. Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). From the tenor of the record before us, the

trial court may well have concluded that the second element went unproven. Again,

appellant was the subject of seven prior convictions, five of which involved his driving while

intoxicated. And, though he had received probation and opportunity to correct his behavior

in the past, that did not seem to dissuade him from continuing to engage in criminal

conduct. Moreover, of the several witnesses he called at the hearing on the motion for new

trial, most if not all talked about how good a neighbor, father, husband or worker he was.

Yet, it would not be unreasonable for the trial court to conclude that despite appellant being


        1
          And, even if appellant’s third attorney opined that he could secure probation for appellant and his
efforts were unsuccessful, that does not necessarily give rise to a claim of ineffective assistance. See Flores
v. State, 18 S.W .3d 796 (Tex. App.–Austin 2000, no pet.) (holding that a defendant's reliance on his attorney's
professional opinion does not render a guilty plea involuntary).

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a “good” person, receiving minimal punishment or probation would not cause him to

permanently change his ways.        Simply put, the record contained basis upon which

reasonable minds could differ on whether the purported errors committed by trial counsel

affected appellant’s conviction and punishment in any way. Thus, we cannot say that the

trial court’s decision to reject appellant’s claim of ineffective assistance fell outside the

zone of reasonable disagreement or evinced an instance of abused discretion.

       Accordingly, we overrule each of appellant’s issues, reject the proposition that the

trial court erred in denying appellant a new trial due to trial counsel’s purported ineffective

assistance, and affirm the trial court’s judgment. Furthermore, we deny the State’s motion

to dismiss as moot.


                                                  Brian Quinn
                                                  Chief Justice



Do not publish.




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