                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-414-CR


KENNETH COX                                                          APPELLANT

                                         V.

THE STATE OF TEXAS                                                        STATE

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     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                    Introduction

      Appellant Kenneth Cox appeals his conviction for recklessly causing

serious bodily injury to a child.    See Tex. Penal Code Ann. § 22.04(a)(1)

(Vernon Supp. 2008). In two issues, appellant asserts that (1) the trial court

abused its discretion by failing to conduct a hearing on his motion for new trial,




      1
          … See Tex. R. App. P. 47.4.
and (2) ineffective assistance of counsel caused him to involuntarily enter his

guilty plea. We affirm.

                               Background Facts

      In the fall of 2006, appellant began living with Angela Trevino and her

infant son, Tristan. In December of that year, after visiting Angela at work,

appellant picked up Tristan from a babysitter, intending to take him home and

put him to sleep. While being picked up, Tristan vomited.2 Appellant decided

that because Tristan had vomited, he and Tristan would take a shower. After

washing Tristan and himself, appellant left Tristan in the shower for a brief time

while appellant dressed. When appellant returned to take Tristan out of the

shower, he noticed that Tristan’s skin was peeling. Appellant claims that he

called Angela, who stated that Tristan probably had just suffered from an

allergic reaction. After using some medicative cream and aloe vera on Tristan,

appellant put Tristan to bed.     When Angela arrived home, she went into

Tristan’s room, where he was sleeping. Upon pulling Tristan’s covers back,

Angela noticed redness on his shoulder, which she believed to be a rash.




      2
       … Testimony during appellant’s sentencing hearing conflicted as to
appellant’s reaction to Tristan vomiting. Appellant testified that he helped the
babysitter clean up the vomit, while Angela testified that the babysitter said
that when Tristan vomited, appellant became upset, and the babysitter cleaned
up the vomit by herself.

                                        2
      The next morning, Angela saw more redness on Tristan and became more

concerned. Angela went to a friend’s house so that the friend could examine

Tristan.   Upon the friend’s recommendation, Angela then took Tristan to a

hospital. Tristan stayed in critical care for three weeks after being diagnosed

with severe burns on over forty percent of his body (including his face, left side,

and genital area) as well as bruising across several parts of his face. During his

hospital stay, Tristan was required to eat and urinate through tubes and he lost

approximately ten pounds. Tristan was also required to participate in several

months of therapy. As a result of the burns, Tristan sustained (among other

problems) scarring on several parts of his body and developmental delays in

speaking and eating, and he also required surgeries on one of his eyes to repair

nerve damage. 3

      In February 2007, appellant was indicted for three offenses related to

causing Tristan’s injuries. The indictment contained a “deadly weapon finding

notice” which alleged that appellant used hot liquid while knowing it was


      3
        … Angela testified that appellant originally told her that Tristan’s
babysitter had caused Tristan’s injuries, and that appellant changed his story
about the incident several times, but that he later confessed that he had caused
the injuries. Based upon appellant’s alleged inconsistencies in his story and
upon appellant’s alleged angry reaction when Tristan vomited, Angela (as well
as the State) contended that appellant caused Tristan’s injuries intentionally.
Appellant testified that he did not cause the injuries intentionally and did not
realize the shower’s water was hot enough to burn Tristan.

                                        3
capable of causing death or serious bodily injury. On June 11, 2007, appellant

entered an open plea of guilty to recklessly causing Tristan’s serious bodily

injuries (a second degree felony), admitted that the deadly weapon paragraph

in the indictment was true, signed written admonishments, and waived several

statutory and constitutional rights. Appellant also signed an Application for

Community Supervision, swearing that he had not previously been convicted

of a felony offense. The trial court deferred any finding regarding appellant’s

guilt, requested a presentence investigation report, and postponed sentencing.

      In October 2007, the trial court held a hearing related to appellant’s guilty

plea and his sentencing. During the hearing, appellant admitted that he caused

Tristan’s injuries by subjecting him to extremely hot water. After the trial court

heard arguments from appellant’s counsel and the State, it accepted appellant’s

guilty plea, found him guilty, found that the deadly weapon allegation contained

in the indictment was true, and assessed punishment at eight years’

confinement. In November 2007, appellant timely filed a motion for new trial

in which he contended that the range of punishment he was subjected to by

pleading guilty was inadequately explained by his trial counsel and that his

guilty plea was therefore rendered involuntary.      The trial court never set a

hearing on appellant’s motion, and the motion was denied by operation of law.

See Tex. R. App. P. 21.8.

