Affirmed and Memorandum Opinion filed November 8, 2016.




                                      In The

                      Fourteenth Court of Appeals

                              NO. 14-15-00330-CR

                      SYLVIA MARIE COLLINS, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 178th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1390220

                  MEMORANDUM OPINION

      Appellant, Sylvia Marie Collins, appeals her conviction for aggravated
assault with a deadly weapon. In two issues, appellant contends the trial court
erred by denying appellant’s motion for new trial based on ineffective assistance of
counsel. We affirm.

                                 I. BACKGROUND

      Appellant pleaded guilty to aggravated assault with a deadly weapon,
namely an unknown object—a second-degree felony—without a recommendation
as to punishment, which was a range of two to twenty years’ confinement.
Appellant filed a motion requesting community supervision. The trial court then
conducted a Presentence Investigation (“PSI”) hearing on punishment.

      At the hearing, the State presented, inter alia, the PSI report from the
county’s community-supervision department and the complainant’s testimony.
According to the State’s evidence, on May 26, 2013, the seventeen-year-old female
complainant was involved in an altercation with appellant’s aunt, apparently
regarding allegations they were both dating the same man.        Later that night,
complainant was walking along a road with that man and another companion when
a car driven by appellant swerved and struck complainant, pushing her into a ditch.
Appellant’s cousin (the aunt’s daughter) exited the passenger side of the car and
started a fist fight with complainant. Appellant then exited the car and stabbed
complainant seven times—in her abdomen, back, and legs—while repeatedly
exclaiming, “Die bitch, die.”       Appellant and the cousin then sped away.
Complainant required surgery and therapy, can no longer bear children, and suffers
lingering emotional effects from the attack.

      Appellant testified at the PSI hearing and presented a different version of
events, as follows. Complainant and her boyfriend were fighting with appellant’s
cousin in appellant’s yard after some earlier altercation. Appellant noticed that
complainant had a knife, so appellant attempted to break up the fight. When
appellant tried to take the knife away, complainant kicked appellant, who was
seven-months pregnant, in the stomach. Appellant took the knife and stabbed
complainant because appellant thought complainant was trying to harm appellant’s
baby. The boyfriend returned to help complainant, and appellant went in the
house. Appellant denied saying “Die bitch, die” or entering her car during this

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incident.    Appellant expressed regret about injuring complainant, requested
probation for the sake of appellant’s children, and stated she planned to speak at
her church to persuade other youths to avoid trouble.

      After hearing the evidence, the trial court denied appellant’s application for
community supervision and sentenced her to eight years’ confinement. Appellant
filed a motion for new trial, claiming she received ineffective assistance of
counsel.    After a hearing, at which the parties presented affidavits and other
exhibits but no live testimony, the trial court denied the motion.

                                    II. ANALYSIS

      In two issues, appellant contends the trial court erred by denying the motion
for new trial because trial counsel was ineffective with respect to the plea and
sentencing procedures. To prevail on an ineffective-assistance claim, a defendant
must prove (1) counsel’s representation fell below the objective standard of
reasonableness, and (2) there is a reasonable probability that, but for counsel’s
deficiency, the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 687–88, 694 (1984). We indulge a strong presumption
that counsel’s conduct fell within the wide range of reasonable assistance. Jackson
v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).                 To defeat this
presumption, “[a]ny allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness.”
See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

      When a defendant asserts ineffective assistance in a motion for new trial, we
review the trial court’s denial of the motion for abuse of discretion. Parker v. State,
462 S.W.3d 559, 562 (Tex. App.—Houston [14th Dist.] 2015, no pet.). We view
the evidence in the light most favorable to the ruling and reverse only if no
reasonable view of the record could support the ruling. Id. We review de novo the
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trial court’s decision on the prejudice prong while giving deference to the trial
court’s implied resolution of the underlying factual determinations supporting
denial of the motion even when based solely on affidavits. See Riley v. State, 378
S.W.3d 453, 457 (Tex. Crim. App. 2012); Parker, 462 S.W.3d at 562.

A.    Claim regarding advice relative to plea proceeding

      First, appellant contends her trial counsel was ineffective relative to the plea
proceeding by (1) advising appellant to reject a plea bargain for five years’
probation because counsel opined appellant would receive deferred adjudication
after a PSI hearing, and (2) failing to explain the open guilty plea that appellant
ultimately entered could result in prison time.       According to appellant, this
allegedly deficient advice rendered her plea involuntary because she would not
have rejected the plea bargain and entered the guilty plea if she had known she
might receive prison time.

