Opinion issued April 25, 2013




                                  In The

                            Court of Appeals
                                 For The

                        First District of Texas

                            NO. 01-11-00692-CR
                            NO. 01-11-00693-CR

            LORENZO DARNELL WASHINGTON, Appellant
                                    V.
                     THE STATE OF TEXAS, Appellee

                  On Appeal from the 182nd District Court
                           Harris County, Texas
                 Trial Court Cause Nos. 1177840 & 1204237
                         MEMORANDUM OPINION

      Appellant, Lorenzo Darnell Washington, pleaded guilty to two separate

offenses of aggravated sexual assault,1 and the trial court assessed his punishment

at confinement for forty years for each offense with the sentences to run

concurrently. In his sole issue, appellant contends that he received ineffective

assistance of counsel.

      We affirm.

                                  Background

      Appellant, while represented by counsel, Ronald Ray, pleaded guilty to

committing the offenses of aggravated sexual assault against the first complainant

on July 13, 20082 and the second complainant on May 19, 2006.3          In his plea

papers in the case regarding the first complainant, appellant admitted that he had

intentionally and knowingly caused the penetration of her sexual organ by placing

his sexual organ in her sexual organ without her consent, compelled her to submit

by the use of physical force and violence, and placed her in fear of imminent death

and kidnapping. In his plea papers in the case regarding the second complainant,

appellant admitted that he had intentionally and knowingly caused the penetration


1
      See TEX. PENAL CODE ANN. § 22.021 (Vernon Supp. 2012).
2
      Trial court cause number 1177840; appellate cause number 01-11-00692-CR.
3
      Trial court cause number 1204237; appellate cause number 01-11-00693-CR.

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of her sexual organ by placing his sexual organ in her sexual organ without her

consent, compelled her to submit by the use of physical force and violence, and

placed her in fear of imminent death. In his written plea agreements in both cases,

appellant acknowledged that he was entering his pleas “without an agreed

recommendation,” there would be a pre-sentence investigation (“PSI”) report, and

his punishment would be “limited to” confinement for forty years. Ray signed the

agreements, affirming that he believed that appellant was competent to stand trial

and had executed the pleas knowingly and voluntarily and after a full discussion of

the consequences.

      The trial court signed the plea agreements in both cases, stating that it had

admonished appellant of the consequences of his pleas and had ascertained that

appellant entered his pleas “knowingly and voluntarily and after discussing the

case(s) with his attorney.” The trial court noted that appellant appeared “mentally

competent,” his pleas were entered “free[ly] and voluntar[ily],” and his attorney

was “competent” and had “effectively represented” appellant. Additionally, the

trial court, in both cases, provided appellant with written admonishments, which

were signed by appellant and provided, among other things, that appellant was

pleading guilty to the offenses of aggravated sexual assault, the punishment range

for the offenses was confinement for “25 years to life,” and the State and appellant

had “agreed to a 40 year cap.”        In signing these admonishments, appellant

                                         3
represented that he was mentally competent, understood the allegations and the

nature of the proceedings, was freely and voluntarily pleading guilty, had read and

understood the admonishments, and had consulted his attorney.

       Prior to appellant’s sentencing, a PSI report was prepared, reciting the facts

of both offenses, setting forth appellant’s “written statement” and the first

complainant’s victim-impact statement, listing appellant’s prior criminal record

and narcotics use, and describing his family, education, and employment history.

The report contains appellant’s statements, made during a personal interview, that

he wanted to take his cases to trial, he was not mentally stable when he entered his

guilty pleas, and he had had “consensual sex” with the second complainant. The

report also contains information that appellant had noted that he had been

diagnosed “with bi-polar [disorder] and schizophrenia in 2008 or 2009,” jail

records listed “bipolar disorder as his diagnosis,” “his skull [had been] fractured in

2009 when he was hit in the head” while in custody, and he had “quit taking

psychotropic medications after he pled to his PSI because they interfered with his

ability to think clearly.”

       The trial court conducted a sentencing hearing at which it noted that it had

reviewed the PSI report. At the hearing, Ray represented that “we’ve reviewed the

report” and stated that he had “no corrections or objections.” During closing

arguments on punishment, Allie Booker, an attorney who also represented

                                          4
appellant, asked the trial court to consider the fact that appellant “has problems”

and that he be provided “some help in jail” for “rehabilitation.” Finding appellant

guilty and imposing a sentence of confinement for forty years in each case to run

concurrently, the trial court entered its judgments in both cases on August 4, 2011.

