                                  NO. 07-09-0224-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                    MARCH 11, 2010


                             GEORGE ANTHONY GALAN,

                                                                  Appellant
                                            v.

                                THE STATE OF TEXAS,
                                                                  Appellee
                          _____________________________

            FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

              NO. 59,026-C; HONORABLE ANA ESTEVEZ, PRESIDING


                                        Opinion


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

      George Anthony Galan pled guilty (without a recommendation of punishment) to

two counts of sexually assaulting a child.       After being convicted and sentenced to

prison, he sought to withdraw his guilty pleas by filing a motion for new trial and a

motion in arrest of judgment. These motions were founded upon the argument that his

trial counsel rendered ineffective assistance. The trial court held an evidentiary hearing

to assess the validity of his request for a new trial and ultimately denied the motion.

Appellant now appeals from that decision. We affirm the judgments.
       Authority

       The pertinent standard of review is one of abused discretion. Charles v. State,

146 S.W.3d 204, 208 (Tex. Crim. App. 2004) (involving a motion for new trial).              It

prohibits us from simply substituting our judgment for that of the trial court. Id. Instead,

our task is to merely assess whether the decision was arbitrary or unreasonable. Id.

We do this by considering the evidence in the light most favorable to the ruling and

presuming that all reasonable inferences “that could have been made” against the

losing party were so made. Id. This means that we must defer to the trial court’s

resolution of historical fact, id. at 206, because it is free to believe all, some, or none of

the evidence presented to it, irrespective of whether the evidence is contradicted. Id. at

212-13; accord, Ogbodiegwu v. State, No. 03-09-00443, 2010 Tex. App. LEXIS 1020 at

*11-13 (Tex. App.–Austin February 12, 2010, no pet. h.) (not designated for publication)

(applying the rule where the evidence was presented live, not through affidavits).

Finally, a reviewing court is free to impute findings that support the trial judge’s ultimate

ruling when such findings are both reasonable and supported by the record. Charles v.

State, 146 S.W.3d at 213.

       As for the law underlying claims of ineffective assistance, we note that the

defendant has the burden of proof. Furthermore, that burden is a heavy one where, as

here, he attacks the voluntariness of his plea after pleading guilty and attesting that he

understood the nature of the plea and that it was voluntarily made. Arreola v. State, 207

S.W.3d 387, 391 (Tex. App.–Houston [1st Dist.] 2006, no pet.). Indeed, those

circumstances coupled with proof that the trial court provided the admonishments

itemized in art. 26.13 of the Texas Code of Criminal Procedure create prima facie

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evidence that the plea was knowing and voluntary.1 Id.; accord Starz v. State, No. 01-

07-01074-CR–No. 01-07-01079-CR, 2009 Tex App. LEXIS 7711 at *13-14 (Tex. App.–

Houston [1st Dist.] September 30, 2009, no pet.) (holding the same). So, in attempting

to carry the aforementioned heavy burden, apellant must prove that 1) the advice he

received fell outside the range of competence demanded of attorneys in criminal cases,

and 2) there was a reasonable probability he would not have pled guilty but for that

advice. Ex parte Reedy, 282 S.W.3d 492, 500 (Tex. Crim. App. 2009).

        Application of Authority

        The record before us reveals that appellant was the only witness who testifed at

the hearing. Given this circumstance, the fact that the motion was denied, the rule

obligating us to view the record in a light most favorable to the decision, the leeway

permitting us to indulge in implicit findings supporting the decision, and the factfinder’s

freedom to believe or disbelieve any or all testimony, the trial court could well have

found appellant’s testimony unbelievable. See Labib v. State, 239 S.W.3d 322, 334

(Tex. App.–Houston [1st Dist.] 2007, no pet.) (stating that by denying the motion for new

trial, “the trial court implicitly found appellant’s claims in the affidavit not credible”). And,

we cannot say that arriving at such a conclusion would be unreasonable since appellant

was convicted and risks little in complaining about his attorney. So, too can the fact that

he originally swore that his plea was voluntary only to recant after being sentenced to

prison afford the trial court basis to question his credibility. The same can be said about

his suggestion at the hearing that he did not sexually assault the child. He previously


        1
        That the trial court so admonished appellant at bar is illustrated by his signature on the “Written
Plea Admonishments” appearing in the clerk’s record.

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confessed that the allegations in the indictment were true. Such inconsistencies impact

on one’s credibility. So, the reasonable possibility that the trial court could have found

appellant’s testimony incredible alone prevents us from holding that the decision to

reject the motion was an instance of abused discretion.

       Second, and to the extent that appellant suggests his plea was involuntary

because counsel uttered misrepresentations to him about the availability of deferred

adjudication, the allegation was uncorroborated.        This is problematic because the

uncorroborated testimony of the appellant in such situations is not enough. Labib v.

State, 239 S.W.3d at 335; accord Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.–

Houston [1st Dist.] 1996, pet. ref’d) (holding the same).

       Because we cannot simply substitute our decision for that of the trial court and

because the record can be read in a way to support the trial court’s decision, the trial

court did not abuse its discretion in denying appellant a new trial. Thus, we affirm the

judgments entered below.



                                                 Brian Quinn
                                                 Chief Justice



Publish.




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