                                        4
          Failure to Conduct a Hearing on the Motion for New Trial

      In his first issue, appellant argues that the trial court abused its discretion

by failing to conduct a hearing on his motion for new trial. A trial court’s

decision regarding whether to hold a hearing on a motion for new trial in a

criminal case is reviewed by an abuse of discretion standard. See Martinez v.

State, 74 S.W.3d 19, 22 (Tex. Crim. App. 2002); Wallace v. State, 106

S.W.3d 103, 108 (Tex. Crim. App. 2003). In applying this standard, we may

not substitute our judgment for that of the trial court; instead, we must decide

whether the trial court’s decision was arbitrary or unreasonable. Holden v.

State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).

      In Wallace, the Texas Court of Criminal Appeals discussed the standards

related to holding a hearing on a motion for new trial, explaining that

      [a] defendant is entitled to a hearing on his motion for new trial if
      the motion and accompanying affidavit(s) “rais[e] matters not
      determinable from the record, upon which the accused could be
      entitled to relief.” Reyes v. State, 849 S.W.2d 812, 816 (Tex.
      Crim. App. 1993). To be sufficient to entitle the defendant to a
      hearing, the motion for new trial and accompanying affidavit(s)
      “need not establish a prima facie case” for a new trial. Jordan v.
      State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994). Rather, they
      “must merely reflect that reasonable grounds exist for holding that
      such relief could be granted.” Martinez v. State, 74 S.W.3d 19, 22
      (Tex. Crim. App. 2002). The purpose of the hearing is to give the
      defendant an opportunity to fully develop the matters raised in his
      motion. Id. at 21.




                                         5
Wallace, 106 S.W.3d at 108; see Jordan, 883 S.W.2d at 665 (explaining that

“if the defendant’s motion and affidavit are sufficient, a hearing on the motion

is mandatory”). An allegation of ineffective assistance of counsel contained in

a motion for new trial is a matter that may not be determinable from the record,

therefore requiring the trial court to conduct a hearing. See Reyes, 849 S.W.2d

at 816.

      However, the right to a hearing on a motion for new trial is not absolute;

rather, it is conditioned on presenting the filing of the motion and the request

for the hearing to the trial court. Rozell v. State, 176 S.W.3d 228, 230 (Tex.

Crim. App. 2005); Thompson v. State, 243 S.W.3d 774, 776 (Tex. App—Fort

Worth 2007, pet. ref’d); see Tex. R. App. P. 21.6 (requiring that a motion for

new trial must generally be presented to the trial court within ten days of its

filing). In other words, the trial court “should not be reversed on a matter that

was not brought to the [court’s] attention.” Rozell, 176 S.W.3d at 230. As

the Texas Court of Criminal Appeals explained in Rozell,

      [p]resenting the motion for new trial and the request for a hearing
      is akin to objecting to the erroneous admission of evidence. Absent
      a proper objection that alerts the trial court to the erroneous
      admission, the error has not been preserved for appellate review.
      Thus, a reviewing court does not reach the question of whether a
      trial court abused its discretion in failing to hold a hearing if no
      request for a hearing was presented to it.

Id.

                                       6
        The mere filing of a motion for new trial is not enough to show

presentment. Carranza v. State, 960 S.W.2d 76, 78 (Tex. Crim. App. 1998).

Rather, to establish presentment, the record must indicate that the trial court

received actual notice of the motion and the request for a hearing. Id. at 79.

To do so, the record must establish that the defendant “actually deliver[ed] the

motion for new trial to the trial court or otherwise [brought] the motion to the

attention or actual notice of the trial court.” Id. The presentment may be

evidenced, for instance, by the record indicating “the judge’s signature or

notation on a proposed order or by a hearing date set on the docket.” Id. The

defendant bears the burden to demonstrate that proper presentment has

occurred. See Burrus v. State, Nos. 02-07-00251-CR, 02-07-00252-CR, 2008

WL 3877301, at *6 (Tex. App.—Fort Worth Aug. 21, 2008, no pet.) (mem.

op.).

        In Burrus, though the appellant timely filed her motion for new trial, there

was

        no ruling on the motion, no proposed order containing the judge’s
        signature or notation, and no notation on the docket sheet of a
        hearing date set on the motion.         The only suggestions of
        presentment include[d] a statement in the motion titled, “Certificate
        of Presentment,” and a notation in the docket sheet stating that the
        motion for new trial was filed on August 18, 2006.




                                          7
Id. We concluded that the certificate of presentment and the notation in Burrus

were insufficient to establish that the trial court received actual notice of the

motion for new trial, and therefore held that the trial court did not err in failing

to hold a hearing on the motion. Id. at *7; see also Owens v. State, 832

S.W.2d 109, 111–12 (Tex. App.—Dallas 1992, no pet.), overruled on other

grounds by Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994) (holding

that a “Certification of Service and Presentment” was insufficient to establish

that the trial court received actual notice of the defendant’s motion for new

trial).