      On September 2, 2011, appellant filed in both cases a new-trial motion,

arguing that his pleas were “not freely and voluntarily made” because he received

“ineffective assistance,” he suffered from “mental illness,” and there was a breach

of an “agreement on sentencing.” He asserted that his trial counsel had incorrectly

advised him about “the results of DNA testing performed prior to his guilty plea,”

he had pleaded guilty “in reliance on the erroneous information,” and he would not

have entered a guilty plea had he been advised correctly. Appellant also asserted

that he had been diagnosed “as suffering from schizophrenia, bipolar disorder, and

brain trauma”; he suffered from “blackouts and cognitive disorder”; and his trial

counsel “failed to investigate [his] mental health history,” “raise the issue of [his]

sanity and competency to stand trial,” and “present evidence of mental illness as

mitigation at his sentencing hearing.” He further asserted that although his trial

counsel had advised him that the State had agreed to a sentencing range of

confinement for fifteen to forty years, he was later admonished that the trial court

would consider a sentence of confinement for between twenty-five and forty years.




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      Appellant attached to his new-trial motion an affidavit, in which he testified,

in pertinent part,

      My wife paid for some DNA testing at a[n] Independent DNA Lab.
      [Ray] took care of everything himself. When the results came in, he
      told me that the DNA didn’t say that I was the person that committed
      the crime. I was being told this for about a year, then on the day that I
      was set to go to trial he told me that the DNA did match me. I was
      given false information about the most important/the only evidence in
      my case. If I would have known the truth about the DNA results, I
      would have not pled guilty. I would have been able to get things
      investigated and I would have been able to discover the truth about
      everything. [Ray’s] mistake prevented me from being able to defend
      myself. . . .

He further testified that he is a “mental health patient,” having been diagnosed with

“bi-polar and schizophrenic disorders,” he suffered a “serious head injury” during

an aggravated assault while incarcerated, his skull was fractured, he had been

hospitalized multiple times and suffered from blackouts and memory losses, and he

was “not fit to make complex or serious decisions without being given special

attention or being given excessive details in advance.”

      The trial court initially denied appellant’s new-trial motion without

conducting an evidentiary hearing, and, in his initial briefing to this Court, he

contended that the trial court erred in denying his request for an evidentiary

hearing. Accordingly, we issued an order, 4 abating the appeal and remanding the


4
      See Washington v. State, No. 01-11-00692-CR, 2012 WL 2512717 (Tex. App.—
      Houston [1st Dist.] June 28, 2012, no pet.).

                                          6
case to the trial court to conduct an evidentiary hearing on appellant’s new-trial

motion.

      At the hearing on appellant’s new-trial motion, appellant testified that on the

day the cases were originally set to go to trial, Ray informed him that, in one of the

two sexual-assault cases, DNA testing excluded appellant as a donor of DNA

recovered from the scene of the offense and appellant would not have pleaded

guilty in that case had he known of the negative result in the DNA testing. Ray

also informed him that if he pleaded guilty to the offenses, the range of punishment

would be confinement for fifteen years to life in both cases. However, in one of

the cases, the range of punishment was confinement for twenty-five years to life.

Appellant further testified that he had previously been treated for “schizophrenia

and bipolar” while in jail, but he did not remember Ray asking him about his

mental health history or requesting a psychiatric evaluation; and he believed that if

Ray had investigated his mental health history, he “might not have entered a plea

of guilty in both cases.”

      On cross-examination, appellant conceded that he did not know “exactly”

how a mental health investigation would have impacted his plea decision, but he

explained that it could have aided him regarding punishment. Appellant did not

know that the PSI report indicated that although he had stated that he had been

diagnosed as “bipolar [with] schizophrenia,” he had not been diagnosed with

                                          7
schizophrenia. And he noted that although the plea admonishments, which he

signed, indicated the correct sentencing range for the instant offenses, he did not

understand the admonishments due to “comprehension problems.” In regard to the

DNA testing, appellant clarified that Ray had first informed him that the DNA

testing was “inconclusive.” However, on the day that appellant was set to go to

trial, Ray told him that he “must have misunderstood” the DNA results, which

indicated a “possibility” that appellant’s DNA was found at the scene.

