Opinion issued April 17, 2014




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-12-00649-CR
                           ———————————
                     SACAJAWEA WARREN, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 338th District Court
                           Harris County, Texas
                       Trial Court Case No. 1301748


                         MEMORANDUM OPINION

      Appellant, Sacajawea Warren, was charged by indictment with burglary with

intent to commit theft. 1 Appellant pleaded guilty without a recommendation for

punishment.   At the subsequent hearing on the presentencing investigation,


1
      See TEX. PENAL CODE ANN. § 30.02(a)(1) (Vernon 2011).
Appellant moved to withdraw her plea of guilty. The trial court denied the motion.

In four issues on appeal, Appellant argues (1) the trial court abused its discretion

by denying her motion to withdraw her guilty plea and (2) she received ineffective

assistance of counsel in her guilty plea. 2

      We affirm.

                                     Background

      In April 2011, Appellant was a real estate agent working for Keller

Williams.    On the night of April 6, 2011, Deputy R. VanDine responded to

investigate a call at a house in Humble, Texas. The house was vacant with no

electrical power and was listed as for sale. Appellant’s SUV was in the driveway

with a stove in the back of it.         Deputy VanDine heard power tools as he

approached the home and saw flashlights being used inside. As he approached the

house, Appellant and her husband came out the front door.                Inside, Deputy

VanDine found a stove pulled out from the wall with the power and gas lines

disconnected. He also found a tool bag with bolt cutters, white tie straps, and other

items. Deputy VanDine contacted the listing realtor who told him that no one was




2
      Appellant raised a fifth issue—her second issue in her brief on the merits—
      arguing the trial court abused its discretion by not holding a hearing on its motion
      for new trial. Appellant filed a motion to abate, raising the same issue. We
      granted the motion and abated this appeal for the trial court to hold such a hearing.
      A hearing was held, and the transcript is now a part of our record. Accordingly,
      this issue is now moot.

                                              2
allowed to be in the home without authorization. Based on these facts, Deputy

VanDine arrested Appellant and her husband.

      Appellant and her husband retained an attorney to represent them. The work

performed by the attorney and the advice he offered is a subject of dispute in this

appeal.   Appellant testified that, until April 2012, her attorney had been

encouraging her to go to trial. In April, the case was set to go to trial. Appellant

alleged that her attorney had a setting on the same date for a matter in his own

divorce proceeding. She testified that her attorney sought a continuance on that

ground, but the trial court denied the motion. Once the trial court denied the

motion, her attorney’s demeanor changed and he began pushing her to plead guilty.

Appellant and her husband claimed that her attorney told her the trial court

definitely would give her probation if she pleaded guilty. If they went to trial,

however, Appellant claimed her attorney said he would not be able to cross-

examine the arresting police officer, he would be unable to prevent Appellant’s

prior convictions from being established, she would be found guilty, and she would

be sent to jail immediately.

      Appellant’s attorney acknowledged that he had a setting for his divorce

around the time of Appellant’s April trial date. He testified, however, that the

setting was one week before Appellant’s trial date and would not have conflicted

with his preparations for her trial. He denied telling Appellant that she definitely



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would get probation, that he would not be able to cross-examine the arresting

officer, that her criminal background would definitely be established, or that she

would definitely be found guilty at trial. He did recall that he had conferred with

the trial court and opposing counsel about cross-examining the arresting officer

about a specific issue and that the trial court indicated it would not allow the

officer to be examined on that issue. Appellant’s attorney could no longer recall

what the specific issue was, but testified that he otherwise would have been able to

cross-examine the arresting officer.

      Appellant’s attorney testified that he came to the courthouse—where the

district attorney’s office is also located—10 to 15 times. The Harris County

District Attorney’s office has an open file policy, and the attorney testified he

reviewed the file thoroughly. He also testified that he prepared Appellant and her

husband for trial, prepared for his cross-examinations, and prepared for voir dire.

He recognized that he had not subpoenaed any witnesses, filed any motions in

limine or other pretrial motions, interviewed any witnesses, filed any discovery, or

investigated the scene of the crime. Appellant and her husband denied that the

attorney had ever prepared them for trial.

      Appellant claims that, based on the assurance from her attorney that she

would receive probation if she pleaded guilty, Appellant agreed to plead guilty. At

the time of her plea, the trial court admonished Appellant on her guilty plea,



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received her plea, and passed the case for a presentence investigation. Another

hearing was scheduled to set Appellant’s punishment after the presentence

investigation had time to be completed.