          Here, appellant filed his motion for new trial on November 27, 2007. The

motion contained a certificate of presentment which stated “[b]y signature

above, I hereby certify that a true and correct copy of the above and foregoing

has been transmitted to the Office of the Criminal District Court Number 4 of

Tarrant County, on this day, November 21, 2007.”             However, the record

contains no signed order setting a hearing, no docket entries related to the

motion, no ruling on appellant’s motion, and no proposed order containing the

judge’s signature.

          We hold that the self-serving certificate of presentment, by itself, was

insufficient to establish that the trial court received actual notice of appellant’s

motion for new trial, and was therefore insufficient to establish proper

                                          8
presentment. See Burrus, 2008 WL 3877301 at *6–7; Owens, 832 S.W.2d

at 111–12. For this reason, the trial court did not abuse its discretion by failing

to conduct a hearing on appellant’s motion for new trial.         See Rozell, 176

S.W.3d at 230; Tex. R. App. P. 21.6. Therefore, we overrule appellant’s first

issue.

                         Ineffective Assistance of Counsel

         In his second issue, appellant contends that ineffective assistance of his

trial counsel caused him to involuntarily enter his guilty plea.      To establish

ineffective assistance of counsel, appellant must show by a preponderance of

the evidence that (1) his counsel’s representation fell below the standard of

prevailing professional norms, and (2) there is a reasonable probability that, but

for counsel’s deficiency, the result of the trial would have been different.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);

Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v.

State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v. State, 9

S.W.3d 808, 812 (Tex. Crim. App. 1999).

         In evaluating the effectiveness of counsel under the first prong, we look

to the totality of the representation and the particular circumstances of each

case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance

was reasonable under all the circumstances and prevailing professional norms

                                          9
at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.

Ct. at 2065. Review of counsel’s representation is highly deferential, and the

reviewing court indulges a strong presumption that counsel’s conduct fell within

a wide range of reasonable representation.      Salinas, 163 S.W.3d at 740;

Mallett, 65 S.W.3d at 63.

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair and reliable trial.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, appellant

must show there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Id. at 694, 104 S. Ct. at 2068.      A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Id. The ultimate focus of

our inquiry must be on the fundamental fairness of the proceeding being

challenged. Id. at 697, 104 S. Ct. at 2070.

      A reviewing court will rarely be in a position on direct appeal to fairly

evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at

813–14. “In the majority of cases, the record on direct appeal is undeveloped

and cannot adequately reflect the motives behind trial counsel’s actions.”

Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome

the presumption of reasonable professional assistance, “any allegation of

                                      10
ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.” Salinas, 163 S.W.3d

at 740 (quoting Thompson, 9 S.W.3d at 813).           It is inappropriate for an

appellate court to simply infer ineffective assistance based upon unclear

portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App.

2007).

      Failure to advise a defendant on the consequences of a guilty plea may

constitute ineffective assistance. Jackson v. State, 139 S.W.3d 7, 18–21

(Tex. App.—Fort Worth 2004, pet. ref’d).       However, when a defendant is

properly admonished, and states that he is entering his guilty plea freely and

voluntarily, “this establishes a prima facie case that the plea was knowing and

voluntary.” Mallett, 65 S.W.3d at 64. Also, to establish ineffective assistance

of counsel in pleading guilty to an offense, “the defendant must show that

there is a reasonable probability that, but for counsel’s errors, he would not

have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart,

474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).

      Appellant asserts that his trial counsel failed to advise him that pleading

true to the deadly weapon notice contained in his indictment prohibited the trial

judge from considering appellant for community supervision. See Tex. Code

Crim. Proc. Ann. art. 42.12 § 3g(a)(2) (Vernon Supp. 2008); State v. Webb,

                                       11
244 S.W.3d 543, 548 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (noting

that a deadly weapon finding precludes a trial judge from granting community

supervision). Appellant argues that if he had known about this consequence,

he would not have entered his guilty plea, and that his plea was therefore

involuntary.

      In English v. State, we recently stated that

      [t]o support a claim of ineffective assistance of counsel where, as
      in this case, the complaint is that counsel misunderstood the law
      regarding probation pursuant to article 42.12, section 3g, more
      must be apparent from the record than trial counsel’s mere
      mistake. State v. Recer, 815 S.W.2d 730, 731 (Tex. Crim. App.
      1991). There must be evidence that the defendant was initially
      eligible to receive probation, that counsel’s advice to go to the trial
      judge for sentencing was not given as part of a valid trial strategy,
      that the defendant’s decision to have the judge assess punishment
      was based on his attorney’s erroneous advice, and that the
      defendant’s decision would have been different if his attorney had
      correctly informed him of the law. Id.