      In regard to the DNA testing, Ray testified as to his recollection that the

testing in one case did not exclude appellant as a donor while the testing in the

other case did exclude appellant as a donor. And appellant, who was already

aware of the fact that one of the DNA tests did not exclude him as a donor, asked

Ray to obtain a second, independent DNA test, which only confirmed that

appellant could not be excluded as a donor. Thus, there were no “surprises or

changes” regarding the DNA testing on the day that appellant pleaded guilty.

      Ray explained that in trial court cause number 1204237, the State agreed to

abandon an enhancement paragraph and lower the agreed sentencing range to

confinement for fifteen to forty years; in trial court cause number 1177840, the

sentencing range remained at confinement for twenty-five to forty years. Ray

reviewed with appellant the plea agreement and admonishments, which set out the

punishment range in each case. And appellant did not appear to be confused or to

                                         8
misunderstand the admonishments when he signed the plea agreement. On cross-

examination, Ray testified that he did not recall whether he explained to appellant

that a “positive” DNA testing result would not be “dispositive” if there was

“evidence of consent.” However, Ray stated that he “was never told that this was a

consensual sexual relation.”

      Booker testified that she spoke to appellant about the DNA testing results

and he was aware that one DNA test implicated him in the offense at the time he

pleaded guilty. Appellant stated that he did not commit the offenses, but he did not

suggest that he had had any consensual sexual relations with the complainants.

And Booker also maintained that both she and Ray had explained the accurate

applicable punishment ranges in both cases to appellant.

      After the hearing, the trial court made the following oral findings:

      Specifically with regard to the DNA information, I will find that the
      defendant was not given any false information and that the
      information that was given to him was not new or different on the date
      of the plea. And that’s based on the testimony of both of the attorneys
      that testified.

      With regard to the mental health allegation, the Court will find that
      there’s not any newly discovered evidence with regard to that, that it
      was available at the time of the plea and at the time of the P.S.I.
      hearing because it is mentioned in the Pre-Sentence Report.

      And then, thirdly, I will find that the defendant was appropriately
      admonished with regard to the ranges of punishment. His own
      testimony is that he has some college background. Clearly seems to
      be bright and understands what’s going on in the courtroom and
      obviously did at the time that I took the plea or I would not have taken
                                         9
      the plea. I did admonish him with regard to all of the consequences of
      punishment, and he clearly indicated that he understood everything or
      the Court would not have accepted the plea and gone forward. Again,
      I don’t believe that the defendant was confused at the time of the plea,
      and I think that he knew what he was doing and entered that plea
      voluntarily.

      Finally, I guess it sort of goes without saying, I don’t find that the
      lawyers were ineffective in any or that [their] conduct was deficient.

After the hearing, the trial court denied the new-trial motion. We reinstated this

appeal, and appellant then filed a supplemental brief, contending that the trial court

abused its discretion in denying his new-trial motion.

                                Standard of Review

      In order to prove an ineffective-assistance-of-counsel claim, appellant must

show that his trial counsel’s performance fell below an objective standard of

reasonableness and, but for counsel’s unprofessional error, there is a reasonable

probability that 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);

Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). 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 his performance falls

within the wide range of reasonable professional assistance or trial strategy.

                                         10
Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006); Thompson v.

State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A failure to make a showing

under either prong defeats a claim of ineffective assistance. Rylander v. State, 101

S.W.3d 107, 110 (Tex. Crim. App. 2003).

      Generally, we review a trial court’s denial of a new-trial motion under an

abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim.

App. 2001). However, the United States Supreme Court has expressly held that

“both the performance and prejudice components of the ineffectiveness inquiry are

mixed questions of law and fact.” Strickland, 466 U.S. at 698, 104 S. Ct. at 2070.

Accordingly, “where the trial court ‘is not in an appreciably better position’ than

the appellate court to decide the issue, the appellate court may independently

determine the issue while affording deference to the trial court’s findings on

subsidiary factual questions.” Villareal v. State, 935 S.W.2d 134, 139 (Tex. Crim.