      Initially, we note that in appellant’s written motion for new trial and at the
hearing thereon, she did not challenge counsel’s performance relative to any plea-
bargain offer or the guilty plea. Rather, appellant contended only that counsel was
ineffective with respect to the PSI hearing by failing to investigate and present
mitigating evidence.    Appellant’s only mention in the trial court regarding
counsel’s performance relative to the plea proceeding was a paragraph in
appellant’s affidavit attached to her motion for new trial and presented at the
hearing. Appellant averred,

      At the beginning of the case, I remember being offered a plea bargain
      of 5-years probation. [Counsel] told me that I didn’t need that felony
      on my record and that we should go for a PSI because she thought I
      would get deferred adjudication after a PSI hearing. She never told me
      that the judge could sentence me to prison time after a PSI. If she had,
      I would have taken the 5 years probation that had been offered.


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      At the hearing on the motion for new trial, the State presented an affidavit
from appellant’s trial counsel, who averred relative to the plea proceeding,

      Upon communicating with the Assistant District Attorney
      representing the State of Texas, I conveyed all offers made directly to
      [appellant] for her consideration. . . . The case was set for jury trial
      and after advising [appellant] of her offers, she decided to plea [sic]
      guilty to the Judge without an agreed recommendation, and allow the
      Judge to assess punishment. I recall filing a motion for community
      Supervision and the judge admonishing [appellant] that he would
      consider the full range of punishment. The full range of punishment
      included “Community Supervision.” I advised the client after the
      admonishment that it would be the Judge’s decision after the hearing
      on whether or not she would get “Community Supervision.” At the
      hearing I did verbally and on record request for “Community
      Supervision.” Therefore, before and after the PSI hearing I advised
      her of the range of punishment and that there was no guarantee that
      the Judge would grant her a [sic] probation. I also advised [appellant]
      that she had a right to have this case tried to a jury of her peers with
      all due process requirements being available to her. I discussed in full
      the various possible outcomes that would come from a trial, but
      [appellant] did not want to go to trial due to the risk of possible
      confinement. [Appellant] did not want to go to trial and wanted to
      plea guilty without and [sic] agreed recommendation. I advised
      [appellant] about the consequences of her plea and the nature of the
      pre-sentence investigation, and she indicated she wanted to move
      forward.
      On the date of the plea, I was present and went over all the plea papers
      with [appellant]. I again reiterated to her at that time that this matter
      was not yet final, and she could still go to trial. Ms. Collins again
      stated that she did not want to go to trial, and that she wanted to move
      forward with her plea.

The parties presented no other evidence concerning trial counsel’s performance
relative to the plea proceeding.      Assuming without deciding that appellant




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preserved her complaints of ineffectiveness regarding the plea offer and guilty
plea, we conclude appellant failed to establish ineffectiveness.1

       1.      Rejection of plea-bargain offer

       Except for appellant’s own averment, there is no other indication in the
record that she was offered a plea bargain calling for five years’ probation or any
reasons counsel advised appellant to reject such an offer, assuming it was made. In
her affidavit, trial counsel averred that she relayed all offers to appellant, but
counsel neither confirmed nor denied that there was an offer of five years’
probation.     As judge of witness credibility, the trial court was free to reject
appellant’s self-serving averments although they were uncontroverted. See Riley,
378 S.W.3d at 457; Melton v. State, 987 S.W.2d 72, 75 (Tex. App.—Dallas 1998,
no pet.). Moreover, an attorney’s prediction that a particular plea strategy is likely
to result in a lower sentence is not ineffective simply because it proves inaccurate.
Graves v. State, 803 S.W.2d 342, 345, 347 (Tex. App.—Houston [14th Dist.]
1990, pet. ref’d). Accordingly, appellant failed to prove counsel gave deficient
advice relative to any plea-bargain offer.

       2.      Advice on plea entered

       Appellant also maintains her plea was involuntary because she would not
have pleaded guilty if counsel had advised that the open plea could result in a

       1
         The State asserts appellant failed to preserve error on her complaint regarding counsel’s
purported advice to reject the plea bargain because appellant did not raise the issue in her motion
for new trial. The State cites a case holding that a defendant may challenge voluntariness of a
plea at any time. See Soto v. State, 837 S.W.2d 401, 404 (Tex. App.—Dallas 1992, no pet.).
Thus, the State suggests appellant may raise her complaint regarding counsel’s advice relative to
the open plea for the first time on appeal. But the State maintains the two complaints are
separate and that the first does not concern voluntariness of the plea ultimately entered. We need
not decide whether appellant was required to raise either complaint in her motion for new trial or
whether the mere mention in the affidavit satisfied such requirement because we conclude
appellant failed to prove ineffective assistance relative to both complaints.

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prison sentence. “A guilty plea is not knowing or voluntary if made as a result of
ineffective assistance of counsel.” Ex parte Moussazadeh, 361 S.W.3d 684, 689
(Tex. Crim. App. 2012). When a defendant enters a plea on advice of counsel and
subsequently challenges the voluntariness of that plea based on ineffective
assistance, the voluntariness issue 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 Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010).