      Some time after her plea of guilty, Appellant came to regret her decision.

She discussed this with the investigator preparing the report. The investigator

mentioned the discussion in the report. The report explained,

      The defendant reported she is not guilty of the offense. The defendant
      reported the reasons she plead[ed] guilty to a presentence
      investigation is because her attorney informed her she would receive
      probation and if she went to trial, [she] and her husband would be
      tried separately, she would be found guilty because of her criminal
      history, sentenced to prison, and she would be taken into custody the
      same day. The defendant stated all she can do is what her attorney
      advises her and her husband.

At the sentencing hearing, Appellant’s attorney moved to allow Appellant to

withdraw her guilty plea. The trial court denied the motion. At the end of the

hearing, the trial court sentenced Appellant to two years’ confinement.

      After the hearing, Appellant retained a new attorney, and filed a motion for a

new trial. In the motion, Appellant sought a new trial on the grounds that she had

received ineffective assistance of counsel. The trial court denied the motion on the

same day. Appellant appealed, and we abated the appeal for the trial court to hold

a hearing on Appellant’s motion. After the hearing, the trial court again denied the

motion.




                                          5
                        Motion to Withdraw Guilty Plea

      In her first issue, Appellant argues the trial court abused its discretion by

denying her motion to withdraw her guilty plea.

A.    Standard of Review

      A defendant has an absolute right to withdraw a guilty plea any time before

his plea has been taken under advisement or guilt has been adjudicated. Jackson v.

State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979). Once a plea has been taken

under advisement or guilt has been adjudicated, however, a request to withdraw a

plea is untimely and the withdrawal of such a plea is within the sound discretion of

the trial court. Id. To establish an abuse of discretion, the appellant must show

that the trial court’s ruling lies outside the zone of reasonable disagreement.

Moreno v. State, 90 S.W.3d 887, 889 (Tex. App.—San Antonio 2002, no pet.). In

performing our review, we must view the ruling in light of the information before

the trial court at the time of the ruling. Crumpton v. State, 179 S.W.3d 722, 724

(Tex. App.—Fort Worth 2005, pet. ref’d) (citing Carrasco v. State, 154 S.W.3d

127, 129 (Tex. Crim. App. 2005)).

B.    Analysis

      “After a trial court has admonished a defendant, received the plea and

evidence, and passed the case for pre-sentence investigation, the case has been

taken under advisement.” Lawal v. State, 368 S.W.3d 876, 882 (Tex. App.—



                                         6
Houston [14th Dist.] 2012, no pet.) (citing DeVary v. State, 615 S.W.2d 739, 740

(Tex. Crim. App. 1981)). There is no dispute that the trial court admonished

Appellant on her guilty plea, received her plea, and passed the case for a

presentence investigation before Appellant moved to withdraw her guilty plea.

Accordingly, we must review the record to determine if the trial court abused its

discretion in denying the motion. See DeVary, 615 S.W.2d at 740.

      Furthermore, a trial court’s proper admonishment of a defendant “creates a

prima facie showing that a guilty plea was entered knowingly and voluntarily.”

Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). In such case, “the

burden shifts to the defendant to demonstrate that he did not fully understand the

consequences of his plea such that he suffered harm.” Id.

      The only evidence for why the guilty plea should be withdrawn came from

the presentence investigation report. 3    The report described an interview with

Appellant after her guilty plea. Specifically, the report explained,

      The defendant reported she is not guilty of the offense. The defendant
      reported the reasons she plead[ed] guilty to a presentence
      investigation is because her attorney informed her she would receive
      probation and if she went to trial, [she] and her husband would be

3
      Appellant also relies on a brief exchange between the trial court and her attorney
      during the sentencing hearing. In that exchange the trial court asked appellant’s
      attorney why appellant was not ready to be taken into custody that day.
      Appellant’s attorney replied, “Well, she wasn’t expecting, Judge . . . .” Appellant
      argues that this statement by her attorney constituted “almost blatantly admitting
      he had told appellant she would receive probation on a plea of guilty.” We
      disagree that such a broad conclusion must be drawn from that statement.