App. 1996) (McCormick, P.J., concurring) (citing Miller v. Fenton, 474 U.S. 104,

110–17, 106 S. Ct. 445, 450–53 (1985)); see Kober v. State, 988 S.W.2d 230, 233

(Tex. Crim. App. 1999).      Yet, the trial court remains in the best position to

“evaluate the credibility” of the witnesses and resolve such conflicts. Kober, 988

S.W.2d at 233; see Strickland, 466 U.S. at 698, 104 S. Ct. at 2070. And, acting as

fact-finder, it can choose to believe or disbelieve all or any part of the witnesses’




                                         11
testimony. See Johnson v. State, 169 S.W.3d 223, 239–40 (Tex. Crim. App. 2005);

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

                         Ineffective Assistance of Counsel

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

new-trial motion because his guilty plea was “not freely and voluntarily made” due

to ineffective assistance of counsel and trial counsel’s failure “to investigate and

offer evidence of his history of mental illness.”

Voluntariness of Plea

      Appellant first complains that had his trial counsel “adequately and timely

communicated the implications of the DNA test results, . . . it is reasonably

believable that [he] would not have entered guilty pleas in one or both cases,” and

had trial counsel “adequately and timely explained the range of punishment, it is

reasonably believable [that he] would not have entered guilty pleas.”

      In determining whether a plea was made voluntarily, we consider the record

as a whole. Fimberg v. State, 922 S.W.2d 205, 207 (Tex. App.—Houston [1st

Dist.] 1996, pet. ref’d) (citing Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim.

App. 1975)). A record that indicates that a trial court properly admonished the

defendant presents a prima facie showing that the defendant’s guilty plea was

made voluntarily and knowingly. Arreola v. State, 207 S.W.3d 387, 391 (Tex.

App.—Houston [1st Dist.] 2006, no pet.) (citing Martinez v. State, 981 S.W.2d

                                          12
195, 197 (Tex. Crim. App. 1998)).         When the record presents a prima facie

showing that the plea was made voluntarily and knowingly, the burden shifts to the

defendant to show that he entered the plea without understanding the consequences

of it. Id. (citing Edwards v. State, 921 S.W.2d 477, 479 (Tex. App.—Houston [1st

Dist.] 1996, no pet.). An accused who attests when he enters his plea of guilty that

he understands the nature of his plea and it was voluntarily made has a heavy

burden on appeal to show that his plea was made involuntarily. Id. However, a

guilty plea is not voluntarily made if made as a result of ineffective assistance of

counsel. Ex parte Niswanger, 335 S.W.3d 611, 614–15 (Tex. Crim. App. 2011).

      In regard to determining whether counsel was ineffective where a defendant

has pleaded guilty, we note that the voluntariness of the defendant’s plea depends

on (1) “whether counsel’s advice was within the range of competence demanded of

attorneys in criminal cases,” and if not, (2) “whether there is a reasonable

probability that, but for counsel’s errors, [the defendant] would not have pleaded

guilty and would have insisted on going to trial.” Ex parte Moody. 991 S.W.2d

856, 857–58 (Tex. Crim. App. 1999) (quoting Ex parte Morrow, 952 S.W.2d 530,

536 (Tex. Crim. App. 1997)).

      In regard to the DNA testing results, appellant presented conflicting

testimony. He first testified that Ray did not inform him that the DNA testing

result for one of the offenses was negative until the day he was initially set to go to

                                          13
trial. However, he later testified that “way before the plea” he was aware of the

negative DNA testing result. He explained that he was confused as to whether the

positive DNA result implicated him in regard to the pertinent offense. More

importantly, Ray testified that appellant was fully aware of the DNA testing results

in both cases, specifically noting that appellant was aware of the positive result

because that was the result that his family had asked to be retested. Ray explained

that the only “new” information received on the day of the plea concerned the

results of the retest, which simply confirmed the previous positive DNA testing

result. And Booker testified that she had “lengthy conversations” with appellant,

fully explaining the DNA testing results and their implications. Here, the trial

court acted within its discretion in believing the testimony of Ray and Booker that

they adequately informed appellant of the DNA testing results. See Kober, 988

S.W.2d at 233. As a result, it could have reasonably concluded that counsels’

advice regarding the DNA testing results was within the range of competence

demanded of attorneys. See Moody, 991 S.W.2d at 857–58.