      In counsel’s affidavit, the timing of some of her advice that appellant might
not receive probation is unclear if each averment is taken in isolation; for example,
counsel’s general statements that she gave such advice “after” the trial court’s
admonishments and “before” the PSI hearing do not make clear whether the advice
was given before appellant entered the plea. But, the collective import of the
averments and the plea documents is that counsel explained to appellant before she
entered her plea that community supervision was not guaranteed. Counsel averred
that on the date of the plea, she “went over” all the plea documents with appellant
and reiterated the matter was not yet final and appellant could still go to trial; those
documents included the trial court’s admonishment that the range of punishment
was two to twenty years’ confinement. Moreover, on the plea documents, counsel
attested her belief that appellant knowingly and voluntarily executed the
documents “after [counsel] fully discussed it and its consequences” with appellant.
At the hearing on the motion for new trial, the trial court was free to believe
counsel’s affidavit instead of appellant’s and rely on counsel’s attestation on the
plea documents.     Accordingly, appellant did not establish counsel performed



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deficiently by failing to inform appellant a prison sentence might result from her
open plea. We overrule appellant’s first issue.

B.    Complaint regarding potential mitigating evidence

      In her second issue, appellant argues her trial counsel was ineffective by
failing to investigate and present mitigating evidence during the PSI hearing.
Appellant contends she would have received a lesser punishment—deferred
adjudication, community supervision, or a shorter prison term—if trial counsel had
proffered evidence regarding appellant’s mental health and character.

      During her own testimony at the PSI hearing, appellant made two references
to her psychiatrist when describing her regret over the incident, but counsel did not
further elicit testimony regarding mental illness or its connection to the offense.
The PSI report, admitted at the PSI hearing, made several references to mental
health and more specifically that appellant has been treated by a psychiatrist every
two months since 2010 for Bipolar Disorder and Anxiety, is prescribed Seroquil
and Lexapro, and receives a monthly disability check because of these conditions.
However, no other evidence regarding mental health was offered at the PSI
hearing. Rather, appellant’s defense was to dispute the State’s version of the
incident, suggest she acted in self-defense when breaking up a fight between
others, and express remorse for her conduct.

      To support her motion for new trial, appellant submitted her own affidavit
and her mother’s affidavit. In her affidavit, appellant averred, in pertinent part:

      The first time I met with [trial counsel] I explained to her that I had
      been diagnosed with a mental illness in 2010 and had been prescribed
      psych meds that helped me control my symptoms. I also told her that I
      had voluntarily taken an outpatient class through IntraCare Behavioral
      Health Clinic that focused on teaching me how to control and cope
      with my mental illness. I told [trial counsel] that, under the advice of

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      my ob/gyn, I stopped taking my medications while I was pregnant. I
      also told [trial counsel] that when this incident happened, I was not on
      my meds and I felt that I could not control myself without the
      medications and that I felt that being off my psych meds contributed
      to this incident.

The mother’s affidavit generally reiterated appellant’s: appellant was withdrawn
until her psychiatrist found the right medication in 2012 and she began to act like
her “normal and happy self”; her obstetrician instructed her to cease the medication
while she was pregnant; the withdrawal made her “quick tempered”; she had never
been violent or in trouble before the incident at issue; and it would not have
occurred if she had been on medication. Appellant also submitted medical records
(which the trial court ordered sealed) and a letter from a doctor.

      In trial counsel’s affidavit, the only statement regarding an inquiry into
mitigating mental-health evidence was the following:

      I also spoke to [appellant] in regards to any other possible Medical
      Defenses. At that time, she said there were no known medical
      conditions. She stated she had been going to counseling after the
      charge for being depressed and stressed because of the charge and
      losing her job.
However, appellant maintains that based on the references in the PSI report and the
information purportedly provided by appellant, trial counsel should have been
alerted to appellant’s mental illness, obtained the records, and proffered evidence
regarding the mental illness at the PSI hearing.

      As appellant asserts, counsel did not present any character evidence at the
PSI hearing. To support her motion for new trial, appellant relied on her own
affidavit, her mother’s affidavit, and letters from her pastor and fellow church
members.     In appellant’s affidavit, she swore that (1) she gave counsel one
character letter plus a certificate reflecting steady employment, which were not

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part of the PSI, (2) appellant wanted to collect letters and present testimony from
numerous sources regarding appellant’s character and her support in the
community, and (3) appellant asked counsel to have appellant’s mother testify and
the mother was present and ready to testify.        In the mother’s affidavit, she
confirmed counsel’s office had prepared her to testify and she was present at the
PSI hearing and willing to testify that appellant is a good mother to her two
children, involved in her church and community, has maintained steady
employment, and has cared for an ailing relative. In their letters, the pastor and
church members collectively described appellant’s good character, devotion to her
children, and involvement in the church and community, and the support available
if she were given probation.