                                           7
      tried separately, she would be found guilty because of her criminal
      history, sentenced to prison, and she would be taken into custody the
      same day. The defendant stated all she can do is what her attorney
      advises her and her husband.

      In this case, then, we have only the unsworn assertion by Appellant that her

guilty plea was based on misinformation from her attorney. Such a claim, without

further corroboration, is not proof of a clear abuse of discretion by the trial court.

See Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.—Houston [1st Dist.] 1996,

pet. ref’d) (holding defendant’s claim he was misinformed by counsel, standing

alone, is not enough to establish plea was involuntary). Accordingly, we hold the

evidence does not establish that the trial court’s ruling lies outside the zone of

reasonable disagreement. See Moreno, 90 S.W.3d at 889.

      We overrule Appellant’s first issue.

                         Ineffective Assistance of Counsel

      In her third, fourth, and fifth issues, Appellant argues she received

ineffective assistance of counsel leading up to her guilty plea and that the trial

court abused its discretion in overruling her motion for new trial on that ground.

A.    Standard of Review & Applicable Law

      When an ineffective assistance of counsel claim is brought in a motion for

new trial, we review the trial court’s denial of the motion for an abuse of

discretion, reversing only if the trial court’s order “was clearly erroneous and

arbitrary.” Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). We must


                                          8
review the evidence in the light most favorable to the ruling and uphold it if it is

within the zone of reasonable disagreement. Id. We “must show almost total

deference to a trial court’s findings of historical facts as well as mixed questions of

law and fact that turn on an evaluation of credibility and demeanor.” Id. at 458.

       The Sixth Amendment to the United States Constitution guarantees the right

to reasonably effective assistance of counsel in criminal prosecutions. See U.S.

CONST. amend. VI.       Generally, to show ineffective assistance of counsel, a

defendant must demonstrate both (1) that his counsel’s performance fell below an

objective standard of reasonableness and (2) that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S.

Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex.

Crim. App. 2005).      Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim. See Williams

v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at

101.

       “When a defendant challenges the voluntariness of a plea entered upon the

advice of counsel, contending that his counsel was ineffective, ‘the voluntariness

of the 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



                                          9
is a reasonable probability that, but for counsel’s errors, he 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)).

      Under either test, the defendant bears the burden to prove the elements by a

preponderance of the evidence. See id. at 858 (holding defendant’s burden is same

as other types of ineffective assistance of counsel claims); Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999) (holding defendant bears burden of

proving by preponderance of evidence that counsel was ineffective).             Any

allegation of ineffectiveness must be firmly founded in the record, and the record

must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d

at 813. We presume that a counsel’s conduct falls within the wide range of

reasonable professional assistance, and we will find a counsel’s performance

deficient only if the conduct is so outrageous that no competent attorney would

have engaged in it. Andrews, 159 S.W.3d at 101.

B.    Analysis

      Appellant presents two arguments for how she received ineffective

assistance of counsel. She argues her attorney (1) gave her false information about

the ramifications of pleading guilty and improperly pressured her to plead guilty,




                                         10
(2) failed to prepare for trial or “to subject the prosecution’s case to a meaningful

adversarial testing.”

      For her claim that her attorney gave her false information about the

ramifications of pleading guilty and improperly pressured her to plead guilty,

Appellant relies on evidence that is contradicted in record. Appellant testified that,

until April 2012, her attorney had been encouraging her to go to trial. In April, the

case was set to go to trial. Appellant alleged that her attorney had a setting on the

same date for a matter in his own divorce proceeding. She testified that her

attorney sought a continuance on that ground, but the trial court denied the motion.

Once the trial court denied the motion, her attorney’s demeanor changed and he

began pushing her to plead guilty. Appellant and her husband claimed that her

attorney told her the trial court definitely would give her probation if she pleaded

guilty. If they went to trial, however, Appellant claimed her attorney said he would

not be able to cross-examine the arresting police officer, he would be unable to

prevent Appellant’s prior convictions from being established, she would be found

guilty, and she would be sent to jail immediately.

      Appellant’s attorney acknowledged that he had a setting for his divorce

around the time of Appellant’s April trial date. He testified, however, that the

setting was one week before Appellant’s trial date and would not have conflicted

with his preparations for her trial. He denied telling Appellant that she definitely



                                         11
would get probation, that he would not be able to cross-examine the arresting

officer, that her criminal background would definitely be established, or that she

would definitely be found guilty at trial. He did recall that he had conferred with

the trial court and opposing counsel about cross-examining the arresting officer

about a specific issue and the trial court indicated it would not allow the officer to

be examined on that issue. Appellant’s attorney could no longer recall what the

specific issue was, but testified that he otherwise would have been able to cross-

examine the arresting officer.