Nos. 02-07-00384-CR, 02-07-00385-CR, 2008 WL 4053011, at *2 (Tex.

App.—Fort Worth Aug. 28, 2008, pet. filed) (mem. op., not designated for

publication).   In English, the appellant entered open pleas of guilty to two

counts of aggravated robbery with a deadly weapon. Id. At trial, English and

two of his relatives testified that English was a good candidate for community

supervision.    Id.   After the trial judge noted that English was statutorily

disqualified from receiving community supervision because of the deadly


                                        12
weapon finding, English’s trial counsel conceded that he “might have

misunderstood” the statutory requirements. Id. However, because the “only

thing apparent from the record [was] counsel’s mere mistake regarding the

possibility of community supervision,” we held that English failed to sustain his

ineffective assistance of counsel claim.    Id.; see also Isham v. State, 258

S.W.3d 244, 252 (Tex. App.—Eastland 2008, pet. filed) (determining that

when “counsel misunderstood the law on deferred adjudication and . . . passed

this misunderstanding on to his client,” that mistake alone was “insufficient to

establish an ineffective assistance of counsel claim”); Kirk v. State, 199 S.W.3d

467, 482 (Tex. App.—Fort Worth 2006, pet. ref’d) (holding that an ineffective

assistance claim could not be established where the record did not reflect the

reasoning behind counsel’s strategic decisions).

      Here, when appellant pleaded guilty, he also signed an application for

community supervision that stated “I swear and it is my testimony here in open

court that I have never before been convicted of a felony offense in any court

of the State of Texas or in any other state. I request the Court to consider this

my application for community supervision.” Appellant argues in his brief that

this statement “provides clear evidence that [a]ppellant was under the mistaken

impression that he was eligible for community supervision and that the trial

counsel gave [a]ppellant inaccurate advice as to his eligibility.” Because this

                                       13
argument alleges that appellant’s counsel provided incorrect information

regarding community supervision, we construe the argument as the type of

ineffective assistance challenge described in Recer and English. See Recer, 815

S.W.2d at 731–32; English, 2008 WL 4053011 at *1–3.

      There is evidence (including the statement contained in appellant’s

application for community supervision) that appellant was initially eligible to

receive a sentence involving community supervision. However, there is no

indication from the record that appellant’s counsel’s advice to go to the trial

judge for sentencing was not given as part of a valid trial strategy, that

appellant’s decision to have the judge assess punishment was based on his

counsel’s erroneous advice, or that appellant’s decision would have been

different if his counsel had correctly informed him of the law. See Recer, 815

S.W.2d at 731–32; English, 2008 WL 4053011 at *1–3. Further, there is no

evidence that apart from his counsel’s alleged error, appellant would “not have

pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59,

106 S. Ct. at 370; see Ex parte Moody, 991 S.W.2d 856, 857–58 (Tex. Crim.

App. 1999).

      Appellant has cited cases holding that the failure to advise a defendant

that a trial court cannot grant community supervision in a particular

circumstance constitutes ineffective assistance of counsel, therefore rendering

                                      14
a guilty plea involuntary. See, e.g., Ex parte Battle, 817 S.W.2d 81, 83 (Tex.

Crim. App.1991); Stone v. State, 751 S.W.2d 579, 583 (Tex. App.—Houston

[1st Dist.] 1988, pet. ref’d). However, in each of these cases, the reviewing

court discussed extensive evidence submitted through affidavits or testimony

describing the advice the defendant’s counsel had given, the details regarding

the defendant’s counsel’s misunderstanding of how community supervision

applied, and the defendant’s initial desire (which was changed by his counsel’s

faulty advice) to either proceed to trial or be sentenced by a jury. See Battle,

817 S.W.2d at 83; Stone, 751 S.W.2d at 582–83. The record in this case

contains no such evidence regarding any of these matters.

      Therefore, from the limited record in this appeal, appellant has failed to

satisfy the second prong of Strickland by demonstrating a reasonable probability

that, but for his counsel’s alleged deficiency, the result of his case would have

been different. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; see Recer,

815 S.W.2d at 731. Thus, we overrule appellant’s second issue.




                                       15
                                Conclusion

     Having overruled both of appellant’s issues, we affirm the trial court’s

judgment.




                                         TERRIE LIVINGSTON
                                         JUSTICE

PANEL: LIVINGSTON, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 23, 2008




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