      In regard to sentencing, appellant testified that he believed that the range of

punishment in both cases was confinement for fifteen to forty years and he did not

realize that the range in cause number 1177840 was confinement for twenty-five to

forty years. He also testified that he was “bipolar,” had not been receiving all of

his medications at the time of his guilty plea, and, as a result, did not fully

                                         14
understand the consequences of his plea. He further testified that he had difficulty

reading the plea documents. However, as noted above, appellant did sign the

written admonishments in cause number 1177840, which indicated that the

punishment range was confinement for twenty-five to forty years. Thus, the record

presents a prima facie showing that appellant entered his plea knowingly and

voluntarily, and he faces a “heavy burden” to demonstrate otherwise. See Arreola,

207 S.W.3d at 391.

      Ray testified that he persuaded the State to drop an enhancement paragraph

in cause number 1204237, reducing the minimum sentence to confinement for

fifteen years, but the minimum punishment in the other cause number remained at

twenty-five years. He explained the correct punishment range in both cases to

appellant before appellant signed the admonishments, and appellant did not appear

“confused” when he signed the admonishments. Booker also testified that both she

and Ray explained the applicable punishment ranges to appellant. And, although

appellant testified that he did not understand the admonishments due to mental

health issues and an inability to read, the trial court specifically noted that

appellant had some college background, appeared to be “bright,” and “clearly”

understood the consequences of his plea. The trial court simply could have chosen

to believe the testimony of Ray and Booker and disbelieve the testimony of

appellant, and it could have reasonably concluded that counsels’ advice regarding

                                        15
the punishment range was within the range of competence demanded of attorneys.

See Kober, 988 S.W.2d at 233; Moody, 991 S.W.2d at 857–58.

      Accordingly, we hold that the trial court did not abuse its discretion in

denying appellant’s new-trial motion on the ground that he entered his plea of

guilty involuntarily.

Mental Health Evidence

      Appellant next argues that the trial court erred in denying his new-trial

motion because trial counsel “failed to investigate and present mitigating evidence

that [he had] suffered a fractured skull” and “may have suffered cognitive injuries

as a result.”   He asserts that trial counsel failed “to investigate and present

substantive evidence of [his] history of mental illness.”

      Here, the PSI report indicates that appellant “went to a mental health clinic

all the time” as a child. It also states that although appellant claimed he had been

diagnosed as “bipolar [with] Schizophrenia,” jail medical records revealed only

“bipolar disorder” as a diagnosis. The PSI report also indicates that appellant had

reported that his skull was fractured in 2009. And the trial court noted that it had

reviewed the PSI report before the hearing. In her closing statement, Booker asked

the trial court to impose “the lower end of the sentencing range” so that appellant

could “get some help in jail that will help him.” Although appellant argues that

trial counsel should have presented expert testimony regarding his mental health

                                          16
issues, he does not identify what evidence an expert could have presented beyond

what was already before the trial court. See, e.g., Brown v. State, 334 S.W.3d 789,

803 (Tex. App.—Tyler 2010, pet. ref’d) (“[T]he failure to request the appointment

of an expert witness is not ineffective assistance in the absence of a showing that

the expert would have testified in a manner that benefitted the defendant.”); see

also Granados v. State, No. 01-10-00547-CR, 2011 WL 5026406, at *5 (Tex.

App.—Houston [1st Dist.] Oct. 20, 2011, pet. ref’d) (“We will not hold that

counsel was ineffective for failing to request the appointment of an expert when

the record does not demonstrate that the expert would have benefitted appellant’s

defense.”). From this record, we cannot conclude that trial counsel was deficient

in not presenting any mental health evidence beyond that which was already before

the trial court.

       Accordingly, we hold that the trial court did not abuse its discretion in

denying appellant’s new-trial motion on the ground that his trial counsel was

deficient in not presenting mental health evidence from an expert witness.

       We overrule appellant’s sole issue.




                                         17
                                   Conclusion

      We affirm the judgment of the trial court.




                                             Terry Jennings
                                             Justice

Panel consists of Justices Jennings, Bland, and Massengale.

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




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