      In addition to the above, the State established at the hearing for Appellant’s

motion for new trial that Appellant had previously been convicted of making a

false statement, forgery, theft, credit card abuse, and injury to a child. It was the

role of the trial court to weigh the evidence, resolve any conflicts in the evidence,

and make credibility determinations. See Riley, 378 S.W.3d at 457–58. The trial

court could have reasonably disbelieved Appellant’s testimony and believed her

attorney’s testimony about what he said. Accordingly, we hold the trial court’s

determination is not clearly erroneous and arbitrary. See id. at 457.

      For Appellant’s claim that her attorney failed to prepare for trial, her

attorney testified that he came to the courthouse—where the district attorney’s

office is also located—10 to 15 times. The Harris County District Attorney’s

office has an open file policy, and the attorney testified he reviewed the file



                                         12
thoroughly. He also testified that he prepared Appellant and her husband for trial,

prepared for his cross-examinations, and prepared for voir dire. He recognized that

he had not subpoenaed any witnesses, filed any motions in limine or other pretrial

motions, interviewed any witnesses, filed any discovery, or investigated the scene

of the crime. Appellant and her husband denied that the attorney had ever prepared

them for trial.     They highlight Appellant’s admitted inactions as proof of

ineffective assistance.

      Appellant’s arguments of her attorney’s inactions amount to a failure-to-

investigate claim. “An attorney’s failure to investigate or present witnesses will be

a basis for establishing ineffective assistance of counsel only where it is shown that

the witnesses would have been available and that the presentation of the evidence

would have benefitted appellant.” Pinkston v. State, 744 S.W.2d 329, 332 (Tex.

App.—Houston [1st Dist.] 1988, no pet.) (citing Coble v. State, 501 S.W.2d 344,

345–46 (Tex. Crim. App. 1973)). “A claim for ineffective assistance based on trial

counsel’s general failure to investigate the facts of the case fails absent a showing

of what the investigation would have revealed that reasonably could have changed

the result of the case.” Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.—Houston

[14th Dist.] 2009, pet. ref’d) (citing Cooks v. State, 240 S.W.3d 906, 912 (Tex.

Crim. App. 2007)).




                                         13
      Appellant testified about what she believed certain witnesses would have

revealed. The trial court could have reasonably rejected this testimony. Appellant

did not otherwise offer the testimony of the witnesses that Appellant claims could

have benefitted her. Nor did she offer any proof of what benefit filing pretrial

motions or investigation of the scene of the crime would have yielded. Without

this information, Appellant cannot support an ineffective assistance of counsel

claim based on failure to investigate.

      In making her argument for failure to investigate, Appellant relies at least in

part on United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039 (1984). In Cronic,

the Supreme Court of the United States held that “if counsel entirely fails to

subject the prosecution’s case to meaningful adversarial testing, then there has

been a denial of Sixth Amendment rights that makes the adversary process itself

presumptively unreliable.” Id. at 659, 104 S. Ct. at 2047. If the record does not

support a determination of a complete failure to subject the case to adversarial

testing, however, the presumption fails and the defendant can “make out a claim of

ineffective assistance only by pointing to specific errors made by trial counsel.”

See id. at 666, 104 S. Ct. at 2051.

      Here, the case does not support a determination of a complete failure of

Appellant’s attorney to engage in the adversarial process. Appellant’s attorney

testified that he reviewed the district attorney’s file thoroughly, prepared Appellant



                                         14
and her husband for trial, prepared for his cross-examinations, and prepared for

voir dire. Appellant and her husband testified that the attorney did not prepare

them for trial. It was the trial court’s responsibility to resolve this conflict in the

evidence, however. See Riley, 378 S.W.3d at 457–58. Accordingly, we hold that

the holding from Cronic that Appellant relies on does not apply.

      We hold that the trial court did not abuse its discretion by denying

Appellant’s motion for new trial. We overrule Appellant’s third, fourth, and fifth

issues.

                                     Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Justices Jennings, Higley, and Sharp.

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




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