      Trial counsel’s affidavit is silent regarding any potential character evidence.
Counsel did not respond to appellant’s evidence by claiming she made a strategic
decision to forego presenting such evidence.

      The crux of appellant’s contention is that she would have received a lighter
sentence if counsel had presented mitigating evidence because it demonstrated the
offense was out of character for appellant and committed only because she had
withdrawn from medication that typically controlled her anger resulting from
mental illness. We need not decide whether counsel was deficient in failing to
investigate and present mitigating evidence because appellant did not establish she
was prejudiced by any such deficiency.

      To evaluate prejudice in the context of a failure to investigate or present
mitigating evidence, “‘we reweigh the evidence in aggravation against the totality
of available mitigating evidence.’” Washington v. State, 417 S.W.3d 713, 728
(Tex. App.—Houston [14th Dist.] 2013, pet ref’d) (quoting Wiggins v. Smith, 539
U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)).           We compare the

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evidence presented by the State with the evidence the trier of fact did not hear due
to counsel’s failure to investigate. Id. at 725.

       In this case, the State’s evidence at the PSI hearing demonstrated the offense
was egregious. Appellant and her cousin essentially ambushed complainant as she
walked down a road because of an earlier dispute between complainant and
appellant’s aunt. Appellant not only struck complainant with appellant’s car but
then while appellant’s cousin beat complainant, appellant stabbed complainant
multiple times, saying, “Die bitch, die.”             Complainant continues to suffer
emotional and physical damage from the assault, including the inability to bear
children. In fact, at the PSI hearing, the trial court orally remarked that it denied
community supervision because appellant’s actions were “totally egregious.”

       Even then, appellant’s sentence of eight years was on the lower end of the
range of punishment—two to twenty years.               Thus, the trial court could have
considered the evidence in the PSI report showing appellant has Bipolar Disorder
and Anxiety. Indeed, the trial judge remarked at the motion-for-new-trial hearing
that he took appellant’s mental-health issues into account in imposing the sentence.
We have reviewed the medical records and cannot conclude they would have
further mitigated the sentence; they do not add information to what the trial court
could have inferred during the PSI hearing from the fact that appellant has Bipolar
Disorder and Anxiety.2

       Appellant emphasizes that the PSI report did not demonstrate the “essential
fact” that appellant had no means to manage her disorders at the time of the offense
because she had withdrawn from her psychiatric medications due to her pregnancy.


       2
         As noted above, the medical records were sua sponte sealed by the trial court. Because
appellant did not object to that action and has not moved to unseal the records, we have not
discussed their content in this opinion.

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Appellant suggests the PSI report indicated appellant’s condition was controlled by
medication but further testimony would have disputed that notion. We disagree
that testimony from appellant or her mother regarding such alleged withdrawal
would have further mitigated the sentence. The PSI report indicated appellant was
prescribed medications for her disorders but did not reflect her disorders were
under control; instead, the report reflected that appellant suffered Bipolar Disorder
and Anxiety to the extent she was considered disabled and received a monthly
disability check. Consequently, we conclude the PSI report already served as
mitigating evidence by suggesting appellant had continual symptoms from her
disorders.

      We recognize appellant presented the one-sentence letter from her doctor
stating he had treated her since 2010 for Schizoaffective Disorder, for which she
takes medications. However, the doctor’s one-sentence statement did not include
any opinions regarding any symptoms appellant experienced separate from Bipolar
Disorder and Anxiety, whether she had withdrawn from medications at the time of
the offense, or the effects of any such withdrawal. Moreover, the doctor did not
state whether he would have been available to testify at the PSI hearing or the
substance of any such testimony relative to a connection between Schizoaffective
Disorder and the offense. See Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim. App.
2004) (stating party claiming ineffective assistance based on uncalled witness must
show witness had been available to testify and his testimony would have benefitted
the defense).

      Finally, the information regarding appellant’s character was somewhat
cumulative of the PSI report which indicated she had family support, cared for her
two children and a sick relative, and was involved in church. Again, the trial court
could have considered those factors when sentencing appellant. We reject the

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proposition that additional evidence regarding appellant’s character and
involvement in the church and community would have further mitigated the
sentence, considering the egregious nature of the offense.

      In summary, because appellant has not established there is a reasonable
probability that the result of the proceeding would have been different but for
counsel’s alleged deficiency, we overrule her second issue.

      We affirm the trial court’s judgment.



                                              ________________________
                                              John Donovan
                                              Justice


Panel consists of Justices Busby, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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